Richard Franklin Palmer v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia
RICHARD FRANKLIN PALMER
MEMORANDUM OPINION * BY
v. Record No. 2507-95-2 JUDGE SAM W. COLEMAN III
AUGUST 5, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Michael Morchower (Christopher C. Booberg;
Morchower, Luxton and Whaley, on brief), for
appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
The defendant, Richard Franklin Palmer, was convicted by a
jury of first degree murder and use of a firearm in the
commission of a felony. He was sentenced to life imprisonment
and five years, respectively, as recommended by the jury. On
appeal, the defendant contends that the trial court erred by:
(1) failing to strike two veniremen for cause; (2) refusing to
grant a mistrial after the Commonwealth introduced evidence which
it stipulated would not be introduced; (3) refusing to grant a
mistrial after the prosecutor elicited evidence in rebuttal that
the parties had stipulated would be excluded; (4) refusing to ask
the jury on the second morning of trial whether they had read a
newspaper article about the trial; (5) allowing the prosecutor to
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
present rebuttal argument at the sentencing phase after defense
counsel had waived closing argument; and (6) allowing the
prosecutor to read the name of the victim from the indictment
when introducing evidence at sentencing of a prior conviction.
We hold that the trial court did not err by refusing to
strike the two veniremen for cause or by refusing to grant a
mistrial. We also hold that the trial judge did not abuse his
discretion by allowing the Commonwealth's attorney to present
"rebuttal" argument when neither the Commonwealth's attorney nor
defense counsel had argued or by refusing to poll the jury about
whether they had read a newspaper article. Accordingly, we
affirm the defendant's convictions.
I. CHALLENGES TO VENIREMEN
During voir dire, defense counsel asked whether the
venirepersons had family or friends who were police officers.
Venireman Richard Brown answered that his father-in-law was a
Chesterfield County detective and his uncle was a sheriff in
Lancaster County. When asked if he could give the defendant a
fair trial in light of these relationships, Mr. Brown replied
that he might be "slightly biased" in favor of the Commonwealth.
When the trial judge asked Brown if his father-in-law had
talked to him about the case or if he knew anything else about
the case, Brown replied, "no." The judge then asked Brown if he
could "listen to the evidence, be fair both to the Commonwealth
and the defendant without being influenced by the directions of
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your father-in-law or other relatives?" Mr. Brown replied, "I
feel I can, but I want to make you aware of my situation also."
Defense counsel then asked if any of the venirepersons had
friends or relatives working in any other area of law
enforcement. Sheila Matthews replied that she was a parole
officer for the Richmond juvenile court, but stated that her job
would not interfere with her ability to give the defendant a fair
trial.
At the end of voir dire, defense counsel moved to strike
Brown and Matthews for cause. The trial court denied both
motions.
"Absent the existence of a per se ground for exclusion,
rulings concerning the qualifications of a juror are left to the
sound discretion of the trial court and will not be overturned
absent a showing of manifest error." Williams v. Commonwealth,
21 Va. App. 616, 618, 466 S.E.2d 754, 756 (1996) (en banc). "A
prospective juror is not subject to automatic exclusion because
of an association with law enforcement personnel, provided that
the juror has no knowledge of the facts of the case and
demonstrates impartiality to the parties." Clozza v.
Commonwealth, 228 Va. 124, 129, 321 S.E.2d 273, 276 (1984), cert.
denied, 469 U.S. 1230 (1985). Prospective jurors must have a
willingness to "``lay aside . . . impression or opinion and render
a verdict based on the evidence presented in court.'" Calhoun v.
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Commonwealth, 226 Va. 256, 258, 307 S.E.2d 896, 897 (1983)
(citation omitted). Such evidence of impartiality "must emanate
from the juror . . . unsuggested by leading questions."
Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 389, 349
S.E.2d 903, 907 (1986).
Here, the trial judge did not abuse his discretion by
refusing to strike jurors Brown and Matthews for cause. Brown
stated that he had no preconceived ideas about the case and that
he could be a fair and impartial juror. Matthews testified that
her job in law enforcement would not affect her ability to give
the defendant a fair trial. A parole officer is not per se unfit
to serve as a juror. Therefore, the trial court did not err in
finding that Brown and Matthews were impartial and in seating
them on the jury panel.
II. MISTRIAL MOTIONS
On the night the defendant shot and killed the victim, who
was his mother-in-law, he also shot his wife. On the morning of
trial, the defendant pled guilty to malicious wounding of his
wife. Prior to trial, the parties stipulated that no evidence
would be presented regarding the shooting of the defendant's wife
because the defendant had pled guilty to those charges and
because the defendant and his wife were still married. The
stipulation was not recorded and not made part of the record.
At trial, the Commonwealth called as a witness the
defendant's neighbor. The neighbor testified that on the night
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of the charged offense she heard screaming and saw the defendant
walk out his back door with a shotgun. When her doorbell rang,
the neighbor went to her front door.
The following exchange took place between the neighbor and
the prosecutor.
PROSECUTOR: When you got to the front door,
Miss Palmer [defendant's wife] was there,
Shelly Palmer?
