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the Virginia Court of Appeals.
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Clements
Argued at Alexandria, Virginia
Record No. 1401-02-4
KENNETH CARL BROOKS
COMMONWEALTH OF VIRGINIA
OPINION BY JUDGE ROSEMARIE ANNUNZIATA
SEPTEMBER 9, 2003
FROM THE CIRCUIT COURT OF FREDERICK COUNTY
John R. Prosser, Judge
William A. Crane, Public Defender (Office of
the Public Defender, on brief), for
Richard B. Smith, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Kenneth Carl Brooks was convicted in a jury trial on three
counts of taking indecent liberties in violation of Code
? 18.2-370, two animate object penetration charges in violation
of ? 18.2-67.2, and five aggravated sexual battery charges in
violation of ? 18.2-67.3. Imposing the sentence fixed by the
jury, the trial court sentenced Brooks to 99 years in prison, 10
of which were suspended, and ordered him to pay a $25,000 fine.
Brooks appeals his convictions on the ground that the trial
court erred because it denied his motion to excuse for cause a
juror who was related to several of the prosecution witnesses
and to the victims and denied his motion for a mistrial. We
find no error and affirm.
Brooks was indicted and ultimately convicted of committing
various sexual offenses against several minors: L.M., A.G.,
De.M., R.M., and D.M.The
minors testified for the Commonwealth
at the trial, as did their fathers.
During pretrial voir dire, the judge asked the venire
members: "Are any of you related by blood or marriage to
those persons against whom the alleged offenses were committed,
or do you know them?" All the jurors responded in the
However, after the first day of the trial, the clerk received a
telephone call from one of the seated jurors, Nancy Cook,
expressing some concerns. As a result, the judge conducted the
following voir dire the next morning:
THE COURT: Ms. Cook, it has come to the
Court’s attention that you conversed with
the Clerk about a matter that was of concern
MS. COOK: Yes, sir.
THE COURT: All right. Would you go ahead,
for the record, so that the attorneys get an
opportunity to hear what your concern is and
the Court gets an opportunity to evaluate
your concern and see if it is well-placed or
if it is not of great consequence.
MS. COOK: Okay. My brother-in-law is the
[victims'] great uncle. And, I don’t know
THE COURT: You want to run that by me gain?
MS. COOK: My brother-in-law.
THE COURT: Explain that.
MS. COOK: My sister’s husband. It is my
brother-in-law. He is the girls’ great
uncle and, I didn’t know that yesterday.
* * * * * * *
THE COURT: Don’t think it would make a
MS. COOK: No. It is kind of like you wake
up at nighttime all of a sudden and it kind
of hits you, you know. When [the victims'
uncle] came in, he looked familiar to me. I
thought that I was introduced to him one
time . . . . He just looked familiar to me,
and then I put the girls in place.
THE COURT: You don’t actually know any of
MS. COOK: I don’t know them. I don’t know
them from Adam. I would [sic] know them if
I passed them on the street. I wouldn’t
THE COURT: Mr. Ambrogi, any questions?
MR. AMBROGI: No question. No, sir.
THE COURT: Mr. Crane, any questions of
MR. CRANE: No, Your Honor.
THE COURT: Ma’am, you believe you can
continue to sit and hear this case and act
fairly and impartially?
MS. COOK: Yes, I do.
THE COURT: You believe you can follow the
instructions of law that the Court gives you
and decide this case fairly and impartially,
giving a fair trial to both sides?
MS. COOK: Yes, sir. I do.
THE COURT: Ma’am, I appreciate your
diligence by bringing this concern to our
attention. It is important that a fair
trial be had for all sides.
MS. COOK: Yes. That is what I wanted.
THE COURT: Ask you to retire back with the
jury. Thank you, ma’am.
Defense counsel then asked the court to remove Cook from
the jury. He argued, "[t]he fact that she is related would
it difficult for her to be unbiased in evaluating the
and "in the interest of fairness it is important not to
relatives of the prosecutrixes on the jury panel. We just don’t
know." The prosecutor opposed the motion, arguing that any
relationship was remote. He also noted Cook’s assertion that
her decision would be unaffected by her brother-in-law’s
relationship to the victims.
