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. 
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 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, 
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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. 
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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 
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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 
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intelligent. 

 The judgment of the trial court is affirmed. 

 Affirmed.