Home / Fulltext Opinions / Supreme Court of Virginia / MASON v. COMMONWEALTH OF VA



April 17, 1998
Record No. 971818





Present: All the Justices

In this appeal, we consider whether the trial court should
have removed a juror, who had been empanelled and sworn without
objection, because the juror purportedly lacked sufficient
proficiency in the English language.

Robert K. Mason was indicted by an Arlington County grand jury
for the felony of habitual petit larceny in violation of Code
?? 18.2-96 and -104. At a jury trial, the trial court and
counsel for the litigants participated in the voir dire.
Upon conclusion of the voir dire, the Commonwealth
and the defendant exercised their peremptory challenges, and a
jury consisting of 12 members was empanelled without objection.

During the guilt phase of the bifurcated trial, the
Commonwealth and the defendant presented their opening statement,
evidence, and closing argument. The jury then deliberated and
returned a verdict of guilty. In the sentencing phase at the
trial, the Commonwealth presented additional evidence, but the
defendant presented no evidence. The trial court instructed the
jury on sentencing, defense counsel presented argument to the
jury, and the jury retired to deliberate the defendant’s

While the jury was deliberating, defense counsel made a motion
for a mistrial because he had received information that one of
the jurors purportedly had "great difficulty understanding
English." The trial court interrupted the jury’s
deliberations, summoned the jurors to the courtroom, and the
following colloquy occurred:

"THE COURT: Ladies and gentlemen, I’m sorry to interrupt
your deliberations, but the purpose of it is this:

"A question was raised as to whether or not there is a
juror who has difficulty with the English language and was not
able to understand the testimony and is not able to understand
the instructions and the colloquy in the jury room on the

"I’ve done these cases and have done them in Arlington,
of course, for many years. And usually where that is the case in
a jurisdiction like Arlington, that person makes known to the
Court that problem, if you will, and then the Court is permitted
to make inquiry initially of the person’s experience with the
English language.

"Is that a problem with a juror, or I don’t want to
embarrass anybody, but may I inquire who the juror is so that I
can determine from that juror if there is a problem?

"Is there any problem in the —

"A JUROR: Well, I don’t think it was a — well, this is
the young lady right here.

"THE COURT: All right.

"A JUROR: But we have at least two or three people that
interpret the Spanish language, that really broke everything down
for her.

"THE COURT: You speak English, don’t you?

"A JUROR: Yes, I speak English, but not perfect.

"THE COURT: Well, not too many know it to perfection. We
don’t practice that and we don’t expect it. But do you work out
in the community?

"A JUROR: I work in Washington, D.C.

"THE COURT: All right.

"A JUROR: At Parkinson’s Hotel.

"THE COURT: You deal with people in English constantly,
don’t you?

"A JUROR: Yeah.

"THE COURT: All right.

"A JUROR: This is the first time I come over here. So
many things new. The gentleman, he translate to me some things.

"THE COURT: Do you write in English?

"A JUROR: A little bit.

"THE COURT: And do you read English?

"A JUROR: Read more than write.

"THE COURT: You read more than you write. Do you read the

"A JUROR: Yes.

"THE COURT: And you converse with English when you are
with English-speaking people? You converse with them in English,
do you?

"A JUROR: Yeah. In my job, yes.

"THE COURT: All right.

"I see no problem with this person’s ability or level of
understanding of English to certainly deliberate in the jury

After the jury had returned to the jury room to continue its
deliberations, the court further explained its ruling denying the
defendant’s motion:

"Well, I was guided more by her ability to converse with
me. That’s the test. And to sit through the voir dire
and know when to raise her hand and make an inquiry.

"In this community, which has its various national groups
here, and in many other communities in this country, you have
many more people serving on juries who are less acquainted with
the local language than this lady is. She would be so far above
the minimum standard, I think, that she would, I think, pass
anyone’s test."

The jury concluded its deliberations and fixed the defendant’s
punishment at three years and nine months in the penitentiary.
The jury was polled, and each juror responded affirmatively when
asked by the clerk, "is this your verdict?"

