Bennett v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Lemons and Senior Judge Hodges
Argued at Alexandria, Virginia

EUGENE ALLEN BENNETT
OPINION BY
v. Record No. 1912-97-4 JUDGE ROSEMARIE ANNUNZIATA
MARCH 9, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Richard B. Potter, Judge

Raymond E. Patricco, Jr. (Jeffrey R. Gans;
Steptoe & Johnson, on briefs), for appellant.

Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Eugene A. Bennett ("appellant") was convicted by jury trial

of the following offenses: abduction, use of a firearm in the

commission of abduction, statutory burglary, threatening to bomb

or burn a structure, possession of a firearm after having been

convicted of a felony, obtaining money or property by false

pretenses, attempted murder, possession of an explosive device,

and possession of explosive materials. On appeal, appellant

contends the trial court erred: 1) by refusing to grant a

mistrial after the Commonwealth elicited on direct examination

that a witness had taken a polygraph test, and 2) by refusing to

grant a mistrial after the Commonwealth in closing argument

compared the instant case to those of several infamous murderers.

We disagree and affirm.
 I.

FACTUAL BACKGROUND

Appellant and Marguerite Bennett married in 1984 while they

both worked for the FBI in Atlanta, Georgia. The Bennetts had

two daughters, who were ages ten and eight at the time of

appellant's trial for the present offenses. While employed by

the FBI, appellant frequently worked as an undercover agent.

In 1986, the Bennetts were transferred to a FBI office in

Washington, D.C. The Bennetts began experiencing marital

difficulties and separated in 1992. Subsequently, appellant

initiated divorce proceedings, accusing Mrs. Bennett of

desertion. In March 1993, appellant was indicted for an

unrelated charge of fraud. Mrs. Bennett agreed to testify at

appellant's trial, scheduled for June 1993. Appellant

subsequently pled guilty to fraud and was incarcerated for twelve

months. Upon his release in March 1995, appellant returned to

Northern Virginia and resumed joint custody of his children with

Mrs. Bennett. A hearing to determine final custody of the

Bennetts' children and other issues regarding the Bennetts'

divorce was scheduled for July 15, 1996.

On the night of June 23, 1996, appellant convinced Reverend

Edwin Clever to meet with him alone at Clever's church under the

false pretense of wanting to make an anonymous donation. When

Clever arrived, appellant had already gained access to the locked

building and abducted the minister at gunpoint, handcuffing his

arms and legs together and placing a pouch containing explosives

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around the minister's waist. Claiming that he was investigating

a financing scam involving the church's bank accounts, appellant

threatened to harm Clever's children unless he telephoned Mrs.

Bennett and convinced her to come to the church that night.

During the encounter with Clever, appellant appeared to be in

contact with someone who was observing Clever's children. 1

Clever telephoned Mrs. Bennett at home and, following appellant's

instructions, asked her to come to the church to assist him in

handling a crisis that had arisen. Mrs. Bennett, a member and

lay counselor of the church, agreed to meet him.

When Mrs. Bennett entered the church, she saw appellant, who

was wearing dark clothing and a ski mask and was carrying a gun.

Mrs. Bennett recognized her husband when he ran toward her

saying, "Margo, don't fight me on this." Spraying him with

pepper spray, Mrs. Bennett retreated into an office, pulled a gun

from her purse, and hid behind a desk.

While in the office, appellant warned Mrs. Bennett that

Clever had explosives around his waist and they would all die if

she did not emerge from her hiding place and talk with him. Mrs.

Bennett refused, fearing for her life. During the encounter,

appellant repeatedly "bobbed around the corner" of the door,

aiming his gun at Mrs. Bennett and taunting her to engage in a

1
Mary Ann Khalifeh, appellant's unwitting associate, had
placed Clever's house under surveillance that night. Khalifeh
answered a newspaper advertisement placed by appellant in
February 1996 to be trained as a private investigator. At the
time of the offense, Khalifeh knew appellant as "Edwin Adams" and
believed they were working on an insurance fraud case.

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shootout. At one point, appellant told Mrs. Bennett he was going

to take the couple's children and leave the country. Eventually,

Mrs. Bennett was able to call 911 from the office, and appellant

fled the church.

