COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Senior Judge Hodges 

Argued at Norfolk, Virginia 

THEODORE EDWARD GREEN 

 OPINION BY 

v. Record No. 2774-96-1 JUDGE RICHARD S. BRAY 

 JANUARY 27, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Everett A. Martin, Jr., Judge 

 James O. Broccoletti (Zoby & Broccoletti, on 

brief), for appellant. 

 John K. Byrum, Jr., Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellee. 

 A jury convicted Theodore Edward Green (defendant) of second 

degree murder and related use of a firearm. Defendant complains 

on appeal that the trial court erroneously denied his motion for 

a mistrial based upon alleged juror misconduct and later 

disallowed post-verdict investigation of the incident. Finding 

no error, we affirm the convictions. 

 I. 

 A venire was assembled for trial of defendant on indictments 

charging the murder of Walter C. Williams and attendant use of a 

firearm. After advising the panel that the purpose of voir dire

was to "ensure that [no one was] related to any of the parties," 

conscious of any "interests or bias in the case," or otherwise 

ineligible to serve on the jury, the following questions, 

pertinent to this appeal, together with the collective responses 

of the venire, were propounded by the court and counsel: 

 The Court: Have any of you or have any members 
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 of your immediate family been the 

 victim of a crime involving the use 

 of a firearm? 

 The Jurors: No. 

 

 The Court: Have any members of your immediate 

 family been the victim of a 

 homicide? 

 The Jurors: No. 

 The Court: Have you or have any members of 

 your immediate family ever been 

 prosecuted by the Norfolk 

 Commonwealth Attorney's Office? 

 The Jurors: No. 

* * * * * * * 

 The Court: Do any of you have any interest in 

 the trial or outcome of this case? 

 The Jurors: No. 

 The Court: Have any of you acquired any 

 information about the alleged 

 offense or the accused from any 

 source outside of the courtroom? 

 The Jurors: No. 

 The Court: Our system of justice presumes the 

 accused is innocent until proven 

 guilty. Is each of you able to keep 

this presumption alive in your mind 

throughout the entire case until you have 

entered the jury room to begin you [sic] 

 deliberations? 

 The Jurors: Yes. 

 The Court: You understand the Commonwealth 

 must prove the defendant's guilt 

 beyond all reasonable doubt? 

 The Jurors: Yes. 

* * * * * * * 
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 The Court: Have any of you expressed or formed 

 any opinion concerning the guilt or 

 innocence of the accused? 

 The Jurors: No. 

 The Court: Are any of you sensible of any bias 

 or prejudice for or against the 

 Commonwealth or the accused? 

 The Jurors: No. 

* * * * * * * 

 The Court: Do any of you know of any reason 

 whatever which would prevent you from 

giving a fair and impartial trial to the 

Commonwealth and to the accused based 

solely on the law and the evidence? 

 The Jurors: No. 

* * * * * * * 

 Defendant's 

 Attorney: Are there any jurors among you that have 

the opinion that just because the 

defendant has been charged under the 

pending indictments that he's guilty? 

 The Jurors: No. 

 Defendant's 

 Attorney: Have any of you been the victim of 

 a crime involving violence? 

 

 The Jurors: No. 

Counsel then exercised their respective peremptory challenges and 

a jury was impaneled, free from exception. 

 II. 

 The Commonwealth's evidence established that defendant 

inflicted gunshot wounds on both himself and Williams, the 

victim, during an argument between the two men. Williams later 
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died as a result of his injuries. Commonwealth witness Edith 

Harris testified that she observed a "drive-by shooting" but was 

unsure if a car was "involved," didn't recall if either the 

"shooter" or victim was in a vehicle, and could identify no one 

involved in the offenses. However, witness Darnell Blunt 

testified that defendant exited a car, "confronted" and "swung" 

at the unarmed Williams, "shot himself" "in the leg," "turned 

around and shot" Williams, and "got in the car and left." 

 Defendant testified that he was walking toward his parked 

automobile, after conversing with a friend, when he "saw a car 

turning around in my peripheral vision . . . [and] somebody in 

the car . . . said, [']there goes the M . . . F . . . right 

there.[']" These remarks were followed by several gunshots, one 

of which struck him in the leg. He denied knowing or injuring 

the victim or possessing a firearm during the incident. Defense 

witness Melanie Woodhouse had observed "firing" from a vehicle 

that rounded the corner "real fast" while defendant was "standing 

. . . talking" with someone. 

