COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Elder and 

 Senior Judge Coleman 

Argued at Salem, Virginia 

ROBERT DANIEL KING, A/K/A DAN KING, A/K/A 

 DANIEL ZANONE, A/K/A DANIEL R. KING, A/K/A 

 DAN KONSKI, A/K/A DANIEL QUEEN OPINION BY 

 JUDGE LARRY G. ELDER 

v. Record No. 1313-02-3 APRIL 29, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Jonathan M. Apgar, Judge 

 Christopher K. Kowalczuk for appellant. 

 Michael T. Judge, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 Robert Daniel King (appellant) appeals from his 

convictions, entered upon conditional guilty pleas, for two 

counts of embezzlement and two counts of grand larceny. On 

appeal, he contends the trial court erroneously declared a 

mistrial when one of the twelve jurors impaneled became too ill 

to serve. He contends no manifest necessity existed for a 

mistrial because he agreed to waive his right to have twelve 

jurors hear the case, even though the Commonwealth objected to 

proceeding with only eleven jurors. We hold the Commonwealth 

had a co-equal right to have twelve jurors hear the case. 

Further, under the facts of this case, in the absence of the 
Commonwealth's consent to proceed with fewer than twelve jurors, 

manifest necessity supported the trial court's declaration of a 

mistrial. Thus, we affirm appellant's convictions. 

I. 

BACKGROUND 

 Appellant was indicted for two counts of embezzlement and 

two counts of grand larceny.1 Appellant entered pleas of not 

guilty and requested trial by jury. On February 19, 2002, the 

court impaneled a jury of twelve. Neither party requested that 

alternates be selected, and the court made no mention of this 

possibility. After counsel delivered their opening statements, 

the court recessed for lunch. 

Upon reconvening after lunch, the court indicated one of 

the jurors had fallen ill during the lunch break and did not 

believe he "[was] in a position to be able to fully pay 

attention and listen to the evidence." The court noted 

appellant indicated he was willing to proceed with eleven jurors 

but that the Commonwealth was not willing. With agreement of 

the parties, the trial court opted to "tak[e] an adjournment" 

until the following morning, the second day scheduled for trial, 

to determine whether the ill juror would be able to return at 

that time. 

 

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1

 Appellant also was indicted for obtaining goods by false 

pretenses, but that charge was disposed of by nolle prosequi

prior to trial. 
 On the second day of trial, the court noted the juror 

remained too ill to return. Appellant remained willing to 

proceed with eleven jurors. The Commonwealth, however, "[felt] 

that it would be best served by having twelve Jurors" and 

indicated it "[did] not waive the absence of the one Juror." 

Appellant objected to the court's statement that, in the absence 

of the Commonwealth's consent, a mistrial "would be [the 

court's] only remedy." Appellant said "it [was] [his] 

understanding the Commonwealth did not want a trial by jury" and 

that since appellant requested a jury and jeopardy had attached, 

"I don't know that the Commonwealth has a right at this point to 

take [appellant's] jury away from him." The trial court 

observed, "Well, of course, once [appellant] exercised his right 

to have the community hear the case, I really don't make any 

further inquiry to the Commonwealth as to what their wishes were 

. . . because [appellant] has spoken . . . ." 

The court then asked appellant whether proceeding with 

fewer than the required number of jurors required the 

Commonwealth's concurrence, and the following exchange took 

place: 

 [APPELLANT'S COUNSEL]: Yes, 

Judge. . . . Article One, Section Eight of 

the . . . Virginia Constitution is clear 

that upon his . . . plea of not guilty, 

[appellant] may demand trial by Jury or 

waive the right to a Jury, or waive the 

right to be tried by twelve, and then the 

language says with the concurrence of the 

Commonwealth and the Court. So it is clear 

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that the black letter law says that the 

court and the Commonwealth have to concur 

before . . . 

 [THE COURT]: That the Commonwealth has 

standing to take the position they are 

taking. 

