PRESENT: All the Justices
DERRICK GANSON MAXWELL, S/K/A
DERICK GANSON MAXWELL
OPINION BY
v. Record No. 130810 JUSTICE LEROY F. MILLETTE, JR.
FEBRUARY 27, 2014
COMMONWEALTH OF VIRGINIA
VINCENT A. ROWE
v. Record No. 130881
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
We consider these two appeals together because they present
two different applications of the provision in Code § 8.01-
384(A) that addresses the absence of a contemporaneous objection
when there is no opportunity to make a timely objection.
In each case, we consider whether the Court of Appeals
erred in holding that Rule 5A:18 barred consideration of issues
on appeal when the litigant had failed to make a
contemporaneous objection in the circuit court.
I. Background
A. Maxwell
Derick Ganson Maxwell was indicted for unlawful wounding in
violation of Code § 18.2-51. On September 26, 2011, Maxwell was
tried by jury for the offense in the Circuit Court of Frederick
County. Immediately after the jury left the courtroom to begin
deliberations, Maxwell's counsel requested to be excused to go
to her office because she had not "had the opportunity to eat
anything." Maxwell's counsel indicated that the courtroom was
within ten minutes from her office, and that "[t]hey know my
phone number."
The circuit court recessed while the jury deliberated, and
Maxwell's counsel, Maxwell, and the Assistant Commonwealth's
Attorney left the courtroom to await the return of the jury's
verdict. Upon its return, the jury found Maxwell guilty of
unlawful wounding. After brief testimony, closing arguments,
and deliberations on sentencing, the jury recommended a sentence
of five years' imprisonment.
After the circuit court dismissed the jury, Maxwell's
counsel indicated that "[i]t has been brought to my attention
that there may have been a jury question. I am not quite sure
what that is." The circuit court confirmed that the jury had
submitted questions during deliberations but was unable to find
the questions at that time. The circuit court went on to
explain the questions and answers, and to indicate that there
was no reason for Maxwell or his counsel to be present:
The Court: Counsel, I will be happy to
address [the jury questions and answers] at
sentencing, but I can tell you what it was.
I told them to re-read the instructions.
They asked a question and I told them the
answer was in the instructions. To re-read
the instructions was the answer to one of
2
the particular questions. And the other
question was . . . it was one again where it
was in the instructions and I just told them
to read the instructions that they already
received. They were not given any new
instructions whatsoever or were not given
any new directions. It was just simply to
read the instructions.
Ms. Hackett: Okay. And I would just
inquire because I was not present in court.
The Court: No one was present because the
nature of the question only called for them
to read the instructions. There was no
reason to bring the Defendant back or
Counsel back. You were in your office. I
think [you] had gone for lunch.
On October 31, 2011, Maxwell filed a motion to set aside
the unlawful wounding conviction. Maxwell argued, in part, that
the court's ex parte communications with the jury violated his
Sixth Amendment rights and his right under Code § 19.2-259 to be
"personally present during the trial." Maxwell also alleged
that the court's communications with the jury violated Code
§ 19.2-263.1, which prohibits judges from "communicat[ing] in
any way with a juror in a criminal proceeding concerning . . .
any aspect of the case during the course of the trial outside
the presence of the parties or their counsel." The circuit
court denied Maxwell's motion.
Maxwell filed an appeal with the Court of Appeals and
assigned error to the circuit court's ex parte communications
with the jury. The Court of Appeals, in an unpublished
3
decision, held that Rule 5A:18 prohibited consideration of the
merits of Maxwell's assignment of error because Maxwell did not
make a contemporaneous objection to the circuit court's
allegedly improper communications with the jury. We awarded
Maxwell this appeal.
B. Rowe
Vincent A. Rowe was tried by jury in the Circuit Court for
the City of Portsmouth and found guilty of grand larceny in
violation of Code § 18.2-95 and grand larceny with intent to
sell in violation of Code § 18.2-108.01. During closing
argument, the attorney for the Commonwealth indicated that
inferences could support a finding of guilt:
That's why they're part of this case, that's
why they're referred to as circumstantial
evidence, and that possession – in order to
eliminate this inference, if you feel it's
justified in th[is] case, what has to happen
is some evidence has to be brought forth by
the defense to eliminate it. And as you
know at this point, the defense has offered
no evidence.
