COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Petty and Beales Argued at Chesapeake, Virginia

NILES SEBAST IAN HARRISON MEMORANDUM OPINION * BY v. Record No. 0127-10-1 J UDGE RANDOLPH A. BEALES JANUARY 11, 2011 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Louis R. Lerner, Judge Charles E. Haden for appellant. Robert H. Anderson, III, Seni or Assistant Attorney General (Kenneth T. Cuccinelli, II , Attorney General, on brief), for appellee.
A jury convicted Nile s Sebastian Harrison (appellant) of th reatening to bomb a structure, pursuant to Code § 18.2-83. On appeal, appellant claims that the trial court erred “in refusing to allow” him to testify. 1 After reviewing the particular circumst ances in this case, we find that the trial court did not abuse its discretion he re, and we affirm ap pellant’s conviction.
BACKGROUND 2 On the day of appellant’ s trial, before the jury selection began, the trial court asked appellant if he was ready to proceed. Appe llant responded, “No,” and added th at he intended to “disrespect this courtroom.” The tria l court attempted to pers uade appellant that any disruption would only get

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Appellant raised several a dditional questions presented in his petition for appeal. However, this Court granted his pe tition only on this one issue.

2 As appellant does not challenge the su fficiency of the evidence to support his conviction, most of the evidence relevant to his conviction is not discussed in this opinion.- 2 - him thrown out of the courtroom, but appellant continued to insi st that he would disrupt the proceedings and that he would have to be remove d from the courtroom. Despite appellant’s representation s, the trial court continued wi th the colloquy. When asked for his plea to the charge, appellant refused to answer, saying, “So you going to have to remove me from this courtroom.” Appellant ranted a bout competency evaluati ons and his views on the judicial system. He claimed that he had been taking various drugs while he was in jail. He claimed to be Satan, as opposed to the Niles Harri son charged in the indict ment. He then began cursing about his attorney and clai ming that the court should “pick your jury without me then.” The trial court explained that, if appellant “vio late[d] the warning of this Court,” then his presence at the proceedings of the trial w ould be waived. Harrison responded by using inappropriate language, cursing, and by saying, “I’m going to start being very disrespectful.” He then talked about the th reatening letter that he had alle gedly sent to the clerk’s office. The trial court had the veniremen brought in to the courtroom. As the court began to explain the process and ask questio ns, Harrison said, “No. It ain’ t going to be no jury,” and he began cursing. The court had the veniremen taken out of the room and then noted that appellant had been warned against “furth er outbursts.” Appellant re sponded, “Then remove me,” and refused to assure the court that he would behave. At this point the trial court excluded appellant from the courtroom, over his attorney’s objection. The trial was divided into two parts – the fi rst part for the presentation of evidence on guilt (where the Commonwealth had the burde n of proof) and the second part for the presentation of evidence on appe llant’s affirmative defense claiming insanity (where appellant had the burden of producing evidence of his insa nity). At the conclu sion of the evidence on appellant’s guilt, defense counsel stated, “[W]e have no evidence to present at this time” and argued that the evidence was insufficient to prove appellant’s guilt. After denying this motion to- 3 - strike, the trial court allowed the affirmative de fense portion of the trial to go forward. Defense counsel presented evidence from Dr. William Pappadake, who opined that appellant was “mentally ill” and suffering from “paranoid delu sions,” but was “capable of reasoned thought.” The Commonwealth then presented evidence fr om Dr. Margaret Fahey, who testified that appellant, even though he had some mental problems, knew that threatening to bomb the courthouse was wrong. Both witnesses were excu sed at the conclusion of their testimony. At the conclusion of Dr. Fahey’s testimony, th e Commonwealth rested “on that issue.” When the trial court asked if the defense had any further evidence, de fense counsel responded, “No, your Honor, not at this point.” The court then gave the jury a lunch break, informing them that they would be given their instructions and hear closing arguments when they returned, after which they would deliberate. After the jury left for lunch, the trial court, sua sponte , had the bailiff bring appellant into the courtroom in order for the court to determine if he could behave if allowed to stay during the final portion of the trial. When the court asked appellant if he could behave, appellant responded: “Am I not allowed to testify in my defense?” This question was the first indication that appellant wanted to testify. The trial court responded, “[Y[our behavior was disruptive.” 3 After defense counsel’s argument that appellant had a ri ght to testify, the court began to inquire about the possible subject of appellant’s testimony. The prosecutor said, “Mental H ealth, judge, that’s the only

