COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Lemons and Senior Judge Hodges 

Argued at Alexandria, Virginia 

EUGENE ALLEN BENNETT 

 OPINION BY 

v. Record No. 1912-97-4 JUDGE ROSEMARIE ANNUNZIATA 

 MARCH 9, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Richard B. Potter, Judge 

 Raymond E. Patricco, Jr. (Jeffrey R. Gans; 

Steptoe & Johnson, on briefs), for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Eugene A. Bennett ("appellant") was convicted by jury trial 

of the following offenses: abduction, use of a firearm in the 

commission of abduction, statutory burglary, threatening to bomb 

or burn a structure, possession of a firearm after having been 

convicted of a felony, obtaining money or property by false 

pretenses, attempted murder, possession of an explosive device, 

and possession of explosive materials. On appeal, appellant 

contends the trial court erred: 1) by refusing to grant a 

mistrial after the Commonwealth elicited on direct examination 

that a witness had taken a polygraph test, and 2) by refusing to 

grant a mistrial after the Commonwealth in closing argument 

compared the instant case to those of several infamous murderers. 

We disagree and affirm. 
- 2 -

 I. 

 FACTUAL BACKGROUND 

 Appellant and Marguerite Bennett married in 1984 while they 

both worked for the FBI in Atlanta, Georgia. The Bennetts had 

two daughters, who were ages ten and eight at the time of 

appellant's trial for the present offenses. While employed by 

the FBI, appellant frequently worked as an undercover agent. 

 In 1986, the Bennetts were transferred to a FBI office in 

Washington, D.C. The Bennetts began experiencing marital 

difficulties and separated in 1992. Subsequently, appellant 

initiated divorce proceedings, accusing Mrs. Bennett of 

desertion. In March 1993, appellant was indicted for an 

unrelated charge of fraud. Mrs. Bennett agreed to testify at 

appellant's trial, scheduled for June 1993. Appellant 

subsequently pled guilty to fraud and was incarcerated for twelve 

months. Upon his release in March 1995, appellant returned to 

Northern Virginia and resumed joint custody of his children with 

Mrs. Bennett. A hearing to determine final custody of the 

Bennetts' children and other issues regarding the Bennetts' 

divorce was scheduled for July 15, 1996. 

 On the night of June 23, 1996, appellant convinced Reverend 

Edwin Clever to meet with him alone at Clever's church under the 

false pretense of wanting to make an anonymous donation. When 

Clever arrived, appellant had already gained access to the locked 

building and abducted the minister at gunpoint, handcuffing his 

arms and legs together and placing a pouch containing explosives 
- 3 -

around the minister's waist. Claiming that he was investigating 

a financing scam involving the church's bank accounts, appellant 

threatened to harm Clever's children unless he telephoned Mrs. 

Bennett and convinced her to come to the church that night. 

During the encounter with Clever, appellant appeared to be in 

contact with someone who was observing Clever's children.1 

Clever telephoned Mrs. Bennett at home and, following appellant's 

instructions, asked her to come to the church to assist him in 

handling a crisis that had arisen. Mrs. Bennett, a member and 

lay counselor of the church, agreed to meet him. 

 When Mrs. Bennett entered the church, she saw appellant, who 

was wearing dark clothing and a ski mask and was carrying a gun. 

Mrs. Bennett recognized her husband when he ran toward her 

saying, "Margo, don't fight me on this." Spraying him with 

pepper spray, Mrs. Bennett retreated into an office, pulled a gun 

from her purse, and hid behind a desk. 

 While in the office, appellant warned Mrs. Bennett that 

Clever had explosives around his waist and they would all die if 

she did not emerge from her hiding place and talk with him. Mrs. 

Bennett refused, fearing for her life. During the encounter, 

appellant repeatedly "bobbed around the corner" of the door, 

aiming his gun at Mrs. Bennett and taunting her to engage in a 

 

 1Mary Ann Khalifeh, appellant's unwitting associate, had 

placed Clever's house under surveillance that night. Khalifeh 

answered a newspaper advertisement placed by appellant in 

February 1996 to be trained as a private investigator. At the 

time of the offense, Khalifeh knew appellant as "Edwin Adams" and 

believed they were working on an insurance fraud case. 
- 4 -

shootout. At one point, appellant told Mrs. Bennett he was going 

to take the couple's children and leave the country. Eventually, 

Mrs. Bennett was able to call 911 from the office, and appellant 

fled the church. 

