Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Lacy, S.J.

COMMONWEALTH OF VIRGINIA

v.   Record No. 070479              OPINION BY SENIOR JUSTICE
                                        ELIZABETH B. LACY
                                        November 2, 2007
ADHAN MALDONADO JUARES1

              FROM THE COURT OF APPEALS OF VIRGINIA

      Adhan Maldonado Juares was convicted of aggravated sexual

battery, a violation of Code § 18.2-67.3, in the Circuit Court

of Loudoun County.   In this appeal we consider whether an ex

parte contact between court personnel and the jury during jury

deliberations required the trial court to declare a mistrial

or set aside the jury verdict.

      The following facts are relevant to the issue presented

in this appeal.   After his arrest, Juares was interviewed by

Investigator Howard Craig and Deputy Jose A. Giron.   Juares, a

Mexican national, had a limited command of the English

language and Deputy Giron, who spoke Spanish fluently, acted

as an interpreter during the interview.   With Juares’

permission, a portion of the interview was tape-recorded.

      The Commonwealth played the tape-recording during Deputy

Giron’s testimony at trial.   Deputy Giron testified that his


      1
       Although this case came to this Court captioned
“Commonwealth of Virginia v. Adhan Maldonado,” the record
reflects that the defendant’s full name is Adhan Maldonado
Juares. We use this name in the disposition of this case.
translation recited on the tape was “90, 95 percent word for

word.”   Juares, however, contended that the translation was

not entirely complete or accurate.      Juares asked the court to

have a court-certified interpreter listen to the tape and

translate the Spanish portions for the jury.      The trial court

agreed and a certified court interpreter provided an oral

translation of the Spanish-language portions of the tape to

the jury.

     During its deliberations, the jury asked court personnel2

if it could have an interpreter.      The court personnel did not

bring the jury’s inquiry to the attention of the trial judge

or the parties, but told the jury that an interpreter “[w]ould

not be provided.”   The jury returned a guilty verdict.

     Juares learned of the jury’s inquiry prior to sentencing

and moved to have the verdict set aside and for a mistrial

based on the ex parte contact between the jury and court

personnel.   The trial court, after hearing arguments from the

parties, denied Juares’ motion.       Examining the content of the

communication, the trial court held that the denial of a

request for an interpreter did not interject any substantive

information into the jury’s determinations.      The trial court

observed that there was no objection to the introduction of


     2
       The identity of the specific employee who responded to
the jury’s inquiry was not established at trial.
                                  2
the tape-recording into evidence or providing it to the jury,

and the jurors were told they could take notes during the

testimony but that no written transcript would be available

during their deliberations nor would any testimony be read

back to them during their deliberations.   The trial court

stated that the response by court personnel “simply stated and

reaffirmed the Court’s prior instruction that they would not

have testimony read back to them.”    Observing that the jury

could not have a new interpretation or an interpretation

different than that produced during the trial, the trial court

stated that “under no circumstances would there ever be an

interpreter, . . . where we would send an interpreter back.”

Thus the trial court concluded that the ex parte contact did

not prejudice Juares.

     On appeal, the Court of Appeals, applying Remmer v.

United States, 347 U.S. 227 (1954), held that the ex parte

contact was presumptively prejudicial and that the

Commonwealth did not carry its burden to show that the ex

parte contact was harmless.   The Court of Appeals reversed the

conviction and remanded the case for a new trial.    We awarded

the Commonwealth an appeal.

                         DISCUSSION

     Generally, a party seeking a mistrial carries the burden

of establishing that he suffered prejudice by the complained

                                3
of acts, Riner v. Commonwealth, 268 Va. 296, 318, 601 S.E.2d

555, 567 (2004); however,

        any private communication, contact, or tampering,
        directly or indirectly, with a juror during a trial
        about the matter pending before the jury is, for
        obvious reasons, deemed presumptively prejudicial,
        if not made in pursuance of known rules of the court
        and the instructions and directions of the court
        made during the trial, with full knowledge of the
        parties.


Remmer, 347 U.S. at 229.     The presumption of prejudice can be

rebutted if, after notice and hearing, the government

establishes that the “contact with the juror was harmless to

the defendant.”    Id.

        In this case the substance of the response of the court

personnel was a private communication with a juror made

without the full knowledge of the parties.    Nevertheless, the

presumption of prejudice arises only if the private

communication is “about the matter pending before the jury.”

Id.     The issue before us in this case is whether the court

personnel’s response concerned a matter pending before the

jury.    This is an issue of law which we review de novo.   See

Bristol v. Commonwealth, 272 Va. 568, 573, 636 S.E.2d 460, 463

(2006).

        We have previously held that ex parte contacts between a

juror and a judge regarding a juror’s attention to the

proceeding was “administrative in nature.”    Ellis v.

                                  4
Commonwealth, 227 Va. 419, 423, 317 S.E.2d 479, 481 (1984).

Similarly, the United States Supreme Court determined that a

communication between the judge and a juror regarding a

question raised in voir dire did not relate to any “fact in

controversy or any law applicable to the case.”   Rushen v.

Spain, 464 U.S. 114, 121 (1983).

     The statement at issue in this case, like those in Ellis

and Rushen, did not convey any additional facts or opinions

regarding the guilt or innocence of Juares nor did it contain

any comment on the law, the evidence or the testimony

presented during the trial.   As noted by the trial court, the

communication to the jury was only a response to a question

regarding a procedural aspect of jury deliberation.   To be

sure, a proper translation of Juares’ taped interview was a

crucial part of the evidence in determining the issue of guilt

or innocence.   But the issue before us is not whether there

was error in failing to provide such an interpreter but

whether the response itself related to the issue of guilt or

innocence.3   Accordingly, we hold that the response of court

personnel, that no interpreter would be provided to the jury,



     3
       Juares asserts that the trial court erred in concluding
that the jury would not have been permitted the interpreter.
However, Juares did not assign error to this holding when
appealing the denial of his motion to set aside the verdict or
for a mistrial and that issue is not before us in this appeal.
                                5
did not address any matter pending before the jury, and

therefore the presumption of prejudice did not arise.

     In the absence of a presumption of prejudice, the burden

remained on Juares to establish that he was prejudiced by the

ex parte communication.   He has failed to show that the

response of the court personnel affected the jury’s

deliberations in a manner that was prejudicial to him.4

     In summary, the trial court did not err in denying

Juares’ motions for a mistrial and to set aside the verdict

based on the ex parte communication between the jury and court

personnel.   The ex parte communication was not presumptively

prejudicial as a matter of law because it did not concern

matters pending before the jury and Juares failed to establish

that he was prejudiced by the communication.   Accordingly, we

will reverse the judgment of the Court of Appeals and

reinstate the conviction.

                                    Reversed and final judgment.




     4
       Juares’ assertions that the response could be
interpreted as “a comment that the tape’s English translation
was sufficiently accurate to satisfy the Court” is without
merit.
                                6
