Shaikh v. Commonwealth, Record No. 2614-03-4 (VA 1/25/2005)
| Decision Date | 25 January 2005 |
| Docket Number | Record No. 2614-03-4. |
| Court | Virginia Supreme Court |
| Parties | AHMER SHAIKH v. COMMONWEALTH OF VIRGINIA. |
Appeal from the Circuit Court of Fairfax County David T. Stitt, Judge.
James G. Connell, III (Devine & Connell, P.L.C., on briefs), for appellant.
Virginia B. Theisen, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Judges Benton, Bumgardner and Kelsey.
A jury convicted the appellant, Ahmer Shaikh, of second-degree murder for participating with another in the beating and stabbing death of Zahid Ali. On appeal, Shaikh claims the trial court erred by (a) dismissing two veniremen from the jury panel, and (b) failing to give the jury a separate definitional instruction to amplify the standard concert of action instruction. We find neither ground sufficient to warrant a reversal of Shaikh's conviction.
Zahid Ali died of injuries received during an attack by Shaikh and Faisal Rehman, Shaikh's brother-in-law. Zahid had been having an affair with Humaira, Rehman's wife and Shaikh's sister. The family found out about the adulterous relationship and expressed their angry disapproval. Zahid went to the family's apartment (where Shaikh, his younger brother, and his sister and husband, all lived with Shaikh's father) to discuss the situation with Humaira's father.
When Zahid arrived, the younger brother called Shaikh on his cell phone. Minutes later, Shaikh arrived at the house to find Zahid sitting on the couch. Family members had to restrain Shaikh. Rehman then came into the room with a knife and began stabbing Zahid. Breaking free from his relatives, Shaikh joined in the attack by hitting Zahid in the head with a stick. Humaira returned to the living room and found Zahid against a wall covered in blood. Humaira tried to cover Zahid's head wounds with a scarf as Shaikh and Rehman continued to attack him. Zahid dove off a second-story balcony to escape his attackers. Shaikh then grabbed the knife, threw it in a pot of water, and then called 911 with a false report of an unknown intruder who "came into our house and attacked us with a knife." Zahid died later from the multiple stab wounds to his head, neck, and upper body.
Shaikh was tried by a jury for Zahid's murder. During the jury selection process, the trial court began with a panel of twenty-three prospective jurors. In its preliminary questions, the court asked whether anyone was "a party to a case that's set for trial during this jury term?" Panel member Steven Mastric said he was scheduled to be in court the next morning for the disposition of a marijuana possession charge to which he previously pled guilty. Mastric was unsure what to expect, as he had failed a urine test but was contesting the results. The last hearing, Mastric recalled, lasted about an hour and a half. Given this "logistical problem" and that Mastric was "contesting something with the prosecutor's office," the trial court excused Mastric from the venire.
The court also asked whether any panel member had a problem "understanding the English language . . . that might impair your ability to sit on the trial of this case." Ahmad Siam indicated that he can There had already been words used by the counsel and the judge, Siam said, that he did not fully understand. Though he used English in daily life, Siam relied on his children to translate unfamiliar words. The court accepted Siam's responses as "candid" and dismissed him from the venire due to his lack of proficiency in English.
At the conclusion of voir dire, the court empanelled twelve jurors and one alternate. "This panel is acceptable, Judge," Shaikh's counsel noted. The Commonwealth then put on its evidence. Prior to the commencement of the defense case in chief, the trial judge asked counsel if they had agreed on a final set of jury instructions. They advised the court that they had agreed on all but one, the instruction on "concert of action." The Commonwealth proposed the model jury instruction, which stated:
The court instructs the jury that if there is concert of action with the resulting crime one of its incidental probable consequences, then whether such crime was originally contemplated or not, all who participate in any way in bringing it about are equally answerable and bound by the acts of every other person connected with the consummation of such resulting crime.
1 Virginia Model Jury Instructions, Criminal, No. 3.160, at I-75 (1998).
Shaikh claimed the model instruction was accurate, but incomplete. He proposed that the court use Instruction R, which relied upon specific definitions of the concert of action concept used in Virginia appellate opinions. The prosecutor objected to Instruction R because "it leaves out some relevant language . . . some pretty important things too, and that's the problem with this." "If we are going to start putting in the language," the prosecutor added, "I guess we've got to put in all of it."