At trial, appellant presented a M'Naghten Rule insanity

defense, calling two expert witnesses to establish his mental

state at the time he committed the above-mentioned acts. The

first witness, Dr. Michael Girodo, offered no testimony regarding

appellant's mental health. Instead, Dr. Girodo, a professor of

psychology, testified concerning his research on the psychiatric

effects of undercover operations on law enforcement officers.

Appellant's second expert, Dr. Robert Bishop, a

psychiatrist, examined appellant for three and one-half hours and

concluded he suffered from a dissociative disorder at the time of

the present offenses. Bishop opined that, as a result of this

disorder, appellant "did not appreciate the nature and character

of his acts at the time of the offense" and did not understand

right from wrong. He did not testify appellant's mental defect

caused him to act under an irresistible impulse. Although Dr.

Bishop considered the possibility Bennett was malingering, he

concluded appellant's condition was genuine.

In rebuttal, the Commonwealth presented the expert opinions

of two witnesses, Dr. Stanton Samenow and Dr. Evan Stuart Nelson,

both of whom are psychologists. Dr. Nelson's testimony was

limited to a discussion of the nature of dissociative disorders;

he offered no opinion with respect to appellant's mental state at

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the time of the offenses. Dr. Samenow, after examining appellant

for eight hours, concluded appellant was legally sane at the time

of the present offenses. Dr. Samenow found nothing to indicate

that appellant suffered from a dissociative disorder and opined

appellant was malingering.

During its case-in-chief, the Commonwealth also introduced

the testimony of appellant's wife. Mrs. Bennett testified

extensively concerning the present offenses. Mrs. Bennett also

testified to a previous, unrelated incident in which appellant

abducted her in a manner resembling his conduct in committing the

present offenses. Mrs. Bennett testified that, in 1993,

appellant lured her into meeting with him under false pretenses,

subdued her with a stun gun, and tied her up. Appellant

represented to Mrs. Bennett that an associate had custody of

their children and that the children would die if she testified

against him at his trial for the pending charge of fraud. Under

this threat, appellant kept Mrs. Bennett as a virtual prisoner

for several days until the scheduled trial of the fraud charge

began.

When Mrs. Bennett perjured herself at the fraud trial, the

judge interrupted the proceeding. Mrs. Bennett confessed the

circumstances of her abduction to her attorney soon thereafter.

At the trial of the present case, and in conjunction with

Mrs. Bennett's testimony describing her abduction in 1993, the

Commonwealth asked her the following questions:

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 Q. And did your attorneys convince you to
call the Department of Justice [following
your abduction] at least to cooperate with
them?
A. Yes.
Q. And did you, in fact, do so?
A. Yes, I did.
Q. And prior to your testimony, did your
attorneys have you run under a polygraph?
A. Yes.

Appellant immediately objected. In response, the court stated in

open court, "I sustain the objection." Moments later,

appellant's counsel asked to approach the bench and moved the

court for a mistrial on the basis of the Commonwealth's question

concerning Mrs. Bennett's polygraph. The court denied

appellant's motion.

At the close of the Commonwealth's direct examination,

appellant's counsel asked the court to recess, stating:

I would like to attempt to reach a
stipulation with the Commonwealth; and
hopefully we will be heard by the Court in
reference to the previous objection [to the
Commonwealth's reference to the polygraph
examination].

The court agreed. Upon readjournment, the court had the

following dialogue with appellant's counsel:

THE COURT: Are there any motions or
stipulations that should be taken up before
the jury comes in?
[COUNSEL]: We're prepared to proceed, Your
Honor.
THE COURT: No motions; no stipulations; you
don't seek any instructions?
[COUNSEL]: No, Your Honor.

Counsel later explained that he declined to ask for a

contemporaneous cautionary instruction regarding polygraph

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evidence because he did not want to draw further attention to

Mrs. Bennett's improper testimony.

Throughout the trial, appellant denied abducting his wife in

1993 and maintained their contact prior to her perjury was

consensual. To this end, appellant's counsel attempted, on

cross-examination of Mrs. Bennett, to prove appellant did not

hold her against her will, eliciting the fact that she had

engaged in sexual intercourse with appellant on two occasions

during the time of the alleged abduction.

At the close of the evidence, the court instructed the jury

that the results of polygraph examinations are not admissible and

that it could not consider any reference to the willingness or

unwillingness of any witness to take such a test. The court also

instructed the jury that it "must not consider any matter that

was rejected or stricken by the Court," stating "[i]t is not

evidence and should be discarded." Finally, the court instructed

the jury that it must find appellant not guilty if it determined

he was insane under either the M'Naghten Rule or the irresistible

impulse doctrine. The court specifically instructed the jury

"that if the act which is alleged to be the result of an

irresistible impulse was planned in advance, then, as a matter of

law, such act cannot be said to be the product of an irresistible

impulse."

