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, 
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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. 

 

 1The 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.