                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Senior Judge Hodges
Argued at Alexandria, Virginia


CHARLES ALLEN MOFFETT, JR.
                                                OPINION BY
v.        Record No. 0210-96-4         JUDGE JERE M. H. WILLIS, JR.
                                               MARCH 25, 1997
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                  Carleton Penn, Judge Designate
          Roger A. Inger (Massie, Inger, Boyd & Iden,
          P.C., on brief), for appellant.

          (James S. Gilmore, III, Attorney General;
          Michael T. Judge, Assistant Attorney General,
          on brief), for appellee.



     Charles Allen Moffett, Jr. contends that he did not waive

his right to be tried by a twelve person jury voluntarily and

with full knowledge of his rights.     We find no error and affirm

the judgment of the trial court.

     On June 7, 1995, Moffett was arraigned on charges of

breaking and entering and grand larceny.    He pleaded not guilty

to each charge.   The trial court then entered into a colloquy

with Moffett, and the following discussion ensued:
          THE COURT:     Do you understand that you're
                         entitled to trial by jury?

          MR. MOFFETT:     Yes, sir.

          THE COURT:       You also understand that you
                           may waive trial by jury and be
                           tried by the judge without a
                           jury? Did you discuss this
                           with your lawyer?

          MR. MOFFETT:     Yes, sir, I have.
          THE COURT:     Is it your decision that you
                         want to be tried by the judge
                         or tried by the jury?

          MR. MOFFETT:   By the jury, Your Honor.


     After the jury was selected and the trial commenced, one of

the jurors was notified of a family medical emergency.    With

Moffett and his counsel present, this juror was brought into the

courtroom, and the trial court questioned her regarding the

nature of the medical emergency.     The Commonwealth's attorney and

Moffett's attorney declined the trial court's offer to question

the juror further.
     The Commonwealth's attorney informed the trial court that if

it was necessary to excuse the juror, the Commonwealth agreed to

go forward with eleven jurors.    After permitting Moffett and his

counsel to confer, the trial court asked defense counsel and

Moffett whether they wished to proceed with only eleven jurors.

The following dialogue occurred:
          THE COURT:     Is that acceptable to your
                         client, Mr. Field.

          MR. FIELD:     Yes, Your Honor. I discussed
                         that with my client, and I'm
                         not sure what the law is on
                         this case, but if we can do
                         it, we would prefer to go
                         forward, and we are willing to
                         go forward with only 11
                         jurors. I would just ask Mr.
                         Moffett to state on the record
                         that I've discussed that with
                         him, and that's his desire so
                         it is clear on the record that
                         I'm not just speaking through
                         my hat.

          THE COURT:     You understand, Mr. Moffett,



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                         that you're entitled to have
                         12 jurors --

          MR. MOFFETT:   Yes, sir, I do.

          THE COURT:     -- under our law, but that you
                         may waive and have a smaller
                         jury if that's something that
                         you wish to do.

          MR. MOFFETT:   That's fine, Your Honor. I
                         have no objection to that.

          THE COURT:     Is that what you want to do?

          MR. MOFFETT:   Yes, sir.    I'd like to go on
                         with it.
          THE COURT:     All right. The Court
                         appreciates that. Of course,
                         from your standpoint, I'm sure
                         you don't want to have to
                         start all over again either.

          MR. MOFFETT:   This is very true.

          THE COURT:     So that is noted of record
                         that the waiver was knowingly
                         made.

                         You may bring in the other 11
                         jurors, and then inform [the
                         juror] that she's excused for
                         cause.

          MR. FIELD:     All right, Your Honor.

          THE COURT:     The Court noting that she was
                         plainly distraught, and that
                         probably it might affect her
                         ability to think clearly.

          MR. FIELD:     Your Honor, it's my opinion it
                         would affect her ability based
                         on what I saw.