 III. 

 After several hours of jury deliberations, the foreman 

announced that, "[w]e have a hung jury." Without objection, 

however, deliberations resumed following an "Allen charge" by the 

trial court. Shortly thereafter, the court received a 

handwritten note from the jury advising that, "One of the jurors 

has stated that relatives of hers were involved in a drive-by 
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shooting" and inquiring, "Would or could this have any influence 

or importance in this case?"1

 Defendant immediately moved for a mistrial, arguing that no 

juror had disclosed personal or immediate family victimization by 

"violence" but "now . . . [a juror is] asking us if . . . she is 

impartial because . . . a relative . . . was a victim of a 

drive-by shooting." Noting that the question did not identify 

either the juror or a member of her immediate family as a victim, 

the status referenced in voir dire, the court denied defendant's 

motion and, without objection, instructed the jury to "decide 

this case on the testimony and exhibits . . . [in] evidence," 

without considering "[t]he experience of a relative of a juror." 

 Deliberations resumed, followed by verdicts of guilty, related 

sentencing proceedings, and discharge of the jury. 

 Defendant requested a presentence report and an attendant 

hearing was conducted several months after trial. Defendant then 

renewed his earlier mistrial motion "based upon the question 

posed by the jury" in its note to the court, asserting that it 

suggested a lack of "impartiality" and juror "misconduct" during 

voir dire. In the alternative, defendant urged the court to 

recall the "whole jury," identify the juror in issue, and permit 

defendant to examine her with respect to misconduct and bias. 

 

 1A second note requested "a copy of Ms. Edith Harris' report 

to the police," describing her "testimony [as] vague, yet very 

important." In response, the court instructed the jury that the 

document was "not admissible into evidence." 
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The court overruled both motions, resulting in this appeal. 

 IV. 

 Defendant first contends the note clearly revealed that an 

unidentified juror had failed to disclose during voir dire that 

she "had a relative who was a victim of a crime involving a 

firearm," despite inquiry by the court. He maintains that "an 

affirmative answer . . . could have led to a motion to exclude 

for cause as a result of bias" or promoted a more informed 

exercise of peremptory strikes, thereby avoiding the "implied 

bias" of the juror. 

 We are mindful that 

 [t]he right to a trial by an impartial jury 

is guaranteed under both the United States 

and Virginia Constitutions. This guarantee 

is reinforced by legislative enactment and by 

the rules of court. It is the trial judge's 

duty to secure an impartial jury for the 

parties. Resolution of the question of a 

juror's impartiality depends upon the facts 

and circumstances of each particular case. 

At a minimum, . . . the law requires that the 

juror "stand indifferent in the cause." Any 

reasonable doubt regarding the prospective 

juror's ability to give the accused a fair 

and impartial trial must be resolved in favor 

of the accused. 

Swanson v. Commonwealth, 18 Va. App. 182, 184-85, 442 S.E.2d 702, 

703-04 (1994) (quoting Gosling v. Commonwealth, 7 Va. App. 642, 

645, 376 S.E.2d 541, 543-44 (1989)). 

 However, to be entitled to a mistrial for jury misconduct 

arising from voir dire, 

 "a party must first demonstrate that a juror 

failed to answer honestly a material question 

on voir dire, and then further show that a 
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correct response would have provided a valid 

basis for a challenge for cause. The motives 

for concealing information may vary, but only 

those reasons that affect a juror's 

impartiality can truly be said to affect the 

fairness of a trial." 

Taylor v. Commonwealth, 25 Va. App. 12, 18, 486 S.E.2d 108, 111 

(1997) (emphasis added) (quoting McDonough Power Equipment, Inc. 

v. Greenwood, 464 U.S. 548, 556 (1984)). Thus, "juror misconduct 

does not automatically entitle either litigant to a mistrial." 

Robertson v. Metropolitan Washington Airport Authority, 249 Va. 

72, 76, 452 S.E.2d 845, 847 (1995). The trial court must also 

find a probability of prejudice, with the "burden of establishing 

that probability . . . upon the party moving for a mistrial." 

Id.