After just two additional sentences, the Commonwealth concluded
its closing argument. Rowe's counsel stated, "Actually, before
I make my argument, there is a motion I would like to make
outside the presence of the jury." The circuit court responded,
"We'll deal with it when the jury goes out to retire," and Rowe
replied, "Very well."
4
After the jury left to begin deliberations, Rowe made a
motion for mistrial. Rowe argued that the Commonwealth's
statements that "the defendant didn't testify or the defendant
did not present any evidence" were unduly prejudicial and
warranted a mistrial. The circuit court denied Rowe's motion.
Rowe filed an appeal with the Court of Appeals, alleging in
part that the circuit court erred by denying his motion for a
mistrial because the Commonwealth's comments during closing
argument prejudiced Rowe by shifting the burden to the defense
to produce evidence. The Court of Appeals, by order, refused to
reach the merits of this assignment of error, holding that
Rowe's objection to the Commonwealth's closing statement was not
timely made and, as a result, the Court of Appeals could not
reach the alleged error under Rule 5A:18. We awarded Rowe this
appeal.
II. Discussion
A. Rule 5A:18
The Court of Appeals' "interpretation of the Rules of this
Court, like its interpretation of a statute, presents a question
of law that we review de novo." LaCava v. Commonwealth, 283 Va.
465, 469-70, 722 S.E.2d 838, 840 (2012). Rule 5A:18 contains
the contemporaneous objection rule applicable to the Court of
Appeals and parallels the requirements of the contemporaneous
5
objection rule applicable to this Court as provided in Rule
5:25. See, e.g., Brown v. Commonwealth, 279 Va. 210, 217, 688
S.E.2d 185, 189 (2010) (observing that Rule 5:25 is the
"counterpart" to Rule 5A:18). Rule 5A:18 provides, in relevant
part:
No ruling of the trial court . . . will be
considered as a basis for reversal unless
an objection was stated with reasonable
certainty at the time of the ruling, except
for good cause shown or to enable the Court
of Appeals to attain the ends of justice.
See also Rule 5:25. The purpose of the contemporaneous
objection rule "is to avoid unnecessary appeals by affording the
trial judge an opportunity to rule intelligently on objections."
State Highway Comm'r v. Easley, 215 Va. 197, 201, 207 S.E.2d
870, 873 (1974). For the circuit court to rule intelligently,
the parties must inform the circuit court "of the precise points
of objection in the minds of counsel." Gooch v. City of
Lynchburg, 201 Va. 172, 177, 110 S.E.2d 236, 239-40 (1959).
For an objection to meet the requirements of Rule 5A:18, it
must also "be made . . . at a point in the proceeding when the
trial court is in a position, not only to consider the asserted
error, but also to rectify the effect of the asserted error."
Scialdone v. Commonwealth, 279 Va. 422, 437, 689 S.E.2d 716, 724
(2010). This requirement allows the circuit court to remedy the
6
error while also giving "the opposing party the opportunity to
meet the objection at that stage of the proceeding." Id.
B. Code § 8.01-384(A)
Under Code § 8.01-384(A), "[f]ormal exceptions to rulings
or orders of the court" are not required. Rather, in order to
preserve an issue for appeal a party must, "at the time the
ruling or order of the court is made or sought, make[] 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."
However, Code § 8.01-384(A) continues, "if a party has no
opportunity to object to a ruling or order at the time it is
made, the absence of an objection shall not thereafter prejudice
him on motion for a new trial or on appeal." (Emphasis added.)
Thus, this provision of Code § 8.01-384(A) requires appellate
courts to consider issues on appeal that do not satisfy the
contemporaneous objection requirement when the litigant had no
opportunity to make the requisite timely objection.
Both Maxwell and Rowe contend that Code § 8.01-384(A)
applies to preserve their respective assignments of error for
appellate review. However, the statute that they base their
arguments on is where their similarities end, as the factual
differences between the two cases dictate disparate
dispositions.