 At trial, appellant presented a M'Naghten Rule insanity 

defense, calling two expert witnesses to establish his mental 

state at the time he committed the above-mentioned acts. The 

first witness, Dr. Michael Girodo, offered no testimony regarding 

appellant's mental health. Instead, Dr. Girodo, a professor of 

psychology, testified concerning his research on the psychiatric 

effects of undercover operations on law enforcement officers. 

 Appellant's second expert, Dr. Robert Bishop, a 

psychiatrist, examined appellant for three and one-half hours and 

concluded he suffered from a dissociative disorder at the time of 

the present offenses. Bishop opined that, as a result of this 

disorder, appellant "did not appreciate the nature and character 

of his acts at the time of the offense" and did not understand 

right from wrong. He did not testify appellant's mental defect 

caused him to act under an irresistible impulse. Although Dr. 

Bishop considered the possibility Bennett was malingering, he 

concluded appellant's condition was genuine. 

 In rebuttal, the Commonwealth presented the expert opinions 

of two witnesses, Dr. Stanton Samenow and Dr. Evan Stuart Nelson, 

both of whom are psychologists. Dr. Nelson's testimony was 

limited to a discussion of the nature of dissociative disorders; 

he offered no opinion with respect to appellant's mental state at 
- 5 -

the time of the offenses. Dr. Samenow, after examining appellant 

for eight hours, concluded appellant was legally sane at the time 

of the present offenses. Dr. Samenow found nothing to indicate 

that appellant suffered from a dissociative disorder and opined 

appellant was malingering. 

 During its case-in-chief, the Commonwealth also introduced 

the testimony of appellant's wife. Mrs. Bennett testified 

extensively concerning the present offenses. Mrs. Bennett also 

testified to a previous, unrelated incident in which appellant 

abducted her in a manner resembling his conduct in committing the 

present offenses. Mrs. Bennett testified that, in 1993, 

appellant lured her into meeting with him under false pretenses, 

subdued her with a stun gun, and tied her up. Appellant 

represented to Mrs. Bennett that an associate had custody of 

their children and that the children would die if she testified 

against him at his trial for the pending charge of fraud. Under 

this threat, appellant kept Mrs. Bennett as a virtual prisoner 

for several days until the scheduled trial of the fraud charge 

began. 

 When Mrs. Bennett perjured herself at the fraud trial, the 

judge interrupted the proceeding. Mrs. Bennett confessed the 

circumstances of her abduction to her attorney soon thereafter. 

 At the trial of the present case, and in conjunction with 

Mrs. Bennett's testimony describing her abduction in 1993, the 

Commonwealth asked her the following questions: 
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 Q. And did your attorneys convince you to 

call the Department of Justice [following 

your abduction] at least to cooperate with 

them? 

 A. Yes. 

 Q. And did you, in fact, do so? 

 A. Yes, I did. 

 Q. And prior to your testimony, did your 

attorneys have you run under a polygraph? 

 A. Yes. 

Appellant immediately objected. In response, the court stated in 

open court, "I sustain the objection." Moments later, 

appellant's counsel asked to approach the bench and moved the 

court for a mistrial on the basis of the Commonwealth's question 

concerning Mrs. Bennett's polygraph. The court denied 

appellant's motion. 

 At the close of the Commonwealth's direct examination, 

appellant's counsel asked the court to recess, stating: 

 I would like to attempt to reach a 

stipulation with the Commonwealth; and 

hopefully we will be heard by the Court in 

reference to the previous objection [to the 

Commonwealth's reference to the polygraph 

examination]. 

The court agreed. Upon readjournment, the court had the 

following dialogue with appellant's counsel: 

 THE COURT: Are there any motions or 

stipulations that should be taken up before 

the jury comes in? 

