Cedric F. Clarke, s/k/a Cedric Francois Clarke v. Commonwealth of Virginia ( 2009 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Powell and Senior Judge Coleman
Argued at Richmond, Virginia
CEDRIC F. CLARKE, S/K/A
CEDRIC FRANCOIS CLARKE
MEMORANDUM OPINION * BY
v. Record No. 0930-08-2 JUDGE SAM W. COLEMAN III
MAY 26, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
Jessica M. Bulos, Assistant Appellate Defender, for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
In a jury trial, Cedric F. Clarke (appellant) was convicted of robbery, carjacking, and two
counts of using a firearm in the commission of a felony. On appeal, appellant contends the trial
court erred: 1) in refusing to strike for cause a potential juror who had impaired vision; 2) in
denying appellant’s challenge, pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), to the
Commonwealth’s exercise of a peremptory strike of an African-American juror; 3) in granting the
Commonwealth’s motion to disallow appellant’s exercise of two peremptory strikes; 4) in denying
his motion to strike the robbery charge on sufficiency grounds; 5) in denying his motion to suppress
the out-of-court identification evidence; and 6) in refusing to declare a mistrial based upon alleged
communication during trial between two witnesses for the Commonwealth. Finding no error, we
affirm appellant’s convictions.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
FACTS
Under familiar principles of appellate review, we examine the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible
therefrom. See Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779
(1999).
In May 2007, Matthew Braxton, who bred and sold dogs, placed an advertisement in a
newspaper offering pit bull puppies for sale. On May 31, 2007, Braxton received a telephone
call from a man who expressed interest in purchasing pit bull puppies. The man did not tell
Braxton his name, but he called Braxton five or six times that day. They discussed how many
dogs the man wanted to purchase and arranged a meeting. The man and Braxton agreed to meet
after 7:00 p.m. that night at the man’s home. The man gave Braxton an address on Antrim Street
in Richmond.
With his friend Joe Barnes, Braxton drove to Antrim Street that night. They traveled in a
white van with “J. L. Jennings Electrical” painted on the side. In the back of the van, they
carried a male adult dog and eight puppies, secured in cages.
Braxton searched for the address on Antrim Street the man had provided, but the address
did not exist. Although it was dark, the area was illuminated by streetlights. When he reached a
dead end, Braxton executed a U-turn to return to Broad Street. Braxton then received a
telephone call from the man. The man instructed Braxton to drive down Antrim Street again and
said he would be waiting in the middle of the street. The man said he was wearing all black
clothing and his hair was in an Afro style. Braxton followed the man’s direction and saw a
person in the street who fit the description. Braxton unequivocally identified that man at trial as
appellant.
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Braxton parked the van, got out, and greeted appellant. They walked to the rear of the
van where Braxton opened the rear doors to show the dogs to appellant. When Braxton started to
retrieve a puppy from the cage, he heard appellant say either “watch out” or “you better get
back.” As Braxton turned to face appellant, Braxton saw a gun in appellant’s hand. Braxton
jumped back and held up his hands. Appellant ordered Braxton to tell “his buddy” to exit the
van, which Braxton did.
Braxton heard Barnes moving about inside the van, which apparently distracted appellant
momentarily. As Braxton moved from the rear of the van to beside the front passenger door,
Barnes jumped out the window of the van and fled. Appellant said “he better run,” and began
shooting.
As appellant was firing at Barnes, Braxton reached into the van, grabbed his firearm, and
sought cover behind a tree. When Braxton attempted to shoot at appellant, his gun jammed, so
he fled across the street where he tried to fix the jammed gun.
When Braxton returned to the street appellant was driving away in the van with the rear
doors open. After making a U-turn, appellant stopped, exited the vehicle, tried to close the rear
doors, then drove away again. Braxton, on foot, chased the van and called 911. Braxton
provided a description of appellant to the police. Once he lost sight of the van, Braxton returned
to Antrim Street where he met the police.
Steven Hughes, who lived at the corner of Cutshaw Avenue and Antrim Street, looked
out his window after hearing gunshots that night. Hughes saw a man dressed in dark clothing,
with an Afro hairstyle, shooting a gun. Hughes saw the man get into the driver’s seat of a van,
make a U-turn, then drive away. Hughes also saw a second man in foot pursuit of the van.
Hughes witnessed the events from a distance of about seventy feet, and he had a clear,
unobstructed view. Hughes called 911 and provided a description of the van.