C. Maxwell
7
Maxwell argues that the Court of Appeals erred in applying
the contemporaneous objection requirement of Rule 5A:18 to
refuse to reach his challenge to the circuit court's sua sponte
response to jury questions in his absence. Maxwell contends
that he had no opportunity to make a contemporaneous objection
to the circuit court's consideration of the jury questions
because Maxwell and his counsel were absent from the courtroom,
and the circuit court did not inform them that the jury
submitted questions to the court or that the court was going to
provide an answer. Maxwell maintains that he made an objection
when he became aware of the alleged error. Furthermore, he
contends that because he had no opportunity to object
contemporaneously when the court considered the jury's questions
in his absence, any delay in subsequently making his objection
cannot prejudice his right to appeal pursuant to Code § 8.01-
384(A).
The Commonwealth argues that Rule 5A:18 bars Maxwell's
appeal because Maxwell had the opportunity to bring the matter
to the circuit court's attention when the court was still in a
position to take corrective action. The Commonwealth contends
that because the record supports a finding that the parties
learned of the ex parte communications while the jury was still
deliberating, albeit after the question was considered and
answered by the circuit court in the parties' absence, Maxwell
8
did have an opportunity to object in a timely manner and failed
to do so, and the Court of Appeals did not err by applying Rule
5A:18 to bar consideration of the merits of the issue on appeal.
Rule 5A:18 requires the appellant to make an objection to
the court's ruling "with reasonable certainty at the time of the
ruling" in order to preserve the issue for appeal. The record
is clear that neither Maxwell nor his attorney were present when
the court considered and responded to the jury's questions, and
that Maxwell and his attorney had no opportunity to object to
the court's act of responding to the jury's questions in their
absence.
Code § 8.01-384(A) requires consideration of Maxwell's
argument on appeal. Maxwell’s argument in the Court of Appeals
was not to the content of the circuit court's answers to the
jury's questions, but to the circuit court's act of entertaining
and answering the jury's questions when neither he nor his
counsel were present. The record, specifically the portion of
the transcript in which the court discusses their absence,
reflects that Maxwell and his attorney, through no fault of
their own, were not present in the courtroom when the judge
received and answered the jury's questions. Thus, by their
absence, Maxwell and his counsel did not have the opportunity to
be present and challenge the court's decision to address
questions from the jury in their absence. By its plain
9
language, Code § 8.01-384(A) prevents Maxwell from being
prejudiced on appeal due to his lack of opportunity to make an
objection contemporaneously with the court’s act of proceeding
in his absence. See Commonwealth v. Amos, 287 Va. , ,
S.E.2d , (2014)(this day decided).
D. Rowe
Rowe contends that he did make a contemporaneous objection,
but that he had no opportunity to articulate the reasons for his
objection in compliance with the requirement of Code § 8.01-
384(A) because the circuit court denied his request to make a
motion outside the presence of the jury. Rowe contends that his
failure to make a sufficient contemporaneous objection is
excused by the provision of Code § 8.01-384(A) that prohibits
prejudice to his appeal.
The Commonwealth contends that Rule 5A:18 bars review of
Rowe's objection because Rowe did not make a contemporaneous
objection to the prosecutor's closing argument. The
Commonwealth argues that Rowe failed to alert the circuit court
of the nature of his objection before the jury retired and,
consequently, Rule 5A:18 applies to bar consideration of the
objection on appeal.
We agree with the Commonwealth that Rowe failed to make an
objection with the requisite specificity to satisfy Rule 5A:18.
Assuming without deciding that Rowe's delayed objection, made
10
after the conclusion of the Commonwealth's argument and only two
sentences after the allegedly improper comment, would have been
timely if its content had been sufficient, we hold that Rowe
failed to articulate a cognizable objection at a time when the
court could take appropriate action.
As we have previously addressed, the purpose of the
requirement that a litigant make a contemporaneous objection is
that the objection be made at a time when the circuit court, in
considering the objection, can take appropriate action to
correct the error. Scialdone, 279 Va. at 437, 689 S.E.2d at
724. Further, it is well-established that the Court will not
consider a defendant's "assignments of error alleging that
improper remarks were made by the prosecutor" unless he "has
made a timely motion for a cautionary instruction or for a
mistrial." Schmitt v. Commonwealth, 262 Va. 127, 148, 547
S.E.2d 186, 200 (2001); see also Blount v. Commonwealth, 213 Va.
