Opinion
Record No. 0259-91-1
November 10, 1992
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS ROBERT W. CURRAN, JUDGE.
Paul E. Turner, Jr., for appellant.
Marla Lynn Graff, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Bray and Fitzpatrick.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Christopher M. Johnson (defendant) was convicted of rape and sentenced in accordance with the jury's recommendation to ten years imprisonment. Defendant appeals, complaining that the trial court erred in declining to permit counsel "to ask various questions of the jury panel during voir dire examination." However, because this issue was not properly presented to the trial judge, it is not before this Court on appeal, and we affirm the conviction.
The parties are conversant with the record and this memorandum opinion recites only those facts necessary to a disposition of the issue before the Court.
Before the jury was "impaneled" and "sworn," the trial judge inquired if counsel anticipated "asking" any "particular voir dire questions that are unusual." In response, defense counsel acknowledged that he "intended to ask" "various questions," none of which he "considered to be unusual." The proposed questions were then disclosed to the court by counsel, and several were "refused" by the trial judge.
Voir dire then commenced and was conducted by both the court and counsel in accordance with the court's prior rulings, without further objection. At the conclusion of the inquiries, one prospective juror was "disqualified" and removed for cause. Thereafter, also without objection, the "attorneys took their strikes," and the "[t]welve jurors in the box were sworn to try the issues in the case."
Although defendant had objected to the trial court's earlier refusal to include several questions in the voir dire examination, he failed to later challenge the final jury panel. Objections to "rulings made during the voir dire of . . . prospective juror[s]" must be preserved by a subsequent objection "to the seating" of the jurors. Spencer v. Commonwealth, 238 Va. 295, 306, 384 S.E.2d 785, 793 (1989),cert. denied, 493 U.S. 1093 (1990); Mu'Min v. Commonwealth, 239 Va. 433, 445 n. 6, 389 S.E.2d 886, 894 n. 6 (1990), aff'd on other grounds, 111 S.Ct. 1899 (1991). Absent such objection, "the party has waived the voir dire" issue, and "the trial court's ruling will not be considered on appeal." Spencer, 238 Va. at 306, 384 S.E.2d at 793.
Defendant's contention that Spencer and Mu'Min are not controlling here because these cases applied Rule 5:25, which relates to "proceedings in the Supreme Court of Virginia," rather than Rule 5A:18 of this Court, is without merit. Rule 5:1; see Rule 5A:1. The "laudatory purpose" of both Rules "is to require that objections be promptly brought to the attention of the trial court" so an "alleged error can be . . . timely addressed and corrected when necessary," thereby promoting "orderly and efficient justice." Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989). The two Rules are "equivalent,"id., "virtually identical," Jimenez v. Commonwealth, 241 Va. 244, 248, 402 S.E.2d 678, 680 (1991), and both are included as part of the "Rules of Virginia Supreme Court." Under such circumstances, decisions pertaining to the construction and application of one Rule inextricably relate to the other.See Branch v. Commonwealth, ___ Va. App. ___, ___, 419 S.E.2d 422, 425 (1992).
Although both Rules provide exceptions to accommodate "good cause" and "obtain the ends of justice," Rules 5:25, 5A:18, this is justified only when the record reflects "error" which is "clear, substantial and material." Brown, 8 Va. App. at 132, 380 S.E.2d at 11; Jimenez, 241 Va. at 250, 402 S.E.2d at 680. From a review of the record now before the Court, we find no clear, substantial and material error or "miscarriage of justice."See Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987).
Accordingly, the judgment of the trial court is affirmed.
Affirmed.