3 Although the trial court commented at one poi nt that “the defense has not rested,” appellant conceded at oral argument that, given the trial court had informed the jury only that they would be instructed and hear closing ar gument after the lunch break, the defense had essentially rested at this point.- 4 - defense.” The court stated that appellant was not qualified to testify regard ing his mental health. The trial court then denied appellant’s motion to testify. 4 The jury found appellant guilty of threatening to bomb a structure. He was sentenced to eight years in the penitentiary.
ANALYSIS Appellant argues that the trial court erred when it refused to reopen the evidence and allow him to testify on his own behalf. When reviewing such a claim, we are mindful that: We have long followed the rule that the order of proof is a matter within the sound discretion of the tr ial court and this court will not reverse the judgment except in very exceptional cases, and, unless it affirmatively appears that this discretion has been abused, this court will not disturb th e trial court’s ruling. Hargraves v. Commonwealth , 219 Va. 604, 608, 248 S.E.2d 814, 817 (1978) (citation omitted). Although appellant’s claim here i nvolves his right to testify on hi s own behalf, he does not cite any case law or statute that requir es a trial court to reopen a case and allow a defendant to testify after the jury has been informed that no more evidence will be presented and after the other witnesses in the case have been excused. To the contrary, several federal appellate courts have found that refusing to reopen a case to allow a de fendant to testify does not necessarily violate the constitutional right to testify in one’s own defense. See United States v. Byrd , 403 F.3d 1278, 1283 (11th Cir. 2005) (“We now join the First and Eighth Circuits in holding that an accused’s right to testify generally must be exerci sed at the appropriate time, which is before the evidence-taking portion of the trial has clos ed. Though the district court may reopen the evidence in order to allow a defendant to testify, its failure to do so usually will not constitute an abuse of discretion.” (citations omitted)); United States v. Peterson , 233 F.3d 101, 105-07 (1st Cir. 2000) (holding that the trial court did not abuse its discreti on by refusing to reopen the case

4 The content of appellant’s testimony was not proffered to the trial court.- 5 - for Peterson to testify because, inter alia , the jury had been informed that they would hear closing arguments rather than additional eviden ce upon returning from a recess in the case and “Peterson gave the court hardly any indication as to what he wished to testify about”); United
States v. Jones , 880 F.2d 55, 59-60 (8th Cir. 1989) (holding that the trial court did not abuse its discretion by refusing to reopen the case for Jones to testify when the othe r witnesses had already been allowed to leave). This case presents a procedural posture very similar to Minor v. Commonwealth , 16 Va. App. 803, 433 S.E.2d 39 (1993). In that case, the parties had rested, and the witnesses had been excused. Id. at 804-05, 433 S.E.2d at 40. The court had ordered a thirty-minute recess, after which the jury would be instruct ed and closing arguments presented. Id. at 805, 433 S.E.2d at 40. At that point, defense counsel asked to have a witness retake the stand in order to present testimony that he, rather than Minor, had committed the crime. Id. The trial court denied the motion to reopen the case, and this Court found th at the court’s ruling was not an abuse of its discretion. Id. Here, the trial court had previously made it ve ry clear to appellant that he would not be allowed in the courtroom during the trial if he continued to misbehav e by ranting, cursing, and showing disrespect for the court. Appellant enc ouraged the trial court to exclude him, and, after showing a great deal of patience, the court eventually did excl ude him. No request was made at that point to allow him to return in order to test ify on his own behalf to the jury. The jury then was chosen. Both parties presented their evidence to the jury, after which they informed the trial court that they had no additional evidence to pr esent. Defense counsel argued for a motion to strike the evidence. The jury was informed that they had heard all the evidence and that they would next hear instructions a nd closing arguments when they returned from their lunch break.- 6 - While the jury was at lunch, the trial court, sua sponte , asked the bailiff to bring appellant to the courtroom – not with the understanding th at appellant was going to testify, but instead because the court wanted to determine whethe r appellant would behave himself if he was allowed to sit at the table with defense counsel during the instruc tion of the jury and the closing arguments. At this point, for the first time, appe llant asked to testify on hi s own behalf. The trial court decided not to reopen the evidence a nd permit this additional testimony. Because appellant’s counsel had already rested his case, the witnesses had already been excused, and the jury had already been informed that they would not hear any more evidence, we cannot find that the trial court abused its disc retion in denying appellant’s mo tion to reopen the evidence under these circumstances and to allow him to take the stand. 5 Hargraves , 219 Va. at 608, 248 S.E.2d at 817; Minor , 16 Va. App. at 805, 433 S.E.2d at 40.
CONCLUSION We hold that the trial court did not abuse its discretion he re. Therefore, we affirm appellant’s conviction. Affirmed.

5 The trial court also made a statement sugge sting that appellant was not qualified to testify on the issue of his insani ty at the time of the offense, and, therefore, his testimony was inadmissible. Appellant “objected” to the cour t’s denial of his request to reopen the evidence and allow him to testify, but he never specifically objected to this particular statement by the trial court. Under the Rules of this Court, we cannot consider on appeal such a general objection to a specific ruling of a trial court. See Rule 5A:18 (an objection must be “stated with reasonable certainty” in order to be considered on appeal as “a basis for reversal” of a trial court’s ruling).