Albert Maurice Roberts, Jr v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Clements
Argued at Richmond, Virginia
ALBERT MAURICE ROBERTS, JR.
MEMORANDUM OPINION * BY
v. Record No. 2401-01-2 JUDGE JEAN HARRISON CLEMENTS
APRIL 29, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Joseph W. Kaestner (Tara-Beth Coleman;
Kaestner & Associates, P.C., on brief), for
appellant.
Steven A. Witmer, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Albert Maurice Roberts, Jr., was convicted in a jury trial of
possession of cocaine with intent to distribute, in violation of
Code § 18.2-248. Based on that conviction, the trial court
sentenced Roberts to eight years' confinement, with three years
suspended, and revoked a portion of Roberts' suspended sentence
for a prior conviction. On appeal, Roberts contends the trial
court erred in (1) granting a coercive "Allen instruction" to the
jury and (2) improperly suggesting to the deadlocked jury that it
could reach a verdict by negotiating. Roberts further contends
that, if his conviction of possession of cocaine with intent to
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
distribute is reversed, the revocation of his previously suspended
sentence must also be reversed. Finding appellate review of
Roberts' claims that the trial court erred procedurally barred, we
affirm Roberts' conviction and the resulting revocation of his
previously suspended sentence.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
proceedings as are necessary to the parties' understanding of the
disposition of this appeal.
I. BACKGROUND
After deliberating Roberts' guilt for approximately one hour
and forty-five minutes, the jury returned and the foreperson asked
the trial judge, "[W]hat do we do if we can't reach a unanimous
decision?" A bench conference followed, during which the
Commonwealth requested an "Allen instruction." Roberts' attorney
responded, "I would ask for a mistrial at this time. I don't
think the 'Allen instruction' is appropriate at this time." The
trial judge stated: "I think it is appropriate. The question is
to the time and they've been out roughly an hour and forty-five
minutes. This case was not complicated. Otherwise, I'm inclined
to give the 'Allen charge' right now." Roberts' attorney replied,
"Fine. Note my objection."
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The trial judge then instructed the jury as follows:
[Foreperson] and Ladies and Gentlemen, I
am going to respond to your question by
reading you one additional instruction. It
will not be provided to you in writing as the
other instructions were. So I'm going to ask
that you listen carefully to the reading of
this instruction. What the court is about to
say does not mean that you are going to be
made to agree or that you're going to be
compelled to continue deliberations until you
arrive at a verdict. Trials are expensive,
time consuming, inconvenient and troublesome
to all persons involved. A jury must decide
the issues in this case. If you cannot
decide, then we shall have to get another
jury to decide the issues. The court sees no
reason why you as jurors are not as competent
and able to decide the issues as any other
jury. It is your duty to make an honest and
sincere attempt to reach a verdict. The
verdict must be unanimous. Jurors should be
open minded and listen to the argument of
others, talk over the issues and evidence
freely and fairly. Each juror must decide
the issues for himself or herself, but only
after an impartial consideration of the
evidence with his or her fellow jurors. In
the course of deliberations, a juror should
not hesitate to reexamine his or her views
and change his or her opinion if convinced it
is erroneous.
Each juror in the minority view should
reconsider such minority view in light of the
opinion of the majority. And likewise, each
juror in the majority view should give equal
consideration to the views of the minority.
No juror should surrender his or her
convictions as to the weight of the evidence
solely because of the opinion of his or her
fellow jurors or for the mere purpose of
returning a verdict. The Court cannot give
you any further guidance at this time as to
guilt or innocence. The Court is requesting
that you as fair minded individuals retire to
your jury room and make another honest effort
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to come to a conclusion on all the issues
presented in this case keeping in mind what
the Court has stated to you in this
instruction and the other instructions
previously provided to you. Having said that
ladies and gentlemen, I am going to ask that
you return to your jury room for further
deliberations and whatever determination you
can make. And as the Court has suggested and
as this instruction suggests, your verdict
must be unanimous. Thank you. If you'll
retire to your jury room.
After the jury deliberated for another one and one-half
hours, the trial judge advised the parties it was "inclined to
bring [the jury] back and inquire of the [foreperson] as to
whether they're making any progress." Roberts' attorney asked the
trial court "to inquire of the jury whether or not they have a
verdict and if they don't have a verdict, declare a mistrial."