 [COUNSEL]: We're prepared to proceed, Your 

Honor. 

 THE COURT: No motions; no stipulations; you 

don't seek any instructions? 

 [COUNSEL]: No, Your Honor. 

Counsel later explained that he declined to ask for a 

contemporaneous cautionary instruction regarding polygraph 
- 7 -

evidence because he did not want to draw further attention to 

Mrs. Bennett's improper testimony. 

 Throughout the trial, appellant denied abducting his wife in 

1993 and maintained their contact prior to her perjury was 

consensual. To this end, appellant's counsel attempted, on 

cross-examination of Mrs. Bennett, to prove appellant did not 

hold her against her will, eliciting the fact that she had 

engaged in sexual intercourse with appellant on two occasions 

during the time of the alleged abduction. 

 At the close of the evidence, the court instructed the jury 

that the results of polygraph examinations are not admissible and 

that it could not consider any reference to the willingness or 

unwillingness of any witness to take such a test. The court also 

instructed the jury that it "must not consider any matter that 

was rejected or stricken by the Court," stating "[i]t is not 

evidence and should be discarded." Finally, the court instructed 

the jury that it must find appellant not guilty if it determined 

he was insane under either the M'Naghten Rule or the irresistible 

impulse doctrine. The court specifically instructed the jury 

"that if the act which is alleged to be the result of an 

irresistible impulse was planned in advance, then, as a matter of 

law, such act cannot be said to be the product of an irresistible 

impulse." 
- 8 -

 II. 

 ALLEGED PREJUDICE FROM THE ADMISSION OF POLYGRAPH EVIDENCE 

 Appellant first contends Mrs. Bennett's testimony that she 

took a polygraph test following her alleged abduction by 

appellant in 1993 irreparably prejudiced his defense. Appellant 

further contends the court's jury instruction to disregard 

polygraph evidence did not sufficiently mitigate the prejudice. 

Although we find Mrs. Bennett's reference to her polygraph was 

improper, we disagree appellant's defense was prejudiced as a 

result. 

 Because a polygraph examination has no proper evidentiary 

use, neither the results of a polygraph, Robinson v. 

Commonwealth, 231 Va. 142, 155, 341 S.E.2d 159, 167 (1986), nor 

"[e]vidence of a person's willingness or unwillingness to submit 

to a polygraph" is admissible in court. Gray v. Graham, 231 Va. 

1, 10, 341 S.E.2d 153, 157 (1986). See Pugliese v. Commonwealth, 

16 Va. App. 82, 89, 428 S.E.2d 16, 22 (1993); Crumpton v. 

Commonwealth, 9 Va. App. 131, 135, 384 S.E.2d 339, 342 (1989). 

Furthermore, evidence concerning a polygraph is not admissible to 

establish the guilt or innocence of an accused or to impeach a 

witness' credibility. Robinson, 231 Va. at 155-56, 341 S.E.2d at 

167. 

In a long line of cases, spanning almost 

thirty years, [the Supreme Court of Virginia 

has] made clear that polygraph examinations 

are so thoroughly unreliable as to be of no 

proper evidentiary use whether they favor the 

accused, implicate the accused, or are agreed 

to by both parties. The point of these cases 
- 9 -

is that the lie-detector or polygraph has an 

aura of authority while being wholly 

unreliable. 

Id. at 156, 341 S.E.2d at 167 (citations omitted) (emphasis 

added). "The mention of polygraphs in the presence of the jury 

impermissibly suggests that there is a scientific way to find the 

truth where in reality, in our system of justice, the jury 

decides what is true and what is not." Id.

 In this case, the Commonwealth improperly referred to the 

fact that Mrs. Bennett took a polygraph examination after her 

1993 abduction. Mrs. Bennett testified on direct examination 

that her attorneys "ha[d her] run under a polygraph" prior to 

cooperating with the Department of Justice in appellant's 

unrelated prosecution for fraud. Although Mrs. Bennett's 

statement expressly revealed neither the results of her polygraph 

nor her willingness or unwillingness to take the polygraph, the 

fact she took a polygraph prior to assisting authorities who were 

prosecuting her husband for fraud suggested that her testimony 

concerning the 1993 abduction had been scientifically 

corroborated. In closing argument, the Commonwealth used Mrs. 