After the jury was discharged, the defendant renewed his
motion for a mistrial. Denying that motion, the trial court

"I spoke with her. And when you made your motion, I had
the jury come in and take their seats in the jury box and asked
her specifically about her understanding and asked so the others
could hear it, and her understanding of what I said seemed to me
to be very good. And her responses were directly to the
statements that I had made. And I had no reason to believe at all
that she did not understand me.

"She said that she reads English. She does not write it
too well. She speaks it. She works in an environment where she
uses it. And I think she meets the standard that we need as far
as her ability to function as one of the 12 jurors, which she
certainly appears to have done."

The trial court entered a judgment confirming the jury’s
verdict, and the Court of Appeals, in an unpublished memorandum
opinion, affirmed the judgment of the trial court. Robert
Mason, a/k/a Anthony Bernard Smith
v. Commonwealth,
Record No. 0499-96-4 (1997). Mason appeals.

Mason argues that the trial court erred in denying his motion
for a mistrial because due process requires a trial by an
impartial jury of 12 members competent in the English language.
The Commonwealth responds that the defendant’s due process rights
were not abridged because the challenged juror had a sufficient
understanding of the English language. We agree with the

A defendant in a criminal prosecution has a fundamental right
to a trial by an impartial jury. U.S. Const. amends. VI and XIV;
Va. Const. art. I, ? 8; Gray v. Commonwealth,
226 Va. 591, 592-93, 311 S.E.2d 409, 409-10 (1984). The right of
an impartial jury requires that the jury be capable of
understanding the factual issues that it must resolve. See
Commonwealth v. Susi, 477 N.E.2d 995, 997 (Mass.
1985); State v. Hurd, 480 S.E.2d 94, 97 (S.C. Ct.
App. 1996). Indeed, the United States Supreme Court has stated
that "[d]ue process means a jury capable and willing to
decide the case solely on the evidence before it." Smith
v. Phillips, 455 U.S. 209, 217 (1982). See also
Susi, 477 N.E.2d at 997; State v. Gallegos,
542 P.2d 832, 833-34 (N.M. Ct. App. 1975).

After the jury has been sworn, a litigant may only make an
objection relating to the empanelling of jurors with leave of
court. Code ? 8.01-352(A)(ii); Hill v. Berry,
247 Va. 271, 273, 441 S.E.2d 6, 7 (1994). Here, the trial court
implicitly granted Mason leave to challenge the juror because the
court decided his motion. Hill, 247 Va. at 274, 441 S.E.2d
at 7. However, a litigant who seeks to set aside a jury verdict
or obtain a new trial on the basis of a juror’s disability must
demonstrate that the "disability be such as to probably
cause injustice in a criminal case to the Commonwealth or to the
accused." Code ? 8.01-352(B). Additionally, we note
that upon appellate review, we must give deference to the trial
court’s decision whether to remove a juror because the trial
court sees and hears the juror. See Weeks v. Commonwealth,
248 Va. 460, 475, 450 S.E.2d 379, 389 (1994), cert. denied,
516 U.S. 829 (1995).

Applying the aforementioned principles, we hold that the trial
court properly denied Mason’s motion for a mistrial because the
record fails to demonstrate that the challenged juror had a
disability which was "such as to probably cause
injustice" in Mason’s criminal trial. The trial court
examined the challenged juror to determine her level of
proficiency in the English language. As the colloquy between the
trial court and the challenged juror indicates, the juror
understood all the trial court’s questions. The trial court made
a factual finding that the challenged juror had a sufficient
level of understanding of the English language which permitted
her to participate fully in the jury deliberations. According the
trial court the deference to which it is entitled, we perceive of
no reason to disturb the trial court’s finding, which is
supported by the record.

We do not consider the defendant’s argument that the trial
court erred by improperly asking leading questions when the court
examined the challenged juror because such argument was not
raised in the trial court. Rule 5:25. Accordingly, the judgment
of the Court of Appeals will be affirmed.