Defense counsel renewed his objection and moved for a
mistrial. The court denied the motion and stated that the
relationship was not close enough to disqualify the juror. The
court also found that "Mr. Brooks will receive a fair trial
will continue to do so with Mrs. Cook sitting as a jury
Brooks’s appeal comes before this Court on a denial of a
motion for a mistrial. Upon familiar principles, we will not
reverse the denial of a motion for a mistrial unless a manifest
probability exists that the trial court’s ruling was
prejudicial. Taylor v. Commonwealth, 25 Va. App. 12, 17, 486
S.E.2d 108, 110 (1997). "[T]he burden of establishing that
probability [rests] upon the party moving for a mistrial."
Green v. Commonwealth, 26 Va. App. 394, 401, 494 S.E.2d 888, 891
(1998) (citations omitted). Moreover, it is well settled that
the credibility of witnesses and the weight accorded witnesses’
testimony are matters that are within the province of the fact
finder. Phan v. Commonwealth, 258 Va. 506, 513, 521 S.E.2d 282,
286 (1999); Brooks v. Commonwealth, 15 Va. App. 407, 414, 424
S.E.2d 566, 571 (1992).
When the issue arises from a mid-trial challenge to a
juror’s impartiality, we "will reverse the trial court’s
decision only for an abuse of discretion," applying the
standard of review appropriate to appellate consideration of the
trial court’s decision to seat a venireperson. David v.
Commonwealth, 26 Va. App. 77, 80, 493 S.E.2d 379, 381 (1997)
(noting that juror impartiality is a factual determination,
disturbed on appeal only for "manifest error"). Hence,
not reverse "the denial of a motion for a mistrial . . .
there exists a manifest probability that [the ruling] was
prejudicial." Id. (citations omitted).
The instant case involves a mid-trial challenge to a
juror’s impartiality. Brooks contends that Cook’s relationship
to the victims and to the Commonwealth’s witnesses absolutely
bars her from acting as a juror in the case, on the ground that,
due to those relationships, she could not be impartial. Brooks
specifically invokes the rules governing consanguinity and
affinity in support of his argument.
The Virginia Supreme Court held in Gray v. Commonwealth,
226 Va. 591, 311 S.E.2d 409 (1984), that "the
common-law rule disqualifying a venireman who is related, within
the ninth degree of consanguinity or affinity, to a party to a
suit" also "applies to a victim of a crime as well as
party." Id. at 593, 311 S.E.2d at 410. The relationship at
issue here involved Cook’s brother-in-law, her sister’s husband,
who was the great uncle of the victims and, by implication, the
uncle of the victims’ fathers, who were expected to be called as
witnesses in the case. Brooks contends that Cook was
"absolutely disqualified" as a juror because she was
within the "ninth degree of consanguinity" to the
victims and their parents. We disagree.
"Consanguinity" is a "relation by blood."
Commonwealth, 100 Va. 808, 810, 40 S.E. 925, 926 (1902). It is
patent Cook was not related by blood to her sister’s husband
and, by extension, she was not related by blood to the victims
or their fathers.
Cook was also not related to the victims or their fathers
by affinity. Affinity is the relation of one spouse to the
other spouse’s kindred. Id. "’Affinity properly means the
which arises from marriage betwixt the husband and the blood
relatives of the wife, and between the wife and the blood
relatives of the husband. . . . [T]here is no affinity between
the blood relatives of the husband and the blood relatives of
the wife.’" Norris v. Presley, 290 So. 2d 643, 645 (Ala.
(citations omitted). Here, the relationship at issue did not
involve Cook and her husband’s blood relatives. Rather, it
involved a relationship between her sister’s husband and his
blood relatives. We conclude that the relationship does not
fall within the definition of affinity.See
Doyle, 100 Va. at
810-11, 40 S.E. at 926 (finding that a juror, who was the nephew
of a man related by marriage to kindred of the victim, was not
disqualified from sitting through "affinity"); see
v. State, 2 So. 2d 461, 462 (Ala. Ct. App. 1941) (finding that a
juror in a murder case, who was the brother-in-law of the
victim’s sister, was not disqualified because "[n]o
by consanguinity or affinity is presented as would disqualify
Moreover, Brooks has the burden of establishing that he was
prejudiced by the trial court’s decision not to grant his motion
for a mistrial. See Green, 26 Va. App. at 401, 494 S.E.2d at
891. "To determine if a trial court’s denial of a motion
mistrial was prejudicial, when a juror’s conduct is at issue, we
must look to the juror’s possible bias. The existence of an
individual juror’s possible bias or partiality is a question of
fact to be determined by the trial court." Perez v.