Bennett's testimony regarding her prior abduction to argue 

appellant was sane when committing the present offenses.2 Mrs. 

 

 2The Commonwealth argued in pertinent part: 

 This case is about whether on the one 

hand the defendant has a criminal mind. One 

that is capable of planning, executing, 

organization and step by step action. 

 
_______________ 

- 10 -

 Or whether on the other hand he has gone 

so far over the line and become criminally 

insane. 

 * * * * * * * 

 [The judge] has instructed you on the 

law of insanity. . . . 

 * * * * * * * 

 [So w]hat do[es appellant] have to prove 

to you? One of two things. 

 First that he was so diseased that he 

didn't appreciate the consequences of what he 

was doing or was unable to tell right from 

wrong. In other words he didn't know what 

was going on around him. 

 Or two, if he knew what he was doing, 

that he had as a result of his disease an 

impulse that he could not resist that forced 

him to commit these acts. 

 But the law says if you find that the 

acts were planned, then you may not consider 

irresistible impulse. 

 All these acts clearly were planned. 

 So irresistible impulse we get rid of 

right from the beginning. I would not[e] 

incidentally that Dr. Bishop never said one 

word about irresistible impulse. Not one. 

 So the only question we have left is 

whether the defendant knew what he was doing. 

Was he cognizant of it or was he off in some 

world somewhere where he had no idea what was 

going on. 

 * * * * * * * 

 And the abduction of the minister and 

the abduction of Mrs. Bennett, twice, once in 

'96, once in '93 . . . all bears some 

striking similarities. 

 Because you see, folks, when he went 

into that church and tied up the reverend 

this wasn't the first time he had done that 

kind of thing. 

 When he told the reverend that someone 

was watching his kids, it wasn't the first 

time he had gained control over someone 

through that ruse. 
- 11 -

Bennett's testimony was therefore probative as to appellant's 

insanity defense and, by extension, his guilt or innocence. 

Moreover, as appellant denied abducting his wife in 1993 and 

introduced evidence that their contact was consensual, Mrs. 

Bennett's credibility was at issue. Thus, we find the 

Commonwealth improperly used Mrs. Bennett's polygraph examination 

to suggest that appellant's guilt and Mrs. Bennett's credibility 

had been scientifically established. 

 Notwithstanding the impropriety of Mrs. Bennett's reference 

to taking a polygraph examination, we find the trial court did 

not err in denying the appellant's motion for a mistrial. 

 "A trial court exercises its discretion when it determines 

whether it should grant a motion for a mistrial. Whether 

improper evidence is so prejudicial as to require a mistrial is a 

question of fact to be resolved by the trial court in each 

particular case." Beavers v. Commonwealth, 245 Va. 268, 280, 427 

S.E.2d 411, 420 (1993), cert. denied, 510 U.S. 859 (1993). 

"Thus, a trial court's denial of a motion for a mistrial will not 

_______________ He did it to Mrs. Bennett in '93. Bound 

her. Got the jump on her just like he did 

the minister. Bound her. Blind folded her. 

Held her and told her there's somebody with 

the kids. 

 Isn't that what he did to the 

minister. . . . 

 * * * * * * * 

 Planning, contingencies. Always a 

backup plan. . . . He did the same thing with 

Margo Bennett in '93 that he did to Margo 

Bennett and the minister in '96. 
- 12 -

be reversed on appeal unless there exists a manifest probability 

as a matter of law that the improper evidence prejudiced the 

accused." Mills v. Commonwealth, 24 Va. App. 415, 420, 482 

S.E.2d 860, 862 (1997). 

