Robert Daniel King, a/k/a, etc v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Coleman
Argued at Salem, Virginia

ROBERT DANIEL KING, A/K/A DAN KING, A/K/A
DANIEL ZANONE, A/K/A DANIEL R. KING, A/K/A
DAN KONSKI, A/K/A DANIEL QUEEN OPINION BY
JUDGE LARRY G. ELDER
v. Record No. 1313-02-3 APRIL 29, 2003

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge

Christopher K. Kowalczuk for appellant.

Michael T. Judge, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.

Robert Daniel King (appellant) appeals from his

convictions, entered upon conditional guilty pleas, for two

counts of embezzlement and two counts of grand larceny. On

appeal, he contends the trial court erroneously declared a

mistrial when one of the twelve jurors impaneled became too ill

to serve. He contends no manifest necessity existed for a

mistrial because he agreed to waive his right to have twelve

jurors hear the case, even though the Commonwealth objected to

proceeding with only eleven jurors. We hold the Commonwealth

had a co-equal right to have twelve jurors hear the case.

Further, under the facts of this case, in the absence of the
Commonwealth's consent to proceed with fewer than twelve jurors,

manifest necessity supported the trial court's declaration of a

mistrial. Thus, we affirm appellant's convictions.

I.

BACKGROUND

Appellant was indicted for two counts of embezzlement and

two counts of grand larceny. 1 Appellant entered pleas of not

guilty and requested trial by jury. On February 19, 2002, the

court impaneled a jury of twelve. Neither party requested that

alternates be selected, and the court made no mention of this

possibility. After counsel delivered their opening statements,

the court recessed for lunch.

Upon reconvening after lunch, the court indicated one of

the jurors had fallen ill during the lunch break and did not

believe he "[was] in a position to be able to fully pay

attention and listen to the evidence." The court noted

appellant indicated he was willing to proceed with eleven jurors

but that the Commonwealth was not willing. With agreement of

the parties, the trial court opted to "tak[e] an adjournment"

until the following morning, the second day scheduled for trial,

to determine whether the ill juror would be able to return at

that time.

1
Appellant also was indicted for obtaining goods by false
pretenses, but that charge was disposed of by nolle prosequi
prior to trial.
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 On the second day of trial, the court noted the juror

remained too ill to return. Appellant remained willing to

proceed with eleven jurors. The Commonwealth, however, "[felt]

that it would be best served by having twelve Jurors" and

indicated it "[did] not waive the absence of the one Juror."

Appellant objected to the court's statement that, in the absence

of the Commonwealth's consent, a mistrial "would be [the

court's] only remedy." Appellant said "it [was] [his]

understanding the Commonwealth did not want a trial by jury" and

that since appellant requested a jury and jeopardy had attached,

"I don't know that the Commonwealth has a right at this point to

take [appellant's] jury away from him." The trial court

observed, "Well, of course, once [appellant] exercised his right

to have the community hear the case, I really don't make any

further inquiry to the Commonwealth as to what their wishes were

. . . because [appellant] has spoken . . . ."

The court then asked appellant whether proceeding with

fewer than the required number of jurors required the

Commonwealth's concurrence, and the following exchange took

place:

[APPELLANT'S COUNSEL]: Yes,
Judge. . . . Article One, Section Eight of
the . . . Virginia Constitution is clear
that upon his . . . plea of not guilty,
[appellant] may demand trial by Jury or
waive the right to a Jury, or waive the
right to be tried by twelve, and then the
language says with the concurrence of the
Commonwealth and the Court. So it is clear
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 that the black letter law says that the
court and the Commonwealth have to concur
before . . .

[THE COURT]: That the Commonwealth has
standing to take the position they are
taking.

[APPELLANT'S COUNSEL]: Correct, with
regard to twelve or fewer jurors, but I
would say that even given that very clear
language, we are in a slightly different
universe, which would allow us to make our
objection, and we have done so, and if the
Court overrules that objection, we would ask
the Court to respectfully note our exception
thereto.

Appellant then agreed with the court's statement that the

Commonwealth acted in good faith when it objected to proceeding

with fewer than twelve jurors. Appellant also observed, "The

Commonwealth certainly has a right to exercise her rights to

prosecute, and . . . this is not anything other than the

Commonwealth exercising her rights."

Appellant did not ask the court to continue the case rather

than declare a mistrial. He objected to the mistrial

declaration only on the ground that the court should have

allowed trial to proceed with eleven jurors and did not argue

the court should have continued the case again to see if the

sick juror recovered in a timely fashion.

The court said it "[did not] have any other recourse but to

declare a mistrial." The court's order indicated it declared a

mistrial because "the concurrence of the Commonwealth [was]

required by Article I, §8 of the Virginia Constitution, . . . as
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the number of jurors required by §19.2-262 could not be present

at any time during which this trial was scheduled."