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 II.

ALLEGED PREJUDICE FROM THE ADMISSION OF POLYGRAPH EVIDENCE

Appellant first contends Mrs. Bennett's testimony that she

took a polygraph test following her alleged abduction by

appellant in 1993 irreparably prejudiced his defense. Appellant

further contends the court's jury instruction to disregard

polygraph evidence did not sufficiently mitigate the prejudice.

Although we find Mrs. Bennett's reference to her polygraph was

improper, we disagree appellant's defense was prejudiced as a

result.

Because a polygraph examination has no proper evidentiary

use, neither the results of a polygraph, Robinson v.

Commonwealth, 231 Va. 142, 155, 341 S.E.2d 159, 167 (1986), nor

"[e]vidence of a person's willingness or unwillingness to submit

to a polygraph" is admissible in court. Gray v. Graham, 231 Va.

1, 10, 341 S.E.2d 153, 157 (1986). See Pugliese v. Commonwealth,

16 Va. App. 82, 89, 428 S.E.2d 16, 22 (1993); Crumpton v.

Commonwealth, 9 Va. App. 131, 135, 384 S.E.2d 339, 342 (1989).

Furthermore, evidence concerning a polygraph is not admissible to

establish the guilt or innocence of an accused or to impeach a

witness' credibility. Robinson, 231 Va. at 155-56, 341 S.E.2d at

167.

In a long line of cases, spanning almost
thirty years, [the Supreme Court of Virginia
has] made clear that polygraph examinations
are so thoroughly unreliable as to be of no
proper evidentiary use whether they favor the
accused, implicate the accused, or are agreed
to by both parties. The point of these cases

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 is that the lie-detector or polygraph has an
aura of authority while being wholly
unreliable.

Id. at 156, 341 S.E.2d at 167 (citations omitted) (emphasis

added). "The mention of polygraphs in the presence of the jury

impermissibly suggests that there is a scientific way to find the

truth where in reality, in our system of justice, the jury

decides what is true and what is not." Id.

In this case, the Commonwealth improperly referred to the

fact that Mrs. Bennett took a polygraph examination after her

1993 abduction. Mrs. Bennett testified on direct examination

that her attorneys "ha[d her] run under a polygraph" prior to

cooperating with the Department of Justice in appellant's

unrelated prosecution for fraud. Although Mrs. Bennett's

statement expressly revealed neither the results of her polygraph

nor her willingness or unwillingness to take the polygraph, the

fact she took a polygraph prior to assisting authorities who were

prosecuting her husband for fraud suggested that her testimony

concerning the 1993 abduction had been scientifically

corroborated. In closing argument, the Commonwealth used Mrs.

Bennett's testimony regarding her prior abduction to argue

appellant was sane when committing the present offenses. 2 Mrs.

2
The Commonwealth argued in pertinent part:

This case is about whether on the one
hand the defendant has a criminal mind. One
that is capable of planning, executing,
organization and step by step action.

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_______________
Or whether on the other hand he has gone
so far over the line and become criminally
insane.

* * * * * * *

[The judge] has instructed you on the
law of insanity. . . .

* * * * * * *

[So w]hat do[es appellant] have to prove
to you? One of two things.
First that he was so diseased that he
didn't appreciate the consequences of what he
was doing or was unable to tell right from
wrong. In other words he didn't know what
was going on around him.
Or two, if he knew what he was doing,
that he had as a result of his disease an
impulse that he could not resist that forced
him to commit these acts.
But the law says if you find that the
acts were planned, then you may not consider
irresistible impulse.
All these acts clearly were planned.
So irresistible impulse we get rid of
right from the beginning. I would not[e]
incidentally that Dr. Bishop never said one
word about irresistible impulse. Not one.
So the only question we have left is
whether the defendant knew what he was doing.
Was he cognizant of it or was he off in some
world somewhere where he had no idea what was
going on.

* * * * * * *

And the abduction of the minister and
the abduction of Mrs. Bennett, twice, once in
'96, once in '93 . . . all bears some
striking similarities.
Because you see, folks, when he went
into that church and tied up the reverend
this wasn't the first time he had done that
kind of thing.
When he told the reverend that someone
was watching his kids, it wasn't the first
time he had gained control over someone
through that ruse.