Commonwealth, 40 Va. App. 648, 655, 580 S.E.2d 507, 509 (2003)
(citing Watkins v. Commonwealth, 229 Va. 469, 480, 331 S.E.2d
422, 431 (1985)).
Brooks contends that, even if Cook is not excluded from
serving as a juror in this case in accordance with the
principles of consanguinity and affinity, her familial
relationship, in and of itself, gives rise to inherent bias on
her part and would affect her decision-making. Brooks’s
argument is a simple recast of his contentions rooted in the
principles of consanguinity and affinity, which we have
determined do not apply as a bar to Cook’s serving as a juror in
this case. Therefore, we reject this argument because no
presumption of bias may be said to arise by virtue of the
Reviewing Brooks’s contention factually, we find,
furthermore, that nothing in the record supports the conclusion
that Cook would be unable to fairly try the case. The Supreme
Court of Virginia has set out the following standard for
appellate review of the trial court’s decision whether to retain
or exclude prospective jurors:
Upon appellate review, this Court gives
deference to the trial court’s decision
whether to retain or exclude prospective
jurors. This is because the trial judge has
observed and heard each member of the venire
and is in a superior position to evaluate
whether the juror’s responses during voir
dire develop anything that would prevent or
substantially impair the juror’s performance
of duty as a juror in accord with the
court’s instructions and the juror’s oath.
A trial court’s decision on this issue will
be affirmed absent a showing of manifest
error. And, a juror’s entire voir dire, not
isolated portions, must be considered to
determine a juror’s impartiality.
Vinson v. Commonwealth, 258 Va. 459, 467, 522 S.E.2d 170, 176
(1999) (citations omitted). We cannot say that the trial
court’s finding that Cook was an impartial juror was manifest
error. See id.
Finally, we address whether the trial court erred in
denying Brooks’s motion to strike Cook for cause on the ground
that her participation as a juror in the case eroded public
confidence in the integrity and fairness of the judicial
process. See Medici v. Commonwealth, 260 Va. 223, 532 S.E.2d 28
(2000); Patterson v. Commonwealth, 39 Va. App. 658, 576 S.E.2d
222 (2003). Contrary to the argument of the Commonwealth that
the issue is not properly before us because Brooks failed to
raise it before the trial court and did not raise it on appeal,
under the Supreme Court’s holding in Medici, by implication, the
question of public confidence is inherent in the jury selection
process and is necessarily implicated when a juror’s retention
is purportedly improper. Medici, 260 Va. at 227, 532 S.E.2d at
31. In Medici, the issue of public confidence was not listed as
a question on appeal; nor did the defendant make an objection at
trial on the issue of public confidence.The
Court, nonetheless, addressed the question and reversed the
defendant’s conviction based on the trial court’s failure to
strike a juror who had a relationship with the office of
defendant’s counsel, finding that "permitting [the
juror] to sit [on the jury] . . . would weaken public confidence
in the integrity of criminal trials." Medici, 260 Va. at
532 S.E.2d at 32.
Relying on Medici and its progeny, this Court stated in
The Supreme Court cases on this issue do not
indicate that prior appellants specifically
raised "public confidence" at the trial
level, but instead suggest the trial judge
must specifically consider the effect that
placing the venireman on the jury will have
on the public’s confidence in the judicial
system. . . .
Patterson, 39 Va. App. at 666, 576 S.E.2d at 226 (citations and
quotations omitted). "We conclude . . . that an analysis of
‘public confidence’ is inherent in any appellate review of a
juror’s impartiality . . . ." Id. at 669, 576 S.E.2d at 228
We therefore address the question, as it is
inherent in Brooks’s contention that the trial court’s seating
of the juror was improper, notwithstanding Brooks’s failure to
raise it at the trial court and on appeal.
We find that seating Ms. Cook as a juror, under the
circumstances of this case, would not erode public confidence in
the integrity of the judicial process. As noted earlier, the
relationship between the juror and witness was not one of either
consanguinity or affinity, which would require her removal from
the jury on the ground that "the law presumeth that one
doth favor another more than a stranger." Jacques v.