On March 1, 2002, appellant filed a motion to dismiss the

indictments as violative of double jeopardy principles. In that

motion and subsequent argument, appellant represented the

Commonwealth had indicated at docket call in September 2001

"that she waived her right to demand trial by jury" and that in

chambers before trial on February 19, 2002, the Commonwealth

"reaffirmed her willingness to have the Court hear this case

without benefit of a jury." Appellant argued that once he

elected to be tried by a jury and the jury was impaneled, the

Commonwealth lost the right to veto appellant's decision to be

tried by a jury of fewer than twelve members. Thus, he

concluded, the trial court's declaration of a mistrial was

without manifest necessity and his retrial would violate double

jeopardy principles.

The Commonwealth averred that it "never waived its [right

to] trial by Jury" "on the record." The court concluded the

Commonwealth's statement was accurate because, when appellant

said he wanted a jury, "[the court] didn't go any farther than

that" and "on the Record . . . never inquired of the

Commonwealth."

The court then denied appellant's motion to dismiss, ruling

as follows:

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 In the absence of any authority to the
contrary, I am not in a position to rule and
interpret the Constitution to say that the
Commonwealth's concurrence disappears at
some point under factually important
settings, because the language of the
Constitution would then say, "and with the
concurrence of the Commonwealth unless A, B,
or C has happened, you can proceed with
less."

So . . . my interpretation is the . . .
Commonwealth's concurrence was required at
any time during this trial.

In terms of manifest necessity, we only
had eleven. There was no reasonable
expectation of ever getting [the sick juror]
back, because we didn't have any information
that he was improving. The logistics of
trying to look later in the week . . .
[were] to me, I think, a daunting
proposition . . . to the extent that I
really didn't explore that, and was not
requested by either Counsel to explore
that. . . .

So without twelve, and giving the
Commonwealth the concurrence that they were
I believe given by the Virginia
Constitution, . . . [a]nd being in an
untenable position where I felt that it was
impossible to go forward, I found manifest
necessity . . . .

Appellant subsequently entered into a conditional plea

agreement that preserved his right to appeal the instant

mistrial issue. Appellant was convicted pursuant to the plea

agreement and noted this appeal.

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 II.

PROCEDURAL BAR

The Commonwealth contends appellant waived his right to

object to the declaration of a mistrial because, as the

Commonwealth argues on brief, appellant "conceded that if the

trial were to continue with [fewer] than twelve jurors, the

'black letter law,' Article I, Section 8 of the Virginia

Constitution, required the concurrence of both the court and the

Commonwealth." The Supreme Court has made clear that a

defendant may "waive[] his double jeopardy rights" by failing to

make "an express objection to the circuit court's declaration of

a mistrial." Commonwealth v. Washington, 263 Va. 298, 304-05,

559 S.E.2d 636, 639 (2002). However, we disagree with the

Commonwealth's construction of appellant's argument to the trial

court regarding "the black letter law" and hold the argument was

sufficient to preserve for appeal appellant's claim that retrial

following the court's declaration of a mistrial based on the

Commonwealth's refusal to proceed with eleven jurors violated

double jeopardy principles.

When the sick juror remained too ill to appear on the

second day scheduled for trial and the Commonwealth refused to

proceed with eleven jurors, the trial court commented that

"[declaring a mistrial] would be [the court's] only remedy."

Appellant responded, "[W]e object to a mistrial on the following

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grounds." 2 He then argued that "the Commonwealth did not want

trial by Jury," "this is a Defendant's Jury," and "I don't know

that the Commonwealth has a right at this point to take the

Defendant's Jury away from him" by refusing to proceed with

eleven jurors. (Emphasis added). Appellant's counsel conceded

"the black letter law says that the Court and the Commonwealth

have to concur" but was unable to complete his sentence because

the trial court interrupted him. Counsel then said, "[E]ven

given that very clear language, we are in a slightly different

universe, which would allow us to make our objection." We hold

that this statement, in the context of the entire argument

appellant made before the trial court granted the mistrial, was

sufficient under Rule 5A:18 to preserve this issue for appeal. 3

2
In Washington, by contrast, the Court noted defense
counsel's "conce[ssion] that she could point to no part of the
record of the defendant's first trial to show that she had made
an express objection to the . . . declaration of a mistrial" and
her request for the setting of a new trial date. 263 Va. at
305-06, 559 S.E.2d at 639-40.
3
Appellant conceded in the trial court that the court was
not "hasty" in granting the mistrial without attempting to reset
the matter for trial with the same jury on a later date after
the ill juror had had a chance to recuperate. The trial court
also noted that neither counsel asked the court to attempt to
reset the case for another date with the same jury before the
court declared a mistrial. Finally, appellant did not raise
this issue in his petition for appeal or brief. Thus, we do not
consider whether the court's failure to take such steps might
have prevented a finding of manifest necessity to declare a
mistrial. See Rules 5A:12(c), 5A:18.
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 III.