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Bennett's testimony was therefore probative as to appellant's

insanity defense and, by extension, his guilt or innocence.

Moreover, as appellant denied abducting his wife in 1993 and

introduced evidence that their contact was consensual, Mrs.

Bennett's credibility was at issue. Thus, we find the

Commonwealth improperly used Mrs. Bennett's polygraph examination

to suggest that appellant's guilt and Mrs. Bennett's credibility

had been scientifically established.

Notwithstanding the impropriety of Mrs. Bennett's reference

to taking a polygraph examination, we find the trial court did

not err in denying the appellant's motion for a mistrial.

"A trial court exercises its discretion when it determines

whether it should grant a motion for a mistrial. Whether

improper evidence is so prejudicial as to require a mistrial is a

question of fact to be resolved by the trial court in each

particular case." Beavers v. Commonwealth, 245 Va. 268, 280, 427

S.E.2d 411, 420 (1993), cert. denied, 510 U.S. 859 (1993).

"Thus, a trial court's denial of a motion for a mistrial will not

_______________
He did it to Mrs. Bennett in '93. Bound
her. Got the jump on her just like he did
the minister. Bound her. Blind folded her.
Held her and told her there's somebody with
the kids.
Isn't that what he did to the
minister. . . .

* * * * * * *

Planning, contingencies. Always a
backup plan. . . . He did the same thing with
Margo Bennett in '93 that he did to Margo
Bennett and the minister in '96.

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be reversed on appeal unless there exists a manifest probability

as a matter of law that the improper evidence prejudiced the

accused." Mills v. Commonwealth, 24 Va. App. 415, 420, 482

S.E.2d 860, 862 (1997).

Following the improper admission of evidence, juries are

presumed to follow a court's "prompt, explicit, and curative

instructions" to disregard the evidence. Beavers, 245 Va. at

280, 427 S.E.2d at 420; Spencer v. Commonwealth, 240 Va. 78, 95,

393 S.E.2d 609, 619 (1990) (stating that juries are always

presumed to follow "an explicit cautionary instruction promptly

given, unless the record clearly shows that the jury disregarded

it"). As an exception to this rule, "'the admission of

incompetent evidence is reversible error notwithstanding the fact

that the trial court, after its admission, instructed the jury to

disregard it, if such illegal evidence was so impressive that it

probably remained on the minds of the jury and influenced their

verdict.'" Mills, 24 Va. App. at 420, 482 S.E.2d at 862 (quoting

Asbury v. Commonwealth, 211 Va. 101, 106, 175 S.E.2d 239, 241

(1970)).

Given the aforementioned principles, in order for appellant

to prevail we must find a manifest probability that the admission

of Mrs. Bennett's testimony that she took a polygraph so

impressed the jury that it remained on their minds and influenced

their verdict, notwithstanding the court's instruction to

disregard at the close of evidence. See id. at 420-21, 482

S.E.2d at 862-63. The circumstances of this case do not support

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such a finding.

A reviewing court may consider a number of factors in

determining whether a mistrial motion was improperly denied.

"Whether a manifest probability exists that . . . improper

evidence prejudiced the accused despite [a court's] cautionary

instruction depends upon the nature of the incompetent evidence

when considered in relation to the nature of the charges, the

other evidence in the case, and [the] manner in which the

prejudicial evidence was presented." Id. Additionally, a

court's failure to take any action in response to an improper

question is relevant to determining prejudice because the jury

may infer from such inaction that the court approved of the

impropriety. Lewis v. Commonwealth, 211 Va. 80, 84, 175 S.E.2d

236, 238 (1970) (finding the defendant suffered no prejudice from

the improper admission of testimony and a statement by the

prosecutor where the court expressly disapproved of the improper

remarks with a cautionary instruction). See Ward v.

Commonwealth, 205 Va. 564, 573-74, 138 S.E.2d 293, 300 (1964);
Manning v. Commonwealth, 2 Va. App. 352, 356-57, 344 S.E.2d 197,

199 (1986). The number of references to an error is also

relevant to our consideration of whether prejudice influenced the

jury. Ward, 205 Va. at 574, 138 S.E.2d at 300 ("In this

instance, the first error was compounded by the second and it

would be hard to blot the information from the minds of a

jury.").

