Opinion
Record No. 0929-91-1
February 16, 1993
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON WALTER J. FORD, JUDGE
Lawrence A. Martin (Lawrence A. Martin, P.C., on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Willis, Elder and Bray
Argued at Norfolk, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
A jury convicted Fred Elvace Allison of murder in the first degree. In accordance with the verdict, the court sentenced him to life imprisonment. Allison moved for a mistrial, alleging that during presentation of the evidence, one of the jurors was sleeping and/or was distracted by a migraine headache. Evidence on this motion revealed that on at least two occasions during the trial, a juror closed her eyes briefly. On both occasions, the juror closed her eyes while Officer Spencer testified about Allison's statement. The juror told the bailiff that she was not sleeping, but had a migraine headache. The juror testified at the hearing, in relevant part, as follows:
Q. I understand — were you trying to black it out then or blank it out now?
A. I'm trying to blank — the whole thing I'm trying blank out, sir. Since the thing is over, too.
Q. Were you trying to —
A. I'm just trying to forget it.
Q. Were you trying to blank it out then?
A. Yes, sir. I was trying to; yes. Trying to forget everything. If I could.
Q. At that point in time?
A. Anytime.
Q. During the trial?
A. Now; at the trial, too.
Q. Okay, Miss Jenkins, do you remember when you were sworn in as a juror that you took an oath to listen to the evidence and to make a determination based on that evidence?
A. Yes, I remember that.
Q. Did you follow your oath as a juror?
A. Yes.
Q. Did you listen to the evidence?
A. Yes, I did.
Q. You were praying that God help you —
A. Yes. That — yes.
Q. — in making the right decision?
A. Yes.
Q. But that decision was also based on the decision that you heard —
A. Yes.
Q. — wasn't it?
A. Yes.
Q. You were not — during the trial you were not trying to blank out the evidence, were you? It was only after the trial was over.
A. Yeah, I was trying to kind of get myself together, to tell you the truth. Because — like I say, if you've never been through anything you don't know. And I didn't.
Several of Allison's friends and family members testified that the juror had her eyes closed, but none could state with certainty that she was asleep. Nothing in the trial transcript reflects any part of this incident. The trial court found that the juror had not been sleeping, had been alert, and had served properly. It denied the motion for a mistrial.
Allison contends the court abused its discretion in denying his motion for a mistrial. He argues that the evidence established that the juror tried to block out the testimony because of her sheltered life and because of the nature of the circumstances being described. He contends that the juror did not listen to the evidence, and that her lack of attention violated his constitutional right to a jury trial. On the facts in this record, we disagree.
Whether a mistrial should be granted lies within the discretion of the trial court. Turnbull v. Commonwealth, 216 Va. 328, 335, 218 S.E.2d 541, 546 (1975). We find no abuse of that discretion. The trial court accepted the juror's credible testimony that she was awake and paying attention. The juror testified that she closed her eyes only for a minute during an officer's testimony regarding Allison's statement. She indicated that she listened to the evidence and obeyed her oath as a juror to base her decision on the evidence presented.
The judgment of the trial court is affirmed.
Affirmed.