Edward Hill v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judge Benton, Senior * Judge Cole and
Retired Judge Trabue
Argued at Richmond, Virginia
EDWARD HILL
v. Record No. 1898-93-2 MEMORANDUM OPINION** BY
JUDGE MARVIN F. COLE
COMMONWEALTH OF VIRGINIA JULY 5, 1995
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert L. Harris, Sr., Judge
Cheryl Jakim Frydrychowski, Assistant Public
Defender (David J. Johnson, Public Defender;
Office of the Public Defender, on brief), for
appellant.
Robert B. Condon, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
The appellant, Edward Hill, was tried by a jury and
convicted of distributing cocaine and possessing cocaine with
intent to distribute. On appeal, he contends that he was denied
a fair trial because of improper argument by the prosecutor. We
disagree and affirm the convictions.
At trial, the Commonwealth produced evidence that a police
officer purchased twenty dollars worth of cocaine from the
appellant. Other officers testified that they observed the
transaction. Additional cocaine was recovered from the front
plate of the telephone booth where Hill was standing after the
*
Retired Judge Kenneth E. Trabue took part in the
consideration of this case by designation pursuant to
Code § 17-116.01.
**
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
sale. The appellant asserts that the prosecutor's final argument
to the jury was improper because it appealed to the jury's
passions, it surpassed fair inferences from the evidence, and it
confused the use of punishment and conviction for deterrent
purposes, all of which resulted in substantial prejudice to him.
During his final argument, the prosecutor argued that there
was sufficient evidence of guilt and asked the jury to find the
defendant guilty. He explained that once the jury finds the
defendant guilty, it must determine his sentence. The following
argument was then presented:
PROSECUTOR: Ladies and gentlemen, perhaps
you have all been engaged in conversation or
everybody has read a lot about the problems
of drug dealers in the City of Richmond.
Perhaps you have said to yourselves at one
point, somebody has to do something about it,
somebody needs to take care of this problem,
something has to be done, somebody has to do
something, somebody has to clean up the
streets; they're selling cocaine on the
streets of this City and we are killing the
City and it's killing people. It's poison
and it's killing the City. Something ought
to be done.
Well ladies and gentlemen, today is the day
you all can be that somebody, you are the people
that can do something about it. . . . [The
police] caught the dealer and they brought him.
So, what are we going to do about it? He has made
an economic choice, he has made a choice to sell
drugs and the cost of doing business is when you
sell drugs, if you get caught, you have got to go
to the penitentiary.
The question is, are we going to make it a
high price, the minimum is 4 years, the most is 40
years. Is it going to be a high price to keep
others like him from doing it, or is it going to
be a low price? That is what you have to decide
as jurors. Can we send a message to him and tell
the drug dealers in the community--
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DEFENSE COUNSEL: Judge, I object, we're not
talking about anything other than this case. This
particular case and this particular man.
* * * * * * *
THE COURT: Proceed.
Defense counsel did not advise the court of any prejudice
that might have occurred from the prosecutor's remarks. He did
not request a cautionary instruction, and he did not move for a
mistrial.
The appellant began his closing argument to the jury. In
the midst of it, defense counsel stated:
[T]he Commonwealth attorney when he closed up
just a second ago there, he said we have to
get these drug dealers off of the street.
We're not talking about anything other than
this case. All the other things that are
wrong with the City, we're not talking about
those things today, we're talking about
whether the Commonwealth has proved anything
against this man and nothing else. And I ask
you not to consider anything else.
The prosecutor then interrupted and stated, "the law is that
it is in fact proper and the defense counsel knows it's proper."
Defense counsel then moved for a mistrial, stating, "We're
talking about this man at this time." The trial judge said, "You
may proceed," whereupon defense counsel continued his closing
argument. No further objections or motions were made to the
court.
Rule 5A:18 provides, in pertinent part, "No ruling of the
trial court . . . will be reversed unless the objection was
stated together with the grounds therefor at the time of the
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ruling, except for good cause shown or to enable the Court of
Appeals to attain the ends of justice." This rule places the
parties on notice that they must give the trial court the first
opportunity to rule on disputed questions. The purpose of the
rule is to allow corrections of an error, if possible, during the
trial, thereby avoiding the necessity of mistrials and reversals.