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 In this case, it is clear the Commonwealth purposely

elicited evidence that Mrs. Bennett took a polygraph. However,

appellant promptly objected to this error. In response, the

trial court immediately sustained the objection. After asking

for a recess in order to decide how to deal with the improper

testimony, appellant's counsel declined to request a

contemporaneous cautionary instruction, explaining that he did

not want to draw further attention to the impropriety. Deferring

to counsel, the court, in its discretion, also declined to give a

cautionary instruction sua sponte. See Manetta v. Commonwealth,

231 Va. 123, 127 n.2, 340 S.E.2d 828, 830 n.2 (1986) (stating

that a trial court is not required to give a cautionary

instruction sua sponte if not requested to do so by a party and

recognizing that such instructions may sometimes serve to

emphasize portions of testimony which the complaining party would

prefer to avoid). Instead, appellant moved the court, at the

conclusion of the evidence, to instruct the jury to disregard any

evidence regarding the results of a polygraph or a witness'

willingness to take a polygraph. The court instructed the jury

accordingly, further instructing that the jury should not

consider any evidence rejected or stricken by the court. From

these facts, it cannot be contended the court countenanced the

impropriety. On the contrary, the court expressly disapproved of

the Commonwealth's improper question by sustaining appellant's

objection and subsequently instructing the jury to disregard any

evidence concerning the results of a polygraph or Mrs. Bennett's

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willingness to take a polygraph. Without any evidence in the

record to the contrary, we presume the jury followed the court's

instructions.

Further, given the manner in which the Commonwealth

presented the incompetent evidence at trial, we do not find the

error here to be so impressive that it likely influenced the

jury's verdict despite the court's curative instructions. At the

close of its lengthy direct examination, the Commonwealth asked

Mrs. Bennett whether her attorneys required her to take a

polygraph examination before assisting the Department of Justice

prosecution of appellant for an unrelated charge of fraud.

Without elaboration, Mrs. Bennett responded in the affirmative.

The Commonwealth made no other reference to Mrs. Bennett's

polygraph during trial and did not mention the polygraph in its

opening statement or closing argument. Thus, in the context of

appellant's entire trial, which occurred over a period of more

than two weeks, the Commonwealth's error consisted of a single

question and answer. See LeVasseur v. Commonwealth, 225 Va. 564,

589, 304 S.E.2d 644, 658 (1983) (finding that a single improper

question on direct examination, when viewed in the context of the

entire examination, did not cause such impressive prejudice that

the court's cautionary instruction could not cure the

impropriety).

The nature of the incompetent evidence in relation to the

critical issues at appellant's trial also militates against a

finding of prejudice requiring reversal. Mrs. Bennett's

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testimony that she took a polygraph after perjuring herself in

1993 is distinguished by what it fails to state; it neither

indicates the polygraph's results nor Mrs. Bennett's willingness

to take a lie detector test. As noted earlier, appellant

objected before the Commonwealth could elicit further elaboration

or clarification. Thus, the relevance of the reference to the

polygraph is unclear. Although the jury might arguably have

inferred that the results of Mrs. Bennett's polygraph were

favorable to the Commonwealth's case, the context of the inquiry

and the ambiguity of her answer make it unclear whether the

polygraph results related to Mrs. Bennett's testimony concerning

appellant's fraud or to the events surrounding her abduction by

appellant in 1993; only the latter had an arguable impact in the

present case. Such ambiguities in improper polygraph testimony

have generally been held to support the conclusion that an error

in the admission of such evidence was harmless. See Epperly, 224

Va. at 234, 294 S.E.2d at 893-94 (holding that a witness' mention

of the word "polygraph" did not cause harmful error because the

reference was elicited "without definition or elaboration");
Barber, 206 Va. at 250-51, 142 S.E.2d at 491-92 (finding that a

witness' reference to whether the defendant would take a

polygraph was error and considering the fact that the improper

testimony did not show the defendant's unwillingness to take a

polygraph as a mitigating circumstance on the issue of

prejudice).

We also find the improper reference to Mrs. Bennett's

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polygraph constituted relatively weak evidence in rebuttal of

appellant's insanity defense. Virginia law recognizes two tests

by which an accused can establish criminal insanity, the

M'Naghten Rule and the irresistible impulse doctrine. The

irresistible impulse defense is available when "the accused's

mind has become 'so impaired by disease that he is totally

deprived of the mental power to control or restrain his act.'"