 [APPELLANT'S COUNSEL]: Correct, with 

regard to twelve or fewer jurors, but I 

would say that even given that very clear 

language, we are in a slightly different 

universe, which would allow us to make our 

objection, and we have done so, and if the 

Court overrules that objection, we would ask 

the Court to respectfully note our exception 

thereto. 

Appellant then agreed with the court's statement that the 

Commonwealth acted in good faith when it objected to proceeding 

with fewer than twelve jurors. Appellant also observed, "The 

Commonwealth certainly has a right to exercise her rights to 

prosecute, and . . . this is not anything other than the 

Commonwealth exercising her rights." 

Appellant did not ask the court to continue the case rather 

than declare a mistrial. He objected to the mistrial 

declaration only on the ground that the court should have 

allowed trial to proceed with eleven jurors and did not argue 

the court should have continued the case again to see if the 

sick juror recovered in a timely fashion. 

The court said it "[did not] have any other recourse but to 

declare a mistrial." The court's order indicated it declared a 

mistrial because "the concurrence of the Commonwealth [was] 

required by Article I, §8 of the Virginia Constitution, . . . as 

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the number of jurors required by §19.2-262 could not be present 

at any time during which this trial was scheduled." 

 On March 1, 2002, appellant filed a motion to dismiss the 

indictments as violative of double jeopardy principles. In that 

motion and subsequent argument, appellant represented the 

Commonwealth had indicated at docket call in September 2001 

"that she waived her right to demand trial by jury" and that in 

chambers before trial on February 19, 2002, the Commonwealth 

"reaffirmed her willingness to have the Court hear this case 

without benefit of a jury." Appellant argued that once he 

elected to be tried by a jury and the jury was impaneled, the 

Commonwealth lost the right to veto appellant's decision to be 

tried by a jury of fewer than twelve members. Thus, he 

concluded, the trial court's declaration of a mistrial was 

without manifest necessity and his retrial would violate double 

jeopardy principles. 

The Commonwealth averred that it "never waived its [right 

to] trial by Jury" "on the record." The court concluded the 

Commonwealth's statement was accurate because, when appellant 

said he wanted a jury, "[the court] didn't go any farther than 

that" and "on the Record . . . never inquired of the 

Commonwealth." 

The court then denied appellant's motion to dismiss, ruling 

as follows: 

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In the absence of any authority to the 

contrary, I am not in a position to rule and 

interpret the Constitution to say that the 

Commonwealth's concurrence disappears at 

some point under factually important 

settings, because the language of the 

Constitution would then say, "and with the 

concurrence of the Commonwealth unless A, B, 

or C has happened, you can proceed with 

less." 

So . . . my interpretation is the . . . 

Commonwealth's concurrence was required at 

any time during this trial. 

In terms of manifest necessity, we only 

had eleven. There was no reasonable 

expectation of ever getting [the sick juror] 

back, because we didn't have any information 

that he was improving. The logistics of 

trying to look later in the week . . . 

[were] to me, I think, a daunting 

proposition . . . to the extent that I 

really didn't explore that, and was not 

requested by either Counsel to explore 

that. . . . 

So without twelve, and giving the 

Commonwealth the concurrence that they were 

I believe given by the Virginia 

Constitution, . . . [a]nd being in an 

untenable position where I felt that it was 

impossible to go forward, I found manifest 

necessity . . . . 

 Appellant subsequently entered into a conditional plea 

agreement that preserved his right to appeal the instant 

mistrial issue. Appellant was convicted pursuant to the plea 

agreement and noted this appeal. 

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II. 

PROCEDURAL BAR 

 The Commonwealth contends appellant waived his right to 

object to the declaration of a mistrial because, as the 

Commonwealth argues on brief, appellant "conceded that if the 

trial were to continue with [fewer] than twelve jurors, the 

'black letter law,' Article I, Section 8 of the Virginia 

Constitution, required the concurrence of both the court and the 

Commonwealth." The Supreme Court has made clear that a 

defendant may "waive[] his double jeopardy rights" by failing to 

make "an express objection to the circuit court's declaration of 

a mistrial." Commonwealth v. Washington, 263 Va. 298, 304-05, 

559 S.E.2d 636, 639 (2002). However, we disagree with the 

Commonwealth's construction of appellant's argument to the trial 

court regarding "the black letter law" and hold the argument was 

sufficient to preserve for appeal appellant's claim that retrial 

following the court's declaration of a mistrial based on the 

Commonwealth's refusal to proceed with eleven jurors violated 

double jeopardy principles. 

