COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Malveaux and Senior Judge Annunziata
Argued at Alexandria, Virginia
UNPUBLISHED
GERALD FRANKLIN DODSON
MEMORANDUM OPINION BY
v. Record No. 0396-17-4 JUDGE WILLIAM G. PETTY
JULY 10, 2018
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PAGE COUNTY
Clark A. Ritchie, Judge
Peter K. McDermott, II, Senior Assistant Public Defender, for
appellant.
Liam A. Curry, Assistant Attorney General (Mark Herring, Attorney
General, on brief), for appellee.
Gerald Franklin Dodson was found guilty by a jury of one count of felony eluding the
police, in violation of Code § 46.2-817, and one count of unlawfully driving a motor vehicle
while being under the influence of alcohol, in violation of Code § 18.2-266. On appeal, Dodson
argues that “[t]he trial court committed reversible error by failing to properly instruct the jury
regarding [his] right to not testify at his preliminary hearing.” For the reason stated below, we
affirm.
BACKGROUND
Because the parties are fully conversant with the record in this case and this
memorandum opinion carries no precedential value, we recite only those facts and incidents of
the proceedings as are necessary to the parties’ understanding of the disposition of this appeal.
“On appeal, we review the evidence in the light most favorable to the Commonwealth, granting
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
to it all reasonable inferences fairly deducible therefrom.” Wells v. Commonwealth, 65
Va. App. 722, 725, 781 S.E.2d 362, 364 (2016) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)).
Investigator Craig Long, of the Page County Sheriff’s Office, was driving one evening
when Dodson drove his truck close to the rear of Investigator Long’s car and then slowed down,
returning to a safe distance behind him. Soon after, Dodson passed Investigator Long at an
estimated speed of seventy miles per hour. The speed limit in that area was forty-five miles per
hour. Investigator Long accelerated to catch up with Dodson and turned on his blue lights and
siren. After a high speed chase, Dodson’s truck ended up in a field, stuck in the mud.
Investigator Long immediately approached the truck and found Dodson sitting in the driver’s
seat. Investigator Long removed Dodson from the truck, handcuffed him, and placed him in his
patrol car. At trial, Investigator Long identified Dodson as being the driver of the truck. Soon
after, Virginia State Trooper Brandon Tester arrived on scene to investigate. Trooper Tester
testified that Dodson stated repeatedly that he was not the driver of the vehicle.
Dodson was charged with felony eluding a law enforcement officer, in violation of Code
§ 46.2-817, and driving a motor vehicle while intoxicated, in violation of Code § 18.2-266. The
case was certified to the circuit court following a preliminary hearing, at which the defendant did
not testify. The case proceeded to a jury trial, where Dodson testified that someone else,
“Kenny” (also known as “Pudge”), was actually the driver of the truck. On cross-examination,
the following exchange occurred:
Prosecutor: Mr. Dodson, um, I apologize, this is the first time
you’ve ever told this story, is that correct? You’ve told this to any
of the officers?
Dodson: I told them I wasn’t driving from time one (1).
Prosecutor: This part about this guy named is Puggs or Pudge?
What’s (sic) was his name again?
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Dodson: Pudge.
Prosecutor: Pudge.
Dodson: Kenny was his first name. I don’t know his last name.
Prosecutor: His name is Kenny and you had called him Pudge. Is
that correct?
Dodson: Right.
Prosecutor: And this is the first time we’ve ever heard about it.
You didn’t testify in the lower Court about it or anything of that
nature, is that correct?
Dodson: Well, no . . . .
Prosecutor: Just answer my question, did you or did you not
testify about him in the lower Court?
Dodson: Excuse me, repeat the question.
Prosecutor: Did you or did you not testify in lower Court about
an individual named Kenny who was called Pudge that was driving
the car.
Dodson: No, they never put me on the stand in lower Court.
Dodson’s counsel did not object to this line of questioning. When the parties and the court were
discussing jury instructions, Dodson’s defense counsel requested that the court give Instruction
10 regarding the defendant’s right not to testify. Defense counsel stated, “I asked that that be
included because [the prosecutor] made a point during questioning about questioning
Mr. Dodson about testimony at preliminary hearing. He doesn’t have a duty to testify at
preliminary hearing.” The prosecutor made no objection to the wording of the instruction, and
the Court agreed to include it.1 In defense counsel’s closing argument, he stated
Now, [the prosecutor] at one point made a point about my client
didn’t testify at the preliminary hearing. There’s another
instruction that tells you, defendants are not required to testify and
1
Instruction 10 read, “The Defendant, Gerald Dodson does not have to testify, and
exercise of that right cannot be considered by you.”
