COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Overton Argued at Richmond, Virginia
ROBERT MASON, A/K/A ANTHONY BERNARD SMITH MEMORANDUM OPINION * BY v. Record No. 0499-96-4 JUDGE LARRY G. ELDER JUNE 24, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY William L. Winston, Judge (Joseph H. Beale, on brief), for appellant.
Michael T. Judge, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Robert K. Mason, a/k/a Anthony Bernard Smith (appellant)
appeals his conviction of habitual petit larceny. He contends
that the trial court erroneously denied his motion for a mistrial
because one of the impaneled jurors lacked sufficient proficiency
with the English language. He also contends that the trial court
erred when it used leading questions to inquire about the juror's
ability to understand English. For the reasons that follow, we
affirm.
I.
FACTS
Appellant was charged with petit larceny, a third or
subsequent offense. Prior to his trial, the trial court and the * Pursuant to Code § 17-116.010 this opinion is not designated for publication. parties conducted a voir dire of the members of the jury panel,
during which the jurors were not asked about their proficiency
with the English language. While the jury was deliberating
appellant's sentence, appellant's counsel moved for a mistrial
because he had learned that "one of the jurors' native language
is not English and . . . that she has great difficulty
understanding English." In response to appellant's motion, the
trial court recalled the jury from the jury room and asked the
juror in question (Juror X) about her experience with English.
During their brief exchange, Juror X answered all of the trial
court's questions responsively. She stated that, although she
does not speak English perfectly, she reads English and regularly
converses in it at work. She also stated that another juror
translated "some things" to her in Spanish during the
deliberations. The trial court denied appellant's motion for a
mistrial, reasoning that it "was guided . . . by [Juror X's]
ability to converse with me." The jury resumed deliberating and sentenced appellant.
After the jury was excused, appellant's counsel renewed his
motion for a mistrial. The trial court again denied the motion.
II.
MOTION FOR MISTRIAL
Appellant contends that the trial court violated his
constitutional right to an impartial jury when it denied his
motion for a mistrial because Juror X lacked sufficient
-2- proficiency with the English language to comprehend the evidence
and arguments presented at trial. We disagree.
In criminal proceedings, a defendant has a right to a trial
by an "impartial jury." See U.S. Const. amends. VI, XIV; Duncan
v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 1447, 20 L.Ed.2d
491 (1968); Va. Const. art. I, § 8. Neither this Court nor the
Supreme Courts of the United States and Virginia have previously
addressed the issue of whether the constitutional right to an
impartial jury includes the right to a jury proficient in the
English language. Generally, a criminal defendant's right to an impartial jury
includes the right to have his case tried by jurors who are able
to understand the evidence and the law and to arrive at an
independent judgment as to guilt or innocence. Fundamental to the right of an impartial jury is the requirement that jurors be competent and qualified. "[T]rial by jury necessarily requires a jury which is able to comprehend and intelligently resolve the factual issues submitted to its verdict."
Commonwealth v. Susi, 394 Mass. 784, 786-87, 477 N.E.2d 995, 997
(1985) (quoting Rabinowitz v. United States, 366 F.2d 34, 92 (5th
Cir. 1966) (Coleman, J., concurring in part and dissenting in
part)); see also State v. Gallegos, 88 N.M. 487, 488-99, 542 P.2d
832, 833-34 (N.M. Ct. App. 1975); Commonwealth v. Brown, 231
Pa.Super. 431, 435-36, 332 A.2d 828, 831 (1974); State v.
Berberian, 118 R.I. 413, 418, 374 A.2d 778, 781 (1977); State v.
-3- Hurd, S.C. , , 480 S.E.2d 94, 97 (S.C. Ct. App. 1996);
State v. Turner, 186 Wis.2d 277, 284, 521 N.W.2d 148, 151 (Wis.
