COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia
WESLEY SHAMEL WILLIAMS
OPINION BY
v. Record No. 0874-96-2 JUDGE SAM W. COLEMAN III
APRIL 22, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Donald W. Lemons, Judge
Craig S. Cooley (Betty Layne DesPortes;
Steven D. Benjamin and Associates, on
briefs), for appellant.
Daniel J. Munroe, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
In this appeal, we consider for the first time in Virginia
whether a trial court may permit a juror in a criminal case to
submit a question to be asked of a defense witness. The trial
court received a juror's question in writing, read the question
in open court in the presence of counsel, the jury, and the
witnesses, and then permitted counsel to ask additional questions
in order to clarify the uncertainty in the evidence described by
the juror's question. The trial judge did not inform counsel of
the content or nature of the question before reading it. We hold
that the trial court did not abuse its discretion by the
procedure it adopted for receiving and handling the juror's
question. Accordingly, we affirm the defendant's convictions.
Wesley Shamel Williams appeals his convictions for first
degree murder, use of a firearm in the commission of a felony,
and possession of a firearm by a convicted felon. At trial the
sole factual dispute was whether the defendant or another man
shot the victim.
During cross-examination of the defendant's first witness, a
juror indicated to the judge that he wanted to have the witness'
testimony clarified as to the positions of the defendant, the
victim, and another man when the victim was shot. The judge
directed the juror to submit the question in writing. After the
Commonwealth's attorney completed her cross-examination, the
judge asked the juror whether his question had been answered.
The juror replied that he was still confused.
At a side bar conference, during which the judge did not
inform counsel of the content of the juror's question, defense
counsel objected, stating, "I think this is dangerous for the
jury to start beginning with lots of questions." The judge
ruled:
I am going to be limiting, to allow the jury
to tell the Court that they are confused
about something. I'm not going to let jurors
question witnesses, but I am going to let
them tell me if they want a question
answered. It's going to be limited. Your
objection is noted for the record.
The judge then read the question aloud in open court:
This written question was a statement from
one of the jurors, which I will read to you.
When the Commonwealth was questioning Otis
about the positions of and directions that
. . . [they] were facing, the directions in
which each were facing was unclear. I would
like to have these facts clarified if I
might. Thank you. Does that prompt any
further questions for you Ms. Cardwell [the
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Commonwealth's attorney]?
The trial judge did not direct the question to the witness.
Rather, he permitted the Commonwealth's attorney to further
cross-examine the witness about the positions of the people
during the shooting. After the Commonwealth's attorney's
questioning, the judge stated, "We're not going to have this
process go on like that. I'm sorry. Go ahead." Defense counsel
then conducted redirect examination of the witness.
"[T]he conduct of a trial is committed to the sound
discretion of the trial court." Justus v. Commonwealth, 222 Va.
667, 676, 283 S.E.2d 905, 910 (1981), cert. denied, 455 U.S. 983
(1982); Cunningham v. Commonwealth, 2 Va. App. 358, 365, 344
S.E.2d 389, 393 (1986). Juror questioning of witnesses is an
issue of first impression in Virginia. 1 The issue of interactive
juries or questioning by jurors has been considered in many
jurisdictions. The majority of courts that have considered the
issue have held that the trial court may, in the exercise of its
sound discretion, permit juror questioning, but the court should
take precautions to avoid the potential for abuse or prejudice.
The federal circuit courts have uniformly held that the
propriety of juror questioning is a matter committed to the sound
discretion of the trial judge. See, e.g., United States v. Bush,
1
In Federal Dep. Ins. Corp. v. Mapp's Ex'r, 184 Va. 970,
983, 37 S.E.2d 23, 28-29 (1946), the Virginia Supreme Court
refused to rule on a plaintiff's assignment of error to a juror's
questioning of a witness because the trial court's ruling on the
issue was not adverse to the plaintiff.
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47 F.3d 511 (2d Cir. 1995); United States v. Cassiere, 4 F.3d
1006 (1st Cir. 1993); United States v. Lewin, 900 F.2d 145 (8th
Cir. 1990); DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d
512, 515 (4th Cir. 1985); United States v. Callahan, 588 F.2d
1078 (5th Cir.), cert. denied, 444 U.S. 826 (1979). However,
while recognizing the trial court's discretion, many federal
courts discourage the practice due to the potential for prejudice
or abuse. Some courts express concern that jurors, by taking an
active role in the adversarial process, will become inquisitors,
thereby compromising their neutrality. See United States v.
Thompson, 76 F.3d 442, 448 (2d Cir. 1996); Bush, 47 F.3d at 515
("It is difficult for jurors to be both active participants in
the adversarial process, embroiled in the questioning of
witnesses, and detached observers, passing on the credibility of
witnesses and the plausibility of the facts presented."). Also,
juror neutrality will often appear to be compromised because the
questions posed are often in the form of commentary on the
evidence. See Bush, 47 F.3d at 515.