JURY SIZE AND MANIFEST NECESSITY FOR MISTRIAL

"[I]n criminal prosecutions . . . [the accused] shall enjoy

the right to a speedy and public trial, by an impartial jury of

his vicinage . . . ." Va. Const. art. 1, § 8. "Twelve persons

from a panel of twenty shall constitute a jury in a felony

case." Code § 19.2-262(B). "If the accused plead not guilty,

he may, with his consent and the concurrence of the attorney for

the Commonwealth and of the court entered of record, be tried by

a smaller number of jurors, or waive a jury." Va. Const.

art. 1, § 8.

After the jury is sworn, "the court may discharge the jury

when it appears that they cannot agree on a verdict or that

there is manifest necessity for such discharge." Code

§ 8.01-361. In evaluating whether manifest necessity exists to

discharge an empanelled jury, a trial court is vested with broad

discretion to determine whether "'[declaring a mistrial] was

necessary to prevent great injustice either to the Commonwealth

or to the defendant.'" Brandon v. Commonwealth, 22 Va. App. 82,

90-91, 467 S.E.2d 859, 862-63 (1996) (quoting Mack v.

Commonwealth, 177 Va. 921, 931, 15 S.E.2d 62, 66 (1941))

(emphasis added).

When manifest necessity compels a mistrial, retrial does

not violate double jeopardy principles. Arizona v. Washington,

434 U.S. 497, 505, 98 S. Ct. 824, 830, 54 L. Ed. 2d 717 (1978).
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However, absent a finding of manifest necessity, the

constitutional prohibition against double jeopardy entitles a

defendant to the "valued right to have his trial completed

before a particular tribunal," Wade v. Hunter, 336 U.S. 684,

689, 69 S. Ct. 834, 837, 93 L. Ed. 2d 974 (1949), that is, "the

right . . . to have his trial completed before the first jury

empanelled to try him," Oregon v. Kennedy, 456 U.S. 667, 673,

102 S. Ct. 2083, 2088, 72 L. Ed. 2d 416 (1982). See also

Washington, 263 Va. at 302-03, 559 S.E.2d at 638.

Appellant argues the trial court erroneously concluded,

under Article 1, section 8, of the Virginia Constitution, that

the Commonwealth's concurrence was required in order for trial

to continue when one of the twelve jurors already sworn became

ill and was unable to serve. This provision, appellant

contends, applies only at the beginning of trial before jeopardy

has attached. Contrary to appellant's contention, we hold the

constitutional provision at issue contains no such limitation.

"When the language of an enactment is plain and

unambiguous, as in this case, we apply its plain meaning." Bray

v. Brown, 258 Va. 618, 621, 521 S.E.2d 526, 527 (1999). The

provision at issue, quoted above, plainly states that, "[i]f the

accused pleads not guilty, he may, with his consent and the

concurrence of the attorney for the Commonwealth and of the

court entered of record, be tried by a smaller number of jurors,

or waive a jury." Va. Const. art. 1, § 8. It contains no
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limitation on the time frame during which the consent of the

Commonwealth and the court is required to proceed with fewer

than twelve jurors.

Although an accused has no constitutional right to a bench

trial, see, e.g., O'Dell v. Commonwealth, 234 Va. 672, 689, 364

S.E.2d 491, 501 (1988), the accused does have a constitutional

right to a jury trial, and the Virginia Constitution gives the

Commonwealth "an equal voice" in determining whether the case

will be heard by a jury, see id. Thus, if the accused does not

demand trial by jury, the Commonwealth nevertheless may choose a

jury trial. See id. Similarly, therefore, if an accused

charged with a felony consents to be tried by a smaller number

of jurors than the twelve specified by Constitution and statute,

the Commonwealth retains the authority to demand a jury of

twelve. Nothing in the language of Article 1, section 8, of the

Virginia Constitution or the case law interpreting it indicates

that the requirement for the Commonwealth's concurrence is

limited to the time before trial has commenced or jeopardy has

attached. See Moffett v. Commonwealth, 24 Va. App. 387, 392-93,

482 S.E.2d 846, 849 (1997) (noting in dicta that decision of

accused, who had elected to be tried by jury, to proceed with

fewer than twelve jurors when one juror was dismissed for cause

after jeopardy had attached required concurrence of

Commonwealth's attorney and court). Thus, we hold that the

accused's willingness to proceed with a jury of fewer than
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twelve members is subject to the Commonwealth's co-equal right

to a jury trial, even where jeopardy has already attached.

