COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia
WILLIAM L. GRIFFIN
OPINION BY
v. Record No. 0183-95-1 JUDGE NELSON T. OVERTON
JUNE 25, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Norman Olitsky, Judge
Darell L. Sayer (Ferrell, Backus, Sayer &
Nicolo, P.C., on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
William L. Griffin was convicted by a jury of attempted
robbery, malicious wounding, and use of a firearm in the
commission of a felony. On appeal, Griffin contends that the
trial court erred by allowing the Commonwealth to make a rebuttal
argument in the sentencing phase of his bifurcated trial.
Finding no error, we affirm.
Only the events at the sentencing phase are relevant to this
appeal. After a jury returned guilty verdicts, the sentencing
phase was commenced. Neither side presented testimony or other
evidence. The defendant objected to the Commonwealth's proposed
rebuttal argument, arguing that the Commonwealth would receive an
unfair advantage. The objection was overruled. The defense did
not request a surrebuttal argument. After both sides argued
before the jury, the Commonwealth made the following brief
rebuttal remarks:
Ladies and gentlemen, very briefly,
[Counsel for defense] says that imposing the
minimum punishment, which would be an
aggregate of 15 years if you added up all of
those, that you could apply in these four
matters would emphasize to the defendant the
seriousness of what he's done. The maximum
would also emphasize the seriousness of what
he's done. It's within your discretion
sitting as the City of Portsmouth, which the
12 of you are today looking at all the facts
of the crime and what happened, to determine
and set a punishment that is appropriate in
this case. I know you take your job
seriously. It's been reflected in how
closely you listened to the evidence, the
time you took deliberating yesterday to reach
your verdict, and I know your penalty will be
reached with the same deliberation and care
and attention to your duty.
I look forward to your verdict. Thank you.
The jury deliberated for fifteen minutes and came back with
recommendations totaling a sentence of sixteen years.
In Virginia the Commonwealth traditionally has been
permitted to "combat the argument of defendant's counsel . . .
both with respect to the guilt of the accused and a proper
measure of punishment." Martinez v. Commonwealth, 241 Va. 557,
560, 403 S.E.2d 358, 359-60 (1991) (quoting Timmons v.
Commonwealth, 204 Va. 205, 216-17, 129 S.E.2d 697, 705 (1963)).
In 1994, the General Assembly amended the Code to provide for
bifurcated trials; the guilt phase was separated from the
sentencing phase. This change precludes the Commonwealth from
combatting the defendant's arguments as to guilt and sentencing
in the same statement to the jury. The legislature did not alter
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the Code with respect to the closing remarks, however, and the
philosophy that the Commonwealth has a right to combat the
defendant's arguments holds true.
No rationale suggests a need to change this procedure.
If the prosecutor's rebuttal comments
(closing comments) are properly limited to
their intended purpose, there would be no
reason to permit the defendant to address the
jury further. In the normal course of a
summation to the jury, of necessity, only one
side may open. The other party then has the
opportunity to reply to his opponents [sic]
opening argument, and in turn make his own
argument to the jury. The one who spoke
first then has the opportunity to answer the
argument of his opponent. No new material
should be injected into this final statement.
(75 Am. Jur. 2d Trial § 214 (1974).) There
is therefore no reason to permit further
argument which presumably could only be
justified for the purpose of replying to
something stated in the other person's final
statement.
People v. Caballero, 464 N.E.2d 223, 235 (Ill.), cert. denied,
469 U.S. 963 (1984). Indeed, in this case the Commonwealth
discussed no new material and merely answered the argument of the
defendant.
The trial judge must use proper discretion in determining
the appropriateness and length of closing arguments. In this
case, he allowed the Commonwealth to make a short rebuttal after
the defendant's own argument. "[T]he conduct of a trial is
committed to the trial judge's discretion, and absent evidence of
an abuse of this discretion, we will not disturb his rulings on
that subject." Justus v. Commonwealth, 222 Va. 667, 676, 283
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S.E.2d 905, 910 (1981), cert. denied, 455 U.S. 983 (1982).
We hold that a rebuttal argument is permissible in the
sentencing phase of a noncapital case. Because we find no abuse
of discretion by the trial judge in the instant case, we affirm
the convictions.
Affirmed.
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