Donald Holloman, Jr. v. Commonwealth , 23 Va. App. 183 ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Bray and Senior Judge Duff
Argued at Alexandria, Virginia
DONALD HOLLOMAN, JR.
OPINION BY
v. Record No. 1037-95-4 JUDGE CHARLES H. DUFF
SEPTEMBER 17, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
Crystal A. Meleen, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Donald Holloman, Jr. (appellant) was convicted of
intentionally discharging a firearm while in a motor vehicle, so
as to create the risk of injury or death to another person or
thereby cause another person to have a reasonable apprehension of
injury or death. He alleges that because a jury deadlocked in an
earlier trial on the charge and a mistrial was declared, the jury
unanimity requirement of Article I, § 8 of the Virginia
Constitution prohibited the Commonwealth from trying him again on
the charge. We disagree and affirm the conviction.
I.
Appellant was indicted for discharging a firearm (Count I),
and unauthorized use of an automobile (Count II). The court
empaneled a jury to hear the charges against appellant. However,
because a juror overheard a witness, outside the courtroom,
express fear of retribution to a police officer, the court, at
appellant's request, declared a mistrial.
A new trial on the charges commenced. After deliberating,
the jury advised the court that it had reached a verdict on one
of the charges but was "impossibly hung" on the other. The jury
convicted appellant of the unauthorized use of an automobile
charge. The foreman stated that he did not believe that further
deliberation would yield a verdict on the discharging a firearm
charge. Despite appellant's motion for the court to dismiss the
charge, the court declared a mistrial in the firearm case.
Thereafter, appellant filed a "Motion For Judgment Of
Acquittal," arguing that "Article I, § 8 of the Virginia
Constitution provides that each person charged with a criminal
offense has a right to trial by an impartial jury 'without whose
unanimous consent he cannot be found guilty.'" Appellant alleged
that because the Commonwealth's evidence was insufficient to
obtain a unanimous finding of guilt in the previous trial, the
court should enter judgment of acquittal for appellant. The
court denied the motion and a jury subsequently convicted
appellant on the firearm charge.
II.
Appellant contends that because the Virginia Constitution
provides for conviction by unanimous consent and does not require
unanimous consent for acquittal, he was entitled to a judgment of
acquittal after the Commonwealth failed to prove the offense,
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beyond a reasonable doubt, to the satisfaction of all twelve
jurors in the earlier trial.
The unanimity requirement in Article I, § 8 of the Virginia
Constitution, however, merely prevents a less-than-unanimous jury
from convicting a defendant of a crime. Some states permit
conviction by less-than-unanimous consent; Virginia does not. 1
Nothing in the unanimity requirement of Article I, § 8 entitles a
defendant to an acquittal if the jury cannot reach a verdict.
Various provisions of the Virginia Code envision retrial
following a hung jury. For example, Code § 19.2-243, concerning
speedy trial, provides that the statutory time limits do not
apply to the period of delay caused "[b]y the inability of the
jury to agree in their verdict." See Rogers v. Commonwealth, 5
Va. App. 337, 344, 362 S.E.2d 752, 756 (1987) (Code § 19.2-243
not applicable to appellant's case, "since appellant's retrial
was necessitated by the jury's inability in the first trial to
agree in its verdict").
In this case, the trial court took the only appropriate
course of action. See Code § 8.01-361 (jury may be discharged
"when it appears they cannot agree on a verdict"); Miller v.
Commonwealth, 217 Va. 929, 933, 234 S.E.2d 269, 272 (1977), cert.
1
The United States Supreme Court has ruled that a state
scheme which allows for less-than-unanimous verdicts in some
types of criminal cases does not violate the Due Process or Equal
Protection Clauses of the Fourteenth Amendment to the United
States Constitution. See Johnson v. Louisiana, 406 U.S. 356
(1972).
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denied, 434 U.S. 1016 (1978) ("[w]e can conceive no clearer case
of manifest and urgent necessity for a mistrial than that
presented to a trial court when it is confronted with a jury
which is unable or unwilling to agree on a verdict after due
deliberation").
Here, the jury could not agree on the issue of guilt on the
discharge of the firearm charge. Its inability to reach a
unanimous verdict did not resolve the facts in appellant's favor.
The trial court properly declared a mistrial and appellant was
retried and convicted by a unanimous jury. This procedure did
not violate the Virginia Constitution.
We affirm the judgment of the trial court.
Affirmed.
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