When the jury was returned, the trial judge asked the
foreperson if she felt "additional deliberations [would] be
beneficial," to which she responded, "No, Your Honor." The judge
then asked the other jurors, "[I]s there anyone who disagrees with
that comment that further negotiations or deliberations would not
be beneficial or fruitful?" One of the jurors indicated that he
felt additional deliberations would be beneficial. The judge then
asked the jurors how many agreed with the juror who felt
additional deliberations would be beneficial and how many
disagreed with him. Roberts' attorney noted that three jurors
indicated further deliberations would be beneficial, six jurors
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indicated further deliberations would not be beneficial and three
were "in the middle."
Roberts' attorney again moved for a mistrial, arguing, "At
this point, the folks offered no indication that they're going to
reach a verdict and whether or not any further deliberations would
be of benefit." Noting that, in light of the jurors' comments, he
would "give them a little more time," the trial judge sent the
jury back to the "jury room for further deliberations."
After the jury retired, Roberts' attorney suggested to the
trial judge that, given the hour and the amount of time the jury
had already spent on the case that day, the jury be allowed to
return the next day to continue its deliberations. Saying he
would give the jury that option, the trial judge told the
foreperson that the jury could continue deliberating that evening
or return the next morning to continue its deliberations if it
wished. Upon polling the jury, the foreperson advised the judge
that the jury wanted to stay.
Later that evening, the jury advised the trial court it had
reached a verdict. The jury found Roberts guilty. The jury was
polled individually, and each member indicated his or her approval
of the verdict.
II. ANALYSIS
Roberts contends the "Allen instruction" given by the trial
court was coercive and, thus, improper. Specifically, he
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challenges the admonition in that instruction addressed to the
minority jurors as follows: "Each juror in the minority view
should reconsider such minority view in light of the opinion of
the majority." Roberts complains that the court's directive to
the minority jurors to reconsider their view "in light of the
opinion of the majority" constituted one-sided coercion of the
jurors in the minority, in that no similar instruction was given
to the majority jurors.
However, Roberts made no such argument before the trial
court. At trial, Roberts initially objected to the giving of an
"Allen instruction," but, once the trial court decided to give the
instruction, Roberts made no objection to the contents of the
instruction given by the court. Indeed, he did nothing to apprise
the trial court that the instruction itself was erroneous or
deficient in any way. His only objection was to the denial of his
motion for a mistrial and the giving of an "Allen instruction."
"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);
see also Rule 5A:18. The purpose of this rule is to insure that
the trial court and opposing party are given the opportunity to
intelligently address, examine, and resolve issues in the trial
court, thus avoiding unnecessary appeals. See Lee v. Lee, 12
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Va. App. 512, 514, 404 S.E.2d 736, 737 (1991); Kaufman v. Kaufman,
12 Va. App. 1200, 1204, 409 S.E.2d 1, 3-4 (1991).
Hence, because he made no argument at trial regarding the
contents of the "Allen instruction" given by the court, Roberts is
barred from raising this claim for the first time on appeal.
Roberts next contends that, in later asking the jurors if any
of them disagreed with the "comment that further negotiations or
deliberations would not be beneficial or fruitful," the trial
court improperly suggested to the jury that they could resolve
their inability to reach a unanimous verdict by negotiation. The
court's suggesting to the jury that it could negotiate a verdict,
Roberts argues, is "fatal to a fair and impartial verdict."
Roberts made no contemporaneous objection to the trial
court's use of the word "negotiations." Likewise, he did not
request a cautionary instruction or move for a mistrial on that
ground. The trial court, therefore, had no opportunity to
consider the matter and, if necessary, take steps to correct it.
Consequently, this claim is also procedurally barred.
Moreover, our review of the record in this case does not
reveal any reason to invoke the "good cause" or "ends of justice"
exceptions to Rule 5A:18 as to either of Roberts' claims of
alleged error.
Accordingly, we affirm Roberts' conviction of possession of
cocaine with intent to distribute. Because we do not reverse that
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conviction, we also affirm the revocation of Roberts' previously
suspended sentence resulting from the instant conviction.
Affirmed.
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