WITNESS: It was Shelly there.
PROSECUTOR: After you talked to her, what
did you do at that point?
WITNESS: I didn't really talk to her. She
said, "Call 911. I've been shot."
Defense counsel objected and requested a mistrial on the
ground that the parties had stipulated that no evidence would be
presented regarding the shooting of the defendant's wife. The
Commonwealth's attorney acknowledged that he had agreed to the
stipulation and that he had instructed the witness to not mention
the shooting of the defendant's wife. However, the witness
surprised the prosecutor with her statement concerning the
shooting of the defendant's wife. The trial judge overruled the
motion for mistrial and instructed the jury to disregard the
witness' statement about the wife's comments.
Defense counsel's second mistrial motion was made during the
Commonwealth's rebuttal. This motion was also based upon the
stipulation that the Commonwealth would not present evidence
concerning the shooting of the defendant's wife. Describing how
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he shot the victim, the defendant earlier had testified that, as
the victim moved toward him, he backed up, tripping on a bag of
dog food and the gun went off. On cross-examination, the
prosecutor asked the defendant what happened after he shot the
victim. The defendant said that he left the house. Upon further
questioning, the defendant admitted that he fired a second shot.
Defense counsel did not object to the question or testimony.
In rebuttal, the prosecutor called the investigating
detective and asked him whether a second shot had been fired and
to describe where the second shotgun casing was found. The
prosecutor also introduced into evidence photographs showing
where both casings were found. Defense counsel objected and made
a motion for a mistrial. The judge held the prosecutor's
questions to be proper rebuttal in response to the defendant's
testimony and overruled the defendant's mistrial motion.
Whether to grant a mistrial is a matter resting within the
sound discretion of the trial court. Cheng v. Commonwealth, 240
Va. 26, 40, 393 S.E.2d 599, 607 (1990). "When a motion for
mistrial is made, based upon an allegedly prejudicial event, the
trial court must make an initial factual determination, in the
light of all the circumstances of the case, whether the
defendant's rights are so 'indelibly prejudiced' as to
necessitate a new trial." Spencer v. Commonwealth, 240 Va. 78,
95, 393 S.E.2d 609, 619, cert. denied, 498 U.S. 908 (1990)
(citation omitted).
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As to the neighbor's testimony, the trial court did not err
by refusing to grant a mistrial. The scope of the stipulation is
unclear and was not in writing. Moreover, the witness' testimony
was admissible evidence. See Woodfin v. Commonwealth, 236 Va.
89, 95, 372 S.E.2d 377, 380-81 (1988) (holding that evidence of
other crimes is admissible if it "is connected with or leads up
to the offense for which the accused is on trial . . . ."), cert.
denied, 490 U.S. 1009 (1989); Code § 19.2-271.2 (prohibiting a
spouse from testifying against the other without consent but not
excluding evidence of a crime committed against a spouse).
Although the Commonwealth agreed not to present evidence about
the defendant shooting his wife, the trial judge was not bound by
the parties' informal stipulation to exclude admissible evidence
and did not abuse his discretion by refusing to grant a mistrial.
Cf. Odum v. Commonwealth, 225 Va. 123, 132, 301 S.E.2d 145, 150
(1983) (holding that trial court did not err by refusing to admit
polygraph evidence even though the prosecutor and the accused
stipulated to its admissibility); Hunter v. Commonwealth, 15 Va.
App. 717, 724-26, 427 S.E.2d 197, 202-03 (1993) (holding that
trial court did not err by admitting evidence of the nature of
the felony in a willful failure to appear prosecution where the
parties had stipulated that the accused was charged with a
felony).
As to the defendant's second mistrial motion, the
Commonwealth attorney's questions elicited proper rebuttal
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testimony; therefore, the trial court did not err by refusing to
grant a mistrial. The defendant testified on direct examination
that he left the house after he unintentionally fired one shot.
On cross-examination, he acknowledged that he reloaded and fired
a second shot. The Commonwealth was entitled to prove, in
rebuttal, that the defendant testified falsely about leaving the
house and about firing a second shot, which would tend to prove
that the shooting was intentional and not accidental.
III. POLLING THE JURY
After the jury found the defendant guilty, the sentencing
phase of the trial was continued until the next day. The trial
court did not admonish the jurors to avoid newspaper or media
accounts of the trial. An article about the trial appeared in
the Richmond Times Dispatch the morning of the sentencing
hearing. The article contained information that was not
introduced at trial concerning the defendant having shot his wife
and his guilty plea on that charge. When the sentencing hearing
convened, defense counsel asked the trial judge to poll the
jurors to determine whether they had read the newspaper article.
The judge refused to poll the jurors to determine whether they
had read the newspaper article; however, he did ask the jurors
whether anyone had violated his admonition to not discuss the
case. As previously noted, the evidence that the defendant had
also shot his wife was admissible and the jury was aware of that
fact prior to publication of the newspaper article.
[J]urors serving in a criminal case may not,
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during the trial, properly read newspaper
stories or listen to media reports discussing
the proceedings. The basis for this
elementary proposition is that a juror's
information about the case should come only
from the evidence presented at trial and not
from any extraneous source.
