Franklin Monroe Southard, Jr. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: July 8, 2003
• Docket: 2706024
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Kelsey Argued at Alexandria, Virginia

FRANKLIN MONROE SOUTHARD, JR. MEMORANDUM OPINION * BY v. Record No. 2706-02-4 JUDGE D. ARTHUR KELSEY JULY 8, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CULPEPER COUNTY J. Howe Brown, Jr., Judge Designate

Rex L. Edwards, Jr. (Davies, Barrell, Will, Lewellyn, & Edwards, P.C., on brief), for appellant.

Jennifer R. Franklin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

On appeal, Franklin Monroe Southard challenges his

convictions for eluding a law enforcement officer (Code

§ 46.2-817) and reckless driving (Code § 46.2-852).

During closing arguments at trial, the prosecutor commented

on testimony by a police officer about an incriminating statement

made to the officer by Southard's sister. Southard objected,

stating: "Your Honor, we would like to place an objection. I

believe the Commonwealth Attorney referred to a statement by the

sister. I don't believe that is in evidence here today." The

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. trial court replied: "I don't think there's any statement by the

sister that's in evidence." After the prosecutor clarified the

statement he was referring to, the trial court stated: "The

jury's memory will govern." The entire discussion took place in

open court with the jury present.

Southard argues on appeal that the trial court erred by

failing to rule on his objection to the allegedly improper remark

by the prosecutor during closing arguments. The trial court

compounded that error, Southard contends, by not sustaining his

objection to that remark. We find both arguments procedurally

defaulted on appeal.

Assuming arguendo the trial judge's remarks in response to

the objection did not constitute a ruling, the judge's failure

to rule would itself constitute an error that must be the

subject of a specific, contemporaneous objection. See Buck v.

Jordan, 256 Va. 535, 545, 508 S.E.2d 880, 885-86 (1998) (noting

that, without an objection, a party does not preserve for appeal

the court's refusal to rule); Taylor v. Commonwealth, 208 Va.

316, 324, 157 S.E.2d 185, 191 (1967) (finding waiver where

counsel, after objecting to a prosecutor's remark, "did not

insist that the court rule"); Harter v. Commonwealth, 31

Va. App. 743, 752, 525 S.E.2d 606, 610-11 (2000); Fisher v.

Commonwealth, 16 Va. App. 447, 454, 431 S.E.2d 886, 890 (1993)

("Because he was denied nothing by the trial court, there is no

ruling for us to review.").

- 2 - Moreover, even if the trial court had expressly overruled the

objection to the prosecutor's remark, a "timely motion for a

mistrial or a cautionary instruction is required to preserve the

issue for appeal even if an objection was properly made to the

conduct or comments and improperly overruled by the trial judge."

Morris v. Commonwealth, 14 Va. App. 283, 287, 416 S.E.2d 462, 464

(1992) (en banc); see also Schmitt v. Commonwealth, 262 Va. 127,

148, 547 S.E.2d 186, 200-01 (2001); Martinez v. Commonwealth, 241

Va. 557, 559 n.2, 403 S.E.2d 358, 359 n.2 (1991); Taylor v.

Commonwealth, 17 Va. App. 271, 274, 437 S.E.2d 202, 204 (1993).

"There appears to be no exception in Virginia law to the strict

application of this rule." Bennett v. Commonwealth, 29 Va. App.

261, 281, 511 S.E.2d 439, 448-49 (1999).

For these reasons, we affirm the trial court's judgment

without reaching the merits of Southard's arguments on appeal. 1

Affirmed.

1 We also do not address whether the "good cause" or "ends of justice" exceptions to Rule 5A:18 apply, given that Southard does not argue on appeal for either. Nor do we see any grounds to apply the exceptions sua sponte.

- 3 -