Alonzo Lyndell White v Commonwealth of Virginia

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COURT OF APPEALS OF VIRGINA

Present: Judges Elder, Lenons and Senior Judge Cole
Argued at Richnond, Virginia

ALONZO LYNDELL WH TE
MEMORANDUM OPI N ON’ BY
Vv. Record No. 1086- 98- 2 J UDGE DONALD W_ LEMONS
DECEMBER 21, 1999
COMVONWEALTH OF VI RGI NA

FROM THE CI RCU'T COURT OF THE CITY OF RI CHVOND

Janes B. Wlkinson, Judge

Brent A. Jackson (Jackson, Pickus &
Associates, on brief), for appellant.

Mchael T. Judge, Assistant Attorney Ceneral
(Mark L. Earley, Attorney Ceneral, on brief),
for appellee.

Alonzo Lyndell White appeals his conviction after a jury
trial in the Gircuit Court of the Gity of Richnond of malicious
wounding and use of a firearmduring the conmssion of malicious
wounding. White alleges that the trial judge should have
declared a mstrial because of circunstances that arose during
closing argunents to the jury and further alleges that the
evidence was insufficient to sustain the verdict. Finding no
error, we affirmthe convictions.

During closing arguments in the guilt or innocence phase of

the bifurcated felony trial before a jury, counsel for White

* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

suggested that the reason the Commonwealth did not call Lamar
Crews as a witness was because "Crews could not corroborate not
[sic] one part of Daryl Jones' testimony." 	The assistant
Commonwealth's attorney interrupted defense counsel's closing
argument and declared, "That's a lie." 	The assistant
Commonwealth's attorney requested the opportunity "to reopen the
case and call Lamar Crews as my witness." 	The trial judge
initially indicated his willingness to grant the motion, and
White objected saying, "I think this scenario is appropriate for
a mistrial in light of the fact that we are going outside of the
confines of proper structure here." 	The trial judge did not
treat defense counsel's declaration as a motion for a mistrial
and did not grant or deny the purported motion. 	However, upon
discovery that Lamar Crews had been present in the courtroom
during defense counsel's closing argument, the trial judge
denied the Commonwealth's motion to reopen the evidence.
Assuming without deciding that counsel's declaration was
sufficient to constitute a motion for a mistrial, the basis of
counsel's stated concern was the Commonwealth's motion to
"reopen the evidence." 	The trial judge did not permit the
Commonwealth to reopen the evidence; consequently, the record
does not support the stated basis for a mistrial.
After closing arguments and after the jury retired to
deliberate, the following colloquy occurred:
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[COUNSEL]: 	Your Honor, I want to renew my
motion at the end of the Commonwealth's case
in chief.
THE COURT: 	Let it show he made a motion to
strike the Commonwealth's evidence and the
Court overruled it, at the conclusion of the
Commonwealth's case and also at the
conclusion of all the evidence.
[COUNSEL]: 	Also, Your Honor, I think what
is appropriate at this time is a mistrial,
in light of the fact that after the defense
was up there arguing the closing arguments,
that the Commonwealth, in rebuttal,
attempted to bring on a witness which had
been in observance of my argument.
THE COURT: 	Well, you could have called the
witness.
[COUNSEL]: 	I understand that, Your Honor.
THE COURT: 	All right. 	I heard the motion.
I overrule it.
[COUNSEL]: 	I feel that in light of the
Commonwealth's actions he has unduly
prejudiced the defendant in light of the
fact that he pulled him up at the last
moment, attempted to bring - -
THE COURT: 	I ruled on it.
[COUNSEL]: 	I beg your pardon?
THE COURT: 	I ruled on it.
[COUNSEL]: 	I understand.
THE COURT: 	All right. 	Thank you. 	We will
wait for the jury. 	All right.
The trial judge treated counsel's statement as a motion for
a mistrial and overruled it. 	To the extent that the motion
simply restated an objection to "reopening the evidence," it was
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properly denied because the trial judge did not reopen the
evidence.
However, for the first time White injects a claim that "the
Commonwealth's actions" "unduly prejudiced the defendant."
Presumably, this claim relates to the jury being exposed to the
efforts of the Commonwealth to call the witness and the colloquy
that occurred between counsel and between counsel and the trial
judge. 	His motion was untimely.
[I]f a defendant wishes to take advantage on
appeal of some incident he regards as
objectionable enough to warrant a mistrial,
he must make his motion timely or else be
deemed to have waived his objection. 	Making
a timely motion for mistrial means making
the motion "when objectionable words were
spoken."
Yeatts v. Commonwealth, 242 Va. 121, 137, 410 S.E.2d 254, 264
(1991) (citations omitted).
Finally, White maintains that the evidence was insufficient
to support his convictions. 	At no time, either at the end of
the Commonwealth's case in chief or at the conclusion of all of
the evidence, did White state a specific reason why the evidence
was insufficient. 	When considering sufficiency arguments on
appeal, only specific objections advanced at trial will be
considered. 	See George v. Commonwealth, 242 Va. 64, 281 n.4,
411 S.E.2d 12, 22 n.4 (1991). 	See Rule 5A:18; see also Buck v.
Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994).
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For the reasons stated above, the convictions are affirned.

Af firned.