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you cannot consider the fact they did not testify at some point as
evidence against them. Whether that’s here at trial today or that
was back in the preliminary hearing.
In his rebuttal argument, the prosecutor stated,
What you have here is a situation where Mr. Dodson’s story
doesn’t make any sense. It’s impossible. And Mr. Dodson doesn’t
have to testify, that’s correct. But there’s no Kenny at the first
hearing, there’s no Kenny before that. This the first time I’ve ever
heard of this Kenny person.
Defense made no objection to the prosecutor’s statements. The jury subsequently found the
defendant guilty on both charges. Dodson’s trial counsel was later withdrawn, and new counsel
filed a motion to set aside the verdict and sentence for a new trial on the basis of the comments
the prosecutor made about Dodson testifying at the preliminary hearing. The motion was denied,
and this appeal followed.
ANALYSIS
Dodson argues the trial court erred in failing to properly instruct the jury regarding
Dodson’s right to not testify at his preliminary hearing. According to Dodson, the
Commonwealth improperly commented, both in cross-examination and in rebuttal closing
argument, about Dodson not testifying. Specifically, “when the Commonwealth continued to
raise the issue after the jury had been instructed not to consider it, the trial court should have
further instructed the jury to disregard the Commonwealth’s improper argument.” Dodson
argues that “the instructions were insufficient to address the improper questioning and argument
regarding [Dodson’s] refusal to testify at his preliminary hearing.” Because this issue was not
properly preserved, we are procedurally barred by Rule 5A:18 from considering it.
Rule 5A:18 provides that “[n]o 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.”
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“The purpose of the contemporaneous objection rule embodied in Rule 5A:18 is to inform the
trial judge of the action complained of in order to give the judge the opportunity to consider the
issue and to take timely corrective action, if warranted, in order to avoid unnecessary appeals,
reversals and mistrials.” Robinson v. Commonwealth, 13 Va. App. 574, 576, 413 S.E.2d 885,
886 (1992).
Here, Dodson requested Instruction 10 and made no objection when it was subsequently
given. Furthermore, Dodson made no objection either during cross-examination or during
closing arguments when the prosecutor made reference to Dodson’s not testifying at the
preliminary hearing. All the more, Dodson never requested that the court “further instruct[] the
jury to disregard the Commonwealth’s improper argument.” The record is clear that the jury was
instructed, counsel gave their closing arguments, and Dodson never put any further jury
instruction issue before the court. Therefore, the trial court was not given the opportunity to
consider the issue. See id. Accordingly, the issue was not preserved.
Nevertheless, Dodson argues that the issue was raised at the earliest possible time and
while the court had an opportunity to act to correct the error. Dodson argues that he “was unable
to object with more specificity because the actions and omissions of the trial court and the
Commonwealth made it impossible to meaningfully object at the time of the Commonwealth’s
improper act, which triggers the legislative safeguards set forth in Va. Code § 8.01-384.”
Code § 8.01-384(A) provides, in pertinent part,
Formal exceptions to rulings or orders of the court shall be
unnecessary; but for all purposes for which an exception has
heretofore been necessary, it shall be sufficient that a party, at the
time the ruling or order of the court is made or sought, makes
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;
and, 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.
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As the Supreme Court held in Maxwell v. Commonwealth, 287 Va. 258, 265, 754 S.E.2d 516,
519 (2014), however, it must be clear that the appellant had no opportunity to object. In
Maxwell, the court ruled outside the presence of the appellant, so he had no opportunity to state
his objection. Id. at 262-63, 754 S.E.2d at 517-18. On the contrary, in this case, Dodson and his
counsel were present for the entirety of the prosecutor’s inappropriate statements, but failed to
state any objection.
Furthermore, although Dodson presented the trial court with the argument he raises on
appeal in his motion to set aside the verdict, this came too late to preserve the contention for
appeal. As our Supreme Court has held: “No objection was made . . . until argument by
[defense] counsel on the motion to set aside the verdict. Thus, the objection came too late for
any error to be corrected by the trial court, and for the error, if any, to constitute reversible
error.” Ryan v. Commonwealth, 219 Va. 439, 447, 247 S.E.2d 698, 704 (1978); see also Boblett
v. Commonwealth, 10 Va. App. 640, 651, 396 S.E.2d 131, 137 (1990) (holding that an issue was
waived because a contemporaneous objection was not raised at trial); Carter v. Nelms, 204 Va.