Ct. App. 1994). "[T]he Due Process Clause protects a defendant
from jurors who are actually incapable of rendering an impartial
verdict, based on the evidence and the law." Peters v. Kiff, 407
U.S. 493, 501, 92 S. Ct. 2163, 2168, 33 L.Ed.2d 83 (1972)
(plurality opinion); see also Smith v. Phillips, 455 U.S. 209,
217, 102 S. Ct. 940, 946, 71 L.Ed.2d 78 (1982) (stating that due
process requires "a jury capable and willing to decide the case
solely on the evidence before it"). Applying this principle, we hold that a juror's lack of
proficiency with the English language renders the juror
constitutionally disqualified from jury service if the juror is
actually incapable of substantially comprehending the evidence
and arguments presented at trial. See Gallegos, 88 N.M. at 489,
542 P.2d at 834 (stating that "a juror who does not possess a
working knowledge of English would be unable to serve because he
cannot possibly understand the issues or evaluate the evidence to
arrive at an independent judgment as to the guilt or innocence of
the accused"); 50A. C.J.S. Juries § 290 (1997) (stating that the requirement of English proficiency "merely requires the juror to
understand substantially the testimony and argument"). What has
been said about the competency of a juror who is hard of hearing
also applies to jurors who are unable to understand the language
in which court proceedings occur:
-4- [A] juror cannot be aware of what she cannot hear. Thus, the juror here could not participate in meaningful discussions during the deliberative stage of the trial nor decide the case intelligently. The effect of the juror's inability to hear the testimony was tantamount to the juror not being in attendance for . . . the trial, thus denying the defendant the right to a jury of twelve.
People v. Trevino, 826 P.2d 399, 401 (Colo. Ct. App. 1991).
As with other decisions regarding the competency of jurors to
serve, whether or not a juror demonstrates a lack of proficiency
with the English language is committed to the sound discretion of
the trial court. See Martin v. Commonwealth, 221 Va. 436, 445,
271 S.E.2d 123, 129 (1980).
We hold that the trial court did not abuse its discretion
when it concluded that Juror X possessed a sufficient
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Overton Argued at Richmond, Virginia
ROBERT MASON, A/K/A ANTHONY BERNARD SMITH MEMORANDUM OPINION * BY v. Record No. 0499-96-4 JUDGE LARRY G. ELDER JUNE 24, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY William L. Winston, Judge (Joseph H. Beale, on brief), for appellant.
Michael T. Judge, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Robert K. Mason, a/k/a Anthony Bernard Smith (appellant)
appeals his conviction of habitual petit larceny. He contends
that the trial court erroneously denied his motion for a mistrial
because one of the impaneled jurors lacked sufficient proficiency
with the English language. He also contends that the trial court
erred when it used leading questions to inquire about the juror's
ability to understand English. For the reasons that follow, we
affirm.
I.
FACTS
Appellant was charged with petit larceny, a third or
subsequent offense. Prior to his trial, the trial court and the * Pursuant to Code § 17-116.010 this opinion is not designated for publication. parties conducted a voir dire of the members of the jury panel,
during which the jurors were not asked about their proficiency
with the English language. While the jury was deliberating
appellant's sentence, appellant's counsel moved for a mistrial
because he had learned that "one of the jurors' native language
is not English and . . . that she has great difficulty
understanding English." In response to appellant's motion, the
trial court recalled the jury from the jury room and asked the
juror in question (Juror X) about her experience with English.
During their brief exchange, Juror X answered all of the trial
court's questions responsively. She stated that, although she
does not speak English perfectly, she reads English and regularly
converses in it at work. She also stated that another juror
translated "some things" to her in Spanish during the
deliberations. The trial court denied appellant's motion for a
mistrial, reasoning that it "was guided . . . by [Juror X's]
ability to converse with me." The jury resumed deliberating and sentenced appellant.
After the jury was excused, appellant's counsel renewed his
motion for a mistrial. The trial court again denied the motion.
II.
MOTION FOR MISTRIAL
Appellant contends that the trial court violated his
constitutional right to an impartial jury when it denied his
motion for a mistrial because Juror X lacked sufficient
-2- proficiency with the English language to comprehend the evidence
and arguments presented at trial. We disagree.
