                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Overton
Argued at Richmond, Virginia


ROBERT MASON, A/K/A
 ANTHONY BERNARD SMITH
                                            MEMORANDUM OPINION * BY
v.        Record No. 0499-96-4               JUDGE LARRY G. ELDER
                                                 JUNE 24, 1997
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                    William L. Winston, Judge
          (Joseph H. Beale, on brief), for appellant.

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



     Robert K. Mason, a/k/a Anthony Bernard Smith (appellant)

appeals his conviction of habitual petit larceny.    He contends

that the trial court erroneously denied his motion for a mistrial

because one of the impaneled jurors lacked sufficient proficiency

with the English language.   He also contends that the trial court

erred when it used leading questions to inquire about the juror's

ability to understand English.    For the reasons that follow, we

affirm.

                                  I.

                                 FACTS

     Appellant was charged with petit larceny, a third or

subsequent offense.   Prior to his trial, the trial court and the
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
parties conducted a voir dire of the members of the jury panel,

during which the jurors were not asked about their proficiency

with the English language.    While the jury was deliberating

appellant's sentence, appellant's counsel moved for a mistrial

because he had learned that "one of the jurors' native language

is not English and . . . that she has great difficulty

understanding English."    In response to appellant's motion, the

trial court recalled the jury from the jury room and asked the

juror in question (Juror X) about her experience with English.

During their brief exchange, Juror X answered all of the trial

court's questions responsively.    She stated that, although she

does not speak English perfectly, she reads English and regularly

converses in it at work.    She also stated that another juror

translated "some things" to her in Spanish during the

deliberations.   The trial court denied appellant's motion for a

mistrial, reasoning that it "was guided . . . by [Juror X's]

ability to converse with me."
     The jury resumed deliberating and sentenced appellant.

After the jury was excused, appellant's counsel renewed his

motion for a mistrial.    The trial court again denied the motion.

     II.

                          MOTION FOR MISTRIAL

     Appellant contends that the trial court violated his

constitutional right to an impartial jury when it denied his

motion for a mistrial because Juror X lacked sufficient



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proficiency with the English language to comprehend the evidence

and arguments presented at trial.    We disagree.

     In criminal proceedings, a defendant has a right to a trial

by an "impartial jury."   See U.S. Const. amends. VI, XIV; Duncan

v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 1447, 20 L.Ed.2d

491 (1968); Va. Const. art. I, § 8.   Neither this Court nor the

Supreme Courts of the United States and Virginia have previously

addressed the issue of whether the constitutional right to an

impartial jury includes the right to a jury proficient in the

English language.
     Generally, a criminal defendant's right to an impartial jury

includes the right to have his case tried by jurors who are able

to understand the evidence and the law and to arrive at an

independent judgment as to guilt or innocence.
          Fundamental to the right of an impartial jury
          is the requirement that jurors be competent
          and qualified. "[T]rial by jury necessarily
          requires a jury which is able to comprehend
          and intelligently resolve the factual issues
          submitted to its verdict."

Commonwealth v. Susi, 394 Mass. 784, 786-87, 477 N.E.2d 995, 997

(1985) (quoting Rabinowitz v. United States, 366 F.2d 34, 92 (5th

Cir. 1966) (Coleman, J., concurring in part and dissenting in

part)); see also State v. Gallegos, 88 N.M. 487, 488-99, 542 P.2d

832, 833-34 (N.M. Ct. App. 1975); Commonwealth v. Brown, 231

Pa.Super. 431, 435-36, 332 A.2d 828, 831 (1974); State v.

Berberian, 118 R.I. 413, 418, 374 A.2d 778, 781 (1977); State v.




                               -3-
Hurd,     S.C.     ,    , 480 S.E.2d 94, 97 (S.C. Ct. App. 1996);

State v. Turner, 186 Wis.2d 277, 284, 521 N.W.2d 148, 151 (Wis.

Ct. App. 1994).   "[T]he Due Process Clause protects a defendant

from jurors who are actually incapable of rendering an impartial

verdict, based on the evidence and the law."     Peters v. Kiff, 407

U.S. 493, 501, 92 S. Ct. 2163, 2168, 33 L.Ed.2d 83 (1972)

(plurality opinion); see also Smith v. Phillips, 455 U.S. 209,

217, 102 S. Ct. 940, 946, 71 L.Ed.2d 78 (1982) (stating that due

process requires "a jury capable and willing to decide the case

solely on the evidence before it").
     Applying this principle, we hold that a juror's lack of

proficiency with the English language renders the juror

constitutionally disqualified from jury service if the juror is

actually incapable of substantially comprehending the evidence

and arguments presented at trial.     See Gallegos, 88 N.M. at 489,

542 P.2d at 834 (stating that "a juror who does not possess a

working knowledge of English would be unable to serve because he

cannot possibly understand the issues or evaluate the evidence to

arrive at an independent judgment as to the guilt or innocence of

the accused"); 50A. C.J.S. Juries § 290 (1997) (stating that the
requirement of English proficiency "merely requires the juror to

understand substantially the testimony and argument").    What has

been said about the competency of a juror who is hard of hearing

also applies to jurors who are unable to understand the language

in which court proceedings occur:




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             [A] juror cannot be aware of what she cannot
             hear. Thus, the juror here could not
             participate in meaningful discussions during
             the deliberative stage of the trial nor
             decide the case intelligently. The effect of
             the juror's inability to hear the testimony
             was tantamount to the juror not being in
             attendance for . . . the trial, thus denying
             the defendant the right to a jury of twelve.

