COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Hodges
Argued at Alexandria, Virginia
JACOB DALE MONROE
MEMORANDUM OPINION * BY
v. Record No. 1254-00-4 JUDGE WILLIAM H. HODGES
OCTOBER 9, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Leroy F. Millette, Jr., Judge
William J. Baker for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Jacob Dale Monroe, appellant, was convicted of second degree
murder and shooting into an occupied building or dwelling house.
On appeal, appellant argues the trial court erred by (1) admitting
a blanket into evidence; (2) refusing to consider his challenge to
two jurors; (3) denying his objections to the Commonwealth's
cross-examination of a witness; and (4) denying his objection to
the Commonwealth's closing argument. Finding no error, we affirm
the trial court's judgment.
BACKGROUND
On December 21, 1996, Steve Pogue had a party at his
residence. At about midnight, a group of five men, including
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
appellant, attempted to enter the party. However, Pogue would not
allow the men to stay at the party. Pogue escorted one of the men
outside of his house and saw that one of the other men had picked
up a rock or brick. The five men initially refused to leave the
property. After a brief verbal dispute with appellant, Pogue
struck appellant and pushed him to the ground, and Pogue again
told the men to leave his property. Several guests exited Pogue's
house to assist Pogue. Appellant's companions urged him to leave
the party and, as the five men walked away, one of the men yelled,
"We'll be back," and "DRS will be back and pop caps in your ass."
DRS is a local gang called "Dirty Rotten Scoundrels." On the
night of the incident, appellant wore a shirt with DRS written on
it.
Jerry McDermit, one of the men who accompanied appellant that
night, testified that after they left the party, they retrieved a
.38 caliber gun from Josh Morrow's residence and a shotgun from
another residence. McDermit testified appellant and Morrow shared
ownership of a .38 caliber gun. Appellant indicated that he
wanted to return to the party and fight. The five men drove past
Pogue's residence four times. As they passed for the fifth time,
appellant said, "Fuck it. So let's just shoot it. Let's just do
it." Appellant fired several shots from the car toward Pogue's
house with the .38 caliber gun. Another member of the group fired
the shotgun toward the house, striking a vehicle parked near
Pogue's house. Gerald Dillard, who was seated in front of a
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window inside Pogue's house, was shot in the head and died. The
forensic evidence showed that he was shot with the .38 caliber gun
owned by appellant and Morrow.
Appellant testified Morrow fired the .38 caliber gun at
Pogue's residence.
ADMISSIBILITY OF THE BLANKET
After the victim was shot, he was placed on the floor and
someone placed a blanket over the victim. The Commonwealth
offered the bloody blanket into evidence. The trial court
admitted the blanket into evidence, ruling that the blanket
depicted the crime scene and that its probative value outweighed
the prejudicial impact of the evidence.
"Evidence which 'tends to cast any light upon the subject of
the inquiry' is relevant." Cash v. Commonwealth, 5 Va. App. 506,
510, 364 S.E.2d 769, 771 (1988) (citation omitted). However,
"[i]f the prejudicial effect of nominally relevant evidence
outweighs its probative value, the evidence is inadmissible."
Singleton v. Commonwealth, 19 Va. App. 728, 734, 453 S.E.2d 921,
925 (1995) (en banc).
Assuming without deciding that the bloody blanket was
inadmissible, we must determine whether its admission into
evidence was harmless error. A non-constitutional error by the
trial court is harmless if "'it plainly appears from the record
and the evidence given at the trial that' the error did not affect
the verdict." Lavinder v. Commonwealth, 12 Va. App. 1003, 1005,
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407 S.E.2d 910, 911 (1991) (en banc) (citation omitted). "An
error does not affect a verdict if a reviewing court can conclude,
without usurping the jury's fact finding function, that, had the
error not occurred, the verdict would have been the same." Id.
"Each case must . . . be analyzed individually to determine if an
error has affected the verdict." Id. at 1009, 407 S.E.2d at 913.
Based on our examination of the record and evidence presented
in the case, we are satisfied that the admission of the bloody
blanket did not affect the verdict or otherwise deprive appellant
of a fair trial on the merits. The evidence of appellant's guilt
was overwhelming. Evidence was presented that appellant fired the
.38 caliber weapon at the house, and the victim was killed by a
.38 caliber bullet that passed through the window of the house.
Moreover, the evidence of the bloody blanket was merely cumulative
of the photographic evidence of the crime scene that was admitted
into evidence. We can conclude, therefore, without usurping the
jury's fact finding function, that, had the bloody blanket not
been admitted into evidence, the verdict would have been the same.
Accordingly, its admission was harmless error.