Jurors, who are unfamiliar with the rules of evidence, are
more likely to ask objectionable or prejudicial questions, see
DeBenedetto, 754 F.2d at 516, which places counsel in the
difficult position of possibly alienating the jury by objecting
or suffering the prejudice by remaining silent. See Bush, 47
F.3d at 515. Other courts have expressed concern that juror
questioning may encourage premature jury deliberation and that
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the impact of one juror's questions may unduly impact another
juror's independent thought process. DeBenedetto, 754 F.2d at
516.
A majority of state appellate courts also hold that juror
questioning lies within the trial judge's sound discretion. See
3 John H. Wigmore, Evidence § 784a (Chadbourn rev. 1970); 98
C.J.S. Witnesses § 351 (1957 & Supp. 1996). But see Morrison v.
State, 845 S.W.2d 882 (Tex. Crim. App. 1992) (holding that juror
questioning is improper in a criminal case); State v. Zima, 468
N.W.2d 377 (Neb. 1991) (same). Several jurisdictions encourage
juror questioning in order for jurors, as the fact finders, to
obtain a fair understanding of the facts. See Stamp v.
Commonwealth, 253 S.W. 242 (Ky. 1923). "[A] juror may, and often
does, ask a very pertinent and helpful question in furtherance of
the investigation." State v. Howard, 360 S.E.2d 790, 794 (N.C.
1987) (citation omitted). "Because the jury is the finder of
fact, it should be permitted to ask questions which may assist in
reaching its ultimate decision in the case." State v. Hays, 883
P.2d 1093, 1099 (Kan. 1994).
In Virginia, an accused has the fundamental right to trial
by a fair and impartial jury. See Gray v. Commonwealth, 226 Va.
591, 592-93, 311 S.E.2d 409, 409 (1984). The function of a jury
is to assure a fair and equitable resolution of all factual
issues. Colgrove v. Battin, 413 U.S. 149, 157 (1973). The jury
serves as the final arbiter of the facts, "charged with weighing
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the evidence, judging the credibility of the witnesses, and
reaching a verdict" in the case. Edmonson v. Leesville Concrete
Co., 500 U.S. 614, 625 (1991); see also DeBenedetto, 754 F.2d at
516 ("Our judicial system is founded upon the presence of a body
constituted as a neutral factfinder to discern the truth from the
positions presented by the adverse parties."). A jury's factual
findings will not be disturbed on appeal unless plainly wrong or
unsupported by the evidence. See id.; Traverso v. Commonwealth,
6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
We hold that the trial court, in the exercise of its sound
discretion, may permit jurors to submit written questions to be
asked of a witness. The trial court's discretion will not be
reversed on appeal absent some prejudice caused by the
questioning or the procedure adopted for receiving and submitting
the questions. We do not discourage trial judges from exercising
their discretion to permit juror questioning, provided they adopt
procedures that assure control over the process and avoid the
pitfalls that have potential for prejudice.
In this case, the trial judge did not abuse his discretion.
Although the record is unclear whether the trial judge
consulted with counsel before disclosing the content of the
question in open court, a practice which we deem to be desirable,
see Bush, 47 F.3d at 516, it was apparent that the juror's
question merely sought clarification from the witness about the
location of people at the murder scene. See State v. Barrett,
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297 S.E.2d 794, 796 (S.C. 1982), cert. denied, 460 U.S. 1045
(1983) ("[A] juror has no more right to ask an immaterial,
incompetent or irrelevant question than has counsel."). The
judge did not err by permitting counsel to ask questions in order
to clarify those facts relevant to the juror's question. See
Bush, 47 F.3d at 516.
The trial judge took the precaution of requiring the juror
to submit the question in writing. See Howard, 360 S.E.2d at 795
(requiring juror questions to be in writing and given to the
judge); Bush, 47 F.3d at 516 (recommending that the judge ask the
question). The process did not interrupt the examination of the
witness. See Hays, 883 P.2d at 1102 (expressing concern about
juror questions interrupting the order of evidence presentation
by counsel). Also, the judge held a side bar conference, which
gave counsel the opportunity to object to the question or
procedure outside the jury's presence without alienating them.
See Barrett, 297 S.E.2d at 796 ("The trial judge should
meticulously endeavor to make it unnecessary for offended counsel
to interpose an objection to a juror's question in his
presence.").
Finally, the defendant contends that the trial court's
statement, "[w]e're not going to have this process go on like
that," constituted a refusal to allow other jurors to ask
questions and restricted defense counsel's redirect. From our
reading of the record, we do not interpret the judge's comment to
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be a ruling that prohibited further questions from the jury or
from defense counsel. Moreover, if defense counsel considered
the statement to be an erroneous ruling on the right of counsel
or jurors to ask questions, she failed to object at trial and
cannot be heard to complain on appeal. See Rule 5A:18.
In summary, we hold that whether to allow juror questions is
a matter left to the sound discretion of the trial court. Trial
courts which permit juror questions should adopt procedural
safeguards to avoid prejudice to the parties. In this case, the
trial court did not err in allowing a juror question.
Accordingly, we affirm the defendant's convictions.
Affirmed.
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