Commonwealth, 51 Va. (10 Gratt.) 690, 694 (1853). Thus, as a
matter of law, Ms. Cook’s relationship by marriage to the
victims and the Commonwealth’s witnesses is treated as remote
and tenuous, a factor to be considered in resolving this issue.
Moreover, she was questioned at length regarding the
relationship. She stated that she "thought she was
to [him] one time" because he "looked familiar."
the judge asked Ms. Cook, "You don’t actually know any of
people," she responded, "I don’t know them. I don’t
We cannot say that the public’s confidence in the integrity
of the process would be undermined by the seating of an unbiased
juror who was remotely related, by marriage, to the victims’
great uncle and to two of the Commonwealth’s witnesses, and whom
the juror "[did not] know from Adam."
Because we find Cook was not related by consanguinity or
affinity to the victims or to any witnesses in the case, we hold
the trial court properly refused to strike Cook for cause.
Additionally, we find Brooks failed to meet his burden of
establishing that the trial court’s denial of his mid-trial
motion for a mistrial, stemming from Cook’s presence on the
jury, resulted in a manifest probability of prejudice. Finally,
we find that public confidence in the integrity of the judicial
process would not be undermined by Ms. Cook’s service as a juror
in the case at bar because the relationship at issue was too
remote and tenuous to create the perception of bias. We,
accordingly, hold that the trial court did not err in denying
Brooks’s motion for a mistrial and affirm his convictions.
Clements, J., concurring.
While I agree with the holding of the majority opinion that
the trial court did not err in denying Brooks’s motions for the
removal of Cook from the jury and for a mistrial, I write
separately because I find it unnecessary and, indeed,
inappropriate, under the circumstances of this case, to address
sua sponte the issue of public confidence.
We have consistently held that we will not address an issue
that was not raised on appeal. See, e.g., Shoup v. Shoup, 37
Va. App. 240, 253 n.6, 556 S.E.2d 783, 790 n.6 (2001) (en banc);
Frias v. Commonwealth, 34 Va. App. 193, 196 n.1, 538 S.E.2d 374,
375 n.1 (2000). "On appeal, we [will] consider only the
raised." Mullins v. Commonwealth, 39 Va. App. 728, 733, 576
S.E.2d 770, 772 (2003); see also Richardson v. Moore, 217 Va.
422, 423 n.1, 229 S.E.2d 864, 865 n.1 (1976) (stating the Court
would "express no opinion" on a particular question
question "was not raised on appeal").
In this case, Brooks argues Cook was "absolutely
disqualified" because she was related "within the
of consanguinity" or affinity to the "alleged victims
case and their parents." He also argues, as the
notes, that Cook "may have been inherently biased by her
familial relationships." Brooks, however, makes no claim on
appeal that Cook’s presence on the jury would erode public
confidence in the integrity of the judicial process. He simply
does not challenge the trial court’s rulings on that ground.
Moreover, in my view, none of the decisions by the Supreme
Court of Virginia addressing the issue of public confidence in
the integrity of the judicial process requires us to consider
the public confidence issue when, as here, it has not been
raised on appeal. As noted in the instant majority opinion, the
Supreme Court reversed the appellant’s conviction in Medici v.
Commonwealth, 260 Va. 223, 532 S.E.2d 28 (2000),
on the basis of
the issue of public confidence even though that issue "was
listed as a question on appeal." The Supreme Court’s
Medici, however, "listed" only the overall issue of
trial court erred in refusing to strike for cause a potential
juror," without identifying the specific issues addressed
parties on appeal. Id. at 226, 532 S.E.2d at 30. Consequently,
it is not possible to tell from the opinion in Medici whether
the issue of public confidence was raised on appeal by the
appellant in that case or whether the Supreme Court addressed
the issue sua sponte. The same may be said of each of the other
opinions in which the Supreme Court has focused on the issue of
public confidence with regards to the jury-selection process,
none of which indicate whether the appellant raised the issue on
appeal. See Barrett v. Commonwealth, 262 Va. 823, 553 S.E.2d
731 (2001); Cantrell v. Crews, 259 Va. 47, 523 S.E.2d 502
Likewise, while we addressed the issue of public confidence
in Patterson v. Commonwealth, 39 Va. App. 658, 576 S.E.2d 222
(2003), and Perez v. Commonwealth, 40 Va. App. 648, 580 S.E.2d
507 (2003), neither case is controlling here because, unlike
Brooks, the appellants in both of those cases specifically
raised the issue of public confidence on appeal. Accordingly,
neither of those decisions requires our consideration of the
issue of public confidence in this case.
