Opinion
Record No. 1000-93-4
Decided: December 6, 1994
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY, Carleton Penn, Judge Designate
Affirmed.
Alexander N. LeVay, Public Defender (Office of the Public Defender, on briefs) for appellant.
John H. McLees, Assistant Attorney General (James S. Gilmore, III, Attorney General; Robert Q. Harris, Assistant Attorney General, on brief), for appellee.
Present: Judges Barrow, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
On appeal from his conviction of first degree murder and use of a firearm in the commission of a murder, Gregorio Algarin Merced contends that the trial court erred in limiting his testimony at trial, thereby denying him the opportunity for full and fair testimony. We disagree and affirm the judgment of the trial court.
On April 1, 1992, the body of Marta Lopez was found on the side of Route 709 in Fauquier County with a gunshot wound in her chest and broken fingers on her right hand. Merced called the police, identified himself, and told them he thought the body they had found might be his wife's. The police questioned him and he consented to searches of his home and car. He first told the police that he knew nothing about what happened to his wife. Later, he told them that he accidentally shot her. Finally, after being told that he would be charged with murder, he said that his wife had committed suicide.
Merced's sole defense at trial was that he did not kill his wife, but she committed suicide. During his testimony, he was emotional and occasionally reverted to speaking in Spanish. Because of this, his counsel, with the permission of the trial court, went over Merced's testimony several times to ensure that it was understood by the jury.
At the conclusion of Merced's testimony, his counsel sought to go over it again. The Commonwealth objected on the ground that the questions were repetitious. The trial court sustained the objection but permitted the jury to write down any questions it had about Merced's testimony due to its having been unclear. Merced's counsel stated to the trial judge that the jury could not ask pertinent questions because it did not understand Merced's testimony. However, he lodged no objection and agreed to the procedure.
The jury's questions were presented to both counsel. The trial judge, after conferring with counsel, decided which questions were permissible, accepting three and rejecting three. At the trial court's direction, Merced's counsel then asked Merced the three questions in a manner as similar as possible to the way he had previously asked them, again covering some of Merced's earlier testimony.
Three weeks after trial, Merced moved to set aside the verdict on the ground that he had been denied the right to testify fully and fairly in his own behalf. The trial court denied the motion because Merced's counsel had offered no objection at the time of the ruling.
In support of his contention that the trial court erred in limiting his testimony, in violation of the Due Process Clause of the Fourteenth Amendment and Virginia Code Sec. 19.2-268, Merced asserts five arguments:
(1) That the court erred in sustaining the Commonwealth's objection to Merced's testimony as too emotional. The record does not support this position. It discloses only a request by the Commonwealth's Attorney that a brief recess be taken so that Merced could collect himself. Defense counsel agreed.
(2) That the trial court erred in sustaining the Commonwealth's objection of "asked and answered." Merced cites Rock v. Arkansas, 483 U.S. 44 (1987), in which the Supreme Court held that a state's evidentiary rules may not infringe impermissibly on a defendant's right to testify. Merced did not assert this position in the trial court and, therefore, cannot assert it now. Rule 5A:18. We perceive no need to invoke the ends of justice exception to Rule 5A:18. Under Rock, the right of an accused to testify in his own defense is not absolute and may be limited to accommodate other legitimate interests in the criminal process. 483 U.S. at 55. The Commonwealth's objection was made after Merced had repeated his testimony twice. The Commonwealth made no objection to Merced's testifying to issues raised in the jury questions, even though that allowed Merced to cover previous testimony again. Limitation of repetitive testimony lies within the trial court's discretion. Massey v. Commonwealth, 230 Va. 436, 442, 337 S.E.2d 754, 758 (1985). The trial court's ruling enjoys a presumption of correctness on appeal. Harrison v. Commonwealth, 244 Va. 576, 581, 423 S.E.2d 160, 163 (1992). We find no abuse of discretion.
(3-5) That the trial court erred when, sua sponte, it permitted the jury to submit questions regarding any part of Merced's testimony that it found unclear; when it did not explain to the jury why some of the questions were rejected; and when it did not allow defense counsel to ask the three accepted questions in the same language used by the jury. Merced cites Brown v. Commonwealth, 3 Va. App. 101, 348 S.E.2d 408 (1986).
In Brown, we held that the trial court denied the defendant a fair and impartial trial by telling defense counsel what questions to ask, by interrupting defense counsel during the examination of witnesses, and by demeaning defense counsel in the presence of the jury. Id. at 104-06, 348 S.E.2d at 410-11. Merced argues that the same thing occurred when the trial court, sua sponte, permitted the jury to write down its questions about unclear testimony and then told defense counsel to ask the defendant those questions. He argues that the court, in effect, took over Merced's direct examination without regard to what Merced and his attorney deemed best.
The only issue on appeal is whether the trial court erred in limiting Merced's repetitive testimony and in permitting the jurors to write down any questions about Merced's testimony that was unclear. Merced never objected to this procedure. To preserve an issue for appeal, a litigant must either object and give a basis for the objection or make plain to the trial court in some other way the position that the litigant is being denied a fair and impartial trial. Neal v. Commonwealth, 15 Va. App. 416, 423, 425 S.E.2d 521, 525 (1992). See also Rule 5A:18.
Merced's arguments concerning the trial court's failure to explain to the jury why some of its questions were rejected and its refusal to permit defense counsel to ask Merced the questions as the jurors framed them were not issues raised on appeal. We will not consider issues that were not raised in the petition and were not granted by this Court. Rule 5A:12(c).
The judgment of the trial court is affirmed.
Affirmed.