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DOUGLAS v. COMMONWEATH



NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Supreme Court of Virginia.


DOUGLAS

v.

COMMONWEALTH


NOVEMBER 16, 1999

Record No. 1344-98-2

DWAYNE ANTHONY DOUGLAS

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY

Paul M. Peatross, Jr., Judge

Present: Judges Elder, Lemons and Senior Judge
Cole

Argued at Richmond, Virginia

MEMORANDUM OPINION* BY JUDGE MARVIN
F. COLE

David C. Dickey for appellant.

Jeffrey S. Shapiro, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.


Dwayne Anthony Douglas (appellant) was
convicted in a jury trial of assault and attempting to elude the
police. He contends that the trial court erred by (1) refusing
his requested instruction on the charge of attempting to elude,
and (2) sustaining the Commonwealth’s objection to the defense’s
closing argument. We disagree and, for the following reasons,
affirm the convictions.

Facts

At about 2:15 a.m. on September 7, 1997,
appellant and Charles Eacho tried to enter a fraternity party at
the University of Virginia. Because their names were not on the
"guest list," a fraternity member asked them to leave.
Appellant and Eacho became upset, said they did not want to cause
trouble, but "perhaps they would be put in a situation where
they may need to cause trouble." Four fraternity members
followed appellant and Eacho outside to the parking lot to ensure
that they did not vandalize cars or the fraternity house. When
appellant reached into his truck, Stephen Myers (the victim) and
the other three fraternity brothers stopped. Holding a knife,
appellant turned and faced Myers and said, "Let’s see how
tough you are now." While holding the knife, appellant
walked towards Myers until he was only ten feet away. As
appellant approached the fraternity brothers, Eacho pulled out a
gun. The fraternity brothers ran back to the fraternity house and
called the police.

Moments later, two police officers arrived and
parked so that the exit from the parking lot was blocked. Officer
Debra Higgins shined a flashlight on appellant and Eacho,
identified herself as a police officer, and ordered them to stop.
Appellant made eye contact with Higgins and then jumped in his
truck and ignored her order to stop. Appellant drove down the
stairs at the Architecture School and onto a sidewalk. As Higgins
radioed for help, appellant drove down a gravel pathway, which
eventually turns into a service road behind the Architecture
School building. Officer Michael Wells responded with his lights
and siren activated and blocked off the exit from the service
road. Appellant sped towards the roadblock at fifty miles per
hour. Appellant tried to drive around Wells’ marked police car,
but realized he could not drive over the four-foot-high
embankment. Therefore, appellant stopped his vehicle.

Upon his arrest, the police found a
"buck-style" knife in appellant’s back pocket and a
loaded handgun in appellant’s vehicle.

Appellant and Eacho denied being hostile toward
the fraternity brothers. Rather, they claimed that the fraternity
brothers threatened them as they left the fraternity house. Eacho
admitted waving a gun at the fraternity brothers, but appellant
denied threatening anyone with a knife. They claimed they were
trying to get away from the fraternity brothers and mistakenly
drove down the stairs because they were unfamiliar with the area.
They denied trying to go around the roadblock and claimed that
they stopped as soon as they saw the police.

I.

Appellant contends that the trial court erred
by refusing to give appellant’s proffered instruction regarding
the attempt to elude charge. Appellant’s instruction provided, in
part, that "unless you believe that [appellant speeded up
and left the scene] . . . with the intent of eluding a police
officer, rather than with the intent of eluding or escaping from
those with whom he had had some difficulties that night, you
cannot find him guilty of eluding a police officer." The
trial court did not err in refusing appellant’s proffered
instruction. The trial court fully and accurately instructed the
jury on the attempt to elude charge.

"A reviewing court’s responsibility in
reviewing jury instructions is ‘to see that the law has been
clearly stated and that the instructions cover all issues which
the evidence fairly raises.’" Darnell v. Commonwealth,
6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (citation
omitted). Granted instruction 10 clearly states the law
concerning the elements of the attempt to elude charge.
Instruction 10 states that, in order to find defendant guilty of
attempting to elude, the Commonwealth must prove beyond a
reasonable doubt

(1) That the defendant was driving a motor
vehicle; and (2) That after having been given a visible and
audible signal to stop his motor vehicle, drives such motor
vehicle in a willful or wanton disregard of such signal so as to
interfere with or endanger a law enforcement vehicle or any other
property of any person or increases his speed and attempts to
escape or elude any law enforcement officer.

