COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Bumgardner
Argued at Richmond, Virginia
MICHAEL ALLEN BERRY
MEMORANDUM OPINION * BY
v. Record No. 0474-99-2 JUDGE LARRY G. ELDER
MAY 2, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Michael T. Hemenway for appellant.
Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General;
Jeffrey S. Shapiro, Assistant Attorney
General, on brief), for appellee.
Michael Allen Berry (appellant) appeals from his jury trial
convictions for two counts of rape and two counts of sodomy. On
appeal, he contends the trial court erroneously refused to grant
a mistrial when a Commonwealth's witness testified that
appellant requested an attorney during a police interview. He
argues that this testimony violated a pretrial ruling excluding
any statements appellant made after he asked to talk to a lawyer
and constituted improper comment on appellant's exercise of his
Fifth Amendment rights to legal counsel and to remain silent.
Based upon our ruling in Pulley v. Commonwealth, 31 Va. App.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
600, 525 S.E.2d 51 (2000), we hold that the testimony was
improper, but given the trial court's exclusion of the testimony
and prompt instruction to the jury to disregard it, that the
court did not err in denying the motion for mistrial.
Therefore, we affirm appellant's convictions.
"Whether to grant a mistrial rests within the discretion of
the trial judge . . . ." Hall v. Commonwealth, 14 Va. App. 892,
902, 421 S.E.2d 455, 461 (1992) (en banc). Jurors are presumed
to follow prompt cautionary instructions regarding the
limitations to be imposed on evidence. See LeVasseur v.
Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657 (1983).
"The rule in Virginia is well established that a judgment will
not be reversed for the admission of evidence which the court
afterwards directs the jury to disregard unless there is a
manifest probability that the evidence has been prejudicial to
the adverse party." Asbury v. Commonwealth, 211 Va. 101, 104,
175 S.E.2d 239, 241 (1970). Whether improper evidence is so
prejudicial as to require a mistrial is a question of fact to be
resolved by the trial court. See Beavers v. Commonwealth, 245
Va. 268, 280, 427 S.E.2d 411, 420 (1993). In reviewing on
appeal "whether there is a manifest probability . . . [of
prejudice], we look to the record as a whole." Strawderman v.
Commonwealth, 3 Va. App. 585, 590, 352 S.E.2d 14, 17 (1987).
Appellant argues that the holding in Doyle v. Ohio, 426
U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), required the
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court to grant his motion for mistrial. Based on our holding in
Pulley, in which we discussed the Court's clarification of Doyle
in subsequent decisions, we disagree. See Greer v. Miller, 483
U.S. 756, 107 S. Ct. 3102, 97 L. Ed. 2d 618 (1987); Wainwright
v. Greenfield, 474 U.S. 284, 106 S. Ct. 634, 88 L. Ed. 2d 623
(1986). Although subsequent decisions provide that Doyle
applies to requests for counsel as well pure invocations of the
right to silence, 1 they also make clear that no reversible error
occurred under the facts in appellant's case.
We noted in Pulley that what Doyle prohibits is "'the
evidentiary use of an individual's exercise of his
constitutional rights after the . . . assurance' of Miranda"
1
As we observed in Pulley, "[t]he Court . . . noted that,
'[w]ith respect to post-Miranda warnings "silence," . . .
silence does not mean only muteness; it includes the statement
. . . of a desire to remain silent until an attorney has been
consulted.'" 31 Va. App. at 603, 525 S.E.2d at 53 (quoting
Greenfield, 474 U.S. at 295 n.13, 106 S. Ct. at 640 n.13).
Although this statement might be read to exclude a request for
an attorney made without an accompanying statement of a desire
to remain silent, in Pulley, we equated a request for an
attorney with a request to remain silent. See id. at 603 & n.1,
525 S.E.2d at 53 & n.1. The Court's ruling in Greenfield fully
supports this conclusion. The Eleventh Circuit referred
specifically to Greenfield's exercise of his "rights to remain
silent and to request counsel." Greenfield v. Wainwright, 741
F.2d 329, 336 (11th Cir. 1984) (emphasis added). The Supreme
Court affirmed the judgment of the Court of Appeals without
express limitation, see 474 U.S. at 295, 106 S. Ct. at 640-41,
and two justices concurred in the result to make clear that they
did not join the expansion of Doyle to cover both silence and
requests for counsel, see 474 U.S. at 296, 106 S. Ct. at 641
(Rehnquist, J., joined by Burger, C.J., concurring); see also
Lindgren v. Lane, 925 F.2d 198, 202 (7th Cir. 1991) (evaluating
separately the defendant's post-arrest silence and request for
counsel).
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that the exercise will not be used against him. 31 Va. App. at
603, 525 S.E.2d at 53 (quoting Greenfield, 474 U.S. at 295, 106
S. Ct. at 640). In Pulley, we
conclude[d] that [the] defendant's right to
due process was not compromised by
Investigator Thompson's mere mention [on the
witness stand] that [the] defendant had once
invoked his right to counsel. The
gratuitous comment was not responsive to the
question posed to Thompson by the
prosecution, and [the] defendant's prompt
mistrial motion avoided any inquiry into the
subject. [The] [d]efendant, thereafter,
opted to forego an instruction that the jury
ignore the remark, and the prosecutor made
no related argument to the jury or otherwise
exploit[ed] the issue. Thus, the words,
though improperly spoken by the witness,
were not "used" against [the] defendant in
any respect . . . . Moreover, the trial
court promptly acted to scrupulously
safeguard [the] defendant's due process
rights. Under such circumstances, the trial
court correctly found no Doyle violation.
Id. at 605, 525 S.E.2d at 54.
In appellant's case, like in Pulley, the witness' mention
of appellant's request for counsel was not used against him in
any way. Further, the trial court immediately instructed the
jury to disregard the "statement [appellant made] to Detective
Robinson about a lawyer." See Greer, 483 U.S. at 759, 764, 107
S. Ct. at 3106, 3108. Under these circumstances, appellant's
constitutional rights were not violated.
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For these reasons, we hold the trial court's refusal to
grant appellant's mistrial motion was not erroneous, and we
affirm appellant's convictions.
Affirmed.
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