 When the issue arises from a "midtrial" challenge to a 

juror's impartiality, we "will reverse the trial court's decision 

only for an abuse of discretion," applying the "same standard" of 

review appropriate to appellate consideration of a decision to 

seat a venireperson. Hunt v. Commonwealth, 25 Va. App. 395, 399, 

488 S.E.2d 672, 674 (1997); see David v. Commonwealth, 26 Va. 

App. 77, 80, 493 S.E.2d 379, 381 (1997) (juror impartiality a 

factual determination, disturbed on appeal only for "manifest 

error"). Hence, we will not overturn "the denial of a motion for 

a mistrial . . . unless there exists a manifest probability that 

[the ruling] was prejudicial." Taylor, 25 Va. App. at 17, 486 

S.E.2d at 110. 

 Here, the jury's note indicated that "one of the jurors" had 
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"relatives . . . involved in a drive-by shooting" and questioned 

the "influence or importance" of such circumstances to "this 

case." On voir dire, the panel had been asked, "[h]ave any of 

you or . . . any member of your immediate family" been "the 

victim of a crime involving . . . a firearm," "homicide," or 

"violence." (Emphasis added). Thus, lacking a disclosure that 

either a juror or immediate family member had been the victim of 

an offense named in the court's inquiry, the note did not 

establish an untruthful response on voir dire. Moreover, the 

note clearly did not facially demonstrate bias or partiality. 

Thus, defendant failed to demonstrate both juror misconduct and 

bias.2

 Further, the trial court, with the agreement of counsel, 

specifically instructed the jury to ignore "the experience of a 

relative of a juror" and "decide this case on the testimony and 

exhibits [in] evidence." "Unless the record shows to the 

contrary, it is to be presumed that the jury followed an explicit 

cautionary instruction promptly given." Albert v. Commonwealth, 

2 Va. App. 734, 741, 347 S.E.2d 534, 538 (1986) (citation 

omitted). 

 V. 

 Defendant next contends that the trial court erroneously 

denied his post-verdict motion to recall the "whole jury" and 

 

 2Responses to other questions posed to the panel on voir

dire confirmed a fair and impartial jury. 
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identify and investigate the juror referenced in the note. The 

record discloses that defendant made no effort to pursue such 

relief when the issue first arose during trial. Instead, fully 

aware of the note's contents and implications, defendant elected 

to forego a timely inquiry and await the verdict. 

 "To permit prisoners to avail themselves, 

after verdict, of pre-existing objections to 

the competency of jurors, as a matter of 

right, would not only be unreasonable, but 

most mischievous in its consequences . . . . 

 A prisoner knowing, or willfully remaining 

ignorant of the incompetency of a juror, 

would take the chances of a favorable 

verdict . . . ; and if the verdict should be 

adverse, would . . . [seek to] avoid its 

effect." 

Allen v. Commonwealth, 122 Va. 834, 845-46, 94 S.E. 783, 787 

(1918) (emphasis added) (quoting Bristow's Case, 15 Gratt. (56 

Va.) 648). Thus, defendant's "conscious decision to find out 

what the jury was going to do . . . in hopes that [it] might 

acquit" constituted a waiver of his right to further inquiry.3 

Gray v. Hutto, 648 F.2d 210, 211 (4th Cir. 1981); United States 

v. Breit, 712 F.2d 81, 82 (4th Cir. 1983); see Robertson, 249 Va. 

at 76-77, 452 S.E.2d at 847; Royal v. Commonwealth, 2 Va. App. 

59, 69-70, 341 S.E.2d 660, 666 (1986) (rev'd on other grounds, 

Royal v. Commonwealth, 234 Va. 403, 362 S.E.2d 323 (1987)). 

 

 3Such circumstances are clearly distinguishable from 

instances of juror misconduct first discovered post-verdict. Cf.

Robertson, 249 Va. at 76, 452 S.E.2d at 847, with Commercial 

Union Ins. Co. v. Moorefield, 231 Va. 260, 266-67, 343 S.E.2d 

329, 333 (1986), and Haddad v. Commonwealth, 229 Va. 325, 330, 

329 S.E.2d 17, 20 (1985), and Kearns v. Hall, 197 Va. 736, 743, 

91 S.E.2d 648, 653 (1956). 
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 Accordingly, we affirm the convictions. 

 Affirmed.