To avoid these results, the rule places an affirmative duty on
the parties to enter timely objections made during the trial.
Gardner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232
(1986). In this case, the objections set forth in the
appellant's brief far exceed the objections made at trial and
ruled upon by the trial judge. Therefore, they are not
reviewable by this Court. Id.; see also Payne v. Commonwealth,
233 Va. 460, 464, 357 S.E.2d 500, 503-04, cert. denied, 484 U.S.
933 (1987). The only objection made in the trial court was:
"Judge, I object, we're not talking about anything other than
this case. This particular case and this particular man." We
address only this objection.
Although the objection is not specific in stating its
grounds, we take it that the defendant objected to the
Commonwealth's argument that appellant's punishment be fixed at
twenty years in order for it to act as a deterrent to other drug
dealers in the community. The argument embodies the contention
that the sentence should not take into consideration a deterrent
effect upon any other persons except the appellant. We disagree
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with the appellant's position.
We note that at the time the Commonwealth's attorney made
the statements which the appellant finds improper, the prosecutor
was addressing the issue of punishment. In his argument, the
prosecutor made a clear demarcation between "guilt" and
"punishment." He first argued that the undisputed evidence
showed overwhelmingly that the appellant was guilty of the
offenses charged. He then stated that "[i]n Virginia, however,
that doesn't end the story, once you find the defendant guilty,
in Virginia the jury sentences the defendant. So, you have to
ask yourselves what then, after we find the defendant guilty,
what happens then." He then proceeded to argue punishment.
Clearly, the jury could not have confused the "guilt" and the
"punishment" arguments because they were so clearly separated.
The statements we made and approved in Jackson v.
Commonwealth, 12 Va. App. 798, 406 S.E.2d 415 (1991), are
informative. We said:
The potential harmful effects of cocaine are
common knowledge and need not be proven in a
prosecution for distribution in order for the
prosecutor to draw inferences from the facts
and comment upon them. Because the evidence
allowed the Commonwealth's attorney to argue
that the cocaine was packaged for
distribution to the public, he properly drew
the attention of the jury to the general
effects of cocaine on the public and
encouraged them to deter the crime of
distribution.
Id. at 800, 406 S.E.2d at 416.
In Hutchins v. Commonwealth, 220 Va. 17, 20, 255 S.E.2d 459,
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461 (1979), the Supreme Court said:
[I]t is proper for a prosecutor to ask a jury
to fix a punishment in a particular case that
will deter others from committing like
offenses. The prosecutor's request, however,
must not appeal . . . to the jurors' passions
by exciting their personal interests in
protecting the safety and security of their
own lives and property. And the prosecutor's
statement must not confuse . . . the use of
punishment and conviction for deterrent
purposes. Conviction for an offense must be
based solely upon evidence of guilt, and not
upon considerations of deterrence.
See also Payne, 233 Va. at 468, 357 S.E.2d at 505 (holding that
"while considerations of deterrence should not be the basis for a
finding of guilt of the offense, such considerations may be
argued in connection with the punishment to be assessed for the
crime.").
We find that a Commonwealth's attorney may properly argue on
the question of punishment the prevalence of crime in the
community, the personal safety of its inhabitants and the jury's
duty to uphold the law, so long as the thrust of the argument is
to deter the defendant as well as others from committing similar
crimes in the community. In this case, the Commonwealth's
argument was directed at seeking a "stiff" sentence and showing
that such a sentence would have a deterrent effect in the
community. We find that the Commonwealth's argument was proper.
Accordingly, we affirm the convictions.
Affirmed.
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BENTON, J., dissenting.
The principle is well established in Virginia that "every
person charged with a crime is entitled to have his [or her] case
determined solely by the evidence produced at his [or her]
trial." Dingus v. Commonwealth, 153 Va. 846, 851, 149 S.E. 414,
415 (1929). Statements made by a prosecutor in closing argument
to a jury about other criminals and their inequities are improper
and irrelevant. Id. See also Patterson v. Commonwealth, 16 Va.
