In considering a motion to set aside when juror misconduct is alleged, the trial court has the affirmative duty "to investigate the charges and to ascertain whether or not, as a matter of fact, the jury was guilty of such misconduct." Kearns v. Hall, 197 Va. 736, 743, 91 S.E.2d 648, 653 (1956). The trial court properly may summon one or more jurors to testify under oath in open court and to answer relevant questions propounded by the court and counsel about what had transpired.
In considering a motion to set aside when juror misconduct is alleged, the trial court has the affirmative duty "to investigate the charges and to ascertain whether or not, as a matter of fact, the jury was guilty of such misconduct." Kearns v. Hall, 197 Va. 736, 743, 91 S.E.2d 648, 653 (1956). The trial court may properly summon one or more jurors to testify under oath in open court and to answer relevant questions propounded by the court and counsel about what had transpired.
"In considering a motion to set aside when juror misconduct is alleged, the trial court has the affirmative duty `to investigate the charges and to ascertain whether or not, as a matter of fact, the jury was guilty of such misconduct.'" Commercial Union Ins. Co. v. Moorefield, 231 Va. 260, 265, 343 S.E.2d 329, 332 (1986) (quotingKearns v. Hall, 197 Va. 736, 743, 91 S.E.2d 648, 653 (1956)). Although the Supreme Court has held that "hearsay affidavits are not admissible in support of a motion for a new trial," Moorefield, 231 Va. at 265, 343 S.E.2d at 333, the Court also has noted that, "[n]evertheless, such an affidavit may be sufficient to require the trial court to investigate the matters recited in the document."
Id. at 207, 361 S.E.2d at 447. In Kearns v. Hall, 197 Va. 736, 91 S.E.2d 648 (1956), the Supreme Court said: When allegations of the misconduct of a juror are of such a nature as to indicate that the verdict was affected thereby, it becomes the duty of the court to investigate the charges and to ascertain whether or not, as a matter of fact, the jury was guilty of such misconduct.
The Virginia Supreme Court has held that inadmissible evidence is nonetheless "sufficient to require the court to hold a hearing" on a juror bias issue. Kearns v. Hall , 197 Va. 736, 91 S.E.2d 648, 652–53 (1956). The Virginia court explained, "When allegations of the misconduct of a jury are of such a nature as to indicate that the verdict was affected thereby, it becomes the duty of the court to investigate the charges and to ascertain whether or not, as a matter of fact, the jury was guilty of such misconduct."
Accordingly, we will reverse the circuit court's ruling that Parcel E extends only to the edge of Hibiscus Drive and enter final judgment for Ettinger. "The appellate court ... shall render final judgment upon the merits whenever, in the opinion of the court, the facts before it are such as to enable the court to attain the ends of justice." Code § 8.01-681 ; Kearns v. Hall , 197 Va. 736, 744, 91 S.E.2d 648 (1956) ("Before entering final judgment, it should be reasonably apparent that the case has been fully developed in the trial court, or at least, that the parties had a fair opportunity of so developing the case, and we must be of opinion that, upon the facts before us, the parties have had a fair trial on the merits of the case, and that substantial justice has been reached."). Because all facts necessary for resolution of this appeal are contained within the stipulated record, entry of final judgment is appropriate.
Upon reviewing Picataggi's affidavit, the circuit court properly convened an evidentiary hearing to investigate further her allegations of juror misconduct. See Kearns v. Hall, 197 Va. 736, 743, 91 S.E.2d 648, 653 (1956) (when allegations of jury misconduct are sufficient to indicate the verdict was affected thereby, a trial court has a duty to investigate and determine whether, as a matter of fact, the jury did engage in misconduct). The evidence presented at that hearing amply supported the court's conclusions that there was probably no misconduct and clearly no prejudice to the defendant.
However, if the misconduct is discovered after the jury is discharged and the allegations are sufficient to require investigation, a trial court abuses its discretion in ruling upon a motion for a mistrial without investigating the alleged misconduct to ascertain whether it prejudiced the case. Commercial Union Ins. Co. v. Moorefield, 231 Va. 260, 266-67, 343 S.E.2d 329, 333 (1986) (failure to summon and examine juror to determine if prejudiced by improper remark regarding case made by prospective juror on day of trial); Kearns v. Hall, 197 Va. 736, 743, 91 S.E.2d 648, 653 (1956) (failure to summon and examine jurors regarding unauthorized experiment during jury view of scene of accident). Citing these three cases, Robertson contends that the trial court abused its discretion in (1) failing to perform "a sufficient investigation into the situation," and (2) failing to grant a mistrial "given misconduct of such a nature that prejudice might result."
In most cases, misconduct outside the jury room has prejudicially affected the jury's deliberation of the case by injecting facts connected with the case which had not been admitted in evidence. For example, the rule has been applied to an improper jury view, McGuire v. Howard, 203 Va. 965, 128 S.E.2d 281 (1962); Kearns v. Hall, 197 Va. 736, 91 S.E.2d 648 (1956); Crockett v. Commonwealth, 187 Va. 687, 47 S.E.2d 377 (1948); and Litz v. Harman, supra; and to unauthorized private conversations between jurors and third persons, Harris v. Tractor Company, 202 Va. 958, 121 S.E.2d 471 (1961); Dozier v. Morrisette, 198 Va. 37, 92 S.E.2d 366 (1956). In the present case, the trial court focused upon the publication read by Olmstead and upon his "garbage" comment as the bases for setting aside the verdict.
The defendant assigns error because the defendant's trial was held in the courtroom which was the scene of the killing. He underpins this argument by citing a number of cases including Noell v. Commonwealth, 135 Va. 600, 115 S.E. 679 (1923); Yeary v. Holbrook, 171 Va. 266, 198 S.E. 441 (1938); Crockett v. Commonwealth, 187 Va. 687, 47 S.E.2d 377 (1948); and Kearns v. Hall, 197 Va. 736, 91 S.E.2d 648 (1956). These cases all deal with jury misconduct or an unauthorized view and are inapposite.