 Following the improper admission of evidence, juries are 

presumed to follow a court's "prompt, explicit, and curative 

instructions" to disregard the evidence. Beavers, 245 Va. at 

280, 427 S.E.2d at 420; Spencer v. Commonwealth, 240 Va. 78, 95, 

393 S.E.2d 609, 619 (1990) (stating that juries are always 

presumed to follow "an explicit cautionary instruction promptly 

given, unless the record clearly shows that the jury disregarded 

it"). As an exception to this rule, "'the admission of 

incompetent evidence is reversible error notwithstanding the fact 

that the trial court, after its admission, instructed the jury to 

disregard it, if such illegal evidence was so impressive that it 

probably remained on the minds of the jury and influenced their 

verdict.'" Mills, 24 Va. App. at 420, 482 S.E.2d at 862 (quoting 

Asbury v. Commonwealth, 211 Va. 101, 106, 175 S.E.2d 239, 241 

(1970)). 

 Given the aforementioned principles, in order for appellant 

to prevail we must find a manifest probability that the admission 

of Mrs. Bennett's testimony that she took a polygraph so 

impressed the jury that it remained on their minds and influenced 

their verdict, notwithstanding the court's instruction to 

disregard at the close of evidence. See id. at 420-21, 482 

S.E.2d at 862-63. The circumstances of this case do not support 
- 13 -

such a finding. 

 A reviewing court may consider a number of factors in 

determining whether a mistrial motion was improperly denied. 

"Whether a manifest probability exists that . . . improper 

evidence prejudiced the accused despite [a court's] cautionary 

instruction depends upon the nature of the incompetent evidence 

when considered in relation to the nature of the charges, the 

other evidence in the case, and [the] manner in which the 

prejudicial evidence was presented." Id. Additionally, a 

court's failure to take any action in response to an improper 

question is relevant to determining prejudice because the jury 

may infer from such inaction that the court approved of the 

impropriety. Lewis v. Commonwealth, 211 Va. 80, 84, 175 S.E.2d 

236, 238 (1970) (finding the defendant suffered no prejudice from 

the improper admission of testimony and a statement by the 

prosecutor where the court expressly disapproved of the improper 

remarks with a cautionary instruction). See Ward v. 

Commonwealth, 205 Va. 564, 573-74, 138 S.E.2d 293, 300 (1964); 

Manning v. Commonwealth, 2 Va. App. 352, 356-57, 344 S.E.2d 197, 

199 (1986). The number of references to an error is also 

relevant to our consideration of whether prejudice influenced the 

jury. Ward, 205 Va. at 574, 138 S.E.2d at 300 ("In this 

instance, the first error was compounded by the second and it 

would be hard to blot the information from the minds of a 

jury."). 
- 14 -

 In this case, it is clear the Commonwealth purposely 

elicited evidence that Mrs. Bennett took a polygraph. However, 

appellant promptly objected to this error. In response, the 

trial court immediately sustained the objection. After asking 

for a recess in order to decide how to deal with the improper 

testimony, appellant's counsel declined to request a 

contemporaneous cautionary instruction, explaining that he did 

not want to draw further attention to the impropriety. Deferring 

to counsel, the court, in its discretion, also declined to give a 

cautionary instruction sua sponte. See Manetta v. Commonwealth, 

231 Va. 123, 127 n.2, 340 S.E.2d 828, 830 n.2 (1986) (stating 

that a trial court is not required to give a cautionary 

instruction sua sponte if not requested to do so by a party and 

recognizing that such instructions may sometimes serve to 

emphasize portions of testimony which the complaining party would 

prefer to avoid). Instead, appellant moved the court, at the 

conclusion of the evidence, to instruct the jury to disregard any 

evidence regarding the results of a polygraph or a witness' 

willingness to take a polygraph. The court instructed the jury 

accordingly, further instructing that the jury should not 

consider any evidence rejected or stricken by the court. From 

these facts, it cannot be contended the court countenanced the 

impropriety. On the contrary, the court expressly disapproved of 

the Commonwealth's improper question by sustaining appellant's 

objection and subsequently instructing the jury to disregard any 

evidence concerning the results of a polygraph or Mrs. Bennett's 
- 15 -

willingness to take a polygraph. Without any evidence in the 

record to the contrary, we presume the jury followed the court's 

instructions. 