The trial court record, however, does not include Instruction R. The only mention of its text appears in counsel's oral argument: "And you can see the words there, `Concert of action is an action that's been planned, arranged, adjusted, agreed on or settled between the parties acting together . . .' etcetera." The remainder of the Instruction R — the etcetera portion — does not appear in the record.
The trial judge rejected Instruction R, noting that "in case after case, the appellate courts have cautioned against pulling language out of particular cases." The judge also found Instruction R was itself incomplete given the absence of the caveat noted by the prosecutor. After the court ruled, Shaikh's counsel asked to be reheard on the subject. In response, the prosecutor said he would withdraw his objection to Instruction R if he and Shaikh could agree on including additional language addressing his caveat. The trial court agreed, in principle, to give the proposed instruction with an agreed-upon edit. Later, when counsel could not agree with the final text of the proposed instruction, the trial judge directed counsel to provide him with case authorities in support of their respective positions.
After the close of all the evidence, the court again heard arguments concerning the concert of action issue. Shaikh's counsel requested that the court issue a "compromise" version of Instruction R, arguing that it had been rewritten to balance both sides' views of the definitional limits of the concert of action concept. The prosecutor objected because Shaikh's counsel "culled" from appellate court opinions language that might "mislead this jury to think that there has to be some level of concrete agreement or settling — and I don't even know what settling is supposed to mean really — that is not required." The trial court rejected the "compromise" version of Instruction R. Like the original proposal, the "compromise" version nowhere appears in the trial court record.
After the jurors retired to deliberate, they passed to the court a written question asking whether the concert of action instruction should be read in conjunction with the instruction defining a principal in the second degree. At the suggestion of Shaikh's counsel, the court advised the jury to follow the instructions as written.
Convicted by the jury of second-degree murder, Shaikh appeals on two grounds. He first claims the court erred in excusing for cause veniremen Mastric and Siam. He also contends the court erred by not using Instruction R or the "compromise" instruction later offered.
Whether to excuse a prospective juror for cause presents a question uniquely addressed to the trial judge's sound discretion. As has been often said,
because the trial judge has the opportunity, which we lack, to observe and evaluate the apparent sincerity, conscientiousness, intelligence, and demeanor of prospective jurors first hand, the trial court's exercise of judicial discretion in deciding challenges for cause will be not disturbed on appeal, unless manifest error appears in the record.
Jackson v. Commonwealth, 267 Va. 178, 191, 590 S.E.2d 520, 527 (2004) (citations omitted), cert. denied, 125 S. Ct. 168 (2004). "Absent manifest error, we will not disturb the trial court's judgment whether to strike a potential juror for cause." Jackson v. Commonwealth, 266 Va. 423, 435, 587 S.E.2d 532, 542 (2003). The same appellate deference applies when the trial court addresses the juror's qualifications sua sponte. See Rule 3A:14(b) ().
In this case, the trial court committed no error (much less manifest error) in excusing Mastric and Siam from the venire. The court had the discretion to remove any venireman who might be "prevented from or impaired in performing the duties of a juror" during the trial. Green v. Commonwealth, 262 Va. 105, 115, 546 S.E.2d 446, 451 (2001). Mastric was scheduled to be in criminal court the next day to be sentenced on a drug charge. Thus, for day two of what turned out to be a four-day trial, Mastric would either be late or in jail. Though Siam had no such scheduling problems, he presented the intolerable risk of sitting through the entire trial and not understanding 10% of the words spoken. By his own admission, he could not even comprehend some of the questions being asked during voir dire.1
Shaikh claims Mason v. Commonwealth, 255 Va. 505, 498 S.E.2d 921 (1998), requires that we reverse the trial judge's decision to excuse Siam for lacking English fluency. Like Siam, the juror in Mason relied on English only as a second language. The juror in Mason, however, "understood all the trial court's questions" and "had a sufficient level of understanding of the English language which...
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