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WILSON v. COMMONWEALTH OF VIRGINIA (53863)


WILSON v. COMMONWEALTH
OF VIRGINIA

(unpublished)


JANUARY 13, 1998
Record No. 0705-97-1

ALFRED WILSON, S/K/A
ALFRED A. WILSON

v.

COMMONWEALTH OF VIRGINIA

MEMORANDUM OPINION[1]
BY JUDGE JOSEPH E. BAKER
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

Frederick B. Lowe, Judge
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia

Philip L. Russo, Jr. (Schafer & Russo, on brief), for
appellant.

John H. McLees, Jr., Assistant Attorney General (Richard Cullen,
Attorney General, on brief), for appellee.


Alfred Wilson (appellant), sometimes known as Alfred
A. Wilson, appeals from a judgment of the Circuit Court of
the City of Virginia Beach (trial court) that approved a jury
verdict convicting him for aggravated sexual battery. Appellant
contends that his conviction must be reversed because, in the
presence of the jury, the trial court inquired of appellant
whether he was "going to testify." The Commonwealth
argues that the appeal must be dismissed and the conviction
affirmed because at trial appellant failed to object to the trial
court’s comment, move for a mistrial, or request a cautionary
instruction. We agree and affirm the conviction.

The record discloses that at all times prior to the beginning
of the trial, appellant was represented by competent counsel.
Before opening statements were made, appellant elected to proceed
to trial without his court?appointed attorney. After being
thoroughly advised of the "hazards" and requirements of
representing himself, appellant proceeded pro se.[2]

Appellant made an opening statement to the jury,
cross?examined the Commonwealth’s witnesses, and presented
witnesses in his behalf. When the Commonwealth rested and
appellant presented his witnesses, without testifying himself,
the following exchange occurred:

[APPELLANT]: That’s it, Your Honor.

THE COURT: Do you have any further witnesses you intend to
call?

[APPELLANT]: No, sir.

THE COURT: You’re not going to testify?

[APPELLANT]: No, sir.

Appellant failed to object to the trial court’s question, move
for a mistrial, or request a cautionary instruction.

For an issue alleging trial court error to be considered on
appeal, an objection must be timely made and the grounds stated
with specificity. See Rule 5A:18. "To be timely,
[the] objection must be made when the occasion arises–at the
time the evidence is offered or the statement made." See
Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d
167, 168 (1986); see also Ingram v. Commonwealth, 1
Va. App. 335, 341, 338 S.E.2d 657, 660 (1986).

Because appellant failed timely to object to the trial court’s
statement or inquiry, this appeal must be dismissed and
appellant’s conviction affirmed. The fact that appellant elected
to proceed pro se after discharging his counsel
does not relieve him of well?established rules of procedure and
substantive law. See Church v. Commonwealth, 230
Va. 208, 213, 335 S.E.2d 823, 826 (1985) (citing Faretta v.
California
, 422 U.S. 806, 834 n.46 (1975)).

We have examined the record and find no reason to apply the
ends of justice exception to Rule 5A:18. Because appellant did
not timely make a required objection or motion, we will not
consider the issue he presents in this appeal.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

 

 

 

FOOTNOTES:

[1] Pursuant to Code ? 17?116.010 this
opinion is not designated for publication.

[2]
The record fully discloses that appellant made a clear,
voluntary, and intelligent waiver of his right to be represented
by counsel.

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