Dwayne Anthony Douglas v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia
DWAYNE ANTHONY DOUGLAS
MEMORANDUM OPINION * BY
v. Record No. 1344-98-2 JUDGE MARVIN F. COLE
NOVEMBER 16, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
David C. Dickey for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Dwayne Anthony Douglas (appellant) was convicted in a jury
trial of assault and attempting to elude the police. He contends
that the trial court erred by (1) refusing his requested
instruction on the charge of attempting to elude, and (2)
sustaining the Commonwealth's objection to the defense's closing
argument. We disagree and, for the following reasons, affirm the
convictions.
Facts
At about 2:15 a.m. on September 7, 1997, appellant and
Charles Eacho tried to enter a fraternity party at the University
of Virginia. Because their names were not on the "guest list," a
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
fraternity member asked them to leave. Appellant and Eacho became
upset, said they did not want to cause trouble, but "perhaps they
would be put in a situation where they may need to cause trouble."
Four fraternity members followed appellant and Eacho outside to
the parking lot to ensure that they did not vandalize cars or the
fraternity house. When appellant reached into his truck, Stephen
Myers (the victim) and the other three fraternity brothers
stopped. Holding a knife, appellant turned and faced Myers and
said, "Let's see how tough you are now." While holding the knife,
appellant walked towards Myers until he was only ten feet away.
As appellant approached the fraternity brothers, Eacho pulled out
a gun. The fraternity brothers ran back to the fraternity house
and called the police.
Moments later, two police officers arrived and parked so that
the exit from the parking lot was blocked. Officer Debra Higgins
shined a flashlight on appellant and Eacho, identified herself as
a police officer, and ordered them to stop. Appellant made eye
contact with Higgins and then jumped in his truck and ignored her
order to stop. Appellant drove down the stairs at the
Architecture School and onto a sidewalk. As Higgins radioed for
help, appellant drove down a gravel pathway, which eventually
turns into a service road behind the Architecture School building.
Officer Michael Wells responded with his lights and siren
activated and blocked off the exit from the service road.
Appellant sped towards the roadblock at fifty miles per hour.
- 2 -
Appellant tried to drive around Wells' marked police car, but
realized he could not drive over the four-foot-high embankment.
Therefore, appellant stopped his vehicle.
Upon his arrest, the police found a "buck-style" knife in
appellant's back pocket and a loaded handgun in appellant's
vehicle.
Appellant and Eacho denied being hostile toward the
fraternity brothers. Rather, they claimed that the fraternity
brothers threatened them as they left the fraternity house. Eacho
admitted waving a gun at the fraternity brothers, but appellant
denied threatening anyone with a knife. They claimed they were
trying to get away from the fraternity brothers and mistakenly
drove down the stairs because they were unfamiliar with the area.
They denied trying to go around the roadblock and claimed that
they stopped as soon as they saw the police.
I.
Appellant contends that the trial court erred by refusing
to give appellant's proffered instruction regarding the attempt
to elude charge. Appellant's instruction provided, in part,
that "unless you believe that [appellant speeded up and left the
scene] . . . with the intent of eluding a police officer, rather
than with the intent of eluding or escaping from those with whom
he had had some difficulties that night, you cannot find him
guilty of eluding a police officer." The trial court did not
err in refusing appellant's proffered instruction. The trial
- 3 -
court fully and accurately instructed the jury on the attempt to
elude charge.
"A reviewing court's responsibility in reviewing jury
instructions is 'to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370
S.E.2d 717, 719 (1988) (citation omitted). Granted instruction
10 clearly states the law concerning the elements of the attempt
to elude charge. Instruction 10 states that, in order to find
defendant guilty of attempting to elude, the Commonwealth must
prove beyond a reasonable doubt
(1) That the defendant was driving a motor
vehicle; and (2) That after having been
given a visible and audible signal to stop
his motor vehicle, drives such motor vehicle
in a willful or wanton disregard of such
signal so as to interfere with or endanger a
law enforcement vehicle or any other
property of any person or increases his
speed and attempts to escape or elude any
law enforcement officer.
Instruction 10 fully and accurately instructed the jury
regarding the attempt to elude charge. The court's instruction
enabled the jury to consider all relevant circumstances,
including whether appellant was attempting to elude the police
officers or only the fraternity brothers, without emphasizing
one particular factor as perhaps being more significant. See
Lynn v. Commonwealth, 27 Va. App. 336, 349, 499 S.E.2d 1, 7
(1998), aff'd, 257 Va. 239, 514 S.E.2d 147 (1999).