People v. Trevino, 826 P.2d 399, 401 (Colo. Ct. App. 1991).

As with other decisions regarding the competency of jurors to

serve, whether or not a juror demonstrates a lack of proficiency

with the English language is committed to the sound discretion of

the trial court.    See Martin v. Commonwealth, 221 Va. 436, 445,

271 S.E.2d 123, 129 (1980).

     We hold that the trial court did not abuse its discretion

when it concluded that Juror X possessed a sufficient

understanding of English to be "impartial" and that her service

on the jury did not "probably cause injustice" to appellant.

Thus, its denial of appellant's motion for a mistrial was not

erroneous.

     The trial court's conclusion that Juror X was not incapable

of substantially understanding the evidence and arguments

presented at trial is supported by the record.    In response to

the trial court's questions, Juror X stated that she works at a

hotel in Washington where she regularly communicates with people

in English.    She stated that she reads English more than she

writes it and that she reads newspapers.    Juror X did state that

another juror translated "some things" for her; however, Juror X



                                 -5-
had no apparent problem understanding the trial court's

questions, and her answers were intelligent and responsive.

These facts provided the trial court with an adequate basis to

conclude that Juror X was sufficiently competent to render an

impartial verdict based on the evidence and law.

     We disagree with appellant's argument that because at least

one other juror translated "some things" to Juror X, Juror X's

presence on the jury probably caused injustice.    Appellant had

the burden of establishing that Juror X's service on the jury

would "probably cause injustice" to him.   Code § 8.01-352(B).

Because the record does not indicate the degree of assistance

that the other jurors provided to Juror X, we cannot say that the

trial court erred when it concluded that appellant had failed to

meet his burden of proof.
     Finally, appellant argues that the trial court committed

reversible error when it used leading questions to rehabilitate

Juror X after doubts arose about her ability to understand

English.   We disagree.

     The method in which jurors are examined by a trial court or

the parties' counsel may impact the trial court's ability to

determine a juror's qualification to serve.   See McGill v.

Commonwealth, 10 Va. App. 237, 242, 391 S.E.2d 597, 600 (1990).

Subject to limitations imposed by statutes or rules of court, the

manner of examining jurors is within the trial court's

discretion.   See id. at 241, 391 S.E.2d at 600 (citation




                                -6-
omitted).    However, manifest error may arise from the use of a

selection procedure which does not result in a fair and impartial

jury.     See id.

        Generally, the evidence that a juror possesses the requisite

qualifications for jury service must emanate from the juror

"uninfluenced by persuasion or coercion" and "unsuggested by

leading questions posed to him or her."     Educational Books, Inc.

v. Commonwealth, 3 Va. App. 384, 389, 349 S.E.2d 903, 907 (1986)

(citations omitted).    It is well established that once a

prospective juror has indicated a bias or prejudice against a

party, he or she may not be rehabilitated for service based

solely upon leading questions that suggest a desired response.
See Griffin v. Commonwealth, 19 Va. App. 619, 625, 454 S.E.2d

363, 366 (1995) (citing Foley v. Commonwealth, 8 Va. App. 149,

159-60, 379 S.E.2d 915, 921, aff'd en banc, 9 Va. App. 175, 384

S.E.2d 813 (1989)).    However, no statutes, rules of court, or

cases set forth the manner of rehabilitation for a juror whose

proficiency with English, instead of objectiveness, has been

challenged.

        We hold that the trial court's manner of questioning Juror X

to ascertain her ability to understand English was not an abuse

of discretion because the evidence of her proficiency came from

the degree of her responsiveness to the questions.    No evidence

suggests that her responsiveness was tainted by coercion.

Although the record indicates that the trial court used some



                                  -7-
leading questions to inquire about Juror X's use of English in

her everyday life, the trial court did not rely exclusively on

this form of interrogation to make its determination.   The

transcript of the exchange between the trial court and Juror X

indicates that the trial court did ask some open-ended questions

and that some of Juror X's comments were unsolicited by the trial

court.   Furthermore, most of Juror X's responses to the trial

court's questions that were leading were more than just one-word

affirmative responses.
     Moreover, unlike in the context of examining a juror for

bias or prejudice, leading questions are not devoid of usefulness

when used to determine a juror's proficiency with English.    When

inquiring about a juror's ability to comprehend the English

language, the fluidity and intelligence of the juror's response

to leading questions provides some indication of his or her

ability to understand the spoken word, which is a component of

the requisite language skills necessary to qualify as an

impartial juror.   In this case, Juror X's responses to the trial

court's combination of leading and open-ended questions provided

the basis for its conclusion that
          her understanding of what I said seemed to me
          to be very good. And her responses were
          directly to the statements that I made. And
          I had no reason to believe at all that she
          did not understand me.

     For the foregoing reasons, we affirm the conviction of

habitual petit larceny.



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      Affirmed.




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