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Officer Danny Rhodenizer was on bicycle patrol in the area when he received a radio call
about the incident at about 8:58 p.m. He observed a van matching the description of the stolen
vehicle, followed it, and requested backup assistance. Rhodenizer did not lose sight of the
vehicle before officers in a marked police vehicle stopped the van. Rhodenizer saw officers
place appellant in custody at 9:07 p.m., which was almost three minutes after Rhodenizer began
following the van. During Rhodenizer’s pursuit of the van, the vehicle did not stop and no one
entered or exited it. Rhodenizer identified appellant, who had an Afro hairstyle and was wearing
all black clothing, as the driver and sole occupant of the van. The police found a revolver on the
floorboard of the van between the front seats.
Separately, the police transported Braxton and Hughes to where appellant had been
apprehended. Each of them identified appellant as the assailant. Braxton identified appellant as
his assailant within fifteen minutes of the incident, and Hughes identified appellant within
thirty-five minutes of having observed the incident.
Appellant, who had prior felony convictions, testified and denied any involvement in the
robbery and carjacking. Appellant claimed a drug dealer named “Rob” was driving the van and
stopped and asked him to drive the van for him. Appellant denied being near Antrim Street that
night or handling a gun. Appellant admitted that after his arrest he commented, “Man, I was
hurting tonight. I needed to get some money.”
I.
During voir dire, the potential jurors were asked if they or family members had been
crime victims. Juror Fitzgerald indicated that recently he had been the victim of an assault and
attempted robbery. Fitzgerald stated the police had apprehended his assailant, but the matter was
not prosecuted because he is “legally blind” and could not identify the suspect in a lineup.
Fitzgerald said he was employed at a bar at the time the attack occurred.
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In the courtroom, Fitzgerald indicated he could see defense counsel, but not clearly.
Fitzgerald also said he was unable to read street names on a map displayed by counsel. The trial
judge denied appellant’s motion to strike Fitzgerald for cause, stating the juror was able to see
although legally blind. 1 The trial judge further stated that if Fitzgerald was chosen to serve as a
juror, the court would make accommodations for Fitzgerald’s eyesight limitation.
Appellant contends that, because he was contesting the witnesses’ identification of him as
the perpetrator and there were trial exhibits requiring close visual inspection, the trial court erred
in refusing to strike Fitzgerald for cause since he was legally blind.
A defendant in a criminal prosecution has a fundamental
right to a trial by an impartial jury. U.S. Const. amends. VI and
XIV; Va. Const. art. I, § 8; Gray v. Commonwealth, 226 Va. 591,
592-93, 311 S.E.2d 409, 409-10 (1984). The right of an impartial
jury requires that the jury be capable of understanding the factual
issues that it must resolve. See Commonwealth v. Susi, 477
N.E.2d 995, 997 (Mass. 1985); State v. Hurd, 480 S.E.2d 94, 97
(S.C. Ct. App. 1996). Indeed, the United States Supreme Court
has stated that “[d]ue process means a jury capable and willing to
decide the case solely on the evidence before it.” Smith v. Phillips,
455 U.S. 209, 217 (1982).
Mason v. Commonwealth, 255 Va. 505, 509, 498 S.E.2d 921, 923 (1998) (defendant was not
denied his right to a fair trial where it was discovered, after the penalty phase of trial, that a juror
had limited understanding of the English language).
On appellate review, this Court must give deference to the
circuit court’s determination whether to exclude a prospective juror
because that court was able to see and hear each member of the
venire respond to questions posed. The circuit court is in a
superior position to determine whether a prospective juror’s
responses during voir dire indicate that the juror would be
prevented from or impaired in performing the duties of a juror as
required by the court’s instructions and the juror’s oath.
Green v. Commonwealth, 262 Va. 105, 115, 546 S.E.2d 446, 451 (2001).
1
Appellant used a peremptory strike to remove Fitzgerald from the jury.
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Code § 8.01-337 provides that “[n]o person shall be deemed incompetent to serve on any
jury because of blindness or partial blindness.” The record reveals Fitzgerald was not blind, but
his vision was impaired. To require a juror be excused from service due to disability, the
impairment must be “such as to probably cause injustice in a criminal case to the Commonwealth
or to the accused.” Code § 8.01-352(B).
