COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Overton 

Argued at Norfolk, Virginia 

WILLIAM L. GRIFFIN 

 OPINION BY 

v. Record No. 0183-95-1 JUDGE NELSON T. OVERTON 

 JUNE 25, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Norman Olitsky, Judge 

 Darell L. Sayer (Ferrell, Backus, Sayer & 

Nicolo, P.C., on brief), for appellant. 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 William L. Griffin was convicted by a jury of attempted 

robbery, malicious wounding, and use of a firearm in the 

commission of a felony. On appeal, Griffin contends that the 

trial court erred by allowing the Commonwealth to make a rebuttal 

argument in the sentencing phase of his bifurcated trial. 

Finding no error, we affirm. 

 Only the events at the sentencing phase are relevant to this 

appeal. After a jury returned guilty verdicts, the sentencing 

phase was commenced. Neither side presented testimony or other 

evidence. The defendant objected to the Commonwealth's proposed 

rebuttal argument, arguing that the Commonwealth would receive an 

unfair advantage. The objection was overruled. The defense did 

not request a surrebuttal argument. After both sides argued 

before the jury, the Commonwealth made the following brief 
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rebuttal remarks: 

 Ladies and gentlemen, very briefly, 

[Counsel for defense] says that imposing the 

minimum punishment, which would be an 

aggregate of 15 years if you added up all of 

those, that you could apply in these four 

matters would emphasize to the defendant the 

seriousness of what he's done. The maximum 

would also emphasize the seriousness of what 

he's done. It's within your discretion 

sitting as the City of Portsmouth, which the 

12 of you are today looking at all the facts 

of the crime and what happened, to determine 

and set a punishment that is appropriate in 

this case. I know you take your job 

seriously. It's been reflected in how 

closely you listened to the evidence, the 

time you took deliberating yesterday to reach 

your verdict, and I know your penalty will be 

reached with the same deliberation and care 

and attention to your duty. 

 I look forward to your verdict. Thank you. 

The jury deliberated for fifteen minutes and came back with 

recommendations totaling a sentence of sixteen years. 

 In Virginia the Commonwealth traditionally has been 

permitted to "combat the argument of defendant's counsel . . . 

both with respect to the guilt of the accused and a proper 

measure of punishment." Martinez v. Commonwealth, 241 Va. 557, 

560, 403 S.E.2d 358, 359-60 (1991) (quoting Timmons v. 

Commonwealth, 204 Va. 205, 216-17, 129 S.E.2d 697, 705 (1963)). 

In 1994, the General Assembly amended the Code to provide for 

bifurcated trials; the guilt phase was separated from the 

sentencing phase. This change precludes the Commonwealth from 

combatting the defendant's arguments as to guilt and sentencing 

in the same statement to the jury. The legislature did not alter 
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the Code with respect to the closing remarks, however, and the 

philosophy that the Commonwealth has a right to combat the 

defendant's arguments holds true. 

 No rationale suggests a need to change this procedure. 

 If the prosecutor's rebuttal comments 

(closing comments) are properly limited to 

their intended purpose, there would be no 

reason to permit the defendant to address the 

jury further. In the normal course of a 

summation to the jury, of necessity, only one 

side may open. The other party then has the 

opportunity to reply to his opponents [sic] 

opening argument, and in turn make his own 

argument to the jury. The one who spoke 

first then has the opportunity to answer the 

argument of his opponent. No new material 

should be injected into this final statement. 

 (75 Am. Jur. 2d Trial § 214 (1974).) There 

is therefore no reason to permit further 

argument which presumably could only be 

justified for the purpose of replying to 

something stated in the other person's final 

statement. 

People v. Caballero, 464 N.E.2d 223, 235 (Ill.), cert. denied, 

469 U.S. 963 (1984). Indeed, in this case the Commonwealth 

discussed no new material and merely answered the argument of the 

defendant. 

 The trial judge must use proper discretion in determining 

the appropriateness and length of closing arguments. In this 

case, he allowed the Commonwealth to make a short rebuttal after 

the defendant's own argument. "[T]he conduct of a trial is 

committed to the trial judge's discretion, and absent evidence of 

an abuse of this discretion, we will not disturb his rulings on 

that subject." Justus v. Commonwealth, 222 Va. 667, 676, 283 
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S.E.2d 905, 910 (1981), cert. denied, 455 U.S. 983 (1982). 

 We hold that a rebuttal argument is permissible in the 

sentencing phase of a noncapital case. Because we find no abuse 

of discretion by the trial judge in the instant case, we affirm 

the convictions. 

 Affirmed.