807, 811, 195 S.E.2d 693, 696 (1973)(refusing to reach the
assigned error because the defendant "did not ask that a
cautionary admonition be given directing the jury to disregard
[an] allegedly improper [remark in closing] argument, nor did he
make a motion for a mistrial"). The defendant must make the
motion for mistrial before the jury retires or it "is untimely
and properly refused." Cheng v. Commonwealth, 240 Va. 26, 39,
393 S.E.2d 599, 606 (1990).
11
We have also specifically required an appellant who objects
to an allegedly improper statement to do more than merely state
his objection. See Yeatts v. Commonwealth, 242 Va. 121, 410
S.E.2d 254 (1991). In Yeatts, defense counsel noted his
objection to a statement by the Commonwealth's witness that "Mr.
Yeatts spoke of his prior convictions and his drug abuse." 242
Va. at 136, 410 S.E.2d at 263. The circuit court sustained the
objection. Id., 410 S.E.2d at 264. Later, after the prosecutor
proceeded with his direct examination of the witness, defense
counsel made a motion for mistrial based on the aforementioned
statement. Id. at 136-37, 410 S.E.2d at 264. We held that the
circuit court did not err in denying Yeatts' motion for mistrial
because the second objection, made with reasonable certainty and
specifically requesting a mistrial, was not timely made. Id. at
137, 410 S.E.2d at 264.
Therefore, Yeatts' initial and timely objection, which was
limited to "[y]our Honor, I object," was not sufficient to
preserve for appeal Yeatts' argument concerning his motion for
mistrial. Id. at 136, 410 S.E.2d at 264; see also Hargrow v.
Watson, 200 Va. 30, 35, 104 S.E.2d 37, 40 (1958) ("[Plaintiff's]
counsel . . . simply stated to the court, 'I object to [defense
counsel's] statement that the defendant . . . made a fraudulent
statement as to his marriage.' No request to declare a mistrial
was included in the objection, and no request was made that the
12
court instruct the jury to disregard the remark. If such remark
was improper, which we do not here decide, the error was
waived.").
Before the jury retired, Rowe's counsel stated only,
"Actually, before I make my argument, there is a motion I would
like to make outside the presence of the jury." Rowe's "motion"
was not an "objection . . . stated with reasonable certainty at
the time of the ruling" as required by Rule 5A:18 because it
failed to state for the court the details of his objection or
the time-sensitive nature of his motion. Further, Rowe’s
counsel did not move for a mistrial at a time when the circuit
court could have taken action to correct the asserted error.
Rowe's counsel did not lack the opportunity to make his
objection to the allegedly improper comments to the court.
After the court indicated its intent to "deal with it when the
jury goes out to retire," Rowe chose to respond, "[v]ery well,"
rather than express his need to contemporaneously preserve his
objection. Rowe's counsel's colloquy with the court makes it
clear that he had the opportunity to make his objection known to
the court and articulate more clearly the action he desired the
court to take and that the action needed to be taken before the
jury retired.
Nothing in the record supports a finding that Rowe had no
opportunity to make a contemporaneous objection to the
13
Commonwealth's argument at a time and in a manner that would
make it clear to the court the relief that Rowe sought. When
Rowe did subsequently make his objection sufficiently clear to
the court, pursuant to our case law, it was too late for the
court to take the corrective action sought. The Court of
Appeals did not err in refusing to consider Rowe's challenge to
the allegedly improper statements made by the Commonwealth
during closing argument.
III. Conclusion
For the reasons stated, we will reverse the Court of
Appeals' judgment in Maxwell and remand the case to the Court of
Appeals to consider the assignment of error that it erred in
determining was defaulted. We will affirm the Court of Appeals'
judgment in Rowe.
Record No. 130810 – Reversed and remanded.
Record No. 130881 - Affirmed.
JUSTICE LEMONS, with whom JUSTICE MIMS joins, dissenting -
Record No. 130881.
