James Anthony Hazel v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Frank and Senior Judge Hodges
Argued at Salem, Virginia
JAMES ANTHONY HAZEL
OPINION BY
v. 	Record No. 1847-98-3 	JUDGE SAM W. COLEMAN III
FEBRUARY 1, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF RUSSELL COUNTY
Willis A. Woods, Judge Designate
Jay H. Steele (Dollie Compton, on briefs),
for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
James Anthony Hazel was convicted in a jury trial of first
degree murder, in violation of Code § 18.2-32, and use of a
firearm during the commission of a felony, in violation of Code
§ 18.2-53.1. 	On appeal, Hazel contends the trial court erred by
denying his motion for a mistrial based upon improper and
prejudicial questions asked by the Commonwealth's Attorney during
voir dire examination of the venirepersons. 	He argues that the
Commonwealth's questions improperly commented on his
constitutional right to remain silent and not to testify, thereby
depriving him of a fair trial. 	We agree. 	Therefore, we reverse
the convictions and remand for further proceedings.

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BACKGROUND
The evidence, viewed in the light most favorable to the
Commonwealth, proved that Hazel shot and killed James Carter.
Hazel made a statement to the investigating officer, in which
Hazel recounted that he had gone to Carter's residence looking for
work as he had on prior occasions. 	According to Hazel, Carter was
angry about something and was acting strangely. 	Carter told Hazel
that he could help him hoe tobacco. 	After they began hoeing,
Carter told Hazel that he would not pay him for the work he was
doing. 	Hazel then stated that because Carter already owed him
money, he "quit." 	Hazel hung up his hoe, retrieved a .22 caliber
rifle from Carter's shed, and returned to the tobacco field to
confront Carter. 	Hazel stated that as he stood waving the rifle,
he told Carter that he would take the rifle in exchange for the
money Carter owed him. 	Carter threatened to call the police if
Hazel took the rifle. 	Hazel stated that, while he was waving the
gun around, it accidentally discharged and that he did not
intentionally shoot Carter. 	Not realizing that he pulled the
trigger, Hazel saw Carter fall.
The facts show that Hazel then shot Carter a second time.
Hazel did not testify.
At trial, the Commonwealth's Attorney posed the following
four questions during voir dire examination of the prospective
jurors:

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[Commonwealth]: 	And, as the Court advised
you, the defendant has no burden to produce
any evidence in this case. 	And, he has a
fundamental and Constitutional Right not to
testify if he chooses not to and that is not
to be held against him nor are you to draw
any adverse inferences from he's [sic]
choosing not to testify. 	Does everyone
agree with that?
AFFIRMATIVE JURY PANEL RESPONSE
[Commonwealth]: 	And, if the defendant does
not or chooses not to testify, does everyone
agree that you would not hold that against
him in this case?
AFFIRMATIVE JURY PANEL RESPONSE
[Commonwealth]: 	But, if the defendant were
to testify in this case, does everyone feel
that you can weigh his testimony with equal
footing with any other witness that you
would hear in this trial?
AFFIRMATIVE JURY PANEL RESPONSE
[Commonwealth]: 	And, if the defendant were
to testify and were to say that he didn't do
it or it was an accident, do you feel that
would automatically create reasonable doubt
in your mind by that statement alone?
NEGATIVE JURY PANEL RESPONSE
After the Commonwealth's Attorney began asking another,
unrelated question, Hazel objected and moved for a mistrial,
asserting that the Commonwealth improperly commented on his Fifth
Amendment right not to testify. 	Hazel contends the questions also
improperly called upon the jury to consider whether they would be
more or less likely to believe him if he testified. 	He argues
that by mentioning that he might testify, the Commonwealth was

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unduly pressuring him to forego his right not to testify. 	He
contends that the improper questions tainted the entire venire.
The trial judge denied the mistrial motion, finding that, although
the Commonwealth's Attorney's questions were "ill advised," the
questions were sufficiently "balanced" and did not prejudice the
defendant.
ANALYSIS
Procedural Bar
The Commonwealth argues that because Hazel's objection was
untimely, we are procedurally barred by Rule 5A:18 from
considering the challenge to the array. 	The Commonwealth asserts
that the objection was not contemporaneous because Hazel did not
object until after the Commonwealth's Attorney had asked a series
of questions dealing with the same or related subject.
We find that Hazel's objection was timely. 	"The primary
purpose of requiring timely and specific objections is to afford
the trial judge a fair opportunity to rule intelligently on the
issues presented, thus avoiding unnecessary appeals and
reversals." 	Rodriguez v. Commonwealth, 18 Va. App. 277, 284, 443
S.E.2d 419, 424 (1994) (en banc) (citation omitted). 	Although we
do not consider an issue on appeal for which no specific,
contemporaneous objection was made in the trial court, see Rule
5A:18, "[i]t shall be sufficient that a party, at the time the
ruling or order of the court is made or sought, makes known to the