In criminal proceedings, a defendant has a right to a trial
by an "impartial jury." See U.S. Const. amends. VI, XIV; Duncan
v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 1447, 20 L.Ed.2d
491 (1968); Va. Const. art. I, § 8. Neither this Court nor the
Supreme Courts of the United States and Virginia have previously
addressed the issue of whether the constitutional right to an
impartial jury includes the right to a jury proficient in the
English language. Generally, a criminal defendant's right to an impartial jury
includes the right to have his case tried by jurors who are able
to understand the evidence and the law and to arrive at an
independent judgment as to guilt or innocence. Fundamental to the right of an impartial jury is the requirement that jurors be competent and qualified. "[T]rial by jury necessarily requires a jury which is able to comprehend and intelligently resolve the factual issues submitted to its verdict."
Commonwealth v. Susi, 394 Mass. 784, 786-87, 477 N.E.2d 995, 997
(1985) (quoting Rabinowitz v. United States, 366 F.2d 34, 92 (5th
Cir. 1966) (Coleman, J., concurring in part and dissenting in
part)); see also State v. Gallegos, 88 N.M. 487, 488-99, 542 P.2d
832, 833-34 (N.M. Ct. App. 1975); Commonwealth v. Brown, 231
Pa.Super. 431, 435-36, 332 A.2d 828, 831 (1974); State v.
Berberian, 118 R.I. 413, 418, 374 A.2d 778, 781 (1977); State v.
-3- Hurd, S.C. , , 480 S.E.2d 94, 97 (S.C. Ct. App. 1996);
State v. Turner, 186 Wis.2d 277, 284, 521 N.W.2d 148, 151 (Wis.
Ct. App. 1994). "[T]he Due Process Clause protects a defendant
from jurors who are actually incapable of rendering an impartial
verdict, based on the evidence and the law." Peters v. Kiff, 407
U.S. 493, 501, 92 S. Ct. 2163, 2168, 33 L.Ed.2d 83 (1972)
(plurality opinion); see also Smith v. Phillips, 455 U.S. 209,
217, 102 S. Ct. 940, 946, 71 L.Ed.2d 78 (1982) (stating that due
process requires "a jury capable and willing to decide the case
solely on the evidence before it"). Applying this principle, we hold that a juror's lack of
proficiency with the English language renders the juror
constitutionally disqualified from jury service if the juror is
actually incapable of substantially comprehending the evidence
and arguments presented at trial. See Gallegos, 88 N.M. at 489,
542 P.2d at 834 (stating that "a juror who does not possess a
working knowledge of English would be unable to serve because he
cannot possibly understand the issues or evaluate the evidence to
arrive at an independent judgment as to the guilt or innocence of
the accused"); 50A. C.J.S. Juries § 290 (1997) (stating that the requirement of English proficiency "merely requires the juror to
understand substantially the testimony and argument"). What has
been said about the competency of a juror who is hard of hearing
also applies to jurors who are unable to understand the language
in which court proceedings occur:
-4- [A] juror cannot be aware of what she cannot hear. Thus, the juror here could not participate in meaningful discussions during the deliberative stage of the trial nor decide the case intelligently. The effect of the juror's inability to hear the testimony was tantamount to the juror not being in attendance for . . . the trial, thus denying the defendant the right to a jury of twelve.
People v. Trevino, 826 P.2d 399, 401 (Colo. Ct. App. 1991).
As with other decisions regarding the competency of jurors to
serve, whether or not a juror demonstrates a lack of proficiency
with the English language is committed to the sound discretion of
the trial court. See Martin v. Commonwealth, 221 Va. 436, 445,
271 S.E.2d 123, 129 (1980).
We hold that the trial court did not abuse its discretion
when it concluded that Juror X possessed a sufficient
understanding of English to be "impartial" and that her service
on the jury did not "probably cause injustice" to appellant.
Thus, its denial of appellant's motion for a mistrial was not
erroneous.
