Alonzo L. Williams v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Annunziata
Argued at Richmond, Virginia
ALONZO L. WILLIAMS
MEMORANDUM OPINION * BY
v. Record No. 2258-01-2 JUDGE ROSEMARIE ANNUNZIATA
MAY 21, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
Robert G. O'Hara, Jr., Judge
Steven Brent Novey (Tomko & Novey, on brief),
for appellant.
Michael T. Judge, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Alonzo Williams was convicted by a jury for forcible sodomy
of a child under the age of thirteen. The jury set his sentence
at life in prison. Williams moved to set aside the sentence on
the ground that the prosecutor's argument at sentencing was
prejudicial. The trial court heard argument on the motion,
denied it, and sentenced Williams to life in prison. Williams
appeals that sentence. For the reasons that follow, we affirm.
Background
Viewed in the light most favorable to the Commonwealth, the
party prevailing below, the evidence proved that, on May 19,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
2000, Williams entered the bedroom of his eleven-year-old
daughter and orally sodomized her. See Burlile v. Commonwealth,
32 Va. App. 796, 798, 531 S.E.2d 26, 27 (2000). The jury found
Williams guilty beyond a reasonable doubt.
Testifying in his own behalf, Williams admitted that he had
been convicted of two prior felonies and three misdemeanors.
At sentencing, the Commonwealth introduced evidence of two prior
convictions. One of the convictions was for attempted
aggravated sexual battery of a four-year-old child. Williams
introduced no evidence. The prosecutor's argument to the jury
at sentencing was as follows:
We've all done a days [sic] work today. The
Court will present you when you leave with
two copies of the defendant's prior criminal
record. I tell you now that one of them is
a prior aggravated sexual battery, against a
four year-old. I'm going to keep it very
brief and very easy. You've done the hard
part as far as I'm concerned today. You
have a range of five years to life. It's a
huge sentence one way or the other. Five
years is a long time. Life is a long time.
My question to you is, I'm going to turn the
tables around and ask you a question. When
do you want to let this defendant out so he
can live next to you, to your family, to
your daughter, to your sister, to your
mother, to anyone that you don't want
sexually abused? He's done it twice, to
children. All I'm asking you is when do you
want him to come out and live next to you?
Thank you.
Defense counsel did not object to any portion of this
argument or move for a mistrial. Instead, he made his own
closing argument to the jury. He argued that it was the jury's
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"job" to determine what part of the five to life range of
punishment he deserved and pointed out several facts in
mitigation, including the fact that the prior similar offense
had been committed 11 years earlier and that he would be at
least 60 years old before he could be paroled. He concluded by
asking the jury to give Williams a sentence that the jury
thought was "just," within the range of punishment. The jury
returned a sentence of life in prison.
Williams filed a motion to set aside the jury sentence
based on his claim that the prosecutor's argument was improper
and prejudicial. After considering argument and briefs, the
trial court overruled the motion and sentenced Williams to life
in prison.
Analysis
Williams claims that his case should be remanded for
resentencing on the ground that the prosecutor's closing
argument at sentencing was improper and prejudicial. Because
this argument is procedurally barred, we will not consider it on
appeal. Rule 5A:18.
"It is well-settled that errors assigned because of a
prosecutor's alleged improper comments or conduct during
argument will not be considered on appeal unless an accused
timely moves for a cautionary instruction or for a mistrial."
Cheng v. Commonwealth, 240 Va. 26, 38, 393 S.E.2d 599, 605-06
(1990) (emphasis added); accord Yarbrough v. Commonwealth, 262
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Va. 388, 396, 551 S.E.2d 306, 311 (2001); Yeatts v.
Commonwealth, 242 Va. 121, 137, 410 S.E.2d 254, 264 (1991);
Shifflett v. Commonwealth, 212 Va. 741, 744, 187 S.E.2d 174, 176
(1972); Russo v. Commonwealth, 207 Va. 251, 257, 148 S.E.2d 820,
825 (1966); Mack v. Commonwealth, 20 Va. App. 5, 7-9, 454 S.E.2d
750, 751-52 (1995). "Making a timely motion for mistrial means
making the motion 'when the objectionable words were spoken.'"
Yeatts, 242 Va. at 137, 410 S.E.2d at 264 (quoting Reid v.
Baumgardner, 217 Va. 769, 774, 232 S.E.2d 778, 781 (1977)).
"Counsel cannot remain silent when improper argument is made and
after the whole argument is concluded and in the absence of the
jury successfully move for a mistrial." See Russo, 207 Va. at
257, 148 S.E.2d at 825. The rationale for this rule is that an
objection to a prosecutor's statements at the time the
objectionable words are spoken allows the trial court to cure
the claimed error with a curative instruction, a remedy that it
cannot effect after the jury has retired. See id.; Craddock v.
Commonwealth, 16 Va. App. 402, 405, 429 S.E.2d 889, 891 (1993)
(considering appellant's objection despite failure to request a
mistrial, because the objection was made before the judge and,
thus, did not require a cautionary instruction).
Moreover, Williams' failure to object to the prosecutor's
argument at the time it was made, or shortly thereafter, does
not come within either the "good cause" or "ends of justice"
exceptions to the contemporaneous objection rule. See M. Morgan
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Cherry & Assocs. v. Cherry, 37 Va. App. 329, 339-40, 558 S.E.2d
534, 538-39 (2002) (holding that appellant's failure to object
was without good cause because he failed to utilize his ample
opportunity to object); Brown v. Commonwealth, 8 Va. App. 126,
131, 380 S.E.2d 8, 10 (1989) (noting that the "ends of justice"
exception is narrow and to be used sparingly, and requires a
determination that the error affected the outcome of the case).
For the foregoing reasons, we affirm Williams' conviction
and sentence.
Affirmed.
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