When considering questions of preservation and Code § 8.01-
384(A), there has to be a recognition of real world trial
practice. All the participants, including the judge, are imbued
with a certain amount of understanding regarding what goes on in
trial. In this case, at the end of the Commonwealth's closing
14
argument, the Commonwealth's Attorney made the following
comment, "[a]nd as you know at this point, the defense has
offered no evidence." The Commonwealth's Attorney then
concluded his argument.
Within a reasonable amount of time thereafter, defense
counsel stated, "Actually, before I make my argument, there is a
motion I would like to make outside the presence of the jury."
Everyone acquainted with trial practice would know what this
motion was – a motion for a mistrial based upon the
Commonwealth's Attorney's reference to the defendant's failure
to present evidence. Defense counsel's request could have
included a lesser remedy than a mistrial, such as a jury
instruction to disregard the comment. Regardless, this
statement by defense counsel, taken in context, made "known to
the court the action which he desire[d] the court to take."
Code § 8.01-384(A). Thereafter, the trial judge responded,
"[w]e'll deal with it when the jury goes out to retire." The
trial judge directed the attorney to postpone addressing the
question until a later time.
Presumably, this case does not represent the first time the
trial judge has seen this scenario: the prosecutor makes remarks
to the jury that may be construed as a comment upon the
defendant’s constitutional right not to testify, and defense
counsel responds with a request to make a motion outside the
15
presence of the jury. It is objectively unreasonable to
conclude that the trial judge did not know the basis for defense
counsel’s request; it was readily apparent under these
circumstances. See, e.g., Beck v. Commonwealth, 253 Va. 373,
386, 484 S.E.2d 898, 906 (1997)(relying on "training and
experience" of trial judges regarding evidence issues and
presuming the trial judge considers only that evidence which is
permissible); Smith v. Commonwealth, 280 Va. 178, 184, 694
S.E.2d 578, 581 (2010)(relying on "training, experience and
judicial discipline" of trial judges as a basis to conclude that
a judge "separate[s], during the mental process of adjudication,
the admissible from the inadmissible, even though he has heard
both"). In my judgment, defense counsel’s request of the judge
was therefore sufficient to preserve the matter for appellate
review.
It is important to remember that this was a criminal trial
before a jury, and the jury was about to retire to decide the
fate of the defendant. Defense counsel had to decide whether to
argue with the judge in front of the jury and demand that his
motion be heard before the jury retired, or to abide by the
trial court's ruling. By arguing with the judge immediately
before the jury was to retire, defense counsel risked
prejudicing the jury against him, and by extension, his client.
By acknowledging the trial court's authority to hear the motion
16
at a later time, counsel should not have to risk waiving his
client's fundamental right to an appeal. Civility and decorum
on the part of defense counsel should not be equated to a waiver
of the defendant's fundamental right to appeal. See Ashley
Flynn, Procedural Default: A De Facto Exception to Civility, 12
Cap. Def. J. 289, 297-303 & n.63 (2000).
In this case, defense counsel made known to the trial court
the action he wanted the court to take when he informed the
court that he wished to make a motion immediately after the
Commonwealth concluded its closing argument which included
commentary on the defendant’s lack of evidence and failure to
testify. To the extent any ambiguity remained regarding exactly
what type of motion he wished to make, defense counsel did not
have a reasonable opportunity to provide a more detailed
objection at that time, in light of the trial court's direction
that defense counsel's motion would be dealt with at a later
time. Any failure to raise a more specific objection was a
result of the trial court's actions, and Rowe should not be
prejudiced on appeal as a result of the trial court's action.
Therefore, the preservation exception of Code § 8.01-384(A)
should apply, and Rowe's appeal should be considered on the
merits. Accordingly, I dissent from the majority's decision to
affirm the holding of the Court of Appeals.
17
JUSTICE McCLANAHAN, dissenting - Record No. 130810.
I disagree with the majority's interpretation and
application of Code § 8.01-384(A), and would affirm the judgment
of the Court of Appeals. The majority begins by incorrectly
framing the issue on appeal. This leads to its flawed
conclusion that the Court of Appeals erred in holding that
Maxwell failed to timely raise his objection to the circuit
court's challenged communication with the jury.
I.
