Opinion
Record No. 1718-91-1
April 27, 1993
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH FREDERICK B. LOWE, JUDGE.
S. Clark Daugherty, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Michael T. Judge, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Chief Judge Koontz, Judges Baker and Willis.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Thomas Lee Austin (appellant) appeals from a judgment of the Circuit Court of the City of Virginia Beach (trial court) that approved a jury verdict convicting him of grand larceny. Appellant contends (1) he was denied a fair and impartial trial when the Commonwealth informed the jury that his photograph was obtained from the Norfolk Police Department; and (2) that he was unfairly prejudiced when the Commonwealth informed the jury that a suspect apprehended at the scene provided information leading to the identification of appellant.
Upon familiar principles, we summarize the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
On November 19, 1990, April Bennett, a security officer at Hess's Department Store in Virginia Beach, observed appellant and Jerry Jackson remove from the store several coats and jackets valued at $1,315, without permission and without paying for them. She alerted Eddie Carr, a fellow store employee, who suspected that there would be a third person involved with a vehicle to carry away the merchandise. Carr went outside the store and observed a pick-up truck nearby that moved toward the door through which appellant and Jackson exited. Bennett was only eight feet from the thieves as they left the store. Carr tackled Jackson, knocking the merchandise from his arms. Appellant leaped onto the back of the truck carrying the coats he had stolen, but Carr pulled the coats from the truck as it drove off, with appellant still aboard. Jackson ran but was overtaken. A Virginia Beach police officer was in the area and assisted in restraining and arresting Jackson.
After the jury had been selected and seated, and before counsel for the parties made their opening statements, the trial court explained to the jury how the trial would proceed and gave them preliminary guideline instructions. In part, relevant to the issues before us, the trial court told the jury:
The evidence which you are to consider consists of witnesses and the exhibits admitted into evidence. . . . Opening statements and closing arguments of the attorneys are intended to help you in understanding the evidence and in applying the law, but they are not evidence.
During his opening statement, the prosecutor told the jury that the Commonwealth would prove its case by the testimony of three witnesses and outlined what he expected to prove by them. He told the jury that Officer S.M. McCoy, who answered a call from Hess's, had obtained information from the co-defendant and gave it to Bennett. The prosecutor then said:
As a result of obtaining information from the codefendant, she [Officer McCoy] made a call upon the Norfolk Police Department where she obtained a picture of defendant, and she prepared a photo lineup. She showed the photo lineup to April Bennett; and April Bennett, as she will testify, picked out —
At that point, counsel for appellant objected, and the jury was excluded from the courtroom. Appellant argued that when the prosecutor told the jury that the photograph of appellant had come from the Norfolk Police Department, he thereby told the jury that appellant had a prior criminal record. Appellant moved for a mistrial, asserting that he could not thereafter have a fair and impartial trial. The trial judge denied the motion for mistrial, stating that at the conclusion of the opening statements, he would again remind the jury "that the only evidence is that evidence that they hear from the witnesses on the witness stand." At the conclusion of the opening statements, the trial court told the jury:
Ladies and gentlemen, I would remind you again, as I instructed you earlier, to please keep in mind that the preliminary or opening statements of both counsel are not evidence to be considered in the case.
Appellant made no objection to that instruction as stated, nor did he ask for any amplification thereof.
I.
The jury is presumed to have followed the trial court's instructions given immediately before and after the opening statements were made. See Albert v. Commonwealth, 2 Va. App. 734, 740-41, 347 S.E.2d 534, 538 (1986). "The rule in Virginia is well established that a judgment will not be reversed for . . . a statement of counsel which the court afterwards directs the jury to disregard unless there is a manifest probability that the . . . statement has been prejudicial to the adverse party." Saunders v. Commonwealth, 218 Va. 294, 303, 237 S.E.2d 150, 156 (1977). Only when the prejudicial effect cannot be removed by instruction would there be cause to set aside a jury verdict approved by the trial court. Id. Whether opening statements to the jury cannot be overcome by the court's instruction is to be determined in light of all the evidence in each particular case. See Lewis v. Commonwealth, 211 Va. 80, 83, 175 S.E.2d 236, 238 (1970).
The motion for mistrial was directed to the sound discretion of the trial court and we find no abuse of discretion. Although it is possible that a juror might have reached the conclusion suggested by appellant, upon the facts presented in this record, we find no manifest probability of prejudice to appellant.
II.
After showing that Officer McCoy arrived at the scene of the crime and learned that a co-defendant was in custody, the prosecutor asked: "As a result of interviewing him, what if anything did you do?" Appellant objected and the trial court sustained the objection. Appellant again moved for a mistrial. Any potential error that may have resulted from the question was promptly cured by the trial court's exclusion of the jury while the point was argued, and by sustaining the objection. Under the facts disclosed by the record, we find no manifest probability that that question affected the jury's verdict, or that the verdict would have been different if the question had not been asked. Without objection, Bennett testified that she was shown a photographic line-up and she selected appellant's picture. The question directed to McCoy neither added nor detracted from Bennett's testimony.
For the reasons stated, we find that appellant was afforded a fair and impartial trial, and the judgment of the trial court is affirmed.
Affirmed.