Although no Virginia appellate court has considered this precise issue, at least one other
jurisdiction has found no due process violation where a visually impaired person was permitted
to serve as a juror in a criminal trial. See State v. Caldwell, 603 N.Y.S.2d 713, 714 (N.Y. Crim.
Ct. 1993). The Caldwell court noted that in appropriate circumstances reasonable modifications
in the trial procedure, such as moving the juror closer to the witness box or providing the juror
with a description of evidence as it was introduced, could be made to accommodate a visually
impaired juror and permit her to fulfill her function. Id. at 714-15. The determinative issue is
“whether the court could accommodate the juror by verbally describing the evidence or by any
other means, and whether the evidence is so crucial that the juror’s inability to see it denied the
defendant a fair trial.” Id. at 716. But see Susi, 477 N.E.2d at 998 (trial court erred in refusing
to excuse for cause a blind juror where identification was the predominant issue and jurors were
asked to compare demonstrative evidence and physical appearances).
While Fitzgerald did have a significant visual impairment, he was not without sight. His
impairment was not obvious to those in the courtroom, as it went unnoticed until Fitzgerald
responded to questioning about whether he had been the victim of a crime. Fitzgerald revealed
that despite the condition of his eyesight he had been employed at the time of his recent attack.
The trial court had the opportunity to see and hear Fitzgerald and assess his ability to serve as a
juror. Fitzgerald could not see clearly, but the trial court stated it intended to make
accommodations to permit Fitzgerald to function as a part of the jury. We cannot say that, based
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upon the facts and circumstances, the trial court abused its discretion in denying appellant’s
motion to strike Fitzgerald for cause.
II.
The jury pool included ten African-American females, eight Caucasian males, and two
Caucasian females. Initially, the Commonwealth used its peremptory strikes to remove four
African-American women from the jury. The prosecutor explained she struck Paulette Jefferson
because Jefferson’s child had an extensive criminal record. The prosecutor explained she struck
the other three African-Americans because during voir dire they had spent considerable time
looking “sympathetically” at appellant and his family. In response, defense counsel asserted that
looking at appellant “sympathetically” was not a justifiable reason for striking the three
African-Americans from the jury. The trial court denied appellant’s Batson challenge regarding
the Commonwealth’s strike of Jefferson, but disallowed the Commonwealth’s strikes of the other
three African-American jurors.
On appeal, appellant contends the trial court erred in denying his Batson challenge with
regard to Jefferson. After a criminal defendant raises a Batson challenge to the prosecutor’s
exercise of a peremptory strike,
the burden shifts to the prosecutor to articulate a racially neutral
explanation for striking the jurors in question. Batson, 476 U.S. at
96-97. If the court determines that the proffered reasons are
race-neutral, the defendant should be afforded an opportunity to
show why the reasons, even though facially race-neutral, are
merely pretextual and that the challenged strikes were based on
race. United States v. Joe, 928 F.2d 99, 103 (4th Cir. 1991). But,
ultimately, the trial court must determine whether the defendant
has carried his burden of proving purposeful discrimination.
Batson, 476 U.S. at 98. On appeal, the trial court’s findings will
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not be reversed unless they are clearly erroneous. 2 Hernandez v.
New York, 500 U.S. 352, [369] (1991).
James v. Commonwealth, 247 Va. 459, 461-62, 442 S.E.2d 396, 398 (1994) (footnote added).
The trial court has a pivotal role in evaluating Batson claims. Step
three of the Batson inquiry involves an evaluation of the
prosecutor’s credibility, see 476 U.S. at 98, n.21, and “the best
evidence [of discriminatory intent] often will be the demeanor of
the attorney who exercises the challenge,” Hernandez, 500 U.S. at
365. In addition, race-neutral reasons for peremptory challenges
often invoke a juror’s demeanor (e.g., nervousness, inattention),
making the trial court’s first-hand observations of even greater
importance. In this situation, the trial court must evaluate not only
whether the prosecutor’s demeanor belies a discriminatory intent,
but also whether the juror’s demeanor can credibly be said to have
exhibited the basis for the strike attributed to the juror by the
prosecutor. We have recognized that these questions of credibility
and demeanor lie “peculiarly within a trial judge’s province,” ibid.
(quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985), and we
have stated that “in the absence of exceptional circumstances, we
would defer to [the trial court].” 500 U.S. at 366.
Snyder v. Louisiana, 128 S. Ct. 1203, 1208 (2008).
