Opinion
Record No. 2355-93-4
Decided: January 31, 1995
FROM THE CIRCUIT COURT OF FREDERICK COUNTY, James L. Berry, Judge
William A. Crane, Public Defender (Office of the Public Defender, on brief), for appellant.
Lance B. Leggitt, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Willis, Bray and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Edward Junior Lewis (appellant) was convicted in a jury trial of distribution of more than one-half ounce, but less than five pounds, of marijuana in violation of Code Sec. 18.2-248.1(a) (2). On appeal, appellant argues that the trial court erred in denying his motion for a mistrial and a later post-trial request to set aside the verdict because of improper closing remarks by the Commonwealth's attorney. Because we hold that no timely objection to the Commonwealth's argument was made, we affirm the conviction.
On May 6, 1993, appellant sold .844 ounces of marijuana to Lieutenant Harvey Norris of the Frederick County Sheriff's Office. At trial, appellant presented no evidence, conceded his guilt, and argued solely for a mitigated sentence based upon the small amount of drugs involved. During rebuttal argument, the Commonwealth's attorney stated:
The Commonwealth is an equal party. We represent the citizens of this commonwealth. How about our children in this community, our young people? They get a hold of this drug. He is involved in dealing and selling drugs. He is a drug dealer, who was caught in the act by a police officer. That is how strong this case is. And the Defense is arguing the amount.
No objection was made to these remarks until after the Commonwealth completed its rebuttal, at which time appellant objected and moved for a mistrial. Appellant argued that the Commonwealth's attorney's comment concerning drug distribution to children was unsupported in the record, was prejudicial, and aroused the jurors' emotions, which led to the imposition of a maximum sentence of ten years.
Assuming without deciding that the prosecutor's comments were improper, Rule 5A:18 precludes our consideration of this issue. "No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling . . . ." Rule 5A:18. "Correction of improper conduct or statements during oral argument must be sought by counsel in a timely manner. This requirement affords the trial court the opportunity to provide cautionary instructions when appropriate to correct the alleged error." Beavers v. Commonwealth, 245 Va. 268, 279, 427 S.E.2d 411, 419 (citation omitted), cert. denied, 114 S.Ct. 171 (1993).
In Beavers, the appellant failed to object to the comments "at the time they were uttered, but rather, waited until the entire statement was completed." Id. The Supreme Court of Virginia found this untimely, id., and we can find no distinction. We hold that this rationale applies equally here as appellant also raised no objection to the Commonwealth's argument until the completion of rebuttal argument and failed to comply with the contemporaneous objection requirement of Rule 5A:18.
Although we will address an error for which there has been no timely objection if necessary to satisfy the ends of justice, this record reveals no cause to invoke the ends of justice exception to Rule 5A:18. See Brown v. Commonwealth, 8 Va. App. 126, 132-33, 380 S.E.2d 8, 11-12 (1989). Accordingly, the judgment of the trial court is affirmed.
Affirmed.