Opinion
Record No. 0948-92-4
November 23, 1993
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY ROSEMARIE ANNUNZIATA, JUDGE.
Exequiel R. Sevilla, Jr., for appellant.
Virginia B. Theisen, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Elder and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
James R. Knight appeals from his conviction for possession of phencyclidine (PCP) under Code § 18.2-248. On appeal, he argues that the trial court erred in denying his mistrial motion on the ground that the prosecutor commented on his failure to testify in violation of his Fifth Amendment rights. The Commonwealth asserts that this appeal is procedurally barred, or in the alternative, that any error which might have occurred was harmless beyond a reasonable doubt. We reach the merits of this appeal and, for the reasons set forth below, affirm appellant's conviction.
Appellant correctly asserts that a comment is constitutionally and statutorily forbidden if "'the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.'" Hines v. Commonwealth, 217 Va. 905, 907, 234 S.E.2d 262, 263 (1977) (quoting Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955)). However, prosecutorial reference to the fact that the evidence is uncontradicted does not constitute an improper comment on the defendant's failure to testify. Frye v. Commonwealth, 231 Va. 370, 394, 345 S.E.2d 267, 284 (1986); Washington v. Commonwealth, 216 Va. 185, 195, 217 S.E.2d 815, 824 (1975). The facts of this case are similar to those presented inJohnson v. Commonwealth, 236 Va. 48, 372 S.E.2d 134 (1988), in which the Supreme Court concluded that "the prosecutor's remarks were not proscribed under the test approved in Hines." Id. at 50-51, 372 S.E.2d at 136 (emphasis added).
Speaking rhetorically, the prosecutor [in Johnson] asked the jurors if they had "heard from that witness stand any evidence" that the defendant had denied his guilt. Any witness who had spoken with the defendant could have supplied such evidence if, in fact, the defendant had uttered such a denial. Hence, the prosecutor's reference to the lack of such evidence — like a comment that incriminating evidence had not been contradicted — cannot be characterized fairly as a remark that the jury naturally and necessarily would interpret as a comment on the fact that Johnson had exercised his right not to testify.
Id. at 51, 372 S.E.2d at 136 (emphasis added) (citations omitted).
The prosecutor's statements in this case were as follows:
But while the defendant has an absolute right not to testify in this case, and that right never waivers, you saw or heard no rebuttal evidence to contradict any of the statements of the Investigator DeBoard and Elizabeth Ross, the forensic scientist. . . . [T]his testimony is uncontradicted, unrefuted. The only thing left for you to do is to judge the credibility of the witnesses.
(emphasis added). If anything, the prosecutor's statements in this case were even less likely than those in Johnson to be interpreted by the jury as a comment on appellant's failure to testify because the prosecutor referred specifically to the sanctity of that right, calling it "an absolute right . . . [that] never waivers." The prosecutor's comments merely paraphrased Instruction B, which was given without objection.
For these reasons, we affirm appellant's conviction.
Affirmed.