When the sick juror remained too ill to appear on the 

second day scheduled for trial and the Commonwealth refused to 

proceed with eleven jurors, the trial court commented that 

"[declaring a mistrial] would be [the court's] only remedy." 

Appellant responded, "[W]e object to a mistrial on the following 

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grounds."2 He then argued that "the Commonwealth did not want 

trial by Jury," "this is a Defendant's Jury," and "I don't know 

that the Commonwealth has a right at this point to take the 

Defendant's Jury away from him" by refusing to proceed with 

eleven jurors. (Emphasis added). Appellant's counsel conceded 

"the black letter law says that the Court and the Commonwealth 

have to concur" but was unable to complete his sentence because 

the trial court interrupted him. Counsel then said, "[E]ven 

given that very clear language, we are in a slightly different 

universe, which would allow us to make our objection." We hold 

that this statement, in the context of the entire argument 

appellant made before the trial court granted the mistrial, was 

sufficient under Rule 5A:18 to preserve this issue for appeal.3

 2

 In Washington, by contrast, the Court noted defense 

counsel's "conce[ssion] that she could point to no part of the 

record of the defendant's first trial to show that she had made 

an express objection to the . . . declaration of a mistrial" and 

her request for the setting of a new trial date. 263 Va. at 

305-06, 559 S.E.2d at 639-40. 

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3

 Appellant conceded in the trial court that the court was 

not "hasty" in granting the mistrial without attempting to reset 

the matter for trial with the same jury on a later date after 

the ill juror had had a chance to recuperate. The trial court 

also noted that neither counsel asked the court to attempt to 

reset the case for another date with the same jury before the 

court declared a mistrial. Finally, appellant did not raise 

this issue in his petition for appeal or brief. Thus, we do not 

consider whether the court's failure to take such steps might 

have prevented a finding of manifest necessity to declare a 

mistrial. See Rules 5A:12(c), 5A:18. 
III. 

JURY SIZE AND MANIFEST NECESSITY FOR MISTRIAL 

 "[I]n criminal prosecutions . . . [the accused] shall enjoy 

the right to a speedy and public trial, by an impartial jury of 

his vicinage . . . ." Va. Const. art. 1, § 8. "Twelve persons 

from a panel of twenty shall constitute a jury in a felony 

case." Code § 19.2-262(B). "If 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." Va. Const. 

art. 1, § 8. 

 After the jury is sworn, "the court may discharge the jury 

when it appears that they cannot agree on a verdict or that 

there is manifest necessity for such discharge." Code 

§ 8.01-361. In evaluating whether manifest necessity exists to 

discharge an empanelled jury, a trial court is vested with broad 

discretion to determine whether "'[declaring a mistrial] was 

necessary to prevent great injustice either to the Commonwealth

or to the defendant.'" Brandon v. Commonwealth, 22 Va. App. 82, 

90-91, 467 S.E.2d 859, 862-63 (1996) (quoting Mack v. 

Commonwealth, 177 Va. 921, 931, 15 S.E.2d 62, 66 (1941)) 

(emphasis added). 

When manifest necessity compels a mistrial, retrial does 

not violate double jeopardy principles. Arizona v. Washington, 

434 U.S. 497, 505, 98 S. Ct. 824, 830, 54 L. Ed. 2d 717 (1978). 

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However, absent a finding of manifest necessity, the 

constitutional prohibition against double jeopardy entitles a 

defendant to the "valued right to have his trial completed 

before a particular tribunal," Wade v. Hunter, 336 U.S. 684, 

689, 69 S. Ct. 834, 837, 93 L. Ed. 2d 974 (1949), that is, "the 

right . . . to have his trial completed before the first jury 

empanelled to try him," Oregon v. Kennedy, 456 U.S. 667, 673, 

102 S. Ct. 2083, 2088, 72 L. Ed. 2d 416 (1982). See also

Washington, 263 Va. at 302-03, 559 S.E.2d at 638. 