 Further, given the manner in which the Commonwealth 

presented the incompetent evidence at trial, we do not find the 

error here to be so impressive that it likely influenced the 

jury's verdict despite the court's curative instructions. At the 

close of its lengthy direct examination, the Commonwealth asked 

Mrs. Bennett whether her attorneys required her to take a 

polygraph examination before assisting the Department of Justice 

prosecution of appellant for an unrelated charge of fraud. 

Without elaboration, Mrs. Bennett responded in the affirmative. 

The Commonwealth made no other reference to Mrs. Bennett's 

polygraph during trial and did not mention the polygraph in its 

opening statement or closing argument. Thus, in the context of 

appellant's entire trial, which occurred over a period of more 

than two weeks, the Commonwealth's error consisted of a single 

question and answer. See LeVasseur v. Commonwealth, 225 Va. 564, 

589, 304 S.E.2d 644, 658 (1983) (finding that a single improper 

question on direct examination, when viewed in the context of the 

entire examination, did not cause such impressive prejudice that 

the court's cautionary instruction could not cure the 

impropriety). 

 The nature of the incompetent evidence in relation to the 

critical issues at appellant's trial also militates against a 

finding of prejudice requiring reversal. Mrs. Bennett's 
- 16 -

testimony that she took a polygraph after perjuring herself in 

1993 is distinguished by what it fails to state; it neither 

indicates the polygraph's results nor Mrs. Bennett's willingness 

to take a lie detector test. As noted earlier, appellant 

objected before the Commonwealth could elicit further elaboration 

or clarification. Thus, the relevance of the reference to the 

polygraph is unclear. Although the jury might arguably have 

inferred that the results of Mrs. Bennett's polygraph were 

favorable to the Commonwealth's case, the context of the inquiry 

and the ambiguity of her answer make it unclear whether the 

polygraph results related to Mrs. Bennett's testimony concerning 

appellant's fraud or to the events surrounding her abduction by 

appellant in 1993; only the latter had an arguable impact in the 

present case. Such ambiguities in improper polygraph testimony 

have generally been held to support the conclusion that an error 

in the admission of such evidence was harmless. See Epperly, 224 

Va. at 234, 294 S.E.2d at 893-94 (holding that a witness' mention 

of the word "polygraph" did not cause harmful error because the 

reference was elicited "without definition or elaboration"); 

Barber, 206 Va. at 250-51, 142 S.E.2d at 491-92 (finding that a 

witness' reference to whether the defendant would take a 

polygraph was error and considering the fact that the improper 

testimony did not show the defendant's unwillingness to take a 

polygraph as a mitigating circumstance on the issue of 

prejudice). 

 We also find the improper reference to Mrs. Bennett's 
- 17 -

polygraph constituted relatively weak evidence in rebuttal of 

appellant's insanity defense. Virginia law recognizes two tests 

by which an accused can establish criminal insanity, the 

M'Naghten Rule and the irresistible impulse doctrine. The 

irresistible impulse defense is available when "the accused's 

mind has become 'so impaired by disease that he is totally 

deprived of the mental power to control or restrain his act.'" 

Godley v. Commonwealth, 2 Va. App. 249, 251, 343 S.E.2d 368, 370 

(1986) (quoting Thompson v. Commonwealth, 193 Va. 704, 716, 70 

S.E.2d 284, 292 (1952)). Under the M'Naghten Rule, an accused is 

insane if he or she did not understand the nature, character, and 

consequences of his or her act, or was unable to distinguish 

right from wrong. Price v. Commonwealth, 228 Va. 452, 457, 323 

S.E.2d 106, 109 (1984). 

 Evidence that an accused planned his or her criminal acts 

precludes, as a matter of law, any finding that the accused acted 

under an irresistible impulse. Rollins v. Commonwealth, 207 Va. 

575, 580, 151 S.E.2d 622, 625 (1966). Evidence of planning does 

not, however, preclude a finding of insanity under the M'Naghten 

Rule. See Johnson v. Insurance Co. of North America, 232 Va. 