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court the action which he desires the court to take or his
objections to the action of the court and his grounds therefor."
Code § 8.01-384(A). 	Here, counsel objected immediately after the
Commonwealth's Attorney asked a series of questions. 	He then
moved for a mistrial, stating the specific grounds for the motion.
See Morris v. Commonwealth, 14 Va. App. 283, 287, 416 S.E.2d 462,
464 (1992) (en banc) (finding that a "timely motion for a mistrial
. . . is required to preserve the issue for appeal even if an
objection was properly made to the conduct or comments and
improperly overruled by the trial judge"). 	Accordingly, we find
the issue was properly preserved for appeal.
Next, the Commonwealth, relying on Spencer v. Commonwealth,
238 Va. 295, 384 S.E.2d 785 (1989), and Mu'Min v. Commonwealth,
239 Va. 433, 389 S.E.2d 886 (1990), aff'd in part, 500 U.S. 415
(1991), argues that, even if Hazel timely objected, he waived his
challenge to the seating of the jury because he failed to object
when the jurors were sworn and seated. 	In Spencer, defense
counsel objected to two rulings during voir dire concerning
questions posed to a particular juror. 	Defense counsel did not
object to the seating of the juror, only to the question asked of
the juror. 	On appeal, the Virginia Supreme Court found that the
objections to the questions were waived because, although counsel
timely objected, counsel did not object to the juror being sworn
and seated. 	See 238 Va. at 306-07, 384 S.E.2d at 793.

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Similarly, in Mu'Min, the trial court inquired about a
prospective juror's views about capital punishment. 	See 239 Va.
at 445 n.6, 389 S.E.2d at 894 n.6. 	Counsel objected when the
question was posed but did not object when the juror was sworn and
seated. 	The Virginia Supreme Court, relying on Spencer, found
that the objection to the questions on voir dire was waived by
seating the juror without objection. 	See id. 	In both cases, the
Court reasoned that the objection was to questions asked during
voir dire, which objections were waived when the jurors were
seated without objection.
The Commonwealth's reliance on Spencer and Mu'Min is
misplaced. 	In both cases, the defendant only objected to
questions or limitations on questions asked of individual jurors
during voir dire. 	Defense counsel did not object in those cases
to the jurors being sworn and seated. 	Here, counsel did object to
seating the entire jury panel based on improper comments during
voir dire about an accused's exercise of his constitutional right.
Conceivably, in Spencer and in Mu'Min the jurors to whom the
purportedly objectionable questions were asked or the desired
questions were not asked, may have been subsequently excused or
objected to for a reason not related to the purportedly
objectionable question. 	Therefore, in those cases, if the
defendant claimed that the improper question disqualified the
juror, rather than merely that the question was improper, an

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objection to the seating of the particular juror was necessary.
However, where, as here, the objection was to seating the panel
because it was tainted by improper comments, the objection was
sufficient to apprise the court that counsel objected to seating
the entire jury. 	Accordingly, counsel's failure to reassert the
objection to seating the jury when the jury was sworn does not bar
appellate review of whether the jury was tainted by improper
comments during voir dire.
Voir Dire
"'The choice of whether to testify in one's own defense . . .
is an exercise of the constitutional privilege,'" Rock v.
Arkansas, 483 U.S. 44, 53 (1987) (citation omitted), guaranteed by
the Fifth Amendment of the United States Constitution and Article
1, Section 8 of the Virginia Constitution, and as further codified
in Code § 19.2-268. 	See Johnson v. Commonwealth, 236 Va. 48, 50,
372 S.E.2d 134, 136 (1988). 	The decision whether a defendant
"'shall testify or not . . . [is] submitted to the free and
unrestricted choice of one accused of crime, and [is] in the very
nature of things beyond the control or direction of [others].'"
Brooks v. Tennessee, 406 U.S. 605, 608 (1972) (citation omitted).
It is firmly established that any comment made by a
prosecutor referring to the defendant's right not to testify is a
violation of the defendant's privilege against self-incrimination
guaranteed by the Fifth Amendment of the United States

