Smith v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Frank and Felton
Argued at Richmond, Virginia

DAYOMIC JACKIE SMITH
OPINION BY
v. Record No. 1279-02-2 JUDGE ROBERT P. FRANK
MAY 20, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge

Todd M. Ritter (Daniels & Morgan, on brief),
for appellant.

Robert H. Anderson, III, Senior Assistant
Attorney General (Jerry W. Kilgore, Attorney
General, on brief), for appellee.

Dayomic Jackie Smith (appellant) was convicted in a jury

trial of rape, in violation of Code § 18.2-61; object sexual

penetration, in violation of Code § 18.2-67.2; and two counts of

attempted rape, in violation of Code § 18.2-67.5. On appeal, he

contends the trial court erred in denying his motions for curative

instructions to correct improper comments made by the assistant

Commonwealth's attorney during voir dire and closing argument.

For the reasons stated, we reverse the convictions.

BACKGROUND

RS testified appellant raped her and inserted his finger in

her vagina on August 19, 1997. At the time, RS was twelve years

old. After the incident, RS returned to her home where her mother

and her friend, JR, were folding clothes. She did not tell either

of them of the incident because she was "scared" and did not think
they would believe her. She said everyone liked appellant "so

nobody would believe me." RS then left her home and walked across

the street to Phyllis's home (JR's sister). She did not mention

the incident to Phyllis that night. When RS did tell Phyllis, on

an undisclosed date, Phyllis did not believe her. RS testified,

"if she didn't believe me, nobody else would . . . ."

JR, who was seventeen at the time of the incidents, testified

appellant attempted to rape her on June 29, 1997 and September 7,

1997, but he was unsuccessful. After each incident, JR told her

sister, Phyllis, but did not tell an adult. JR told her boyfriend

about the second assault on the day after it occurred. JR

testified she had not told an adult earlier because "nobody would

believe me." Appellant was a "real close friend" of JR's brother,

and her mother liked appellant.
In October, RS and JR were discussing teenage pregnancy and

sexually transmitted diseases at JR's home. RS told JR appellant

had raped her. JR responded by telling RS that appellant had

unsuccessfully tried to rape her. According to JR, they waited

"until [appellant] had left because [they] were afraid to go

outside," then they went to RS's mother and told her about the

incidents. 1 The mother then called the police.

During voir dire, the prosecutor said:

How many here have raised teenagers? Okay.
It's commonly known that children don't
report sexual assaults right away, if at
all.

1
RS corroborated this testimony.

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Appellant objected to the comment but did not ask at that time

for a mistrial or a curative instruction. 2 The trial court

indicated, "I think I have to hear the question first, Mr.

Bowles." The prosecutor then inquired of the jury if a delay in

reporting the assault would affect a victim's credibility.

After this question, both parties approached for a bench

conference, and the appellant again objected to the comment,

arguing it was not "factually sound" and was "highly

prejudicial." Again, appellant did not ask for a mistrial or

curative instruction. The trial court indicated it was unable to

rule on the objection because the jury had not yet been

impaneled. Appellant then conducted his voir dire.
While counsel made their strikes of the veniremen, the trial

court instructed the panel:

The opening statements and the closing
remarks of the attorneys are intended to
help you in understanding the facts and
applying the law. What they will say to you
in their opening statements, what they will
argue to you at the close of the evidence is
not evidence. The evidence will come from
that witness box of witnesses who are sworn
to tell the truth.

After the jury had been impaneled, appellant asked the trial

court to instruct the jury "to disregard the comment by [the

Commonwealth] that it is a known fact that children don't tell

things immediately, they wait several months before . . .

[.]" The trial court interrupted and indicated "I've already

advised the jury that any statement you make or she makes is not

2
Appellant never requested a mistrial, but did request a
curative instruction. The Commonwealth does not maintain the
voir dire issue is defaulted.
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evidence." Appellant attempted to explain his position, but the

court said, "You've got your objection on the record. I don't

feel it's necessary to do that."

During opening statements, each party maintained the

credibility of the victims would be determinative of the case.

Each party commented on the delayed reporting of the assaults.

Appellant stated:

Are you going to believe her witnesses?
Judge Shelton asked you all to disregard any
comments that Ms. Duval made as not being
evidence. Those comments, including the
fact that it's a widely held belief known to
all that children wait months to tell
somebody about an incident such as this, he
has told you that that's not evidence and
it's to be disregarded.

At the end of the trial, during her rebuttal argument, the

prosecutor explained:

I've tried for years to get into teenagers'
heads to 10, 11, 12, 15, 16-year-olds' heads
when this comes to these sexual assaults
cases, trying to understand why, why, why
don't they tell. Why don't they immediately
tell their mother. Why? I don't know. And
I think they did the best they could up here
by telling you they were afraid. And I'm
sure they were afraid, and I don't think
they can analyze it much more than that.