340, 341, 347-48, 350 S.E.2d 616, 617, 621 (1986) (explaining the 

defendant may be criminally insane under the M'Naghten Rule, even 

though he acted deliberately, methodically, and intentionally, 

planning to kill his victim without knowing that it was wrong). 

 Here, the Commonwealth used Mrs. Bennett's testimony 

regarding her abduction in 1993 to argue that appellant planned 
- 18 -

the present offenses. The improper evidence of Mrs. Bennett's 

polygraph was intended to corroborate this testimony. While such 

evidence, in the abstract, is arguably prejudicial to a case in 

which the defendant contends he or she acted under an 

irresistible impulse, in this case, appellant presented no 

evidence in support of an irresistible impulse defense.3 

Appellant's evidence was limited to establishing his insanity 

under the M'Naghten Rule. It follows that appellant was not 

prejudiced in establishing a defense for which he presented no 

evidence.4 We find the Commonwealth's improper polygraph 

evidence, admitted to show appellant planned the present 

offenses, did not prejudice appellant's claim of insanity under 

the M'Naghten Rule because the evidence had no relevance under 

the M'Naghten test of insanity. 

 For the reasons stated above, we find no manifest 

probability as a matter of law that the improper polygraph 

 

 3Appellant's expert, Dr. Bishop, testified appellant "did not 

appreciate the nature and character of his acts at the time of 

the offense[s]" and did not understand right from wrong. We find 

no indication in the record that appellant offered any evidence 

on the issue of his insanity under the irresistible impulse 

doctrine. 

 4We note that the trial court gave an instruction on the 

irresistible impulse test for insanity. We further note that the 

Commonwealth referred to the irresistible impulse defense in 

closing argument. However, as our review of the record makes 

manifest, appellant presented no evidence in support of 

irresistible impulse. In the absence of such evidence, the jury 

could not properly find that appellant acted as a result of an 

irresistible impulse. Indeed, as the jury found appellant 

guilty, it properly did not make such a finding. The testimony 

of Mrs. Bennett clearly had no probative value and, logically, no 

prejudicial impact on this issue. 
- 19 -

evidence prejudiced the jury, and we affirm the trial court's 

denial of appellant's motion for a mistrial. 

 III. 

 ALLEGED IMPROPRIETY OF COMMONWEALTH'S CLOSING ARGUMENT 

 Appellant next contends the Commonwealth's closing argument 

reference to infamous murderers warrants reversal of his 

convictions. The Commonwealth argues the trial court properly 

denied appellant's motion for a mistrial because appellant failed 

to move for a mistrial or request a cautionary instruction in a 

timely fashion, improperly waiting until the end of the 

prosecutor's argument. We agree with the Commonwealth. 

A. Factual Background 

 As previously noted, Dr. Bishop testified that he believed 

appellant suffered from a form of dissociative disorder and, 

therefore, did not understand the nature of his criminal actions. 

Upon the Commonwealth's cross-examination, Dr. Bishop 

acknowledged that many criminals with severe mental illnesses 

would not meet the test for criminal insanity. Dr. Bishop agreed 

Charles Manson was an example of such a person. When the 

Commonwealth further asked whether Jeffrey Dahmer would also 

exemplify such a person, appellant objected on the ground that 

Dr. Bishop was not qualified to answer. The court overruled the 

objection, stating "[i]t goes to his expertise. If he can answer 

the question, I'll let him answer the question." Dr. Bishop then 

testified he believed Jeffrey Dahmer "probably was" insane, even 

though the jury in Dahmer's trial found otherwise. 
- 20 -

 During closing argument, the prosecutor attempted to explain 

the legal defense of insanity only becomes available when a 

defendant, no matter how ill, demonstrates he has "cross[ed]" a 

"bright line." He argued the only relevant test for determining 

appellant's sanity was whether appellant "knew what he was 

doing." 

 Elaborating on this point, the Commonwealth argued, "You can 

put on this side of the insanity line (indicating) everybody in 

this courtroom including the defendant. People with psychiatric 

problems, mental problems, infamous criminals, Charles Manson, 

Richard Speck, the man who murdered eight student nurses. 