338, 343, 131 S.E.2d 401, 404 (1963) (holding that an issue was raised too late when it was first
objected to in a motion to set aside the verdict).
The statements of the prosecutor concerning Dodson’s decision not to testify at the
preliminary hearing were clearly prohibited.2 Nevertheless, Rule 5A:18 prevents us from
addressing that issue because it was not properly preserved.
2
At oral argument, the Attorney General conceded that the prosecutor’s comments were
objectionable. We agree.
As a general rule, any comment that the Commonwealth’s
Attorney made referring to the defendant’s election not to testify is
a violation of his right against self-incrimination as guaranteed by
the Fifth Amendment of the United States Constitution, Griffin v.
California, 380 U.S. 609, 615 (1965), and Article I, Section 8 of
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ENDS OF JUSTICE EXCEPTION DOES NOT APPLY
In the alternative, Dodson argues that even if the Court finds that the issue was not
properly preserved, we should consider it because the “good cause” and “ends of justice”
exceptions to Rule 5A:18 apply. We disagree.
In this case, Dodson’s defense counsel asked the trial court to give Instruction 10, the
court agreed, and nothing more was said about it. “‘In order to avail oneself of the [ends of
justice] exception, [an appellant] must affirmatively show that a miscarriage of justice has
occurred, not that a miscarriage might have occurred.” Redman v. Commonwealth, 25 Va. App.
215, 221, 487 S.E.2d 269, 272 (1997). To satisfy this burden, “the appellant must demonstrate
that he or she was convicted for conduct that was not a criminal offense or the record must
affirmatively prove that an element of the offense did not occur.” Id. at 221-22, 487 S.E.2d at
273. “Therefore, ‘in examining a case for miscarriage of justice, we do not simply review the
sufficiency of the evidence under the usual standard, but instead determine whether the record
contains affirmative evidence of innocence or lack of a criminal offense.’” Wheeler v.
Commonwealth, 44 Va. App. 689, 692, 607 S.E.2d 133, 135 (2005) (quoting Lewis v.
Commonwealth, 43 Va. App. 126, 134, 596 S.E.2d 542, 546 (2004), rev’d on other grounds, 269
Va. 209, 608 S.E.2d 907 (2005)). There is nothing in the record to indicate that Dodson was
the Constitution of Virginia and as explicated in Code § 19.2-268,
Elliott v. Commonwealth, 172 Va. 595, 598-601, 1 S.E.2d 273,
274-76 (1939). A comment is constitutionally and statutorily
forbidden if “‘the language used was manifestly intended or was of
such character that the jury would 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)).
Powell v. Commonwealth, 261 Va. 512, 539, 552 S.E.2d 344, 359-60 (2001).
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convicted for conduct that was not a criminal offense or that an element of the offense did not
occur.3
Additionally, it is clear from the record in this case that Dodson requested the jury
instruction for which he now assigns error. To be sure, “[a] party may not approbate and
reprobate by taking successive positions in the course of litigation that are either inconsistent
with each other or mutually contradictory. Nor may a party invite error and then attempt to take
advantage of the situation created by his own wrong.” Cangiano v. LSH Bldg. Co., 271 Va. 171,
181, 623 S.E.2d 889, 895 (2006). “The approbate-reprobate doctrine is broader and more
demanding than Rule 5A:18. The very fact that [Dodson] ‘invited the error’ . . . renders Rule
5A:18’s ends-of-justice exception inapplicable.” Alford v. Commonwealth, 56 Va. App. 706,
709, 696 S.E.2d 266, 267-68 (2010). Thus, Dodson cannot request a jury instruction, have it
given, make no further objection, and then argue on appeal that the court improperly instructed
the jury.
CONCLUSION
Because Dodson failed to preserve the issue for appeal, the issue is barred by Rule 5A:18
and we will not address it.
Affirmed.
3
Given the testimony of Investigator Long and Trooper Tester, the evidence that Dodson
was the driver of the truck was overwhelming even in light of Dodson’s self-serving
protestations to the contrary.
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Gerald Franklin Dodson v. Commonwealth of Virginia
Combined Opinion