Opinion
Record No. 2283-91-3
March 9, 1993
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG MOSBY G. PERROW, III, JUDGE
James R. Richards (Davidson, Sakolosky Richards, on brief), for appellant.
Thomas C. Daniel, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Benton and Coleman
Argued at Salem, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Victor Payne appeals his conviction for distributing cocaine in violation of Code § 18.2-248. Payne contends that the trial judge erred by not granting a mistrial based on the prosecuting attorney's prejudicial statement made in the presence of the jury. We hold that the trial judge did not err by denying Payne a mistrial because Payne failed to demonstrate that the prosecuting attorney's statement, in fact, prejudiced the jury or that the jury disregarded the trial judge's cautionary instruction. Therefore, we affirm Payne's conviction.
During closing argument, defense counsel commented that Officer Francis W. Barnwell, the undercover police officer who purchased cocaine from Payne, had "mentioned" Payne only "one day out of nine months." The Commonwealth's attorney objected, saying, "That infers something that wasn't allowed to be gone into and it's unfair for him to come back in closing argument and do something the Commonwealth couldn't do." The Commonwealth's attorney was referring to the trial judge's earlier refusal to allow the Commonwealth to bolster Barnwell's credibility by permitting Barnwell to testify about the number of prosecutions and convictions that had resulted from his undercover activities.
After the judge excused the jury, defense counsel explained that the purpose of his comment had been to emphasize that a five-minute viewing of an individual by Barnwell over the course of being under cover for nine months rendered Barnwell's identification of Payne questionable. The trial judge overruled the Commonwealth's objection, stating that defense counsel's argument was a "fair comment" on the facts in evidence.
Still without the jury present, Payne moved for a mistrial on the ground that the assistant Commonwealth's attorney had stated before the jury in his objection to defense counsel's closing argument that there had been some evidence that he was not permitted to introduce. Payne argues that the prosecutor's comment may have suggested to the jury that the Commonwealth had other incriminating evidence against Payne that it had not been allowed to introduce. The trial judge overruled the motion, noting that the comment could not be misconstrued by the jury because the comment did no more than refer to a part of the proceedings that the jury had already observed. From the judge's ruling, he concluded that the jury would not be misled and that the comment referred to a line of questioning that the Commonwealth's attorney had attempted to pursue and the court's earlier ruling on that line of questioning.
Nevertheless, after the jury returned to the courtroom, the judge sua sponte instructed them that what either counsel said in closing arguments was not evidence and that objections made during closing arguments should not be considered or held against either party.
The trial court did not err by denying Payne's motion for a mistrial based on the prosecutor's statement made in his objection to closing argument. A defendant has the burden of showing that a statement by counsel that is purportedly improper "certainly" and "substantially" caused prejudice.Jackson v. Commonwealth, 12 Va. App. 798, 799, 406 S.E.2d 415, 416 (1991); Winston v. Commonwealth, 12 Va. App. 363, 368-69, 404 S.E.2d 239, 242 (1991). A trial judge has the opportunity to observe and measure the impact of a comment upon the proceedings and upon the jury and is best able to determine whether such a comment tends to prejudice an accused. See LeVasseur v. Commonwealth, 225 Va. 564, 584, 304 S.E.2d 644, 655 (1983),cert. denied, 464 U.S. 1063 (1984) (trial judge is in the unique position to observe the demeanor and speech of prospective juror during voir dire to determine if he holds a bias). An appeals court will not grant a new trial based on a prosecutor's improper comment unless the defendant has shown that the prosecutor's conduct "so clearly departed from the line of legitimate procedure that any reasonable person" necessarily would conclude that the jurors were "certainly prejudiced." Winston, 12 Va. App. at 369, 404 S.E.2d at 242.
Assuming that the way in which the prosecutor stated his objection was improper, the statement was so vague and ambiguous that the jury could not have drawn any reasonable conclusion concerning the nature of the line of inquiry. We will not speculate that prejudice could have resulted to the defendant from such an ambiguous statement. Payne offered no evidence to show that the jury would or had drawn an improper inference from the prosecutor's comment, and such a conclusion does not necessarily flow from the circumstances. Without proof of certain and substantial prejudice to the jury, the trial judge should not have granted a mistrial. Id.
In addition, the trial judge's cautionary instruction to the jury cured any possibility that a juror might draw an impermissible inference from the comment. The trial judge told the jury that it was required to base its verdict on the law and evidence and not on statements or objections made by either counsel during closing arguments. "Unless the record shows to the contrary, it is presumed that the jury followed an explicit cautionary instruction." Albert v. Commonwealth, 2 Va. App. 734, 741, 347 S.E.2d 534, 538 (1986). The record is devoid of any evidence that the jury, in fact, did not follow the trial judge's instruction. Therefore, we presume that the jury heeded the trial judge's instruction.
For these reasons, we affirm Payne's conviction.
Affirmed.