Appellant began to object to this statement, but the trial

court interrupted. In the presence of the jury, the court told

appellant, "I think, Mr. Bowles, that I'll ask you one more time 3

3
Appellant's counsel objected earlier in the Commonwealth's
closing argument to the statement, "And I've never been raped so
I can't tell you what goes through your mind and whether you see
tan carpet or white carpet. I cannot imagine being able to tell
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I've instructed this jury that anything that she says is not

evidence, and they shouldn't consider it as evidence; okay? And

I'll accept your continued objections to anything she says." 4

ANALYSIS

Appellant contends the trial court erred in not giving a

curative instruction after the prosecutor in voir dire

essentially testified that "it's commonly known that children

you any details. I probably wouldn't have seen . . . [.]"
The trial court responded to the objection, "I've adequately
told this jury that all of your remarks and all of her remarks
are not evidence."
4
While counsel did not explicitly ask for a curative
instruction, the trial court interrupted him and clearly
indicated he understood that the objection involved a request
for an instruction.

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don't report sexual assaults right away, if at all." 5 The

Commonwealth responds that, after this comment, the trial court

gave the jury an appropriate cautionary instruction. 6

We begin with the premise that the purpose of voir dire is

to "ascertain whether [a juror] is related to either party, or

has any interest in the cause, or has expressed or formed any

opinion, or is sensible of any bias or prejudice therein." Code

§ 8.01-358. It allows the selection of "a fair and impartial

jury." Beavers v. Commonwealth, 245 Va. 268, 276, 427 S.E.2d

411, 418 (1993).
Additionally, voir dire should not provide an opportunity

for the parties to express personal opinions or to justify their

theories regarding the case. In particular, voir dire is not an

opportunity for attorneys to testify or argue to the jury,

5
Although counsel never requested a mistrial, we do not
believe he needed to make such a request in this context. The
Commonwealth does not contend appellant needed to request a
mistrial or the issue is defaulted. Additionally, appellant did
request the instruction, therefore, he did not need to also
request a mistrial. See Schmitt v. Commonwealth, 262 Va. 127,
148, 547 S.E.2d 186, 200 (2001) ("Unless a defendant has made a
timely motion for a cautionary instruction or for a mistrial, we
will not consider his assignments of error alleging that improper
remarks were made by the prosecutor." (emphasis added)); Cheng v.
Commonwealth, 240 Va. 26, 38, 393 S.E.2d 599, 605-06 (1990) ("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." (emphasis added)).
6
The Commonwealth does not argue that the motion for a
curative instruction was untimely. We note that the trial court
indicated the appropriate time to consider any motion on the
comment was after the jury was impaneled, which is when the
motion for a curative instruction was made explicitly. While we
do not condone this practice of waiting until after the jury is
impanelled, the Commonwealth did not object to this procedure at
trial or on appeal.

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especially regarding facts that will not be put into evidence.

Even in counsel's opening statements, it is improper to argue

facts that counsel has no intention of proving. 7

A prosecutor acts unprofessionally when he
or she alludes to evidence in his or her
opening statement unless he or she has a
good-faith, reasonable basis for believing
the evidence will be offered and admitted
into evidence. ABA Standards for Criminal
Justice, The Prosecution Function Standard
3-5.5 (1986). A prosecutor should confine
his or her opening statement to a
description of evidence which will be
offered and which he or she believes in good
faith will be available and admissible.

Arrington v. Commonwealth, 10 Va. App. 446, 448, 392 S.E.2d 844,

845 (1990). "'"[O]ne accused of crime is entitled to have his

guilt or innocence determined solely on the basis of the evidence

introduced at trial, and not on grounds . . . not adduced as

proof at trial."'" Winston v. Commonwealth, 12 Va. App. 363,

367, 404 S.E.2d 239, 241 (1991) (quoting United States v.

Schuler, 813 F.2d 978, 981 (9th Cir. 1987) (quoting Taylor v.
Kentucky, 436 U.S. 478, 485 (1978))). See also Hutchins v.

Commonwealth, 220 Va. 17, 20, 255 S.E.2d 459, 461 (1979); Dingus
v. Commonwealth, 153 Va. 846, 851, 149 S.E. 414, 415 (1929).

In Schmitt v. Commonwealth, the Supreme Court of Virginia

opined:

We will presume that a jury has followed the
trial court's prompt and explicit curative
instructions, unless the record clearly
shows that the jury disregarded the
7
While we are not ruling on the admissibility of such
evidence, nothing in the record suggests the Commonwealth had
evidence to prove that children do not timely report such
assaults. No expert testified on children's reactions to sexual
abuse nor was such testimony expected.
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 instructions. . . . It is well established
that a judgment will not be reversed for a
statement of counsel that the court promptly
directs the jury to disregard unless there
is a manifest probability that the improper
comments were prejudicial to the defendant.