The trial court's conclusion that Juror X was not incapable
of substantially understanding the evidence and arguments
presented at trial is supported by the record. In response to
the trial court's questions, Juror X stated that she works at a
hotel in Washington where she regularly communicates with people
in English. She stated that she reads English more than she
writes it and that she reads newspapers. Juror X did state that
another juror translated "some things" for her; however, Juror X
-5- had no apparent problem understanding the trial court's
questions, and her answers were intelligent and responsive.
These facts provided the trial court with an adequate basis to
conclude that Juror X was sufficiently competent to render an
impartial verdict based on the evidence and law.
We disagree with appellant's argument that because at least
one other juror translated "some things" to Juror X, Juror X's
presence on the jury probably caused injustice. Appellant had
the burden of establishing that Juror X's service on the jury
would "probably cause injustice" to him. Code § 8.01-352(B).
Because the record does not indicate the degree of assistance
that the other jurors provided to Juror X, we cannot say that the
trial court erred when it concluded that appellant had failed to
meet his burden of proof. Finally, appellant argues that the trial court committed
reversible error when it used leading questions to rehabilitate
Juror X after doubts arose about her ability to understand
English. We disagree.
The method in which jurors are examined by a trial court or
the parties' counsel may impact the trial court's ability to
determine a juror's qualification to serve. See McGill v.
Commonwealth, 10 Va. App. 237, 242, 391 S.E.2d 597, 600 (1990).
Subject to limitations imposed by statutes or rules of court, the
manner of examining jurors is within the trial court's
discretion. See id. at 241, 391 S.E.2d at 600 (citation
-6- omitted). However, manifest error may arise from the use of a
selection procedure which does not result in a fair and impartial
jury. See id.
Generally, the evidence that a juror possesses the requisite
qualifications for jury service must emanate from the juror
"uninfluenced by persuasion or coercion" and "unsuggested by
leading questions posed to him or her." Educational Books, Inc.
v. Commonwealth, 3 Va. App. 384, 389, 349 S.E.2d 903, 907 (1986)
(citations omitted). It is well established that once a
prospective juror has indicated a bias or prejudice against a
party, he or she may not be rehabilitated for service based
solely upon leading questions that suggest a desired response. See Griffin v. Commonwealth, 19 Va. App. 619, 625, 454 S.E.2d
363, 366 (1995) (citing Foley v. Commonwealth, 8 Va. App. 149,
159-60, 379 S.E.2d 915, 921, aff'd en banc, 9 Va. App. 175, 384
S.E.2d 813 (1989)). However, no statutes, rules of court, or
cases set forth the manner of rehabilitation for a juror whose
proficiency with English, instead of objectiveness, has been
challenged.
We hold that the trial court's manner of questioning Juror X
to ascertain her ability to understand English was not an abuse
of discretion because the evidence of her proficiency came from
the degree of her responsiveness to the questions. No evidence
suggests that her responsiveness was tainted by coercion.
Although the record indicates that the trial court used some
-7- leading questions to inquire about Juror X's use of English in
her everyday life, the trial court did not rely exclusively on
this form of interrogation to make its determination. The
transcript of the exchange between the trial court and Juror X
indicates that the trial court did ask some open-ended questions
and that some of Juror X's comments were unsolicited by the trial
court. Furthermore, most of Juror X's responses to the trial
court's questions that were leading were more than just one-word
affirmative responses. Moreover, unlike in the context of examining a juror for
bias or prejudice, leading questions are not devoid of usefulness
when used to determine a juror's proficiency with English. When
inquiring about a juror's ability to comprehend the English
language, the fluidity and intelligence of the juror's response
to leading questions provides some indication of his or her
ability to understand the spoken word, which is a component of
the requisite language skills necessary to qualify as an
impartial juror. In this case, Juror X's responses to the trial
court's combination of leading and open-ended questions provided
the basis for its conclusion that her understanding of what I said seemed to me to be very good. And her responses were directly to the statements that I made. And I had no reason to believe at all that she did not understand me.
For the foregoing reasons, we affirm the conviction of
habitual petit larceny.
-8- Affirmed.
-9-