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Constitution. 	See Griffin v. California, 380 U.S. 609, 615
(1965); Johnson, 236 Va. at 50, 372 S.E.2d at 136; see also Code
§ 19.2-268. 	The accused's right to remain silent at trial
prohibits "'the prosecutor's use of any language or device which
compels a defendant to testify.'" 	Waldrop v. Commonwealth, 23 Va.
App. 614, 622, 478 S.E.2d 723, 726 (1996), rev'd on other grounds,
255 Va. 210, 495 S.E.2d 822 (1998) (quoting State v. Pierce, 439
N.W.2d 435, 444 (Neb. 1989)); see State v. Turner, 433 A.2d 397,
401 (Me. 1981); Clark v. State, 509 S.W.2d 812, 815 (Ark. 1974)
(stating that pre-evidentiary coercion is just as forbidden as
post-evidentiary comment).
The test for determining whether a comment relating to an
accused's Fifth Amendment right to remain silent is
constitutionally forbidden is whether, under the circumstances of
the case, "'the language used was manifestly intended or was of
such character that the jury would naturally and necessarily take
it to be a comment on the [right] of the accused to testify.'"
Hines v. Commonwealth, 217 Va. 905, 907, 234 S.E.2d 262, 263
(1977) (quoting Knowles v. United States, 224 F.2d 168, 170 (10th
Cir. 1955)). 	Although a prosecutor's comment on the accused's
right to remain silent may be improper, such a statement does not
constitute prejudice per se. 	See Dunn v. Commonwealth, 222 Va.
750, 752, 284 S.E.2d 807, 808 (1981) (citation omitted). 	However,
"[w]hen an appellant's constitutional rights have been violated,

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we will reverse his conviction unless the Commonwealth proves that
any constitutional error was 'harmless beyond a reasonable
doubt.'" 	Taylor v. Commonwealth, 26 Va. App. 485, 500, 495 S.E.2d
522, 529 (1998) (citation omitted).
The prosecutor's statement, "the defendant has no burden to
produce any evidence in this case," was not a comment on Hazel's
constitutional right not to testify, and the comment was not
improper. 	See Johnson, 236 Va. at 51, 372 S.E.2d at 136. 	The
comment was nothing more than a general statement about who does
and does not have the burden of proof and was not a comment upon
Hazel's right to remain silent or not to testify. 	However, the
next statement, "he has a fundamental and Constitutional Right not
to testify if he chooses not to and that is not to be held against
him nor are you to draw an adverse inference from his choosing not
to testify," was an impermissible comment upon Hazel's
constitutional right not to testify, and the comment was improper
and prejudicial. 	See Griffin, 380 U.S. at 614 ("What the jury may
infer, given no help from the court, is one thing. 	What it may
infer when the court solemnizes the silence of the accused into
evidence against him is quite another."). 	Although the latter
comment may be a correct statement of the law, the prosecutor may
not comment upon the defendant's exercise or right to exercise the
constitutional right to remain silent. 	Such a comment draws the
jury's attention to the defendant's choice of whether to testify.

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The comment that Hazel had a right not to testify called the
situation to the jury's attention and, subtly, but effectively,
challenged Hazel to testify or to face the possible negative
implications from not testifying. 	See State v. Lindsey, 578
S.W.2d 903, 904 (Mo. 1979).
In addition, the Commonwealth's third and fourth questions
present a similar and related dilemma for the accused. 	In these
two questions, the Commonwealth asked the jury whether if Hazel
testified that he did not commit the offenses or that the shooting
was accidental, could they weigh that testimony equally with other
evidence or would Hazel's denial necessarily create a reasonable
doubt. 	These questions also infringed upon Hazel's right not to
testify, perhaps even more so than the previous two questions.
The prosecutor not only disregarded Hazel's right not to testify,
but, in effect, assumed that Hazel would testify and asked the
jury to assume that Hazel would waive the right and would testify.
The prosecutor then asked the jury to assume what Hazel's
testimony might be.
The Commonwealth's questions raised the expectation in the
jury's mind that Hazel would testify and raised the expectation as
to what that testimony would be. 	The Commonwealth's questions,
therefore, challenged the jury to notice and draw inferences from
whether or not Hazel testified. 	Faced with the Commonwealth's
Attorney's explicit comments on his right not to testify and the

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speculation and characterization of his testimony if he chose to
testify, Hazel was prejudiced by the Commonwealth having been
allowed to call attention to his exercise of his constitutional
right to remain silent and by the Commonwealth being allowed to
comment or speculate upon what his testimony might be were he to
testify. 	The prosecutor's comment unduly compromised Hazel's
right to remain silent. 	See generally Brooks, 406 U.S. at 613.
We cannot say and the Commonwealth has not proved that the
comments in this case were harmless beyond a reasonable doubt.
See Taylor, 26 Va. App. at 500, 495 S.E.2d at 529.
Accordingly, we find that the trial court erred by denying
Hazel's motion for a mistrial, and we reverse the decision of the
trial court and remand the case for further consideration.
Reversed and remanded.