COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Frank
Argued at Chesapeake, Virginia
ANTHONY HARRIS
MEMORANDUM OPINION * BY
v. Record No. 0394-01-1 JUDGE RICHARD S. BRAY
FEBRUARY 5, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
Charles B. Lustig (Brenda C. Spry, Deputy
Public Defender, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Anthony Harris (defendant) was convicted in a bench trial of
possession of cocaine, a violation of Code § 18.2-250. On appeal,
defendant contends the prosecutor erroneously referenced, during
closing argument, his failure to testify at trial. Finding no
error, we affirm the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
On September 9, 2000, at approximately 6:15 p.m., Portsmouth
Police Officer K.L. Johnson, Jr., while on routine patrol,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
"observed [defendant] cut in between the breezeway" at an
apartment building. Johnson approached defendant and, after an
innocuous exchange between the men, asked defendant "if he had any
weapons or narcotics on him." Defendant responded, "no," and
consented to a pat-down of his person, which revealed "a glass
tube smoking device" in defendant's "right front pants pocket."
Defendant then "stated that the pants were not his" but "belonged
to his brother."
Aware "through [his] training and experience [that the
smoking device was] used for the consumption of crack cocaine,"
Johnson arrested defendant and a subsequent chemical analysis
confirmed residue of the drug on the glass pipe, resulting in the
subject prosecution.
During argument on defendant's motion to dismiss at the
conclusion of the related bench trial, the prosecutor, alluding
to defendant's statements at the scene of arrest, asserted
defendant was then "making up a story . . . to avoid having to
accept the fact that he has been busted by Officer Johnson in
possession of a crack pipe that has cocaine residue in
it[,] . . . a convenient story that he tells Officer Johnson
that these are not my pants." The prosecutor then added
rhetorically, "Whose pants are they? Did he tell you whose
pants they were?"
Defendant's counsel immediately objected, characterizing the
argument as an improper comment upon defendant's failure to
- 2 -
testify. 1 In response, the prosecutor explained the remarks
referenced "what [defendant] and . . . Officer Johnson said" in
the exchange between the two, argument defense counsel conceded
would have been "permissible." Without ruling on defendant's
objection, the court then expressed an understanding that the
Commonwealth had not intended to reference defendant's "rights
. . . to remain silent and not testify" and proceeded to find him
guilty of the instant offense.
On appeal, defendant pursues his contention the Commonwealth
improperly referenced his failure to testify. Relying upon Code
§ 19.2-268 and the well established "general rule" that "any
comment . . . referring to the defendant's election not to testify
is a violation of his rights against self-incrimination as
guaranteed by the Fifth Amendment of the United States
Constitution," defendant urges us to reverse the conviction.
Johnson v. Commonwealth, 236 Va. 48, 50, 372 S.E.2d 134, 136
(1988) (citing Griffin v. California, 380 U.S. 609, 615 (1965);
Va. Const. art. I, § 8).
In determining whether a remark falls
within the boundary of the prohibition that
a prosecutor shall not make an adverse
comment before the jury on a defendant's
failure to testify, the test is whether, in
the circumstances of the particular case,
"the language used was manifestly intended
or was of such character that the jury would
1
Defendant made no related motion for a mistrial or other
relief.
- 3 -
naturally and necessarily take it to be a
comment on the failure of the accused to
testify."
Hines v. Commonwealth, 217 Va. 905, 907, 234 S.E.2d 262, 263
(1977) (quoting Knowles v. United States, 224 F.2d 168, 170 (10th
Cir. 1955)); Winston v. Commonwealth, 12 Va. App. 363, 370, 404
S.E.2d 239, 243 (1991).
Here, the prosecutor explained that the argument in issue
related to "the dialogue between [defense counsel] and Officer
Johnson," not defendant's failure to testify, and the record
clearly reflects the court considered the remarks as intended.
See Eckhart v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157
(1981) (judge "uniquely suited . . . to disregard potentially
prejudicial comments . . ."). Defendant correctly conceded such
argument would have been "permissible."
Under such circumstances, we find the remarks were neither
intended nor considered as comment upon defendant's failure to
testify and, therefore, free of constitutional implications.
Accordingly, we affirm the conviction.
Affirmed.
- 4 -