Present: All the Justices 

ROBERT K. MASON, a/k/a 

ANTHONY BERNARD SMITH 

 OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 971818 April 17, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this appeal, we consider whether the trial court 

should have removed a juror, who had been empanelled and sworn 

without objection, because the juror purportedly lacked 

sufficient proficiency in the English language. 

 Robert K. Mason was indicted by an Arlington County grand 

jury for the felony of habitual petit larceny in violation of 

Code §§ 18.2-96 and -104. At a jury trial, the trial court 

and counsel for the litigants participated in the voir dire. 

Upon conclusion of the voir dire, the Commonwealth and the 

defendant exercised their peremptory challenges, and a jury 

consisting of 12 members was empanelled without objection. 

 During the guilt phase of the bifurcated trial, the 

Commonwealth and the defendant presented their opening 

statement, evidence, and closing argument. The jury then 

deliberated and returned a verdict of guilty. In the 

sentencing phase at the trial, the Commonwealth presented 

additional evidence, but the defendant presented no evidence. 

The trial court instructed the jury on sentencing, defense 
counsel presented argument to the jury, and the jury retired 

to deliberate the defendant’s sentence. 

 While the jury was deliberating, defense counsel made a 

motion for a mistrial because he had received information that 

one of the jurors purportedly had “great difficulty 

understanding English.” The trial court interrupted the 

jury’s deliberations, summoned the jurors to the courtroom, 

and the following colloquy occurred: 

 “THE COURT: Ladies and gentlemen, I’m 

sorry to interrupt your deliberations, but the 

purpose of it is this: 

 “A question was raised as to whether or 

not there is a juror who has difficulty with the 

English language and was not able to understand the 

testimony and is not able to understand the 

instructions and the colloquy in the jury room on 

the deliberations. 

 “I’ve done these cases and have done them 

in Arlington, of course, for many years. And 

usually where that is the case in a jurisdiction 

like Arlington, that person makes known to the Court 

that problem, if you will, and then the Court is 

permitted to make inquiry initially of the person’s 

experience with the English language. 

 “Is that a problem with a juror, or I 

don’t want to embarrass anybody, but may I inquire 

who the juror is so that I can determine from that 

juror if there is a problem? 

 “Is there any problem in the -- 

 “A JUROR: Well, I don’t think it was a -- 

well, this is the young lady right here. 

 “THE COURT: All right. 

2
 “A JUROR: But we have at least two or 

three people that interpret the Spanish language, 

that really broke everything down for her. 

 “THE COURT: You speak English, don’t you? 

 “A JUROR: Yes, I speak English, but not 

perfect. 

 “THE COURT: Well, not too many know it to 

perfection. We don’t practice that and we don’t 

expect it. But do you work out in the community? 

 “A JUROR: I work in Washington, D.C. 

 “THE COURT: All right. 

 “A JUROR: At Parkinson’s Hotel. 

 “THE COURT: You deal with people in 

English constantly, don’t you? 

 “A JUROR: Yeah. 

 “THE COURT: All right. 

 “A JUROR: This is the first time I come 

over here. So many things new. The gentleman, he 

translate to me some things. 

 “THE COURT: Do you write in English? 

 “A JUROR: A little bit. 

 “THE COURT: And do you read English? 

 “A JUROR: Read more than write. 

 “THE COURT: You read more than you write. 

Do you read the newspapers? 

 “A JUROR: Yes. 

 “THE COURT: And you converse with English 

when you are with English-speaking people? You 

converse with them in English, do you? 

3
 “A JUROR: Yeah. In my job, yes. 

 “THE COURT: All right. 

 “I see no problem with this person’s 

ability or level of understanding of English to 

certainly deliberate in the jury room.” 

 After the jury had returned to the jury room to continue 

its deliberations, the court further explained its ruling 

denying the defendant’s motion: 

 “Well, I was guided more by her ability to 

converse with me. That’s the test. And to sit 

through the voir dire and know when to raise her 

hand and make an inquiry. 

 “In this community, which has its various 

national groups here, and in many other communities 

in this country, you have many more people serving 

on juries who are less acquainted with the local 

language than this lady is. She would be so far 

above the minimum standard, I think, that she would, 

I think, pass anyone’s test.” 

The jury concluded its deliberations and fixed the defendant’s 

punishment at three years and nine months in the penitentiary. 

