Gregory Grandison v. Commonwealth ( 2005 )

COURT OF APPEALS OF VIRGINIA
Present: Judge Clements, Senior Judges Willis and Annunziata
Argued at Alexandria, Virginia
GREGORY GRANDISON
MEMORANDUM OPINION* BY
v. Record No. 1472-04-4 JUDGE ROSEMARIE ANNUNZIATA
OCTOBER 25, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER
John E. Wetsel, Jr., Judge
Crystal A. Meleen (Lopez, Meleen & Sprano, PLC, on brief), for
appellant.
Stephen R. McCullough, Assistant Attorney General (Judith
Williams Jadgmann, Attorney General, on brief), for appellee.
Gregory Grandison appeals his conviction of distributing cocaine, for which he was
sentenced to twenty years of imprisonment and a $1,000 fine. On appeal, Grandison contends the
presiding judge at the sentencing hearing abused his discretion by refusing to continue the hearing
to permit Grandison to be sentenced by the judge who presided at trial. Grandison also argues the
trial judge erred in allowing court staff to communicate with the jury and in instructing the jury on
distribution of cocaine as a second offense. For the reasons that follow, we affirm appellant’s
conviction.
BACKGROUND
On March 12, 2004, Judge Arthur V. Sinclair presided at Grandison’s jury trial upon an
indictment charging him with distributing cocaine. The Commonwealth’s evidence included the
presentation of a videotape in which Grandison was depicted taking an item from another person
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
and handing it to the driver of a van. The activity occurred in an area known as a “high drug” area
in Winchester. The jury found Grandison guilty of the charged offense.
At the sentencing phase of trial, the Commonwealth introduced certified copies of orders
indicating Grandison previously had been convicted of unlawfully shooting into an occupied vehicle
and four offenses of distributing cocaine.1 Without objection from Grandison, Judge Sinclair
instructed the jury as follows:
You have found the defendant guilty of the distribution of
cocaine.
If you find the defendant has a previous conviction for the
distribution of cocaine you shall fix his punishment at
imprisonment for life or for any period not less than five years and
a fine of a specific amount but not more than $500,000.
If you find the defendant has no prior convictions for
distribution of cocaine, you shall fix his punishment at
imprisonment for not less than five years nor more than forty years
and a fine of a specific amount but not more than $500,000.
After the jury began its sentencing deliberations, the bailiff informed the trial judge that
the jury did not understand how much time Grandison previously had spent in the penitentiary.
The following exchange occurred:
[PROSECUTOR]: I do not think we go by to try and figure that
out, Judge frankly. I think the documents speaks for itself. You
have got twenty years, ten suspended, ten to serve to run
concurrently on all four charges. How much time he actually
spent, I do not think they get to . . . I do not think we could figure
out the time.
THE BAILIFF: Judge, I do not think they know what concurrent
means.
1
The conviction orders reflected that all the cocaine distribution convictions occurred in
the Circuit Court of the City of Winchester on the same date. Each of the conviction orders
stated that Grandison’s sentence was twenty years of imprisonment, with ten years suspended,
and a fine of $5,000. Three of the sentences were ordered to run “concurrently with any other
sentence imposed against the defendant on this date in the City of Winchester.”
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[PROSECUTOR]: Well we could explain . . . I think the Court
could explain that, in effect to that. I do not think we go beyond
that as to how many days he actually served.
THE COURT: Let me go with the bailiff to the door here and just
ask them if they understand “concurrent.” And, if they do not, I
will tell them that it means “together.”
The defense attorney agreed with the prosecutor, stating “the documents speak for itself. Any
amount of time he actually served should be irrelevant.”
The jury was brought into the courtroom. The jury foreperson asked for information
regarding the amount of time Grandison had spent in prison for his prior offenses. Judge Sinclair
responded:
[T]hat point of how much time has he served is really irrelevant.
The important part about it is the time that he was given originally
by the Court, which is in these papers. But, I did not read them
closely enough to know whether any of them were to be served
concurrently with another. But, if they were concurrent, that
would mean two sentences or more that would be served at the
same time.
The jury foreperson then raised a question about the four drug convictions having the same date.
The prosecutor stated that conviction orders contained no information regarding whether the
offenses all occurred on the same day. The jury then resumed its deliberations.
As the jury was about to enter the courtroom to deliver its sentencing verdict, the
prosecutor stated that “there is a question for the jury of whether or not they should . . . they have
to . . . a fine is required.” Judge Sinclair stated the jury was required to levy a fine as a part of
the sentence. The following conversation then transpired:
[PROSECUTOR]: The Court instructed that some fine was
required and that was relayed by the Clerk; is that correct?
THE CLERK: That is correct.
[PROSECUTOR]: Thank you.
THE CLERK: A fine within the limits stated in the verdict form.
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The jury entered the courtroom and rendered its sentencing recommendation of twenty
years of imprisonment and a fine of $1,000. The defense requested that Grandison’s sentencing
hearing be scheduled for a date when Judge Sinclair would be present in court. The sentencing
hearing was set for April 26, 2004.
Grandison’s sentencing hearing commenced on the morning of April 27, 2004, before
Judge John Wetsel. At the outset of the hearing, defense counsel indicated he had “Mr.