Thompson v. Commonwealth, 219 Va. 498, 500, 247 S.E.2d 707, 708
(1978). Whether to question jurors about possible exposure to
news articles during trial rests within the sound discretion of
the trial court. Keil v. Commonwealth, 222 Va. 99, 107, 278
S.E.2d 826, 831 (1981). "Where there is no substantial reason to
fear prejudice, a trial court is not required to question jurors
concerning their possible exposure to information outside the
courtroom." Waye v. Commonwealth, 219 Va. 683, 701, 251 S.E.2d
202, 213, cert. denied, 442 U.S. 924 (1979).
Our decision on this issue is controlled by the Supreme
Court's holding in Asbury v. Commonwealth, 211 Va. 101, 175
S.E.2d 239 (1970). In Asbury, the Supreme Court held that the
trial court did not abuse its discretion in refusing to poll the
jury about a newspaper article after having admonished the jury
"not to discuss the case with anyone, nor allow anyone to discuss
it with you or in your presence." As in Asbury, the jurors here
were already aware of the information in the newspaper article,
which was admissible evidence, that the defendant also shot his
wife during the incident. Moreover, that information and the
fact that he had pled guilty to shooting his wife would have been
admissible evidence during the sentencing hearing. Thus, the
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trial court, after reviewing the newspaper article, did not abuse
its discretion in refusing to poll the jurors as to whether they
had read the article.
IV. COMMONWEALTH'S REBUTTAL ARGUMENT
At the close of the sentencing phase of the defendant's
bifurcated trial, the prosecutor waived closing argument but
asked to reserve rebuttal argument. Defense counsel also waived
closing. The prosecutor then requested an opportunity to argue
but defense counsel objected, contending that because the defense
waived closing, there was nothing for the Commonwealth to rebut.
The trial judge overruled the objection and allowed the
Commonwealth to make a closing argument to the jury. Defense
counsel did not thereafter request the opportunity to argue to
the jury.
A trial court has broad discretion in the
supervision of opening and closing arguments
and will be reversed only upon a finding of
abuse of discretion. O'Dell v. Commonwealth,
234 Va. 672, 703, 364 S.E.2d 491, 509, cert.
denied, 488 U.S. 871 (1988). "In the normal
course of a summation to the jury, of
necessity, only one side may open. The other
party then has the opportunity to reply to
his opponents [sic] opening argument, and in
turn make his own argument to the jury. The
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one who spoke first then has the opportunity
to answer the argument of his opponent. No
new material should be injected into this
final statement. . . ."
Griffin v. Commonwealth, 22 Va. App. 622, 624, 472 S.E.2d 285,
287 (1996) (quoting People v. Caballero, 464 N.E.2d 223, 235
(Ill.), cert. denied, 469 U.S. 963 (1984)).
The trial judge exercised his discretion by allowing the
Commonwealth to make a closing argument to the jury. Here, the
Commonwealth was not being allowed to make "rebuttal" argument
after the defendant had waived closing argument; the defendant
had made no argument to rebut. Although the Commonwealth's
attorney attempted to reserve his entire argument for rebuttal
and defense counsel attempted to preempt all argument by waiving
oral argument, the trial judge did not err by allowing the
Commonwealth in proper order to present its closing argument to
the jury. See People v. Bandhauer, 426 P.2d 900 (Cal. 1967)
("[T]here is no reasonable probability that the sequence of
closing argument alone would affect the result . . . .").
Defense counsel made no further effort to make a closing
argument; therefore, no prejudice to the defendant has been
demonstrated.
V. INDICTMENT
The defendant contends that the trial court erred by
allowing the prosecutor during sentencing to read the charges
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from the indictments regarding the charges pertaining to the
defendant's shooting of his wife. The three indictments that
were read to the jury contained the defendant's wife's name. The
defendant objected based upon the stipulation that the
Commonwealth would not introduce evidence that the defendant had
shot his wife. The defendant also argued that Code § 19.2-295.1,
which permits evidence of prior convictions, does not allow
indictments to be read to a jury. The trial judge overruled the
defendant's objection and allowed the prosecutor to read the
indictments to the jury.
The term "record of conviction" in Code § 19.2-295.1
includes the indictment for any prior conviction as well as the
final order and sentencing records because these documents are
all "recorded evidence that the court convicted appellant for the
crimes charged." Folson v. Commonwealth, 23 Va. App. 521, 525,
478 S.E.2d 316, 318 (1996). Facts contained in the record of
conviction other than the mere fact of conviction are admissible
during the sentencing phase under Code § 19.2-295.1. See Gilliam
v. Commonwealth, 21 Va. App. 519, 465 S.E.2d 592 (1996) (holding
that punishment as well as fact of conviction is admissible).
Thus, reading the defendant's wife's name from the indictments
was permissible and the trial court did not err by allowing the
indictments to be read to the jury. Furthermore, as we have
noted, the parties' stipulation did not preclude the trial court
from admitting relevant, material, and otherwise admissible
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evidence.
Accordingly, we affirm the defendant's convictions.
Affirmed.
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