Godley v. Commonwealth, 2 Va. App. 249, 251, 343 S.E.2d 368, 370

(1986) (quoting Thompson v. Commonwealth, 193 Va. 704, 716, 70

S.E.2d 284, 292 (1952)). Under the M'Naghten Rule, an accused is

insane if he or she did not understand the nature, character, and

consequences of his or her act, or was unable to distinguish

right from wrong. Price v. Commonwealth, 228 Va. 452, 457, 323

S.E.2d 106, 109 (1984).

Evidence that an accused planned his or her criminal acts

precludes, as a matter of law, any finding that the accused acted

under an irresistible impulse. Rollins v. Commonwealth, 207 Va.

575, 580, 151 S.E.2d 622, 625 (1966). Evidence of planning does

not, however, preclude a finding of insanity under the M'Naghten

Rule. See Johnson v. Insurance Co. of North America, 232 Va.

340, 341, 347-48, 350 S.E.2d 616, 617, 621 (1986) (explaining the

defendant may be criminally insane under the M'Naghten Rule, even

though he acted deliberately, methodically, and intentionally,

planning to kill his victim without knowing that it was wrong).

Here, the Commonwealth used Mrs. Bennett's testimony

regarding her abduction in 1993 to argue that appellant planned

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the present offenses. The improper evidence of Mrs. Bennett's

polygraph was intended to corroborate this testimony. While such

evidence, in the abstract, is arguably prejudicial to a case in

which the defendant contends he or she acted under an

irresistible impulse, in this case, appellant presented no

evidence in support of an irresistible impulse defense. 3

Appellant's evidence was limited to establishing his insanity

under the M'Naghten Rule. It follows that appellant was not

prejudiced in establishing a defense for which he presented no

evidence. 4 We find the Commonwealth's improper polygraph

evidence, admitted to show appellant planned the present

offenses, did not prejudice appellant's claim of insanity under

the M'Naghten Rule because the evidence had no relevance under

the M'Naghten test of insanity.

For the reasons stated above, we find no manifest

probability as a matter of law that the improper polygraph

3
Appellant's expert, Dr. Bishop, testified appellant "did not
appreciate the nature and character of his acts at the time of
the offense[s]" and did not understand right from wrong. We find
no indication in the record that appellant offered any evidence
on the issue of his insanity under the irresistible impulse
doctrine.
4
We note that the trial court gave an instruction on the
irresistible impulse test for insanity. We further note that the
Commonwealth referred to the irresistible impulse defense in
closing argument. However, as our review of the record makes
manifest, appellant presented no evidence in support of
irresistible impulse. In the absence of such evidence, the jury
could not properly find that appellant acted as a result of an
irresistible impulse. Indeed, as the jury found appellant
guilty, it properly did not make such a finding. The testimony
of Mrs. Bennett clearly had no probative value and, logically, no
prejudicial impact on this issue.

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evidence prejudiced the jury, and we affirm the trial court's

denial of appellant's motion for a mistrial.

III.

ALLEGED IMPROPRIETY OF COMMONWEALTH'S CLOSING ARGUMENT

Appellant next contends the Commonwealth's closing argument

reference to infamous murderers warrants reversal of his

convictions. The Commonwealth argues the trial court properly

denied appellant's motion for a mistrial because appellant failed

to move for a mistrial or request a cautionary instruction in a

timely fashion, improperly waiting until the end of the

prosecutor's argument. We agree with the Commonwealth.

A. Factual Background

As previously noted, Dr. Bishop testified that he believed

appellant suffered from a form of dissociative disorder and,

therefore, did not understand the nature of his criminal actions.

Upon the Commonwealth's cross-examination, Dr. Bishop

acknowledged that many criminals with severe mental illnesses

would not meet the test for criminal insanity. Dr. Bishop agreed

Charles Manson was an example of such a person. When the

Commonwealth further asked whether Jeffrey Dahmer would also

exemplify such a person, appellant objected on the ground that

Dr. Bishop was not qualified to answer. The court overruled the

objection, stating "[i]t goes to his expertise. If he can answer

the question, I'll let him answer the question." Dr. Bishop then

testified he believed Jeffrey Dahmer "probably was" insane, even

though the jury in Dahmer's trial found otherwise.

