Opinion
Record No. 0179-93-4
Decided: October 25, 1994
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY, H. Selwyn Smith, Judge
Affirmed.
Lawrie Falck Rollison; Michele L. Jung for appellant.
Leah A. Darron, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Baker and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Donald Dyer Hull (appellant) was convicted in a jury trial of the second degree murder of his mother, Flema Simmons Hull. On appeal, he argues that the trial court erred in: 1) allowing a demonstrative exhibit to remain in view of the jury during closing argument; 2) refusing to give his requested jury instructions regarding malice and manslaughter; and 3) overruling his objection to the prosecution's statement, made during closing argument, comparing his case to that of well-known convicted murderers. We disagree and affirm the conviction.
BACKGROUND
Appellant has a thirty year history of mental illness and schizophrenia. On March 4, 1990, he strangled his mother, Flema Hull, with whom he had been living since his release from a psychiatric hospital in December 1989. He fled to New York, where he was arrested and admitted killing his mother.
Appellant presented an insanity defense and testified that after drinking a glass of orange juice his mother gave him that morning, "[he] felt like his chest expanded five times as big as normal and felt like [he] was thirty feet tall." He also stated that when he killed his mother, he was aware that it was wrong "in a way," but proceeded because he felt threatened.
I DEMONSTRATIVE EXHIBIT
Dr. Hawks, a defense psychiatrist, prepared a report evaluating appellant's mental health, and appellant moved the entire report into evidence. During cross-examination of Dr. Hawks, the Commonwealth used an enlarged portion of this report as a demonstrative exhibit. Appellant objected when this exhibit remained within the jury's view during the Commonwealth's closing argument. The Commonwealth did not refer to the exhibit in closing, and the exhibit is not a part of the record. Appellant alleges that the trial court abused its discretion when it failed to remove the enlarged portion of the report after appellant's objection.
On appeal, the judgment of the trial court is presumed correct unless appellant can demonstrate in the record that reversal is the appropriate remedy. Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 387 (1991). "The use of [exhibits] lies within the sound discretion of the trial judge, who is allowed very considerable latitude with respect to the substance and form of the parties' presentation of the case." Curtis v. Commonwealth, 3 Va. App. 636, 642, 352 S.E.2d 536, 540 (1987) (citation omitted). The trial court admitted the entire report into evidence upon appellant's motion, and the report was available for the jury to consider. Since the record contains no description of the exhibit's content or the exhibit itself, we cannot determine whether its presence during closing argument was in any way prejudicial. Absent any proof that the exhibit was prejudicial to appellant, we find no abuse of discretion.
II MALICE/MANSLAUGHTER INSTRUCTION
At the conclusion of all the evidence, appellant moved to strike and argued that the evidence was insufficient to prove any offense greater than manslaughter. The trial court denied the motion. The court also refused appellant's Instruction I (on manslaughter) and Instruction J (on malice), as no evidence existed to indicate heat of passion. The trial judge stated: "It was completely devoid of that and it's a homicide; it is a killing." Appellant argues that the court should have instructed the jury on manslaughter because his mental illness prevented him from acting with malice and thus committing murder. "A defendant is entitled to have the jury instructed only on those theories of the case that are supported by evidence." Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280 (1986) (citations omitted). "To reduce homicide from murder to voluntary manslaughter, the killing must have been done in the heat of passion and upon reasonable provocation." Jenkins v. Commonwealth, 244 Va. 445, 457, 423 S.E.2d 360, 368 (1992) (quoting Barrett v. Commonwealth, 231 Va. 102, 105-06, 341 S.E.2d 190, 192 (1986)), cert. denied, 113 S.Ct. 1862 (1993).
The sole issue in this case is whether appellant was legally sane when he committed the murder of his mother. The evidence does not support an instruction on manslaughter. There is no evidence of reasonable provocation, nor is appellant's mental state relevant outside the boundaries of his insanity defense. Jenkins, 244 Va. at 456, 423 S.E.2d at 367. We reject appellant's contention that his mother's offer of a glass of orange juice constituted the necessary reasonable provocation considering his psychotic mental state. We find that the trial court properly refused appellant's instructions because no evidence supports a claim of either reasonable provocation or heat of passion.
III PREJUDICIAL CLOSING ARGUMENT
The following dialogue occurred during the Commonwealth's rebuttal in closing argument:
MR. WILLETT: We have seen in our country many infamous cases where sanity was an issue. Before the defense lawyers jump up and yell at me, I'm not suggesting Mr. Hull is anything like those infamous cases, he's not like a Manson or a Dalmer or a Bernard Getz, he is not that type.
But the juries who decided those cases had the same issues before them and Manson, we hope, killed as a product of his mental illness, but he was not insane. He is in prison where he should be.
And Jeffrey Dalmer murdered and cannibalized people —
MS. ROLLISON: I'm going to object. I hate to object during rebuttal or closing arguments, but the using of someone else's case —
THE COURT: You are out of order in your objection, ma'am. You were not the one who made the closing argument.
MS. ROLLISON: I still make the objection. I think this is inflammatory and inflaming the jury.
(Emphasis added.)
The trial court told counsel that only one attorney could handle each witness or argument. The trial court thus overruled appellant's objection on the basis that objecting counsel did not make appellant's closing argument. Proper counsel did not adopt the objection, and appellant did not request a cautionary instruction or mistrial.
Appellant argues that the trial judge prejudiced his defense by failing sua sponte to issue a curative instruction. "[E]rrors assigned because of a prosecutor's alleged improper comments or conduct during argument will not be considered on appeal unless an accused timely moves for a cautionary instruction or for a mistrial." Moore v. Commonwealth, 14 Va. App.lt3, [ 14 Va. App. 83], 85, 414 S.E.2d 859, 860 (1992) (quoting Cheng v. Commonwealth, 240 Va. 26, 38, 393 S.E.2d 599, 605-06 (1990)). Appellant is procedurally barred from challenging the remarks on appeal because he failed to request a curative instruction or a mistrial.
Appellant also argues that the trial court denied appellant his Sixth Amendment right to counsel by overruling counsel's objection to the Commonwealth's remark. The trial court's limitation of one attorney for each witness or argument was the law of the case. Spencer v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d 609, 616 (1990) (citations omitted), cert. denied, 498 U.S. 908 (1990); see also Vaughn v. State, 190 S.E.2d 609, 613 (Ga.App. 1972) (holding that a trial judge has discretion to limit presentation to one advocate).
The judgment of the trial court is affirmed.
Affirmed.