 Appellant argues the trial court erroneously concluded, 

under Article 1, section 8, of the Virginia Constitution, that 

the Commonwealth's concurrence was required in order for trial 

to continue when one of the twelve jurors already sworn became 

ill and was unable to serve. This provision, appellant 

contends, applies only at the beginning of trial before jeopardy 

has attached. Contrary to appellant's contention, we hold the 

constitutional provision at issue contains no such limitation. 

 "When the language of an enactment is plain and 

unambiguous, as in this case, we apply its plain meaning." Bray 

v. Brown, 258 Va. 618, 621, 521 S.E.2d 526, 527 (1999). The 

provision at issue, quoted above, plainly states that, "[i]f the 

accused pleads 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." Va. Const. art. 1, § 8. It contains no 

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limitation on the time frame during which the consent of the 

Commonwealth and the court is required to proceed with fewer 

than twelve jurors. 

Although an accused has no constitutional right to a bench 

trial, see, e.g., O'Dell v. Commonwealth, 234 Va. 672, 689, 364 

S.E.2d 491, 501 (1988), the accused does have a constitutional 

right to a jury trial, and the Virginia Constitution gives the 

Commonwealth "an equal voice" in determining whether the case 

will be heard by a jury, see id. Thus, if the accused does not 

demand trial by jury, the Commonwealth nevertheless may choose a 

jury trial. See id. Similarly, therefore, if an accused 

charged with a felony consents to be tried by a smaller number 

of jurors than the twelve specified by Constitution and statute, 

the Commonwealth retains the authority to demand a jury of 

twelve. Nothing in the language of Article 1, section 8, of the 

Virginia Constitution or the case law interpreting it indicates 

that the requirement for the Commonwealth's concurrence is 

limited to the time before trial has commenced or jeopardy has 

attached. See Moffett v. Commonwealth, 24 Va. App. 387, 392-93, 

482 S.E.2d 846, 849 (1997) (noting in dicta that decision of 

accused, who had elected to be tried by jury, to proceed with 

fewer than twelve jurors when one juror was dismissed for cause 

after jeopardy had attached required concurrence of 

Commonwealth's attorney and court). Thus, we hold that the 

accused's willingness to proceed with a jury of fewer than 

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twelve members is subject to the Commonwealth's co-equal right 

to a jury trial, even where jeopardy has already attached. 

 As the trial court noted, if the drafters of the 

Constitution had intended that the provisions of Article 1, 

Section 8--requiring the Commonwealth's consent for trial by 

fewer than twelve jurors--apply only to the period before 

jeopardy has attached, it could have said so. See, e.g., State 

v. Madison, 560 P.2d 405, 408 (Ariz. 1977) (noting that, under 

applicable Arizona statute, "the parties with the consent of the 

court in a criminal case, may waive trial by jury, or at any 

time before a verdict is returned consent to try the case with 

or receive a verdict concurred in by a lesser number of jurors 

than that specified [elsewhere in the statute]" (emphasis added) 

(quoting Ariz. Rev. Stat. § 21-102(E)). As this case amply 

demonstrates, situations in which the number of jurors able to 

continue with a felony trial drops below twelve may arise after 

trial has begun, and based on the plain language of Article 1, 

section 8, we must assume the drafters contemplated its 

application to such an event. 

Appellant also challenges what he terms the court's "per se

finding of manifest necessity" based on the Commonwealth's 

refusal to continue the trial with the remaining eleven jurors. 

He argues that any right the Commonwealth had under the facts of 

this case to trial by a jury of twelve members rather than trial 

by a jury of eleven is subordinate to the right of an accused 

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not to be placed in jeopardy twice for the same offense. We 

disagree. 