The prosecutor’s rationale for the peremptory strike of Jefferson related to her having a
child who has an extensive criminal record. Thus, taken as true, the prosecutor’s explanation
indicates the peremptory strike was not based on the intention to exclude an African-American
from the jury panel, but rather on the intention to exclude a potential juror whose impartiality
may have been tainted by her family connection. Thus, the prosecutor’s explanation was not
discriminatory, and the trial court did not err by accepting the race-neutral reason.
Moreover, appellant failed to meet his burden of proving purposeful discrimination.
After the prosecutor stated her reason for striking Jefferson, appellant did not argue or attempt to
show the prosecutor’s explanation was merely a pretext for a racially motivated strike. Having
2
“In Virginia, questions of fact are binding on appeal unless ‘plainly wrong.’” McGee v.
Commonwealth, 25 Va. App. 193, 198 n.1, 487 S.E.2d 259, 261 n.1 (1997) (en banc) (citations
omitted).
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been provided no basis to conclude otherwise, the trial court found the prosecutor’s explanation
for striking Jefferson was not pretextual. Because we cannot say this finding was plainly wrong,
we do not disturb the trial court’s ruling. 3
III.
When questioned by the trial court regarding her exercise of peremptory strikes of
Caucasian jurors, defense counsel said she struck jurors Herzog and Schanberger “because of
their jobs” and they were “not the appropriate class.” Defense counsel claimed Herzog would be
unsympathetic to appellant due to Herzog’s employment in business management, as well as his
relative wealth. Defense counsel further stated she struck Schanberger because of his
employment experience in the legal field. Defense counsel said she struck Edwards because he
is a teacher. Counsel further stated: “I think teachers tend to be very hard on people of my
client’s background. I also thought the way he was dressed, to me, seemed to be very formal,
almost military-like.” The trial court found the reasons for striking Herzog and Edwards were
pretextual, and disallowed the strikes. Appellant challenges this ruling on appeal.
The same procedure involved in a Batson challenge to the Commonwealth’s exercise of
peremptory strikes is used to determine
whether a defendant unlawfully exercised a peremptory strike to
remove a juror on the basis of race. The Commonwealth first must
make a prima facie showing that the strike was made on the basis
of race. The burden then shifts to the defendant to articulate
racially-neutral explanations for striking the juror in question. If
the court determines that the proffered reasons are race-neutral, the
Commonwealth should be afforded an opportunity to show why
the reasons, although race-neutral, are merely pretextual and
3
On appeal, appellant argues that the prosecutor’s basis for removing Jefferson was
based upon conjecture and speculation because no evidence obtained during voir dire suggested
Jefferson had a child who had been convicted of a criminal offense. However, appellant’s
“failure to raise [that] argument[] before the trial court precludes him from raising [it] for the
first time on appeal.” Buck v. Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416
(1994); Rule 5A:18. Had appellant raised the argument at trial the court could have inquired as
to the basis for knowing or believing that Jefferson’s child had a criminal record.
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racially based. Ultimately, the trial court must determine whether
the Commonwealth has carried its burden of establishing
purposeful discrimination.
Cudjoe v. Commonwealth, 23 Va. App. 193, 198, 475 S.E.2d 821, 823 (1996).
In reviewing the trial court’s rulings on the peremptory jury strikes, we note that
[t]he trial judge presided at the proceedings, personally
observed the entire jury panel, the challenged jurors and the
composition of the trial jury, entertained the assurances and
arguments of the prosecutor and was familiar with the case.
Obvious human characteristics such as age, sex, race and
demeanor are generally discernible and apparent to anyone present
in the courtroom, including the trial judge, defendant and his
counsel. Though not precisely recited in the record, such facts and
circumstances attendant to jury selection presented an array of
sensory perceptions to the trial judge which were relevant and
appropriate considerations to a disposition of [the
Commonwealth’s Batson] motion.
Barksdale v. Commonwealth, 17 Va. App. 456, 461, 438 S.E.2d 761, 764 (1993) (en banc).
Based upon its observations, the trial court concluded the alleged explanations for two of
appellant’s three strikes of Caucasian jurors were pretextual. The record provides no reason to
conclude the trial court abused its discretion in reaching its decision. Thus, we defer to the trial
court’s determination of pretext in appellant’s stated rationale for striking Herzog and Edwards,
and affirm the trial court’s decision to grant the Commonwealth’s Batson motion as to those
jurors.
