Brooks v. Com., Record No. 1401-02-4.

• Decision Date: 09 September 2003
• Docket Number: Record No. 1401-02-4.
• Citation: 41 Va. App. 454,585 S.E.2d 852
• Court: Virginia Court of Appeals
• Parties: Kenneth Carl BROOKS v. COMMONWEALTH of Virginia.

585 S.E.2d 852

41 Va. App. 454

Kenneth Carl BROOKS v. COMMONWEALTH of Virginia.

Record No. 1401-02-4.

Court of Appeals of Virginia Alexandria.

September 9, 2003.

William A. Crane, Public Defender (Office of the Public Defender, on brief), for appellant.

Richard B. Smith, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FITZPATRICK, Chief Judge, and ANNUNZIATA and CLEMENTS, Judges.

ANNUNZIATA, Judge.

Kenneth Carl Brooks was convicted in a jury trial on three counts of taking indecent liberties in violation of Code § 18.2-370, two animate object penetration charges in violation of § 18.2-67.2, and five aggravated sexual battery charges in violation of § 18.2-67.3. Imposing the sentence fixed by the jury, the trial court sentenced Brooks to 99 years in prison, 10 of which were suspended, and ordered him to pay a $25,000 fine.

Brooks appeals his convictions on the ground that the trial court erred because it denied his motion to excuse for cause a juror who was related to several of the prosecution witnesses and to the victims and denied his motion for a mistrial. We find no error and affirm.

Factual Background

Brooks was indicted and ultimately convicted of committing various sexual offenses against several minors: L.M., A.G., De.M., R.M., and D.M.¹ The minors testified for the Commonwealth at the trial, as did their fathers.

During pretrial voir dire, the judge asked the venire members: "Are any of you related by blood or marriage to any of those persons against whom the alleged offenses were committed, or do you know them?" All the jurors responded in the negative. However, after the first day of the trial, the clerk received a telephone call from one of the seated jurors, Nancy Cook, expressing some concerns. As a result, the judge conducted the following voir dire the next morning:

THE COURT: Ms. Cook, it has come to the Court's attention that you conversed with the Clerk about a matter that was of concern to you.

MS. COOK: Yes, sir.

THE COURT: All right. Would you go ahead, for the record, so that the attorneys get an opportunity to hear what your concern is and the Court gets an opportunity to evaluate your concern and see if it is well-placed or if it is not of great consequence.

MS. COOK: Okay. My brother-in-law is the [victims'] great uncle. And, I don't know them.

THE COURT: You want to run that by me gain?

MS. COOK: My brother-in-law.

THE COURT: Explain that.

MS. COOK My sister's husband. It is my brother-in-law. He is the girls' great uncle and, I didn't know that yesterday.

* * * * * *

THE COURT: Don't think it would make a difference.

MS. COOK: No. It is kind of like you wake up at nighttime all of a sudden and it kind of hits you, you know. When [the victims' uncle] came in, he looked familiar to me. I thought that I was introduced to him one time.... He just looked familiar to me, and then I put the girls in place.

THE COURT: You don't actually know any of these people?

MS. COOK: I don't know them. I don't know them from Adam. I would [sic] know them if I passed them on the street. I wouldn't know them.

THE COURT: Mr. Ambrogi, any questions?

MR. AMBROGI: No question. No, sir. THE COURT: Mr. Crane, any questions of this lady?

MR. CRANE: No, Your Honor.

THE COURT: Ma'am, you believe you can continue to sit and hear this case and act fairly and impartially?

MS. COOK: Yes, I do.

THE COURT: You believe you can follow the instructions of law that the Court gives you and decide this case fairly and impartially, giving a fair trial to both sides?

MS. COOK: Yes, sir. I do.

THE COURT: Ma'am, I appreciate your diligence by bringing this concern to our attention. It is important that a fair trial be had for all sides.

MS. COOK: Yes. That is what I wanted.

THE COURT: Ask you to retire back with the jury. Thank you, ma'am.

Defense counsel then asked the court to remove Cook from the jury. He argued, "[t]he fact that she is related would make it difficult for her to be unbiased in evaluating the evidence" and "in the interest of fairness it is important not to have relatives of the prosecutrixes on the jury panel. We just don't know." The prosecutor opposed the motion, arguing that any relationship was remote. He also noted Cook's assertion that her decision would be unaffected by her brother-in-law's relationship to the victims.

Defense counsel renewed his objection and moved for a mistrial. The court denied the motion and stated that the relationship was not close enough to disqualify the juror. The court also found that "Mr. Brooks will receive a fair trial and will continue to do so with Mrs. Cook sitting as a jury member."

