Opinion
Record No. 2090-92-4
Decided: May 10, 1994
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA, Donald H. Kent, Judge
Affirmed.
Richard C. Goemann, Senior Assistant Public Defender, for appellant.
Robert B. Condon, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Willis, Elder and Senior Judge Duff
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Michael Richardson appeals his conviction for the distribution of cocaine in violation of Code Sec. 18.2-248. Richardson was convicted solely on the eyewitness testimony of Officer Bunney, who identified appellant as the person he saw sell cocaine to Willie Callahan. Appellant contends that the trial court erred (1) in refusing to give proffered jury instruction H, which stated that a police officer's testimony should be evaluated for credibility in the same manner as the testimony of any other witness; and (2) in overruling appellant's objection to the prosecutor's comment during closing argument that Officer Bunney was "really good" at making observations given that the accuracy of those observations was at issue. For the reasons that follow, we affirm appellant's conviction.
I.
We conclude that the trial court did not err in refusing to give instruction H, proffered by appellant, which stated that a police officer's testimony should be evaluated for credibility in the same manner as the testimony of any other witness. "Both the Commonwealth and the defendant are entitled to appropriate instructions to the jury of the law applicable to each version of the case, provided such instructions are based upon the evidence adduced." Simms v. Commonwealth, 2 Va. App. 614, 616, 346 S.E.2d 734, 735 (1986). However, "[i]t is not desirable to multiply instructions." Johnson v. Commonwealth, 2 Va. App. 447, 457, 345 S.E.2d 303, 309 (1986) (quoting Ambrose v. Commonwealth, 129 Va. 763, 766, 106 S.E. 348, 349 (1921)). "When one instruction correctly states the law, the trial court does not abuse its discretion by refusing [to give] multiple instructions upon the same legal principle." Cirios v. Commonwealth, 7 Va. App. 292, 303-04, 373 S.E.2d 164, 170 (1988). In addition, it is error to "single out for emphasis a part of the evidence tending to establish a particular fact." Terry v. Commonwealth, 5 Va. App. 167, 170, 360 S.E.2d 880, 882 (1987) (quoting Woods v. Commonwealth, 171 Va. 543, 548, 199 S.E. 465, 467 (1938)). "The danger of such emphasis is that it gives undue prominence . . . to the highlighted evidence and may mislead the jury." Id.
In light of these principles, we conclude that the trial judge did not err in refusing to give instruction H. It would have been unnecessarily repetitive of the instruction already given on general witness credibility, and it would have improperly singled out the testimony of Officer Bunney, perhaps confusing the jury and causing them to subject his testimony to more stringent scrutiny than the testimony of appellant's witness, Willie Callahan, whose testimony was at odds with Bunney's. See Wise v. Commonwealth, 6 Va. App. 178, 188-89, 367 S.E.2d 197, 203 (1988) (holding proper trial court's refusal to give instruction concerning credibility of eyewitness identification testimony where standard credibility instruction had already been given).
Virginia case law clearly permits counsel to question potential jurors during voir dire as to any bias they might have in favor of the testimony of law enforcement officers. See Mullis v. Commonwealth, 3 Va. App. 564, 571, 351 S.E.2d 919, 923 (1987). The record reveals that counsel for appellant was aware of this fact and used it to his client's advantage in questioning the venire.
II.
We also conclude that appellant's second assignment of error is barred on appeal because he failed timely to move for a mistrial or request a cautionary instruction. We are bound by the Virginia Supreme Court's repeated holding that "errors assigned because of a prosecutor's improper comments or conduct during argument will not be considered on appeal unless the accused timely moves for a cautionary instruction or for a mistrial." Martinez v. Commonwealth, 241 Va. 557, 559 n. 2, 403 S.E.2d 358, 359 n. 2 (1991); see also Cheng v. Commonwealth, 240 Va. 26, 38, 393 S.E.2d 599, 605-06 (1990); Morris v. Commonwealth, 14 Va. App. 283, 286-87, 416 S.E.2d 462, 464 (1992) (en banc). This is so even where, as here, an objection is made and overruled by the trial court. Morris, 14 Va. App. at 287, 416 S.E.2d at 464. Because appellant failed to request a cautionary instruction or move for a mistrial, our review of this issue is barred.
Even if this assignment of error were not barred, however, it would fail on the merits. Although a prosecutor may not inject his personal opinion into his closing argument, e.g., Fain v. Commonwealth, 7 Va. App. 626, 628, 376 S.E.2d 539, 540 (1989), he may properly review all reasonable inferences deducible from the evidence. See, e.g., Duncan v. Commonwealth, 2 Va. App. 717, 730, 347 S.E.2d 539, 546 (1986). The prosecutor's comment that Bunney was "really good" at being a spotter was a reasonable inference to be drawn from Bunney's testimony that he had served in such a capacity more than five hundred times.
For these reasons, we affirm appellant's conviction.
Affirmed.