IV.
Challenging the sufficiency of the evidence to sustain his conviction of robbery, appellant
contends the evidence supported the reasonable hypothesis that the perpetrator intended to steal
only the van and obtained the dogs simply because they were within the vehicle. Thus, he
argues, the taking of the dogs did not constitute a “separate and distinct act, apart from the
seizure of the automobile[,]” and was not “accompanied by a separate threat of violence.”
Brown v. Commonwealth, 37 Va. App. 507, 517-18, 559 S.E.2d 415, 420 (2002).
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Carjacking is defined as:
the intentional seizure or seizure of control of a motor vehicle of
another with intent to permanently or temporarily deprive another
in possession or control of the vehicle of that possession or control
by means of partial strangulation, or suffocation, or by striking or
beating, or by other violence to the person, or by assault or
otherwise putting a person in fear of serious bodily harm, or by the
threat or presenting of firearms, or other deadly weapon or
instrumentality whatsoever.
Code § 18.2-58.1(B).
The carjacking statute specifically provides, “The provisions of this section shall not
preclude the applicability of any other provision of the criminal law of the Commonwealth which
may apply to any course of conduct which violates this section.” Code § 18.2-58.1(C). By
enacting this language, “the General Assembly made it clear that conviction for the offense of
carjacking does not prohibit the Commonwealth from pursuing any other crime an offender
commits while the carjacking is in progress.” Brown, 37 Va. App. at 518, 559 S.E.2d at 420-21.
“A conviction for robbery requires proof beyond a
reasonable doubt that the defendant . . . took property from the
victim by force, threats, or violence, and that the intent to steal
co-existed with the act of force.” Pugliese v. Commonwealth, 16
Va. App. 82, 92, 428 S.E.2d 16, 24 (1993). . . . “[T]he carjacking
provision is . . . confined by the same limitations which apply to
robbery. Thus, the requisite violence or intimidation must precede
or be concomitant with the taking.” Bell v. Commonwealth, 21
Va. App. 693, 701, 467 S.E.2d 289, 293 (1996).
“Intent in fact is the purpose formed in a person’s mind,
which may be shown by the circumstances surrounding the
offense, including the person’s conduct and his statements.”
Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810
(1977). “Intent may, and often must, be proven by circumstantial
evidence and the reasonable inferences to be drawn from proven
facts are within the province of the trier of fact.” Fleming v.
Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180, 183
(1991).
Abraham v. Commonwealth, 32 Va. App. 22, 27, 526 S.E.2d 277, 279 (2000).
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The evidence proved appellant lured Braxton to the Antrim Street location under the
pretense of purchasing pit bull puppies from him. Once Braxton arrived, appellant confirmed the
presence of the dogs by looking into the rear of the van, and appellant asked Braxton to remove a
dog from its cage. At that point, appellant brandished the firearm and told Braxton to move
back. Only after Braxton had submitted to appellant’s threat and backed away from the dogs did
appellant issue further orders that Barnes should exit the van. Once Barnes was out of the van,
appellant fired his weapon as Barnes fled the scene, thus permitting appellant to complete the
carjacking and the theft of the pit bull puppies underlying the robbery conviction.
Considering these facts and circumstances, the evidence proved appellant made a
separate and distinct threat of violence to accomplish the taking of the van after he had made
clear his intent to steal the dogs from Braxton. Thus, the evidence proved appellant possessed
the intent to steal both the dogs and the van and that he used separate threats of violence to
accomplish both robbery and carjacking. Accordingly, the trial court did not err in denying
appellant’s motion to strike the robbery charge.
V.
Appellant contends the trial court erred in denying his motion to suppress the
identification testimony of Braxton and Hughes. “‘The burden is upon [the defendant] to show
that th[e] ruling, when the evidence is considered most favorably to the Commonwealth, constituted
reversible error.’” McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997)
(en banc) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).
“An out-of-court identification is admissible if either (1) the identification was not unduly
suggestive; or (2) the procedure was unduly suggestive, but the identification was so reliable that
there is no substantial likelihood of misidentification.” Charity v. Commonwealth, 24 Va. App.
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258, 261, 482 S.E.2d 59, 60 (1998). The factors for determining the reliability of identification
testimony include
the opportunity of the witness to view the criminal at the time of
the crime, the witness’ degree of attention, the accuracy of the
witness’ prior description of the criminal, the level of certainty
demonstrated by the witness at the confrontation, and the length of
time between the crime and the confrontation.
Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
Assuming arguendo that the out-of-court identification procedure was unduly suggestive
in this case, the application of the factors in Biggers demonstrates the reliability of Braxton’s
identification of appellant. In a location illuminated by streetlights, Braxton stood within a few
feet of appellant and conversed with him about the dogs. Braxton prepared to show the dogs to
appellant. Braxton continued to observe appellant after he pulled out a gun and threatened both
Barnes and him. Braxton saw appellant get in the van and drive away, although he stopped
briefly to close the rear doors of the vehicle. The police apprehended appellant just minutes after
the report of the incident to the police. Braxton identified appellant within fifteen minutes of the
robbery. Appellant’s appearance was consistent with the description Braxton provided of an
African-American man with bushy hair and dark clothing.
Similarly, the facts and circumstances underscore the reliability of Hughes’ identification
of appellant. Unlike Braxton, Hughes viewed the incident from the relative safety of his home
and not as a victim of the offenses. From a distance of about seventy feet, Hughes observed a
man shooting a gun near the van. Hughes then saw the man get into the van and drive off, with
another man in foot pursuit. From the time Hughes observed the robbery/carjacking until he
identified the suspect, only about thirty-five minutes had elapsed. Hughes was certain that the
man he identified after the crimes was the same man he had seen shooting a gun and driving
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away in the van on Antrim Street. Other than having described the suspect as wearing shorts, the
description Hughes gave the police matched appellant’s appearance on the night of his arrest.
The record thus supports the trial court’s denial of appellant’s motion to suppress the
identification testimony, and we do not disturb this decision.
VI.
Appellant contends the trial court erred in refusing to grant his request for a mistrial.
After the parties exercised their peremptory strikes, defense counsel stated to the trial court that
Braxton and a police officer were in the hallway outside the courtroom “discussing the
description of the defendant.” Once the trial court had ruled upon the Batson challenges, defense
counsel advised the trial court that her investigator had overheard a conversation in the hallway
between Braxton and “the bald officer” regarding appellant’s physical description. The
prosecutor clarified that the officer involved would have been Officer Barkley, but that he had no
pertinent information he could have provided Braxton. Appellant moved for a mistrial, but the
trial court denied the motion. The trial court then called all the witnesses into the courtroom and
instructed them not to discuss the case during trial with anyone but counsel.
On cross-examination, Braxton and Hughes each denied having a conversation with the
other during the trial about the identification of appellant. Appellant called as a witness Shenita
Stinson, an investigator for the public defender’s office. Stinson testified she overheard Braxton
and Hughes talking outside the courtroom during the trial. Stinson said Hughes mentioned his
initial description of appellant, and told Braxton “not to change his story.” Appellant did not
move for a mistrial based upon Braxton’s and Hughes’ alleged communication.
Appellant argues on appeal that the trial court should have granted a mistrial based upon
Braxton’s and Hughes’ alleged communication during the trial. However, when appellant made
his motion for a mistrial, he contended Braxton had communicated with a police officer, not
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Hughes. Appellant did not argue in a motion for mistrial that conversation between Braxton and
Hughes, two fact witnesses, caused him prejudice requiring a new trial.
Rule 5A:18 requires that objections to a trial court’s action or ruling be made with
specificity in order to preserve an issue for appeal. See Nelson v. Commonwealth, 50 Va. App.
413, 420-21, 650 S.E.2d 562, 566 (2007). A trial court must be alerted to the precise issue to
which a party objects. See Neal v. Commonwealth, 15 Va. App. 416, 422-23, 425 S.E.2d 521,
525 (1992). Because the requirements of Rule 5A:18 have not been met, we will not consider
this question on appeal. Nor do we address this issue pursuant to the good cause or ends of
justice exceptions to Rule 5A:18.
Although Rule 5A:18 allows exceptions for good cause or
to meet the ends of justice, appellant does not argue that we should
invoke these exceptions. See e.g., Redman v. Commonwealth, 25
Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (“In order to avail
oneself of the exception, a defendant must affirmatively show that a
miscarriage of justice has occurred, not that a miscarriage might
have occurred.” (emphasis added)). We will not consider, sua
sponte, a “miscarriage of justice” argument under Rule 5A:18.
Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc).
CONCLUSION
For the foregoing reasons, we affirm appellant’s convictions.
Affirmed.
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