BATSON MOTION
The Commonwealth used two peremptory strikes to remove two of
the three African-Americans from the jury panel. Appellant
objected to the strikes, stating that the Commonwealth had to give
a reason other than race for striking the potential jurors. See
Batson v. Kentucky, 476 U.S. 79 (1986). The trial court ruled
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that a Batson analysis did not apply to this case because
appellant was white and the challenged jurors were black. The
jury was seated and sworn, and the remaining potential jurors
were released.
After opening statements, the Commonwealth's Attorney
proffered for the record his reasons for striking the two
challenged jurors. The prosecutor represented to the trial
court that he struck the male African-American juror because the
juror did not "look at counsel" during voir dire and was
"unattentive" or "perhaps not willing to listen to the
evidence." The prosecutor stated that he struck the female
African-American juror because she had "a rather mean look on
her face" and appeared "unhappy with everything." The trial
court again ruled that Batson did not apply, and the court
recessed for lunch.
After a break in the trial, the trial court realized that
it had been mistaken in its earlier ruling that Batson was
inapplicable to the issue. The trial court revisited the issue
and requested that appellant reiterate the bases of the motion.
See Powers v. Ohio, 499 U.S. 400, 409 (1990) (ruling that a
criminal defendant may object to race-based exclusions of jurors
through peremptory challenges whether or not defendant and
jurors are of the same race). Appellant represented that
striking two of the three African-American potential jurors was
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"disproportionate" based on the African-American population of
the area.
Assuming, without deciding, that appellant made a prima
facie showing that the prosecutor exercised the two peremptory
strikes on the basis of race, the prosecutor articulated
racially neutral explanations for striking the jurors in
question. Indeed, the trial court stated that it too had
observed that the male juror "appeared to be disinterested."
The prosecutor then elaborated on his reasons for striking
the female African-American juror, stating that she "seemed like
she . . . was unhappy with being here," and "did not seem [to]
want to pay attention." He stated that it appeared to be a
"burden" for her to be in court and that her reactions to
questions indicated to him that she would not be "receptive" to
evidence "in a normal method." The prosecutor said the
potential juror appeared "bitter" and that he believed persons
who are not "happy with the system don't make good jurors." The
trial court agreed that, based on its observations of the
potential juror's body language and demeanor, she "did not seem
to be very receptive."
"Manifestly, disinterested jurors should be identified and
removed whenever possible, irrespective of race or gender."
Robertson v. Commonwealth, 18 Va. App. 635, 640, 445 S.E.2d 713,
716 (1994). "A trial court's determination whether the reason
given is race-neutral is entitled to great deference . . . and
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will not be reversed on appeal unless it is 'clearly
erroneous.'" Atkins v. Commonwealth, 257 Va. 160, 175, 510
S.E.2d 445, 454 (1999) (citations omitted).
The prosecutor offered race-neutral, nondiscriminatory
reasons for striking the venirepersons. The trial court did not
abuse its discretion in accepting the Commonwealth's
racially-neutral explanations.
Appellant also argues that because the trial court
addressed the Batson motion after the jury had been sworn and
the remaining potential jurors had been released, appellant had
no meaningful redress because the jury panel had already been
sworn. However, the record indicates that appellant failed to
present this argument to the trial court. After the trial court
made its final ruling, appellant's counsel stated, "Please note
our objection." Appellant offers no authority on this appeal
for the proposition that he had no effective remedy after the
panel was sworn.
"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 Rule 5A:18. Accordingly, Rule 5A:18 bars our consideration
of this question on appeal. Moreover, the record does not
reflect any reason to invoke the good cause or ends of justice
exceptions to Rule 5A:18.
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CROSS-EXAMINATION OF MORROW
Appellant called Morrow, one of his codefendants, as a
witness on his own behalf. Appellant argues the trial court
erred in ruling that the prosecutor's cross-examination of
Morrow did not exceed the scope of appellant's direct
examination of the witness.
On direct examination, appellant questioned Morrow
regarding statements concerning the crimes that Morrow had made
to codefendants and inmates while they were incarcerated.
Morrow testified that he initially asked the codefendants to go
along with his story that he was asleep in the car during the
shooting. Morrow also denied that he suggested that they blame
the shooting on appellant and another juvenile because they were
juveniles. In addition, Morrow denied telling one of the men
that he fired the .38 during the shooting.
On cross-examination, the Commonwealth questioned Morrow
concerning how he knew appellant and his observations of what
occurred during the incident. Morrow testified that appellant
fired the .38 caliber gun on the night of the shooting.
Appellant repeatedly objected that the Commonwealth was
exceeding the scope of cross-examination. The trial court ruled
that appellant, by asking Morrow what he had told people about
the incident, had opened the door to the line of questioning
related to how Morrow "knows things about what happened, where
he was, whether he was asleep or not." The trial court also
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ruled that, while the Commonwealth could ask whether Morrow and
appellant were members of DRS, he could not indicate what "DRS
means."
