Franklin Monroe Southard, Jr. v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Kelsey
Argued at Alexandria, Virginia
FRANKLIN MONROE SOUTHARD, JR.
MEMORANDUM OPINION * BY
v. Record No. 2706-02-4 JUDGE D. ARTHUR KELSEY
JULY 8, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CULPEPER COUNTY
J. Howe Brown, Jr., Judge Designate
Rex L. Edwards, Jr. (Davies, Barrell, Will,
Lewellyn, & Edwards, P.C., on brief), for
appellant.
Jennifer R. Franklin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
On appeal, Franklin Monroe Southard challenges his
convictions for eluding a law enforcement officer (Code
§ 46.2-817) and reckless driving (Code § 46.2-852).
During closing arguments at trial, the prosecutor commented
on testimony by a police officer about an incriminating statement
made to the officer by Southard's sister. Southard objected,
stating: "Your Honor, we would like to place an objection. I
believe the Commonwealth Attorney referred to a statement by the
sister. I don't believe that is in evidence here today." The
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
trial court replied: "I don't think there's any statement by the
sister that's in evidence." After the prosecutor clarified the
statement he was referring to, the trial court stated: "The
jury's memory will govern." The entire discussion took place in
open court with the jury present.
Southard argues on appeal that the trial court erred by
failing to rule on his objection to the allegedly improper remark
by the prosecutor during closing arguments. The trial court
compounded that error, Southard contends, by not sustaining his
objection to that remark. We find both arguments procedurally
defaulted on appeal.
Assuming arguendo the trial judge's remarks in response to
the objection did not constitute a ruling, the judge's failure
to rule would itself constitute an error that must be the
subject of a specific, contemporaneous objection. See Buck v.
Jordan, 256 Va. 535, 545, 508 S.E.2d 880, 885-86 (1998) (noting
that, without an objection, a party does not preserve for appeal
the court's refusal to rule); Taylor v. Commonwealth, 208 Va.
316, 324, 157 S.E.2d 185, 191 (1967) (finding waiver where
counsel, after objecting to a prosecutor's remark, "did not
insist that the court rule"); Harter v. Commonwealth, 31
Va. App. 743, 752, 525 S.E.2d 606, 610-11 (2000); Fisher v.
Commonwealth, 16 Va. App. 447, 454, 431 S.E.2d 886, 890 (1993)
("Because he was denied nothing by the trial court, there is no
ruling for us to review.").
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Moreover, even if the trial court had expressly overruled the
objection to the prosecutor's remark, a "timely motion for a
mistrial or a cautionary instruction 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."
Morris v. Commonwealth, 14 Va. App. 283, 287, 416 S.E.2d 462, 464
(1992) (en banc); see also Schmitt v. Commonwealth, 262 Va. 127,
148, 547 S.E.2d 186, 200-01 (2001); Martinez v. Commonwealth, 241
Va. 557, 559 n.2, 403 S.E.2d 358, 359 n.2 (1991); Taylor v.
Commonwealth, 17 Va. App. 271, 274, 437 S.E.2d 202, 204 (1993).
"There appears to be no exception in Virginia law to the strict
application of this rule." Bennett v. Commonwealth, 29 Va. App.
261, 281, 511 S.E.2d 439, 448-49 (1999).
For these reasons, we affirm the trial court's judgment
without reaching the merits of Southard's arguments on appeal. 1
Affirmed.
1
We also do not address whether the "good cause" or "ends
of justice" exceptions to Rule 5A:18 apply, given that Southard
does not argue on appeal for either. Nor do we see any grounds
to apply the exceptions sua sponte.
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