Michael Allen Berry v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: May 2, 2000
• Docket: 0474992
• Status: Unpublished

Opinion

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

- 2 - 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).

- 3 - 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.

- 4 - 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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