As the trial court noted, if the drafters of the

Constitution had intended that the provisions of Article 1,

Section 8--requiring the Commonwealth's consent for trial by

fewer than twelve jurors--apply only to the period before

jeopardy has attached, it could have said so. See, e.g., State

v. Madison, 560 P.2d 405, 408 (Ariz. 1977) (noting that, under

applicable Arizona statute, "the parties with the consent of the

court in a criminal case, may waive trial by jury, or at any

time before a verdict is returned consent to try the case with

or receive a verdict concurred in by a lesser number of jurors

than that specified [elsewhere in the statute]" (emphasis added)

(quoting Ariz. Rev. Stat. § 21-102(E)). As this case amply

demonstrates, situations in which the number of jurors able to

continue with a felony trial drops below twelve may arise after

trial has begun, and based on the plain language of Article 1,

section 8, we must assume the drafters contemplated its

application to such an event.

Appellant also challenges what he terms the court's "per se

finding of manifest necessity" based on the Commonwealth's

refusal to continue the trial with the remaining eleven jurors.

He argues that any right the Commonwealth had under the facts of

this case to trial by a jury of twelve members rather than trial

by a jury of eleven is subordinate to the right of an accused
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not to be placed in jeopardy twice for the same offense. We

disagree.

The right to trial by jury is "a sacred right [that] should

be sedulously guarded," Buntin v. City of Danville, 93 Va. 200,

212, 24 S.E. 830, 833 (1896), quoted with approval in Supiner v.

Stakes, 255 Va. 198, 203, 495 S.E.2d 813, 815 (1998), and

"'[t]rial by jury,' in the primary and usual sense of the term

at the common law and in the American constitutions, is . . . a

trial by a jury of twelve . . . ." Capital Traction Co. v. Hof,

174 U.S. 1, 13, 19 S. Ct. 580, 585, 43 L. Ed. 2d 873, 877-78

(1899). For example, "[i]t is well established that 'trial by

jury' contemplated by [the United States Constitution's] Article

III, Section 2, and the Sixth Amendment is a trial by a jury of

twelve persons, neither more nor less." United States v.

Virginia Erection Corp., 335 F.2d 868, 870 (4th Cir. 1964)

(emphasis added). Because the right to trial by jury is a

"sacred right" and, as stated above, the Commonwealth's right to

demand trial by jury is "co-equal" to that of the accused, see

O'Dell, 234 Va. at 689, 364 S.E.2d at 501, we hold that when the

Commonwealth asserts its right to trial by a jury of twelve

after jeopardy has attached and at a time when fewer than twelve

jurors remain available to continue with the trial, 4 manifest

4
As discussed in footnote 2, supra, appellant waived the
right to object to the mistrial on the ground that the trial
court failed to consider other options such as continuing the
case for a reasonable amount of time to attempt to allow the ill
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necessity for the declaration of a mistrial exists, see Brandon,

22 Va. App. at 91, 467 S.E.2d at 863 (holding manifest necessity

exists where "'[declaring a mistrial] was necessary to prevent

great injustice either to the Commonwealth or to the defendant'"

(quoting Mack, 177 Va. at 931, 15 S.E.2d at 66) (emphasis

added)), at least where the Commonwealth acts in good faith. 5

Thus, under the facts of this case, a second trial for the

same offenses did not violate double jeopardy principles. See

Johnson v. United States, 619 A.2d 1183, 1186-87 (D.C. Ct. App.

1993) (under facts similar to those in appellant's case,

rejecting argument that "the government violated 'fundamental

fairness' by refusing to agree to a jury of less than twelve,"

without directly addressing argument that such a holding

elevates government's right to jury of twelve over accused's

right not to be placed in jeopardy twice for the same offense);

juror to recover. Our holding presumes that fewer than twelve
jurors (or a sufficient number of alternates, if any) are
available and that fewer than twelve are expected to be
available within a reasonable time during which the trial might
be continued. Thus, we do not address the merits of that issue
in this opinion.
5
Where a defendant moves for a mistrial based on
prosecutorial misconduct and the court finds the conduct was
"intended to 'goad' the defendant into moving for a mistrial,"
the defendant may successfully plead double jeopardy as a bar to
a second trial. See Kennedy, 456 U.S. at 676, 102 S. Ct. at
2089. We need not decide whether the Commonwealth's withholding
of its consent to proceed with fewer than twelve jurors also
must be made in good faith in order to avoid a subsequent
invocation of the double jeopardy bar. Here, the trial court
found the Commonwealth acted in good faith, and appellant agreed
with that finding.
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cf. Pope v. Commonwealth, 234 Va. 114, 122, 360 S.E.2d 352, 358

(1987) (stating, without specifically addressing impact on

double jeopardy after trial has commenced, that the "requirement

of consent by the Commonwealth and by the court [before an

accused may waive his right to trial by jury under Code

§ 19.2-257] does not violate any constitutional right of the

defendant").

For these reasons, we hold the trial court's denial of

appellant's motion to dismiss was not error, and we affirm.

Affirmed.

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