Grandison from yesterday.”2 Defense counsel moved to continue the sentencing to a day when
Judge Sinclair would be present. Judge Wetsel denied the motion. After further discussion,
defense counsel stated, “Yeah, we will go ahead and do it today, Your Honor.” Judge Wetsel
obtained a copy of the presentence report, which contained a summary of the evidence presented
at trial. Furthermore, Judge Wetsel indicated he had viewed the videotape of the incident. Judge
Wetsel sentenced Grandison in accordance with the jury’s recommendation, but suspended
thirteen years of the sentence as well as the fine.
I.
Grandison contends that Judge Wetsel erred in refusing to continue the sentencing
hearing to permit him to be sentenced by Judge Sinclair, who presided at trial. Grandison argues
the denial of a continuance violated Virginia statutes as well as his constitutional right to due
process. The Commonwealth contends Grandison’s objection at trial was insufficiently specific
to encompass his claims that the procedure violated Virginia statutes or his right to due process.
In addition, the Commonwealth asserts, Grandison agreed to be sentenced by Judge Wetsel on
the date of the sentencing hearing.
2
The record does not reflect the reason why Grandison’s sentencing did not occur on
April 26.
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We agree with the Commonwealth. “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, except for good cause shown or to enable the Court of Appeals to attain the ends of
justice.” Rule 5A:18. “The Court of Appeals will not consider an argument on appeal which
was not presented to the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308, 494
S.E.2d 484, 488 (1998). Rule 5A:18 applies to bar even constitutional claims that were not
raised at trial. See Deal v. Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897, 900 (1992).
At sentencing, appellant advanced no specific reason why he was entitled to be sentenced
by Judge Sinclair. The extent of Grandison’s objection was that he was moving for a
continuance to a day when Judge Sinclair would be present. Accordingly, Rule 5A:18 bars our
consideration of the arguments Grandison advances on appeal.
Moreover, after Judge Wetsel denied his motion for a continuance, Grandison
acquiesced in the decision and agreed to proceed with sentencing that day. “No litigant, even a
defendant in a criminal case, will be permitted to approbate and reprobate – to invite error . . .
and then to take advantage of the situation created by his own wrong.” Fisher v.
Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988).
The record reflects no reason to invoke the good cause or ends of justice exceptions to
Rule 5A:18.
“[T]he ends of justice exception is narrow and is to be used
sparingly . . . .” “[I]t is a rare case in which, rather than invoke
Rule [5A:18], we rely upon the exception and consider an
assignment of error not preserved at trial . . . .” In order to avail
oneself of the exception, a defendant must affirmatively show that
a miscarriage of justice has occurred, not that a miscarriage might
have occurred. The trial error must be “clear, substantial and
material.”
Redman v. Commonwealth, 25 Va. App. 215, 220-21, 487 S.E.2d 269, 272 (1997) (citations
omitted).
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Grandison has not demonstrated that a miscarriage of justice occurred. See People v.
Banuelos-Landa, 109 P.3d 1039, 1040 (Colo. Ct. App. 2004) (stating “there is no constitutional
right to be sentenced by the same judge who presided at trial”). The record indicates Judge
Wetsel, at the time of sentencing, was familiar with the underlying circumstances of Grandison’s
conviction. Judge Wetsel possessed a copy of the presentence report, and heard the prosecutor’s
recitation of the facts. Judge Wetsel also indicated he had viewed the videotape of the
transaction. Accordingly, we decline to invoke either exception to Rule 5A:18.
II.
Grandison contends the communications by the bailiff and the clerk with the jury at the
sentencing phase at trial violated his constitutional rights to due process and to counsel. He
argues that Judge Sinclair erred in advising the jury that the amount of time Grandison had
served in the penitentiary was irrelevant. Grandison also argues that Judge Sinclair erred in
instructing the jury, at the sentencing phase, regarding the applicable range of sentence if the jury
found Grandison previously had been convicted of distributing cocaine. However, at no point
during the proceedings below did Grandison raise any of these arguments or contend the
sentencing phase of his jury trial was flawed.
Grandison concedes he did not satisfy the requirements to preserve these arguments for
appeal pursuant to Rule 5A:18, but asks this Court to apply the “ends of justice” exception to the
contemporaneous objection rule. However, “[e]rror alone, even a violation of constitutional
principles, is not sufficient to warrant application of the ends of justice exception to Rule
5A:18.” West v. Commonwealth, 43 Va. App. 327, 339, 597 S.E.2d 274, 279 (2004).
Grandison does not demonstrate, nor does the record reflect, that the exchanges between
the bailiff, the clerk, Judge Sinclair, and the jury resulted in a miscarriage of justice. Judge
Sinclair appropriately responded to the jury’s inquiries regarding Grandison’s prior terms in
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prison and advised that the jury was required to include a fine as a part of his sentence. Defense
counsel expressly agreed with the judge’s responses to the jury’s questions.
Moreover, the jury’s sentencing verdict was within the range of punishment for either a
first or subsequent conviction of cocaine distribution. Thus, we cannot determine whether the
jury was influenced by the presence in the sentencing instruction of language regarding a
subsequent conviction of cocaine distribution. Because Grandison has failed to demonstrate that
a miscarriage of justice has occurred, we find no reason to invoke the ends of justice exception
with regard to these issues.
CONCLUSION
For the foregoing reasons, Grandison’s conviction is affirmed.
Affirmed.
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