The jury was polled, and each juror responded affirmatively 

when asked by the clerk, “is this your verdict?” 

 After the jury was discharged, the defendant renewed his 

motion for a mistrial. Denying that motion, the trial court 

stated: 

 “I spoke with her. And when you made your 

motion, I had the jury come in and take their seats 

in the jury box and asked her specifically about her 

understanding and asked so the others could hear it, 

and her understanding of what I said seemed to me to 

be very good. And her responses were directly to 

4
the statements that I had made. And I had no reason 

to believe at all that she did not understand me. 

 “She said that she reads English. She 

does not write it too well. She speaks it. She 

works in an environment where she uses it. And I 

think she meets the standard that we need as far as 

her ability to function as one of the 12 jurors, 

which she certainly appears to have done.” 

 The trial court entered a judgment confirming the jury’s 

verdict, and the Court of Appeals, in an unpublished 

memorandum opinion, affirmed the judgment of the trial court. 

Robert Mason, a/k/a Anthony Bernard Smith v. Commonwealth, 

Record No. 0499-96-4 (1997). Mason appeals. 

 Mason argues that the trial court erred in denying his 

motion for a mistrial because due process requires a trial by 

an impartial jury of 12 members competent in the English 

language. The Commonwealth responds that the defendant’s due 

process rights were not abridged because the challenged juror 

had a sufficient understanding of the English language. We 

agree with the Commonwealth. 

 A defendant in a criminal prosecution has a fundamental 

right to a trial by an impartial jury. U.S. Const. amends. VI 

and XIV; Va. Const. art. I, § 8; Gray v. Commonwealth, 226 Va. 

591, 592-93, 311 S.E.2d 409, 409-10 (1984). The right of an 

impartial jury requires that the jury be capable of 

understanding the factual issues that it must resolve. See

Commonwealth v. Susi, 477 N.E.2d 995, 997 (Mass. 1985); State

5
v. Hurd, 480 S.E.2d 94, 97 (S.C. Ct. App. 1996). Indeed, the 

United States Supreme Court has stated that “[d]ue process 

means a jury capable and willing to decide the case solely on 

the evidence before it.” Smith v. Phillips, 455 U.S. 209, 217 

(1982). See also Susi, 477 N.E.2d at 997; State v. Gallegos, 

542 P.2d 832, 833-34 (N.M. Ct. App. 1975). 

 After the jury has been sworn, a litigant may only make 

an objection relating to the empanelling of jurors with leave 

of court. Code § 8.01-352(A)(ii); Hill v. Berry, 247 Va. 271, 

273, 441 S.E.2d 6, 7 (1994). Here, the trial court implicitly 

granted Mason leave to challenge the juror because the court 

decided his motion. Hill, 247 Va. at 274, 441 S.E.2d at 7. 

However, a litigant who seeks to set aside a jury verdict or 

obtain a new trial on the basis of a juror’s disability must 

demonstrate that the “disability be such as to probably cause 

injustice in a criminal case to the Commonwealth or to the 

accused.” Code § 8.01-352(B). Additionally, we note that 

upon appellate review, we must give deference to the trial 

court’s decision whether to remove a juror because the trial 

court sees and hears the juror. See Weeks v. Commonwealth, 

248 Va. 460, 475, 450 S.E.2d 379, 389 (1994), cert. denied, 

516 U.S. 829 (1995). 

 Applying the aforementioned principles, we hold that the 

trial court properly denied Mason’s motion for a mistrial 

6
because the record fails to demonstrate that the challenged 

juror had a disability which was “such as to probably cause 

injustice” in Mason’s criminal trial. The trial court 

examined the challenged juror to determine her level of 

proficiency in the English language. As the colloquy between 

the trial court and the challenged juror indicates, the juror 

understood all the trial court’s questions. The trial court 

made a factual finding that the challenged juror had a 

sufficient level of understanding of the English language 

which permitted her to participate fully in the jury 

deliberations. According the trial court the deference to 

which it is entitled, we perceive of no reason to disturb the 

trial court’s finding, which is supported by the record. 

 We do not consider the defendant’s argument that the 

trial court erred by improperly asking leading questions when 

the court examined the challenged juror because such argument 

was not raised in the trial court. Rule 5:25. Accordingly, 

the judgment of the Court of Appeals will be affirmed. 

Affirmed. 

7