Instruction 10 fully and accurately instructed
the jury regarding the attempt to elude charge. The court’s
instruction enabled the jury to consider all relevant
circumstances, including whether appellant was attempting to
elude the police officers or only the fraternity brothers,
without emphasizing one particular factor as perhaps being more
significant. See Lynn v. Commonwealth, 27 Va. App.
336, 349, 499 S.E.2d 1, 7 (1998), aff’d, 257 Va. 239, 514
S.E.2d 147 (1999).

During closing argument, the parties remained
free to argue whether appellant attempted to elude the police or
only the fraternity brothers. In fact, defense counsel argued
that the evidence was not clear that Officer Higgins spoke to
appellant in a tone appellant heard or that appellant made eye
contact with the officer before leaving the scene. Defense
counsel fully argued his theory of the
case –- that appellant only intended to elude or
escape from the fraternity brothers, and, therefore, could not be
guilty of attempting to elude the police.

Granted instruction 10 clearly and accurately
informed the jury of the elements of the attempt to elude charge.
Therefore, the trial judge did not err by refusing to grant
appellant’s proffered instruction regarding the attempt to elude
charge. The trial court does not err by refusing to give another
instruction related to the same legal principle. See League
v. Commonwealth
, 9 Va. App. 199, 210, 385 S.E.2d 232, 239
(1989), aff’d on reh’g en banc, 10 Va. App. 428, 392
S.E.2d 510 (1990).

II.

Appellant contends that the trial court erred
by sustaining the Commonwealth’s Attorney’s objection to defense
counsel’s closing argument. Because defense counsel’s argument
was improper, the trial court did not err by sustaining the
objection.

"The purpose of closing argument is to
summarize the evidence for the jury, to persuade the jury to view
the evidence in the light most favorable to the client, and to
apply that evidence to the law in a manner which will result in a
verdict favorable to the client."

Canipe v. Commonwealth, 25 Va. App. 629,
639, 491 S.E.2d 747, 751 (1997) (quoting Charles E. Friend, The
Law of Evidence in Virginia
Sect. 21-1(b)(1) (4th ed.
1993)). Defense counsel is entitled to make the full range of
arguments relevant to persuading the jury that the defendant is
not guilty of the charged crime. See id. at 640,
491 S.E.2d at 752. "The decision regarding the
appropriateness of a closing argument is committed to the
discretion of the trial court." Id. at 639, 491
S.E.2d at 751-52. Unless it "’affirmatively appears that
such discretion has been abused and that the rights of the
complaining litigant have been prejudiced,’" an appellate
court will not interfere with the trial court’s ruling. See
id. at 640, 491 S.E.2d at 752 (citation omitted).

During his closing argument, appellant’s
counsel attempted to present an opinion from a speech given by
former Chief Justice Warren Burger concerning a sociological
study allegedly indicating that most juries do not understand the
burden of proof in a criminal case. Appellant’s counsel stated
"that 90% or 80%, . . . of jurors who were sworn to uphold
the law, nevertheless believe the defendant has to prove his
innocence." This study was not evidence in appellant’s case
and was irrelevant to appellant’s case. The trial court sustained
the Commonwealth’s Attorney’s objection and said,

I’ve instructed the jury that the burden is on
the Commonwealth so I don’t want to state anything else that’s a
belief by any Chief Justice. . . . My instructions are clear and
I don’t want to confuse them. So the burden is on the
Commonwealth. The Commonwealth has to prove it. The defendant
doesn’t have to prove anything. That’s clear. So just go ahead
and argue your case.

In Canipe, Canipe’s counsel made a
closing argument regarding the crime of "hit and run"
which was not relevant to the murder charge on which Canipe was
being tried. 25 Va. App. at 639-40, 491 S.E.2d at 752. The trial
court prohibited this argument. See id. This Court
agreed that the trial court had not abused its discretion when it
prohibited that argument because the argument was irrelevant to
the charged crime of murder and it would have confused the jury. See
id.

Similarly, appellant’s counsel’s argument
regarding former Chief Justice Burger’s speech had no bearing on
whether the Commonwealth had proved the charged offenses beyond a
reasonable doubt. We cannot say that the trial court abused its
discretion when it prohibited appellant’s counsel from continuing
his closing argument regarding Chief Justice Burger’s speech
about a sociological study. Such argument was improper as it was
not relevant to the applicable law regarding the burden of proof
in appellant’s trial and would have confused the issues before
the jury. The trial court’s provision in its ruling that
appellant’s counsel should "just go ahead and argue [his] case," gave counsel sufficient latitude to advocate fully
for his client during closing argument. Appellant’s counsel
continued and argued that appellant was "clothed in the
presumption [of innocence] that stays with you throughout the
trial, unless and until the Commonwealth upon whom the burden
rests, proves the guilt beyond any reasonable doubt."

Accordingly, the trial court’s judgment is
affirmed.

Affirmed.

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

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