     The trial continued with eleven jurors, who returned their

verdict finding Moffett guilty on both charges.   On December 12,




                              - 3 -
1995, Moffett moved to set aside the verdict, alleging that he

lacked "full understanding of his rights, the law, and the

consequences of such waiver" of a twelve member jury.    By order

entered January 18, 1996, the trial court denied this motion and

sentenced Moffett. 1

        The right of an accused to a jury trial is found in the

Constitution of the United States, Amendment VI, and in the

Constitution of Virginia, Article I, Section 8.
        Holding that a twelve member jury is not required to satisfy

an accused's federal constitutional right to a jury trial, the

United States Supreme Court has said that the essential feature

of a jury, designed to prevent governmental oppression, lies:
          [I]n the interposition between the accused
          and his accuser of the commonsense judgment
          of a group of laymen, and in the community
          participation and shared responsibility that
          results from the group's determination of
          guilt or innocence. The performance of this
          role is not a function of the particular
          number of the body that makes up the jury.
          To be sure, the number should probably be
          large enough to promote group deliberation,
          free from outside attempts at intimidation,
          and to provide a fair possibility for
          obtaining a representative cross-section of
          the community. But we find little reason to
          think that these goals are in any meaningful
          sense less likely to be achieved when the
          jury numbers six, than when it numbers 12--
    1
       The Commonwealth argues that Moffett waived his right to
appeal his acceptance of an eleven member jury by failing to
object timely. Though the motion to set aside the verdict was
made six months after trial, it was made prior to final
sentencing, and, thus, before final judgment. See Rule 1:1. The
trial judge entertained Moffett's motion, and did not hold it to
be untimely. Therefore, we do not address the timeliness of the
motion.



                                 - 4 -
          particularly if the requirement of unanimity
          is retained. And, certainly the reliability
          of the jury as a factfinder hardly seems
          likely to be a function of its size.


Williams v. Florida, 399 U.S. 78, 100-01 (1970).   Thus, the

eleven member panel that tried Moffett comprised a jury

sufficient to satisfy the federal constitutional requirement.

     Article I, Section 8 of the Constitution of Virginia

provides, in pertinent part:
          [i]f the accused plead not guilty, he may,
          with his consent and the concurrence of the
          attorney for the Commonwealth and of the
          court entered of record, be tried by a
          smaller number of jurors, or waive a jury.



(Emphasis added.)   See also Code § 19.2-262; Rule 3A:13.

     Because of the presumption against waiver of a

constitutional right, Sisk v. Commonwealth, 3 Va. App. 459, 462,

350 S.E.2d 676, 678 (1986), a trial court must determine that a

defendant's waiver of trial by jury is voluntary, knowing and

intelligent.   Rule 3A:13(b); Wright v. Commonwealth 4 Va. App.

303, 306, 357 S.E.2d 547, 549 (1987).   Furthermore, the

defendant's consent and the concurrence of the trial court and of

the attorney for the Commonwealth must be entered of record.

Rule 3A:13(b); McCormick v. City of Virginia Beach, 5 Va. App.
369, 373, 363 S.E.2d 124, 126 (1987).

     The Constitution of Virginia, Article I, Section 8,

expressly authorizes trial in a criminal proceeding by a jury of

fewer than twelve members.   However, because this involves the




                               - 5 -
waiver pro tanto by the accused of his right to trial by jury,

his voluntary, knowing and intelligently given consent, concurred

in by both the trial court and the Commonwealth's attorney, must

be obtained and entered of record.       Moffett's consent, and the

concurrences of the Commonwealth's attorney and the trial court

are plainly of record.   Moffett concedes that he gave his consent

voluntarily.   The issue before us is whether he did so knowingly

and intelligently.   We hold that he did.
     The trial court advised Moffett fully of his right to a jury

of twelve.   Moffett acknowledged that he understood that right,

and stated plainly that he wished to proceed with trial before

the remaining panel of eleven.    Moffett acknowledged that this

decision was based on his desire to go forward with his trial and

not to be put to the necessity of starting trial again.      Moffett

argues that the trial court did not advise him of all the

possible consequences that might have resulted from the smaller

panel.   He suggests that a panel of twelve might have been harder

to convince unanimously of his guilt than a panel of eleven.

These considerations raise issues of supposition, not of law.

The record discloses unquestionably that the trial court properly

and thoroughly advised Moffett of his rights with respect to the

size of the jury panel and of his right, by waiver, to accept a

smaller panel.   Moffett's decision to waive the full panel

composition and to accept a smaller panel, made after

consultation with his attorney, was voluntary, knowing and



                                 - 6 -
intelligent.

     The judgment of the trial court is affirmed.

                                                    Affirmed.




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