Harry Alphonso Cutchin v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Felton and Kelsey
Argued at Richmond, Virginia
HARRY ALPHONSO CUTCHIN
MEMORANDUM OPINION * BY
v. Record No. 1736-01-2 JUDGE ROBERT P. FRANK
NOVEMBER 26, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Edward L. Hogshire, Judge
Andrew L. Wilder for appellant.
Marla Graff Decker, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Harry Alphonso Cutchin (appellant) was convicted in a jury
trial of robbery, in violation of Code § 18.2-58. On appeal, he
contends the trial court erred in denying his motion for a
mistrial, claiming the Commonwealth attorney made prejudicial
remarks to the jury during voir dire. For the reasons stated, we
affirm.
I. BACKGROUND
The trial court initially conducted voir dire of the
prospective jury panelists. Thereafter, the Commonwealth
conducted further voir dire, asking:
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
And if the law required you to propose a
sentence . . . the maximum sentence
available under law, would you do that if
that was something that the law told you to
do and by the same token, would you also
impose a sentence that would be the lowest
if the law required you to do that? 1
(Ellipsis in transcript.) Before the venire had an opportunity
to respond, a prospective juror said, "I have a question." The
court acknowledged her, and the venireman asked, "What is the
maximum allowable penalty in this case?"
The prosecutor responded:
This is a penalty . . . this is a robbery.
Should defendant be convicted of a robbery,
the maximum penalty would be life in prison.
The . . . it's . . . and it's arranged [sic]
from five to life. So, if the law said that
you had to give him a five year sentence,
would everybody be able to do that and if
the law said you have to give the maximum
sentence, would everybody be able to do
that?
(Ellipses in transcript.) Defense counsel did not object to the
venireman's question or to the prosecutor's response. The
prosecutor completed his inquiry, and defense counsel asked his
questions of the veniremen.
After the conclusion of voir dire, defense counsel raised
for the first time concerns about the Commonwealth's earlier
1
We are not asked to address the propriety of this type of
voir dire. See Commonwealth v. Hill, 264 Va. 315, 320, 568
S.E.2d 673, 676 (2002) (holding that, in a non-capital case,
neither the defendant nor the Commonwealth has a constitutional
or statutory right to question a jury panel about the range of
punishment that may be imposed upon the defendant).
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comments to the jury regarding the minimum and maximum penalty
for robbery. Defense counsel complained that, since the
Commonwealth was going to ask for a mandatory life sentence
under the "three strikes law," Code § 19.2-297.1, he had misled
the jury by suggesting that a minimum punishment of five years
was possible. Counsel indicated, "[T]his is my first chance
outside the presence of the jury to point it out." Counsel
moved for a mistrial after some additional discussion of the
issue. The trial court denied counsel's motion.
II. ANALYSIS
Appellant contends the trial court erred in failing to
grant a mistrial. Essentially, appellant maintains the
Commonwealth misled the jury into believing they could sentence
within a range of punishment, five years to life, when, if
proved, the indictment required a mandatory life sentence. 2
Appellant also contends his due process rights were violated
when the trial court refused to grant the mistrial. Further,
appellant argues the prosecutor usurped the duty of the court to
instruct the jury on the law and to answer jurors' questions.
The Commonwealth argues appellant's motion for a mistrial
was untimely made and, therefore, was not preserved for appeal.
We agree.
2
The indictment listed Code § 19.2-297.1, which requires a
mandatory life sentence for any person "upon conviction of a
third or subsequent act of violence."
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"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). "The recognized purpose
of this requirement is to prevent retrials
by calling error to the attention of the
trial judge, who may then caution the jury
to disregard the inappropriate remarks."
Craddock [v. Commonwealth], 16 Va. App.
[402,] 405, 429 S.E.2d [889,] 891 [(1993)].
See Mack v. Commonwealth, 20 Va. App. 5, 8,
454 S.E.2d 750, 751 (1995).
"Making a timely motion for mistrial means
making the motion 'when the objectionable
words were spoken'" Yeatts v. Commonwealth,
242 Va. 121, 137, 410 S.E.2d 254, 264 (1991)
(quoting Reid v. Baumgardner, 217 Va. 769,
774, 232 S.E.2d 778, 781 (1977)). "If
counsel believes that an argument requires
or justifies a mistrial, he has the duty to
move promptly before conclusion of the
argument so that the trial court may
determine what corrective action, if any,
should be taken." Pullen v. Nickens, 226
Va. 342, 346-47, 310 S.E.2d 452, 454-55
(1983). See Beavers [v. Commonwealth], 245
Va. [268,] 278-79, 427 S.E.2d [411,] 419
[(1993)] (holding that a complainant's
failure to object and move for a mistrial
until the conclusion of an opening statement
constituted a waiver of its arguments on
appeal). 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).
Here, when the Commonwealth responded to the prospective
juror's question, appellant did not raise any objection.
Appellant did not move for a mistrial at that time. The
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prosecutor continued with voir dire, and then appellant
questioned the panel. Several veniremen were individually
questioned. The trial court even recognized a witness who had
to leave the court that morning. Two veniremen were removed for
cause. Still appellant made no motion for a mistrial.
Only when the trial court began to call up two additional
veniremen did appellant express concern over the Commonwealth's
mention of a sentencing range, claiming it was "my first chance
outside the presence of the jury to point it out." After
further argument, appellant finally asked for a mistrial.
The record belies appellant's assertion that his objection
and motion were timely. He had every opportunity to make his
objection known when the prosecutor answered the potential
juror's question. The fact that the panel was present is of no
moment. Making a timely motion for mistrial means making the
motion "when the objectionable words were spoken." Reid, 217
Va. at 774, 232 S.E.2d at 781. Appellant could have objected
and asked for the panel to be excused while the objection was
discussed, if he believed the argument might prejudice the
panel.
Appellant's motion, based on the Commonwealth's comments
during voir dire, fails the test of timeliness and was properly
denied. We affirm the judgment of the trial court.
Affirmed.
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