262 Va. 127, 147-48, 547 S.E.2d 186, 200 (2001) (citations

omitted).

The curative instruction given by the trial court here

addressed only statements made by counsel in opening statements

and closing remarks, not during voir dire. That instruction was

general in nature, failing to address the specific comments made

by the prosecutor. The trial court did not admonish the

Commonwealth nor specifically disapprove of the inappropriate

assertion of evidence in the voir dire. Clearly, the trial court

did not take prompt and decisive action to correct the comment.

Instead, "[t]he court did not tell the jury whether the remarks

objected to were improper or not, or how they were to be

construed. It left it to the jurors themselves to determine

whether the remarks were improper . . . ." Harrison v.

Commonwealth, 183 Va. 394, 404, 32 S.E.2d 136, 141 (1944). The

trial court's failure to properly direct the jury is relevant to

determining prejudice because the jury may infer from such

inaction that the court approved the impropriety. Bennett v.

Commonwealth, 29 Va. App. 261, 274, 511 S.E.2d 439, 445 (1999).

Other factors, besides the cautionary instruction, can be

examined to determine whether an appellant was prejudiced.

Whether a manifest probability exists that
the improper evidence prejudiced the accused
despite the cautionary instruction depends
upon the nature of the incompetent evidence

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 when considered in relation to the nature of
the charges, the other evidence in the case,
and manner in which the prejudicial evidence
was presented.

Mills v. Commonwealth, 24 Va. App. 415, 420-21, 482 S.E.2d 860,

862-63 (1997).

In this case, the credibility of the victims was vital to

the Commonwealth's case. Only the victims' testimony proved

appellant was the perpetrator of these assaults. A major factor

affecting their credibility, one recognized by the law as an

appropriate concern to place before a fact finder, see Willis v.

Commonwealth, 218 Va. 560, 563, 238 S.E.2d 811, 818 (1977), was

their delay in reporting the assaults to an adult. Appellant

clearly intended to, and did, use this factor to impeach the

victims' testimony. Thus, the nature of the prosecutor's

inappropriate comment that victims usually delay reporting

directly addressed a central, if not the central, issue in the

case and increased the likelihood of prejudice.

Further, the inappropriate comment came from the assistant

Commonwealth's attorney. She presented the comment as a

"commonly known" fact. Additionally, nothing in the record

indicates the prosecutor ever intended to present any evidence

to substantiate this opinion. The Supreme Court of Virginia has

commented:

We have repeatedly held that Attorneys for
the Commonwealth are not only under the duty
to prosecute one charged with crime; but
also under the duty to see that the accused
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 gets a fair and impartial trial. Nothing
should be done or permitted to prejudice the
case of an accused, or obscure the minds of
the jurors on the question of whether or not
he is guilty of the offense charged.

McLane v. Commonwealth, 202 Va. 197, 205, 116 S.E.2d 274, 281

(1960).

The Commonwealth's revival of this issue in her rebuttal

argument, contending she has dealt with numerous victims who

delayed reporting, also exacerbated the problem created in voir
dire. She yet again attempted to testify to the jury regarding

the typical behavior of juvenile abuse victims. Again, the trial

court gave no specific, curative instruction.

The Commonwealth contends appellant remedied any prejudice

when he told the jury to disregard the Commonwealth's statements

about children's delayed reporting, explaining the statements

were not evidence. This admonition by appellant did not militate

against either the initial harm done by the prosecutor's comments

or the trial court's failure to state his disapproval of the

comments. The jury heard this statement, which was characterized

as common knowledge, and the trial court's preliminary

instructions to the jury did not address this comment

specifically. The instructions did not even address information

given the jury during voir dire. Appellant's counsel tried

mightily to correct the problem. However, in light of the

importance of the issue, the strength of the comment, and the

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lack of appropriate response by the trial court, we cannot find

his argument remedied the effect. 8

We find a manifest probability of prejudice occurred. We

hold that the trial court's curative instruction was neither

explicit nor sufficient. Based on the totality of the

circumstances during voir dire and in the rebuttal argument, we

find the improper comments during voir dire were "so impressive

as to remain in the minds of the jurors and influence their

verdict." Id.

8
Because we reverse the conviction based on appellant's
first argument, i.e., the prejudicial comments during voir dire,
we do not address as a separate argument appellant's second
contention that the trial court erred in refusing to offer a
curative instruction based on the Commonwealth's statement
during closing argument.
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 We reverse the convictions and remand for a new trial, if

the Commonwealth be so inclined.

Reversed and remanded.

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