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 During closing argument, the prosecutor attempted to explain

the legal defense of insanity only becomes available when a

defendant, no matter how ill, demonstrates he has "cross[ed]" a

"bright line." He argued the only relevant test for determining

appellant's sanity was whether appellant "knew what he was

doing."

Elaborating on this point, the Commonwealth argued, "You can

put on this side of the insanity line (indicating) everybody in

this courtroom including the defendant. People with psychiatric

problems, mental problems, infamous criminals, Charles Manson,

Richard Speck, the man who murdered eight student nurses.

Jeffrey Dahmer. The murder and cannibalization --"

When defense counsel objected to the Commonwealth's

argument, the court asked the prosecutor, "[h]ow far are you

going with this?" When assured he would go no further, the court

stated that it would "[o]verrule the objection at this time."

Continuing his argument, the Commonwealth stated, "Th[ese] men

knew what they were doing. W[ere] their actions bizarre? Was it

evil? Was it macabre? Did it shock your conscious [sic] when

you heard about it? Of course. No different than what he did.

Not even as bad. If they are legally responsible so is this

man."

Appellant's counsel made no further objection but moved for

a mistrial at the close of the Commonwealth's argument, citing

the references to Charles Manson, Richard Speck, and Jeffrey

Dahmer. The court denied the motion.

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 B. Legal Principles

An alleged error is sufficiently preserved for consideration

on appeal if "at the time the ruling or order of the court is

made or sought, [a party] makes known to the court the action

which he desires the court to take or his objections to the

action of the court and his grounds therefor." Code § 8.01-384.

The purpose of this rule is "to avoid unnecessary appeals,

reversals and mistrials by allowing the trial judge to

intelligently consider an issue and, if necessary, to take

corrective action." Campbell v. Commonwealth, 12 Va. App. 476,

480, 405 S.E.2d 1, 2 (1991).

When allegedly improper comments are made during closing

argument in the guilt phase of a trial, the objecting party must

expressly seek the action that it desires the judge to take.

Craddock v. Commonwealth, 16 Va. App. 402, 405, 429 S.E.2d 889,

891 (1993). "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). See Taylor v. Commonwealth, 208 Va. 316, 324, 157 S.E.2d

185, 191 (1967). "A timely motion for a mistrial or a cautionary

instruction is required to preserve the issue for appeal even if

an objection was properly made to the conduct or comments and

improperly overruled by the trial judge." Morris v.

Commonwealth, 14 Va. App. 283, 287, 416 S.E.2d 462, 464 (1992)

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(en banc). "The recognized purpose of this requirement is to

prevent retrials by calling error to the attention of the trial

judge, who may then caution the jury to disregard the

inappropriate remarks." Craddock, 16 Va. App. at 405, 429 S.E.2d

at 891. See Mack v. Commonwealth, 20 Va. App. 5, 8, 454 S.E.2d

750, 751 (1995).

"Making a timely motion for mistrial means making the motion

'when the objectionable words were spoken.'" Yeatts v.

Commonwealth, 242 Va. 121, 137, 410 S.E.2d 254, 264 (1991)

(quoting Reid v. Baumgardner, 217 Va. 769, 774, 232 S.E.2d 778,

781 (1977)). "If counsel believes that an argument requires or

justifies a mistrial, he has the duty to move promptly before

conclusion of the argument so that the trial court may determine

what corrective action, if any, should be taken." Pullen v.

Nickens, 226 Va. 342, 346-47, 310 S.E.2d 452, 454-55 (1983). See

Beavers, 245 Va. at 278-79, 427 S.E.2d at 419 (holding that a

complainant's failure to object and move for a mistrial until the

conclusion of an opening statement constituted a waiver of its

arguments on appeal). There appears to be no exception in

Virginia law to the strict application of this rule.

Although appellant objected to the Commonwealth's comparison

of him with several infamous murderers, he withheld his motion

for mistrial until after the Commonwealth completed its closing

argument. Appellant thus failed to preserve for appeal his

objection to the Commonwealth's argument. We express no opinion

on whether the Commonwealth's argument was, in fact, improper.

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Under Virginia law, appellant was required to timely move for a

mistrial in order to preserve his objection. Having failed to do

so, the objection to the Commonwealth's comments was waived.

Based on the foregoing, we find no error in the trial

court's denial of appellant's motion for a mistrial.

Accordingly, we affirm appellant's convictions.

Affirmed.

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