According to the majority, "Maxwell's argument in the Court
of Appeals was not to the content of the circuit court's answers
to the jury's questions, but to the circuit court's act of
entertaining and answering the jury's questions when neither he
nor his counsel were present." (Emphasis in original.) The
majority thus determines that no objection could have been made
that would have remedied the circuit court's purported
constitutional error in answering the jury's questions without
Maxwell and his attorney present. This is merely recognition of
the obvious - that nothing could have been done after the fact
to effect their presence at the time the circuit court answered
the jury's questions. Under this limited view of the appeal,
the content of the circuit court's answers to the jury's
questions would be irrelevant. Moreover, there would be no
reason to remand this case to the Court of Appeals, as the
18
majority does, because there would be no basis for a harmless
error analysis absent consideration of the substance of the
circuit court's answers. In sum, the fact that the ex parte
communication occurred is all that matters. This, however, is a
misconception of the relevant considerations presented in
Maxwell's appeal to the Court of Appeals.
A circuit court's act of communicating ex parte with a jury
is inextricably intertwined with the content of that
communication in the context of a party's constitutional
challenge to that communication, as presented here. Indeed, as
Maxwell has contended from the time he filed his Petition for
Appeal with the Court of Appeals, "the jury questions posed go
to the heart of the issues in the pending case," to which he was
purportedly given "no opportunity to have his counsel argue
appropriate responses." "The jury questions and the responses
given by the trial judge in [his] absence," Maxwell asserted,
"may have had a significant impact on the outcome of [his] trial
in this case." (Id. at 23)
Thus, the content of the circuit court's ex parte
communication with the jury is the overriding substantive
consideration in Maxwell's constitutional challenge to that
communication. Indeed, highlighting the fact that the actual
content of a circuit court's challenged ex parte communication
with a jury obviously matters, Maxwell himself acknowledged in
19
his opening brief to the Court of Appeals that there would be no
basis for such challenge if, for example, the communication
"raised by the jury regard[ed] comfort and convenience." That
is because the determining legal factor is whether or not the
communication was prejudicial, triggering a harmless error
analysis. See Angel v. Commmonwealth, 281 Va. 248, 264, 704
S.E.2d 386, 396 (2011) ("[E]rrors, arising from the denial of a
constitutional right[,] are subject to a harmless error
analysis.") (citing Lilly v. Commonwealth, 258 Va. 548, 551, 523
S.E.2d 208, 209 (1999)). As Maxwell also acknowledged, for the
Court of Appeals to determine whether the circuit court's ex
parte communication with the jury "should give rise to a
reversal of [his] conviction, [the Court of Appeals] must first
determine whether that error was harmless." See Clay v.
Commonwealth, 262 Va. 253, 259, 546 S.E. 2d 728, 731 (2001)
(cases cited by Maxwell, addressing harmless constitutional
error); Corado v. Commonwealth, 47 Va. App. 315, 323, 623 S.E.2d
452, 456 (2005) (same).
II.
Accordingly, the dispositive procedural issue in Maxwell's
appeal is whether he preserved the right to assert that he was
prejudiced by the content of the circuit court's ex parte
communication with the jury, i.e., an argument that the
communication was not harmless error. We must therefore decide
20
whether Maxwell was required, after the fact, to raise an
objection with the circuit court concerning the challenged
communication in light of the preservation provisions in Code §
8.01-384(A).
Under the express terms of Code § 8.01-384(A), a party,
like Maxwell, will not be "prejudice[d]" by his failure to make
a contemporaneous objection if he has no opportunity to do so.
Nevertheless, if that party later has an opportunity to make his
objection in time for the circuit court to correct the purported
error, but fails to object, it is that failure which causes him
"prejudice" on appeal, i.e., default, not the absence of a
contemporaneous objection. Id. And, manifestly, the statute
makes no provision to the contrary.
This Court has long recognized that the purpose of the
contemporaneous objection rule, presently contained in Rules
5:25 and 5A:18, is not "'to obstruct petitioners in their
efforts to secure writs of error, or appeals.'" Scialdone v.