- 4 -
During closing argument, the parties remained free to argue
whether appellant attempted to elude the police or only the
fraternity brothers. In fact, defense counsel argued that the
evidence was not clear that Officer Higgins spoke to appellant
in a tone appellant heard or that appellant made eye contact
with the officer before leaving the scene. Defense counsel
fully argued his theory of the case –- that appellant only
intended to elude or escape from the fraternity brothers, and,
therefore, could not be guilty of attempting to elude the
police.
Granted instruction 10 clearly and accurately informed the
jury of the elements of the attempt to elude charge. Therefore,
the trial judge did not err by refusing to grant appellant's
proffered instruction regarding the attempt to elude charge.
The trial court does not err by refusing to give another
instruction related to the same legal principle. See League v.
Commonwealth, 9 Va. App. 199, 210, 385 S.E.2d 232, 239 (1989),
aff'd on reh'g en banc, 10 Va. App. 428, 392 S.E.2d 510 (1990).
II.
Appellant contends that the trial court erred by sustaining
the Commonwealth's Attorney's objection to defense counsel's
closing argument. Because defense counsel's argument was
improper, the trial court did not err by sustaining the
objection.
- 5 -
"The purpose of closing argument is to
summarize the evidence for the jury, to
persuade the jury to view the evidence in
the light most favorable to the client, and
to apply that evidence to the law in a
manner which will result in a verdict
favorable to the client."
Canipe v. Commonwealth, 25 Va. App. 629, 639, 491 S.E.2d 747,
751 (1997) (quoting Charles E. Friend, The Law of Evidence in
Virginia § 21-1(b)(1) (4th ed. 1993)). Defense counsel is
entitled to make the full range of arguments relevant to
persuading the jury that the defendant is not guilty of the
charged crime. See id. at 640, 491 S.E.2d at 752. "The
decision regarding the appropriateness of a closing argument is
committed to the discretion of the trial court." Id. at 639,
491 S.E.2d at 751-52. Unless it "'affirmatively appears that
such discretion has been abused and that the rights of the
complaining litigant have been prejudiced,'" an appellate court
will not interfere with the trial court's ruling. See id. at
640, 491 S.E.2d at 752 (citation omitted).
During his closing argument, appellant's counsel attempted
to present an opinion from a speech given by former Chief
Justice Warren Burger concerning a sociological study allegedly
indicating that most juries do not understand the burden of
proof in a criminal case. Appellant's counsel stated "that 90%
or 80%, . . . of jurors who were sworn to uphold the law,
nevertheless believe the defendant has to prove his innocence."
This study was not evidence in appellant's case and was
- 6 -
irrelevant to appellant's case. The trial court sustained the
Commonwealth's Attorney's objection and said,
I've instructed the jury that the burden is
on the Commonwealth so I don't want to state
anything else that's a belief by any Chief
Justice. . . . My instructions are clear
and I don't want to confuse them. So the
burden is on the Commonwealth. The
Commonwealth has to prove it. The defendant
doesn't have to prove anything. That's
clear. So just go ahead and argue your
case.
In Canipe, Canipe's counsel made a closing argument
regarding the crime of "hit and run" which was not relevant to
the murder charge on which Canipe was being tried. 25 Va. App.
at 639-40, 491 S.E.2d at 752. The trial court prohibited this
argument. See id. This Court agreed that the trial court had
not abused its discretion when it prohibited that argument
because the argument was irrelevant to the charged crime of
murder and it would have confused the jury. See id.Similarly, appellant's counsel's argument regarding former
Chief Justice Burger's speech had no bearing on whether the
Commonwealth had proved the charged offenses beyond a reasonable
doubt. We cannot say that the trial court abused its discretion
when it prohibited appellant's counsel from continuing his
closing argument regarding Chief Justice Burger's speech about a
sociological study. Such argument was improper as it was not
relevant to the applicable law regarding the burden of proof in
appellant's trial and would have confused the issues before the
- 7 -
jury. The trial court's provision in its ruling that
appellant's counsel should "just go ahead and argue [his] case,"
gave counsel sufficient latitude to advocate fully for his
client during closing argument. Appellant's counsel continued
and argued that appellant was "clothed in the presumption [of
innocence] that stays with you throughout the trial, unless and
until the Commonwealth upon whom the burden rests, proves the
guilt beyond any reasonable doubt."
Accordingly, the trial court's judgment is affirmed.
Affirmed.
- 8 -