Opinion
Record No. 0147-92-1
November 9, 1993
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS J. WARREN STEPHENS, JUDGE.
Paul E. Turner, Jr., for appellant.
Donald R. Curry, Senior Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Baker and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Rodney J. Brayboy (appellant), also known as "Butchie," appeals from a judgment of the Circuit Court of the City of Newport News (trial court) that approved a jury verdict convicting him of murder and use of a firearm in the commission of a felony. The sole issue presented for our review is whether the trial court erred in giving, over appellant's objection, a handwritten instruction prohibiting the jury from considering appellant's failure to testify.
At the conclusion of the evidence, during a discussion of the typewritten instructions submitted by appellant and the Commonwealth, the trial judge advised each counsel that the court had prepared an instruction that informed the jury that "the defendant does not have to testify and exercise of the right cannot be considered by you." Appellant objected to an instruction of that kind being given on the ground that it unduly emphasized the fact that he did not testify in his defense It was not error to overrule that objection. See Lakeside v. Oregon, 435 U.S. 333 (1978); Hines v. Commonwealth, 217 Va. 905, 234 S.E.2d 262 (1977).
Appellant argues for the first time on appeal that because the instruction prepared by the trial court was handwritten, this case is distinguishable from Lakeside and Hines. Appellant knew that all of his and the Commonwealth's instructions were typewritten. Immediately prior to reading the instructions to the jury, in the presence of appellant and counsel for each party, the trial court informed the jury that one of the instructions "is written out in longhand." Knowing that all of his instructions and those presented by the Commonwealth were not handwritten, counsel for appellant made no objection until this appeal was instituted. Appellant may not raise that issue for the first time on appeal. Rule 5A:18.
Because the trial court told the jury to disregard the fact that one of the instructions was handwritten, it is presumed that the jury followed that instruction. Wise v. Commonwealth, 230 Va. 322, 332, 337 S.E.2d 715, 721-22 (1985) (citingLewis v. Commonwealth, 211 Va. 80, 84, 175 S.E.2d 236, 239 (1970)), cert. denied, 485 U.S. 1112 (1986). There being no evidence that the jury's verdict resulted from undue emphasis on the handwritten instruction, we cannot say that the ends of justice require us to disregard Rule 5A:18.
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.