Commonwealth, 279 Va. 422, 437, 689 S.E.2d 716, 724 (2010)
(quoting Kercher v. Richmond, Fredericksburg & Potomac R.R. Co.,
150 Va. 108, 115, 142 S.E. 393, 395 (1928)). Rather, its
paramount purpose is "'to protect the trial court from appeals
based upon undisclosed grounds, to prevent the setting of traps
on appeal, to enable the trial judge to rule intelligently, and
to avoid unnecessary reversals and mistrials.'" Brandon v. Cox,
21
284 Va. 251, 255, 736 S.E.2d 695, 696 (2012) (quoting Reid v.
Boyle, 259 Va. 356, 372, 527 S.E.2d 137, 146 (2000)); see also
Fisher v. Commonwealth, 236 Va. 403, 414, 374 S.E.2d 46, 52
(1988); Harlow v. Commonwealth, 195 Va. 269, 273, 77 S.E.2d 851,
854 (1953). In effecting this policy, we have held that a party
satisfies Rules 5:25 and 5A:18 if he makes an objection "'at a
point in the proceeding when the trial court is in a position,
not only to consider the asserted error, but also to rectify the
effect of the asserted error.'" Scialdone, 279 Va. at 437, 689
S.E.2d at 724 (quoting Johnson v. Raviotta, 264 Va. 27, 33, 563
S.E.2d 727, 731 (2002)). Thus, our analysis of whether these
rules have been satisfied "has consistently focused on whether
the trial court had the opportunity to rule intelligently on the
issue" raised on appeal. Id.
Pursuant to these principles, Maxwell was required to
object to the trial court's ex parte communication with the jury
to the extent there was an opportunity for him to do so in time
for the trial court to give purportedly "'rectify[ing]'"
instructions to the jury. Id. Maxwell was presented with such
an opportunity but did not pursue it. While the jury was still
deliberating its verdict, Maxwell learned of the trial court's
subject communication with the jury but did not bring the
22
asserted error to the trial court's attention at that time. 1 It
was only after the jury was discharged upon finding Maxwell
guilty of unlawful wounding that he raised with the trial court
the issue of its communication with the jury. As the Court of
Appeals noted, "'[a] party litigant should not await the return
of the verdict and have a chance of securing a favorable one,
and then, if unfavorable, make a motion for a new trial.'" 2
Maxwell v. Commonwealth, 2013 Va. App. LEXIS 120, at *9 (Va. Ct.
App. Apr. 16, 2013) (unpublished) (quoting Crockett v.
Commonwealth, 187 Va. 687, 707, 47 S.E.2d 377, 386-87 (1948)).
For these reasons, I would hold that Maxwell failed to
preserve for appeal a challenge to the trial court's
communication with the jury, and affirm the decision of the
Court of Appeals. I therefore dissent.
1
This fact was established through the prosecutor's
unchallenged, unilateral avowal at oral argument on Maxwell's
motion to set aside the verdict. (App. 431) See Whitaker v.
Commonwealth, 217 Va. 966, 969, 234 S.E.2d 79, 81 (1977) ("[A]
unilateral avowal of counsel, if unchallenged . . . constitutes
a proper proffer.").
2
It is here worth noting that during oral argument,
Maxwell's counsel could not provide a cogent explanation as to
why the circuit court's answers to the jury's questions were
wrong and what the circuit court should have said differently.
23
JUSTICE POWELL, concurring - Record No. 130810.
I disagree with the majority’s implicit holding that every
ex parte communication between a circuit court judge and a
deliberating jury automatically excuses a party’s subsequent
failure to object to that communication. Rather, in my opinion,
the determinative fact is whether the party had a reasonable
opportunity to object to the trial court’s ex parte
communication “at a point in the proceeding when the trial court
is in a position, not only to consider the asserted error, but
also to rectify the effect of the asserted error.” Johnson v.
Raviotta, 264 Va. 27, 33, 563 S.E.2d 727, 731 (2002).
Here, it is highly unlikely that either Maxwell or his
attorney became aware of the ex parte communication, much less
had the opportunity to object, at a point when the circuit court
could address any error that may have resulted from the ex parte
communication. The record demonstrates that the jury only
deliberated for one hour and thirty-six minutes, and during that
time, Maxwell’s attorney had left the courthouse with the
circuit court’s express permission. On these facts alone, I
agree with the majority’s decision to reverse and remand.