App. 390, 429 S.E.2d 896 (1993). Moreover, a prosecutor may not
make an argument to a jury that "create[s] an atmosphere wherein
a defendant may be convicted and punished, not just for the
offense on trial, but to set an example to deter some . . .
[other] criminal activity by some . . . [other] criminal actor."
Hutchins v. Commonwealth, 220 Va. 17, 20, 255 S.E.2d 459, 461
(1979). Such an argument "divert[s] the [jurors'] attention from
the evidence produced at trial" and inflames "the jurors'
passions by exciting their personal interests in protecting the
safety and security of their own lives and property." Id.
Although Hill's counsel failed to make a motion for a
mistrial when the prosecutor first made inappropriate comments
about the scourge inflicted by other drugs dealers, Hill's
counsel did make a proper objection when the prosecutor made the
improper remark. The record clearly establishes, however, that
the prosecutor later exacerbated the matter when the following
occurred during closing arguments:
[HILL'S COUNSEL]: [T]he Commonwealth
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attorney when he closed up just a second ago
there, he said we have to get these drug
dealers off of the street. We're not talking
about anything else other than this case.
All the other things that are wrong with the
City, we're not talking about those things
today, we're talking about whether the
Commonwealth has proved anything against this
man and nothing else. And I ask you not to
consider anything else.
[PROSECUTOR]: Your Honor, I object the law
is that it is in fact proper and the defense
counsel knows it's proper.
[HILL'S COUNSEL]: I move for a mistrial,
Judge. We're talking about this man at this
time.
[JUDGE]: You may proceed, sir.
Not only did the prosecutor reconfirm his earlier improper
remark, the prosecutor emphatically stated in the presence of the
jury that his earlier improper comment, to which Hill's counsel
had objected, was lawful. The motion for a mistrial was then
immediately made and was timely. The trial judge's failure to
instruct the jury or otherwise correct the prosecutor's comment
could only have left the jury with the impression that the
prosecutor's remark concerning the law was correct. The trial
judge's inaction "served to approve and strengthen the improper
argument and thereby had a natural and normal tendency to show
that the views of the Commonwealth's Attorney were shared by the
court." McLane v. Commonwealth, 202 Va. 197, 205, 116 S.E.2d
274, 280 (1960).
The majority opinion's holding in this case, "that a
Commonwealth's attorney may properly argue on the question of
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punishment prevalence of crime in the community, the personal
safety of its inhabitants and the jury's duty to uphold the law,
so long as the thrust of the argument is to deter the defendant
as well as others from committing similar crimes in the
community," simply disregards the holding in Hutchins. I agree
that a prosecutor may argue deterrence when asking a jury to set
a punishment. Id. at 20, 255 S.E.2d at 461; see also Payne v.
Commonwealth, 233 Va. 460, 468, 357 S.E.2d 500, 505, cert.
denied, 484 U.S. 933 (1987). However, Hutchins instructs that
"[t]he prosecutor's request, however, must not appeal . . . to
the jurors' passions by exciting their personal interests in
protecting the safety and security of their own lives and
property." Id. (Emphasis added). The majority's holding not
only allows a prosecutor to argue deterrence in setting a
punishment for a defendant, but it also permits a prosecutor to
entreat the jury to impose a large sentence to ensure that their
particular neighborhoods are safe. The decision approves the
prosecutor's appeal to the jury's concerns for their property and
personal safety:
[S]omebody has to clean up the streets;
they're selling cocaine on the streets of
this City and we are killing the City and
it's killing people. . . . We will not be
held up like a bunch of animals in cages
while the drug dealers run the streets.
This decision is simply contrary to the decision in Hutchins.
Because the prosecutor's initial comment was improper and
his later assertion informed the jury that those improper
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comments were lawful, I would hold that the trial judge erred in
denying the motion for a mistrial. Therefore, I dissent.
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