Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Lacy, S.J.
COMMONWEALTH OF VIRGINIA
v. Record No. 070479 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
November 2, 2007
ADHAN MALDONADO JUARES1
FROM THE COURT OF APPEALS OF VIRGINIA
Adhan Maldonado Juares was convicted of aggravated sexual
battery, a violation of Code § 18.2-67.3, in the Circuit Court
of Loudoun County. In this appeal we consider whether an ex
parte contact between court personnel and the jury during jury
deliberations required the trial court to declare a mistrial
or set aside the jury verdict.
The following facts are relevant to the issue presented
in this appeal. After his arrest, Juares was interviewed by
Investigator Howard Craig and Deputy Jose A. Giron. Juares, a
Mexican national, had a limited command of the English
language and Deputy Giron, who spoke Spanish fluently, acted
as an interpreter during the interview. With Juares’
permission, a portion of the interview was tape-recorded.
The Commonwealth played the tape-recording during Deputy
Giron’s testimony at trial. Deputy Giron testified that his
1
Although this case came to this Court captioned
“Commonwealth of Virginia v. Adhan Maldonado,” the record
reflects that the defendant’s full name is Adhan Maldonado
Juares. We use this name in the disposition of this case.
translation recited on the tape was “90, 95 percent word for
word.” Juares, however, contended that the translation was
not entirely complete or accurate. Juares asked the court to
have a court-certified interpreter listen to the tape and
translate the Spanish portions for the jury. The trial court
agreed and a certified court interpreter provided an oral
translation of the Spanish-language portions of the tape to
the jury.
During its deliberations, the jury asked court personnel2
if it could have an interpreter. The court personnel did not
bring the jury’s inquiry to the attention of the trial judge
or the parties, but told the jury that an interpreter “[w]ould
not be provided.” The jury returned a guilty verdict.
Juares learned of the jury’s inquiry prior to sentencing
and moved to have the verdict set aside and for a mistrial
based on the ex parte contact between the jury and court
personnel. The trial court, after hearing arguments from the
parties, denied Juares’ motion. Examining the content of the
communication, the trial court held that the denial of a
request for an interpreter did not interject any substantive
information into the jury’s determinations. The trial court
observed that there was no objection to the introduction of
2
The identity of the specific employee who responded to
the jury’s inquiry was not established at trial.
2
the tape-recording into evidence or providing it to the jury,
and the jurors were told they could take notes during the
testimony but that no written transcript would be available
during their deliberations nor would any testimony be read
back to them during their deliberations. The trial court
stated that the response by court personnel “simply stated and
reaffirmed the Court’s prior instruction that they would not
have testimony read back to them.” Observing that the jury
could not have a new interpretation or an interpretation
different than that produced during the trial, the trial court
stated that “under no circumstances would there ever be an
interpreter, . . . where we would send an interpreter back.”
Thus the trial court concluded that the ex parte contact did
not prejudice Juares.
On appeal, the Court of Appeals, applying Remmer v.
United States, 347 U.S. 227 (1954), held that the ex parte
contact was presumptively prejudicial and that the
Commonwealth did not carry its burden to show that the ex
parte contact was harmless. The Court of Appeals reversed the
conviction and remanded the case for a new trial. We awarded
the Commonwealth an appeal.
DISCUSSION
Generally, a party seeking a mistrial carries the burden
of establishing that he suffered prejudice by the complained
3
of acts, Riner v. Commonwealth, 268 Va. 296, 318, 601 S.E.2d
555, 567 (2004); however,
any private communication, contact, or tampering,
directly or indirectly, with a juror during a trial
about the matter pending before the jury is, for
obvious reasons, deemed presumptively prejudicial,
if not made in pursuance of known rules of the court
and the instructions and directions of the court
made during the trial, with full knowledge of the
parties.
Remmer, 347 U.S. at 229. The presumption of prejudice can be
rebutted if, after notice and hearing, the government
establishes that the “contact with the juror was harmless to
the defendant.” Id.
In this case the substance of the response of the court
personnel was a private communication with a juror made
without the full knowledge of the parties. Nevertheless, the
presumption of prejudice arises only if the private
communication is “about the matter pending before the jury.”
Id. The issue before us in this case is whether the court
personnel’s response concerned a matter pending before the
jury. This is an issue of law which we review de novo. See
Bristol v. Commonwealth, 272 Va. 568, 573, 636 S.E.2d 460, 463
(2006).
We have previously held that ex parte contacts between a
juror and a judge regarding a juror’s attention to the
proceeding was “administrative in nature.” Ellis v.
4
Commonwealth, 227 Va. 419, 423, 317 S.E.2d 479, 481 (1984).
Similarly, the United States Supreme Court determined that a
communication between the judge and a juror regarding a
question raised in voir dire did not relate to any “fact in
controversy or any law applicable to the case.” Rushen v.
Spain, 464 U.S. 114, 121 (1983).
The statement at issue in this case, like those in Ellis
and Rushen, did not convey any additional facts or opinions
regarding the guilt or innocence of Juares nor did it contain
any comment on the law, the evidence or the testimony
presented during the trial. As noted by the trial court, the
communication to the jury was only a response to a question
regarding a procedural aspect of jury deliberation. To be
sure, a proper translation of Juares’ taped interview was a
crucial part of the evidence in determining the issue of guilt
or innocence. But the issue before us is not whether there
was error in failing to provide such an interpreter but
whether the response itself related to the issue of guilt or
innocence.3 Accordingly, we hold that the response of court
personnel, that no interpreter would be provided to the jury,
3
Juares asserts that the trial court erred in concluding
that the jury would not have been permitted the interpreter.
However, Juares did not assign error to this holding when
appealing the denial of his motion to set aside the verdict or
for a mistrial and that issue is not before us in this appeal.
5
did not address any matter pending before the jury, and
therefore the presumption of prejudice did not arise.
In the absence of a presumption of prejudice, the burden
remained on Juares to establish that he was prejudiced by the
ex parte communication. He has failed to show that the
response of the court personnel affected the jury’s
deliberations in a manner that was prejudicial to him.4
In summary, the trial court did not err in denying
Juares’ motions for a mistrial and to set aside the verdict
based on the ex parte communication between the jury and court
personnel. The ex parte communication was not presumptively
prejudicial as a matter of law because it did not concern
matters pending before the jury and Juares failed to establish
that he was prejudiced by the communication. Accordingly, we
will reverse the judgment of the Court of Appeals and
reinstate the conviction.
Reversed and final judgment.
4
Juares’ assertions that the response could be
interpreted as “a comment that the tape’s English translation
was sufficiently accurate to satisfy the Court” is without
merit.
6
Commonwealth v. Juares
Combined Opinion