The right to trial by jury is "a sacred right [that] should 

be sedulously guarded," Buntin v. City of Danville, 93 Va. 200, 

212, 24 S.E. 830, 833 (1896), quoted with approval in Supiner v. 

Stakes, 255 Va. 198, 203, 495 S.E.2d 813, 815 (1998), and 

"'[t]rial by jury,' in the primary and usual sense of the term 

at the common law and in the American constitutions, is . . . a 

trial by a jury of twelve . . . ." Capital Traction Co. v. Hof, 

174 U.S. 1, 13, 19 S. Ct. 580, 585, 43 L. Ed. 2d 873, 877-78 

(1899). For example, "[i]t is well established that 'trial by 

jury' contemplated by [the United States Constitution's] Article 

III, Section 2, and the Sixth Amendment is a trial by a jury of 

twelve persons, neither more nor less." United States v. 

Virginia Erection Corp., 335 F.2d 868, 870 (4th Cir. 1964) 

(emphasis added). Because the right to trial by jury is a 

"sacred right" and, as stated above, the Commonwealth's right to 

demand trial by jury is "co-equal" to that of the accused, see

O'Dell, 234 Va. at 689, 364 S.E.2d at 501, we hold that when the 

Commonwealth asserts its right to trial by a jury of twelve 

after jeopardy has attached and at a time when fewer than twelve 

jurors remain available to continue with the trial,4 manifest 

 

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4

 As discussed in footnote 2, supra, appellant waived the 

right to object to the mistrial on the ground that the trial 

court failed to consider other options such as continuing the 

case for a reasonable amount of time to attempt to allow the ill 
necessity for the declaration of a mistrial exists, see Brandon, 

22 Va. App. at 91, 467 S.E.2d at 863 (holding manifest necessity 

exists where "'[declaring a mistrial] was necessary to prevent 

great injustice either to the Commonwealth or to the defendant'" 

(quoting Mack, 177 Va. at 931, 15 S.E.2d at 66) (emphasis 

added)), at least where the Commonwealth acts in good faith.5

Thus, under the facts of this case, a second trial for the 

same offenses did not violate double jeopardy principles. See

Johnson v. United States, 619 A.2d 1183, 1186-87 (D.C. Ct. App. 

1993) (under facts similar to those in appellant's case, 

rejecting argument that "the government violated 'fundamental 

fairness' by refusing to agree to a jury of less than twelve," 

without directly addressing argument that such a holding 

elevates government's right to jury of twelve over accused's 

right not to be placed in jeopardy twice for the same offense); 

 

juror to recover. Our holding presumes that fewer than twelve 

jurors (or a sufficient number of alternates, if any) are 

available and that fewer than twelve are expected to be 

available within a reasonable time during which the trial might 

be continued. Thus, we do not address the merits of that issue 

in this opinion. 

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5

 Where a defendant moves for a mistrial based on 

prosecutorial misconduct and the court finds the conduct was 

"intended to 'goad' the defendant into moving for a mistrial," 

the defendant may successfully plead double jeopardy as a bar to 

a second trial. See Kennedy, 456 U.S. at 676, 102 S. Ct. at 

2089. We need not decide whether the Commonwealth's withholding 

of its consent to proceed with fewer than twelve jurors also 

must be made in good faith in order to avoid a subsequent 

invocation of the double jeopardy bar. Here, the trial court 

found the Commonwealth acted in good faith, and appellant agreed 

with that finding. 
cf. Pope v. Commonwealth, 234 Va. 114, 122, 360 S.E.2d 352, 358 

(1987) (stating, without specifically addressing impact on 

double jeopardy after trial has commenced, that the "requirement 

of consent by the Commonwealth and by the court [before an 

accused may waive his right to trial by jury under Code 

§ 19.2-257] does not violate any constitutional right of the 

defendant"). 

For these reasons, we hold the trial court's denial of 

appellant's motion to dismiss was not error, and we affirm. 

Affirmed.

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