Jeffrey Dahmer. The murder and cannibalization --" 

 When defense counsel objected to the Commonwealth's 

argument, the court asked the prosecutor, "[h]ow far are you 

going with this?" When assured he would go no further, the court 

stated that it would "[o]verrule the objection at this time." 

Continuing his argument, the Commonwealth stated, "Th[ese] men 

knew what they were doing. W[ere] their actions bizarre? Was it 

evil? Was it macabre? Did it shock your conscious [sic] when 

you heard about it? Of course. No different than what he did. 

Not even as bad. If they are legally responsible so is this 

man." 

 Appellant's counsel made no further objection but moved for 

a mistrial at the close of the Commonwealth's argument, citing 

the references to Charles Manson, Richard Speck, and Jeffrey 

Dahmer. The court denied the motion. 
- 21 -

B. Legal Principles 

 An alleged error is sufficiently preserved for consideration 

on appeal if "at the time the ruling or order of the court is 

made or sought, [a party] makes known to the court the action 

which he desires the court to take or his objections to the 

action of the court and his grounds therefor." Code § 8.01-384. 

The purpose of this rule is "to avoid unnecessary appeals, 

reversals and mistrials by allowing the trial judge to 

intelligently consider an issue and, if necessary, to take 

corrective action." Campbell v. Commonwealth, 12 Va. App. 476, 

480, 405 S.E.2d 1, 2 (1991). 

 When allegedly improper comments are made during closing 

argument in the guilt phase of a trial, the objecting party must 

expressly seek the action that it desires the judge to take. 

Craddock v. Commonwealth, 16 Va. App. 402, 405, 429 S.E.2d 889, 

891 (1993). "It is well settled that errors 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." 

Cheng v. Commonwealth, 240 Va. 26, 38, 393 S.E.2d 599, 605-06 

(1990). See Taylor v. Commonwealth, 208 Va. 316, 324, 157 S.E.2d 

185, 191 (1967). "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." Morris v. 

Commonwealth, 14 Va. App. 283, 287, 416 S.E.2d 462, 464 (1992) 
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(en banc). "The recognized purpose of this requirement is to 

prevent retrials by calling error to the attention of the trial 

judge, who may then caution the jury to disregard the 

inappropriate remarks." Craddock, 16 Va. App. at 405, 429 S.E.2d 

at 891. See Mack v. Commonwealth, 20 Va. App. 5, 8, 454 S.E.2d 

750, 751 (1995). 

 "Making a timely motion for mistrial means making the motion 

'when the objectionable words were spoken.'" Yeatts v. 

Commonwealth, 242 Va. 121, 137, 410 S.E.2d 254, 264 (1991) 

(quoting Reid v. Baumgardner, 217 Va. 769, 774, 232 S.E.2d 778, 

781 (1977)). "If counsel believes that an argument requires or 

justifies a mistrial, he has the duty to move promptly before 

conclusion of the argument so that the trial court may determine 

what corrective action, if any, should be taken." Pullen v. 

Nickens, 226 Va. 342, 346-47, 310 S.E.2d 452, 454-55 (1983). See

Beavers, 245 Va. at 278-79, 427 S.E.2d at 419 (holding that a 

complainant's failure to object and move for a mistrial until the 

conclusion of an opening statement constituted a waiver of its 

arguments on appeal). There appears to be no exception in 

Virginia law to the strict application of this rule. 

 Although appellant objected to the Commonwealth's comparison 

of him with several infamous murderers, he withheld his motion 

for mistrial until after the Commonwealth completed its closing 

argument. Appellant thus failed to preserve for appeal his 

objection to the Commonwealth's argument. We express no opinion 

on whether the Commonwealth's argument was, in fact, improper. 
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Under Virginia law, appellant was required to timely move for a 

mistrial in order to preserve his objection. Having failed to do 

so, the objection to the Commonwealth's comments was waived. 

 Based on the foregoing, we find no error in the trial 

court's denial of appellant's motion for a mistrial. 

Accordingly, we affirm appellant's convictions. 

 Affirmed.