I, therefore, believe that raising the issue of public
confidence on our own accord is contrary to established
principles of appellate review and would not do so.
Fitzpatrick, C.J., dissenting.
I respectfully dissent from the majority opinion. While I
agree with the majority that the factual scenario presented in
the instant case does not meet the traditional technical
definitions of "consanguinity" and
"affinity," it is a
distinction without a difference. Juror Cook’s brother-in-law
was the uncle of two of the Commonwealth’s witnesses and the
great-uncle of all five victims. This relationship, in my
opinion, triggers the public confidence analysis recently
enunciated by the Supreme Court in Cantrell v. Crews, 259 Va.
47, 51, 523 S.E.2d 502, 504 (2000), Medici v. Commonwealth, 260
Va. 223, 226-27, 532 S.E.2d 28, 30-31 (2000), and Barrett v.
Commonwealth, 262 Va. 823, 826-27, 553 S.E.2d 731, 733 (2001).
Public confidence in the integrity of
the process is at stake. It cannot be
promoted when a sitting juror is, at the
time of trial, a client of the law firm
representing one of the parties to the
litigation. . . . This is true even though,
as the record shows, the juror states that
the circumstances of her [relationship]
would have no "bearing" on her judgment as a
juror and that she could "be totally fair to
Cantrell, 259 Va. at 51, 523 S.E.2d at 504. See also Medici
(reversed seating of a juror whose husband had been murdered and
the accused was represented by the Office of the Public
Defender, Medici’s counsel’s employer); Barrett (reversed
seating of a prospective juror whose brother was a police
officer expected to testify).
While "a juror’s family relationship to a police-officer
witness does not require dismissal per se of the juror if the
trial court is satisfied that the juror can stand indifferent in
the cause, . . . [failure to strike the juror for cause] makes
it unlikely that the public would have confidence in the
judicial process." Barrett, 262 Va. at 826, 553 S.E.2d at
Recently, in Patterson v. Commonwealth, 39 Va. App. 658,
576 S.E.2d 222 (2003), we again addressed the importance of
analyzing on a case-by-case basis the importance of public
perception and confidence in an impartial venire. "In a
of opinions decided over the last several years, the Supreme
Court of Virginia has clearly found that inherent in appellate
review of impartiality is a determination of whether ‘the public
would have confidence in the integrity of the process’ if the
prospective juror remained." Id. at 667, 576 S.E.2d at 227.
The facts of this case clearly dictate that the seating of
Juror Cook, who was related, albeit by marriage rather than
blood, to all five child victims and two additional
Commonwealth’s witnesses, was reversible error. Like the jurors
in Cantrell, Medici, and Barrett, Juror Cook indicated and the
trial court found that she would not be affected by her
relationship with the witnesses. However, our inquiry does not
end there. We must address the objective impact upon the public
as a whole. What could undermine confidence in an impartial
judicial system more readily than a juror who is a relative of
both the victims and the Commonwealth’s witnesses? On these
facts, I would reverse the convictions and remand for a new
trial, if the Commonwealth be so advised.
For these reasons, I respectfully dissent.
Because two of
the minors have the same first and last
name initials, we have identified one as De.M. and the other as
is arguably related to the victims and their
fathers by affinity; affinity is the relationship between one
spouse and the blood relatives of the other spouse. It does not
follow, however, that Cook is, therefore, related to the victims
and their fathers by affinity.
A review of
both the record and the briefs to the Supreme
Court indicates the arguments at trial and on appeal were
general arguments about the error in seating the juror at issue.
Public confidence in the integrity of the judicial process was
not raised as a ground for reversal at the trial level or on
We note that,
in Patterson, the issue of public confidence
was raised on appeal in appellant’s brief to this Court.
However, as noted above, it was not raised on appeal in Medici,
and we find that, as a Supreme Court case, Medici controls our
decision to address the question in the case at bar.
The opinion in
Medici was released approximately two years
before Brooks filed this appeal.