by

Atchuthan Sriskandarajah

FRANKLIN MONROE SOUTHARD, JR. v. COMMONWEALTH OF VIRGINIA

COURT OF APPEALS OF VIRGINIA

July 8, 2003, Decided

Facts:

Franklin Monroe Southard convicted for eluding a law enforcement officer and

reckless driving

. During closing arguments at trial, the prosecutor commented on testimony by a police officer about an incriminating statement made to the officer by Southard’s sister. Southard objected, stating: “Your Honor, we would like to place an objection. I believe the Commonwealth Attorney referred to a statement by the sister. I don’t believe that is in evidence here today.” The trial court replied: “I don’t think there’s any statement by the sister that’s in evidence.” After the prosecutor clarified the statement he was referring to, the trial court stated: “The jury’s memory will govern.” The entire discussion took place in open court with the jury present.

Issue:

Whether the trial court erred by failing to rule on his objection to the allegedly improper remark by the prosecutor during closing arguments?

Discussion:

The Court states that assuming arguendo the trial judge’s remarks in response to the objection did not constitute a ruling, the judge’s failure to rule would itself constitute an error that must be the subject of a specific, contemporaneous objection. Moreover, even if the trial court had expressly overruled the objection to the prosecutor’s remark, a “timely motion for a mistrial or a cautionary instruction is required to preserve the issue for appeal even if an objection was properly made to the conduct or comments and improperly overruled by the trial judge.” For these reasons, we affirm the trial court’s judgment without reaching the merits of Southard’s arguments on appeal.

Disclaimer:

These summaries are provided by the

SRIS Law Group

. They represent the firm s unofficial views of the Justices opinions. The original opinions should be consulted for their authoritative content.

Atchuthan Sriskandarajah is a Virginia lawyer and owner of the SRIS Law Group. The SRIS Law Group has offices in

Virginia

, Maryland, Massachusetts, New York, North Carolina & California. The firm handles criminal/

traffic defense

, family law, immigration & bankruptcy cases.

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