On further cross-examination, Morrow testified that he and
appellant were friends and were affiliated with DRS. Morrow
testified concerning the events of the night of the shooting,
and he stated that he saw appellant fire the .38 caliber gun.
When the prosecutor attempted to show Morrow the gun, the trial
court ruled that the Commonwealth could go no further with the
line of questioning unless it called Morrow as its own witness.
"Subject to such reasonable limitations as the trial court
may impose, a party has an absolute right to cross-examine his
opponent's witness on a matter relevant to the case, which the
opponent has put in issue by direct examination of the witness."
Washington v. Commonwealth, 228 Va. 535, 549, 323 S.E.2d 577,
587 (1984). "'Once a [witness] has testified as to certain
matters, the proper scope of cross examination lies within the
sound discretion of the trial court.'" Fisher v. Commonwealth,
16 Va. App. 447, 455, 431 S.E.2d 886, 891 (1993) (citation
omitted). See also United States v. Gravely, 840 F.2d 1156,
1163 (4th Cir. 1988) (citing United States v. Atwell, 766 F.2d
416, 419-20 (10th Cir. 1985) ("limiting the extent of
cross-examination is within the discretion of the trial court
and does not warrant reversal absent an abuse of discretion
clearly prejudicial to the defendant")).
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The limited cross-examination permitted by the trial court
was within the trial court's discretion because appellant
initiated the line of inquiry when he elected to question Morrow
on direct examination about statements he had made concerning
the crimes. When, on direct examination, Morrow denied making
certain statements about the crimes, the Commonwealth was
entitled to explore how Morrow knew of the crimes. Furthermore,
with the exception of who fired the gun, appellant testified to
many of the same facts that Morrow testified to on
cross-examination concerning details of the night of the
shooting, including the fact that appellant was a member of DRS.
Accordingly, we cannot say that appellant suffered prejudice
from the evidence elicited in the cross-examination of Morrow.
CLOSING ARGUMENT
Appellant argues the trial court erred in overruling his
objection to a statement made in the Commonwealth's rebuttal
closing argument. During its rebuttal closing argument, the
prosecutor argued, "If they had had these weapons at the first
instant [sic] I submit to you we'd probably have a lot of dead
people." Appellant objected, and the trial court overruled the
objection stating, "It's a matter of argument."
"The purpose of closing argument is to
summarize the evidence for the jury, to
persuade the jury to view the evidence in
the light most favorable to the client, and
to apply that evidence to the law in a
manner which will result in a verdict
favorable to the client."
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Canipe v. Commonwealth, 25 Va. App. 629, 639, 491 S.E.2d 747,
751 (1997) (quoting Charles E. Friend, The Law of Evidence in
Virginia § 21-1(b)(1) (4th ed. 1993)). "A trial court has broad
discretion in the supervision of . . . closing argument." O'Dell
v. Commonwealth, 234 Va. 672, 703, 364 S.E.2d 491, 509 (1987).
"'This Court will not interfere with the exercise of this broad
discretion unless it affirmatively appears that such discretion
has been abused and that the rights of the complaining litigant
have been prejudiced.'" Canipe, 25 Va. App. at 639, 491 S.E.2d at
752 (citation omitted). "'In rebuttal argument, a prosecutor has
the right to answer the argument made by defense counsel and to
refer to evidence and fair inferences suggested by the evidence
touching the subjects covered by the adversary.'" Clark v.
Commonwealth, 3 Va. App. 474, 483, 351 S.E.2d 42, 46 (1986)
(citation and emphasis omitted).
Appellant argued in his closing argument that Pogue's house
had not been "sprayed" by gunfire and that "unfortunately, the
bullet struck the house." The evidence at trial showed that
appellant and his companions drank alcoholic beverages earlier
that evening before attempting to attend the party. They were not
invited and knew none of the people in the house. After one of
appellant's companions attempted to enter Pogue's house, a
confrontation occurred in which one of appellant's companions
picked up a rock. When appellant and his companions returned to
the Pogue residence the second time, they fired several shots
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toward Pogue's house, striking a vehicle parked in the driveway,
the house, and the victim through a window of the house.
In view of the deadly consequences that occurred after the
initial confrontation, the trial judge did not abuse his
discretion in ruling that the prosecutor could properly argue that
had a gun been fired during the initial heated confrontation, the
people who were standing outside the residence and openly exposed
could have been killed. The argument was based on evidence
presented and fair inferences suggested by the evidence.
Accordingly, the trial court did not abuse its discretion in
overruling appellant's objection.
Therefore, the trial court's judgment is affirmed.
Affirmed.
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Jacob Dale Monroe v. Commonwealth of Virginia
Combined Opinion