Opinion
Record No. 2596-92-2
February 8, 1994
FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY W. PARK LEMMOND, JR., JUDGE.
Kenneth C. Chrisman for appellant.
Robert H. Anderson, III, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Bray.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Robert Russell Bennett (appellant) appeals from a judgment of the Circuit Court of Prince George County that approved a jury verdict convicting appellant for attempted breaking and entering of the Newville Grocery Store. The sole issue presented by appellant is whether the trial court erred when it denied his motion for a mistrial based on pretrial information overheard by one of the jurors. In its brief, the Commonwealth contends that this appeal is barred by Rule 5A:18, arguing that appellant has raised the issue for the first time on appeal. Finding that the trial court did not err, we affirm the judgment. For that reason, we need not address the procedural bar issue asserted by the Commonwealth.
As the parties are familiar with the facts, we recite only those necessary to an understanding of this opinion. In doing so, upon familiar principles, we state the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
Prior to being selected, a juror overheard two or three bailiffs discussing a probation violation. The juror did not know that the comments referred to appellant until "the evidence unfolded in this case." When the juror realized the reference had been to appellant, the juror reported the incident to the trial court. The juror was questioned in chambers in the presence of the trial judge, defense counsel and the prosecutor, without the court reporter being present. The juror unequivocally assured those present that what was heard had not been told to any other juror and would not have any impact on the juror's ability to be impartial, fair and objective to both sides.
The trial court has discretionary power to determine whether a juror has been adversely impacted so as to be unable to render a fair and impartial verdict. Clozza v. Commonwealth, 228 Va. 124, 136, 321 S.E.2d 273, 280 (1984), cert. denied, 469 U.S. 1230 (1985). In such cases, the burden is on the party moving for the mistrial to show an abuse of discretion by proving the "probability of prejudice." See Haddad v. Commonwealth, 229 Va. 325, 330, 329 S.E.2d 17, 20 (1985). As the fact finder, "the trial court must weigh the meaning of the answers given in light of the phrasing of the questions posed, the inflections, . . . and the general demeanor of the . . . juror." Smith v. Commonwealth, 219 Va. 455, 464-65, 248 S.E.2d 135, 141 (1978),cert. denied, 441 U.S. 967 (1979).
Because appellant has not established by the record the probability of prejudice, he has failed to prove an abuse of trial court discretion. Accordingly, we affirm the judgment of the trial court.
Affirmed.