Analysis

Brooks's appeal comes before this Court on a denial of a motion for a mistrial. Upon familiar principles, we will not reverse the denial of a motion for a mistrial unless a manifest probability exists that the trial court's ruling was prejudicial. Taylor v. Commonwealth, 25 Va.App. 12, 17, 486 S.E.2d 108, 110 (1997). "[T]he burden of establishing that probability [rests] upon the party moving for a mistrial." Green v. Commonwealth, 26 Va.App. 394, 401, 494 S.E.2d 888, 891 (1998) (citations omitted). Moreover, it is well settled that the credibility of witnesses and the weight accorded witnesses' testimony are matters that are within the province of the fact finder. Phan v. Commonwealth, 258 Va. 506, 513, 521 S.E.2d 282, 286 (1999); Brooks v. Commonwealth, 15 Va.App. 407, 414, 424 S.E.2d 566, 571 (1992).

When the issue arises from a mid-trial challenge to a juror's impartiality, we "will reverse the trial court's decision only for an abuse of discretion," applying the same standard of review appropriate to appellate consideration of the trial court's decision to seat a venireperson. David v. Commonwealth, 26 Va.App. 77, 80, 493 S.E.2d 379, 381 (1997) (noting that juror impartiality is a factual determination, disturbed on appeal only for "manifest error"). Hence, we will not reverse "the denial of a motion for a mistrial ... unless there exists a manifest probability that [the ruling] was prejudicial." Id. (citations omitted).

The instant case involves a mid-trial challenge to a juror's impartiality. Brooks contends that Cook's relationship to the victims and to the Commonwealth's witnesses absolutely bars her from acting as a juror in the case, on the ground that, due to those relationships, she could not be impartial. Brooks specifically invokes the rules governing consanguinity and affinity in support of his argument.

The Virginia Supreme Court held in Gray v. Commonwealth, 226 Va. 591, 311 S.E.2d 409 (1984), that "the long-standing, common-law rule disqualifying a venireman who is related, within the ninth degree of consanguinity or affinity, to a party to a suit" also "applies to a victim of a crime as well as to a party." Id. at 593, 311 S.E.2d at 410. The relationship at issue here involved Cook's brother-in-law, her sister's husband, who was the great uncle of the victims and, by implication, the uncle of the victims' fathers, who were expected to be called as witnesses in the case. Brooks contends that Cook was "absolutely disqualified" as a juror because she was related within the "ninth degree of consanguinity" to the alleged victims and their parents. We disagree.

"Consanguinity" is a "relation by blood." Doyle v. Commonwealth, 100 Va. 808, 810, 40 S.E. 925, 926 (1902). It is patent Cook was not related by blood to her sister's husband and, by extension, she was not related by blood to the victims or their fathers.

Cook was also not related to the victims or their fathers by affinity. Affinity is the relation of one spouse to the other spouse's kindred. Id. "`Affinity properly means the tie which arises from marriage betwixt the husband and the blood relatives of the wife, and between the wife and the blood relatives of the husband.... [T]here is no affinity between the blood relatives of the husband and the blood relatives of the wife.'" Norris v. Presley, 292 Ala. 155, 290 So.2d 643, 645 (1974)

(citations omitted). Here, the relationship at issue did not involve Cook and her husband's blood relatives. Rather, it involved a relationship between her sister's husband and his blood relatives. We conclude that the relationship does not fall within the definition of affinity.²

See Doyle, 100 Va. at 810-11, 40 S.E. at 926 (finding that a juror, who was the nephew of a man related by marriage to kindred of the victim, was not disqualified from sitting through "affinity"); see also Anderson v. State, 30 Ala.App. 124, 2 So.2d 461, 462 (1941) (finding that a juror in a murder case, who was the brother-in-law of the victim's sister, was not disqualified because "kilo relationship by consanguinity or affinity is presented as would disqualify said juror").

Moreover, Brooks has the burden of establishing that he was prejudiced by the trial court's decision not to grant his motion for a mistrial. See Green, 26 Va.App. at 401,

494 S.E.2d at 891. "To determine if a trial court's denial of a motion for a mistrial was prejudicial, when a juror's conduct is at issue, we must look to the juror's possible bias. The existence of an individual juror's possible bias or partiality is a question of fact to be determined by the trial court." Perez v. Commonwealth, 40 Va.App. 648, 655, 580 S.E.2d 507, 509 (2003) (citing Watkins v. Commonwealth, 229 Va. 469, 480, 331 S.E.2d 422, 431 (1985)).

Brooks contends that, even if Cook is not excluded from serving as a juror in this case in accordance with the principles of consanguinity and affinity, her familial relationship, in and of itself, gives rise to inherent bias on her part and would affect her decision-making. Brooks's argument is a simple recast of his contentions rooted in the principles of consanguinity and affinity, which we have determined do not apply as a bar to Cook's serving as a juror in this case. Therefore, we preject this argument because no...