Tuesday 19th 

 January, 1999. 

Lorenzo McLean, Appellant, 

 against Record No. 1637-97-1 

 Circuit Court Nos. CR96002332-00 and 

 CR96002332-01 

Commonwealth of Virginia, Appellee. 

Upon a Petition for Rehearing En Banc 

Before the Full Court 

On December 18, 1998 came the appellee, by counsel, and 

filed a petition praying that the Court set aside the judgment 

rendered herein on December 8, 1998, and grant a rehearing en banc 

thereof. 

On consideration whereof, the petition for rehearing en banc 

is granted, the mandate entered herein on December 8, 1998 is stayed 

pending the decision of the Court en banc, and the appeal is 

reinstated on the docket of this Court. 

The parties shall file briefs in compliance with Rule 5A:35. 

 It is further ordered that the appellee shall file with the clerk of 

this Court ten additional copies of the appendix previously filed in 

this case. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 
COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Lemons 

Argued at Norfolk, Virginia 

LORENZO McLEAN 

 OPINION BY 

v. Record No. 1637-97-1 JUDGE JAMES W. BENTON, JR. 

 DECEMBER 8, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

John C. Morrison, Jr., Judge 

 Fay F. Spence (Spence & Whitlow, on brief), 

for appellant. 

 Michael T. Judge, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 A jury convicted Lorenzo McLean of robbery and of capital 

murder for a killing committed in the commission of a robbery. 

On this appeal, McLean contends the trial judge erred by 

instructing the jury during their deliberations on "concert of 

action" in response to the jury's questions about "intent." For 

the reasons that follow, we reverse the convictions and remand 

for a new trial. 

 I. 

 The evidence at trial proved that a police officer found the 

unconscious and severely beaten body of William Jones, Jr. in a 

park in the City of Norfolk on January 1, 1995. Near Jones' 

body, the police found a bloodstained concrete splash block. 

Jones later died. An autopsy revealed that Jones had received 

extensive blunt force trauma to his head, chest, and other areas 
- 3 - 

of his body. Jones also had an incision in his neck which cut 

his jugular vein and a single stab wound to his chest. The 

assistant medical examiner testified that several of the injuries 

suffered by Jones would have been sufficient alone to eventually 

cause Jones' death. 

 Nathaniel Lindsey testified that he, Lorenzo McLean, Neil 

Bates, and another man known as "Skip" were drinking alcoholic 

beverages and smoking marijuana in the park at night when they 

encountered Jones, who was drinking beer in the park. After the 

men talked with Jones, they pooled their money with Jones in an 

unsuccessful attempt to buy more alcoholic beverages. 

 Lindsey testified that McLean accused Jones of being 

homosexual and called Jones a "fag" several times. Jones 

responded to McLean's taunts by attempting to hit McLean. When 

Jones missed, McLean and Bates each struck Jones with their 

fists, causing Jones to fall. Lindsey then kicked Jones twice. 

McLean and Skip continued the assault by throwing a bicycle on 

Jones. After McLean stated that Jones had seen their faces, 

McLean said, "we got to kill him." McLean then asked if anyone 

had a weapon. 

 According to Lindsey's testimony, Lindsey and Bates grabbed 

a concrete splash block near a building. Lindsey testified, 

however, that he dropped the splash block and walked away because 

he "didn't feel right" about dropping it on Jones. Lindsey 

testified that when he turned the corner of a building he met a 
- 4 - 

woman and smoked a cigarette with her. During the ten minutes he 

was smoking the cigarette, he heard no noise from the park. 

Lindsey testified that he then returned to the park and saw Bates 

and Skip drop the splash block on Jones' head. Bates and McLean 

then dropped the splash block on Jones' head. 

 Lindsey further testified that McLean and Skip discussed 

whether Jones had money. Lindsey saw Skip put his hands in 

Jones' pockets and throw Jones' wallet and identification in a 

field behind the park. He testified that he saw no one take 

money from Jones. Lindsey said McLean then broke a bottle and 

stuck it in Jones' neck. Lindsey testified that after he, 

McLean, Bates, and Skip left the park, McLean changed his shoes 

because they were covered with blood. 

 Sharee McCorkle testified that on that same night she heard 

noise coming from the park. She heard a man saying, "come on, 

man, help me," and heard McLean, whom she had known "a long 

time," respond, "I can't help you." McCorkle testified that, 

although the park was unlit, she saw five or six people in the 

park and saw McLean as he slammed the cement block on Jones' 

face. 

 Keisha Sanderson testified that when she saw McLean that 

night, he had blood on his tennis shoes and had food stamps. 

When she later saw McLean, he had changed clothes. 

 During the presentation of his evidence, McLean testified 

that he could not remember where he was on January 1, 1995. He 
- 5 - 

also testified that he had never met Jones, that he was not in 

the park the night Jones was killed, and that the Commonwealth's 

witnesses were "out to get him." 

 After the trial judge instructed the jury at the conclusion 

of the evidence, the jury sent two written questions to the judge 

during their deliberations. They asked: "May we have a legal 

definition of intent?" and "Is the word intent collective?" The 

trial judge told the prosecutor and McLean's counsel that he 

would not answer the first question. The trial judge then asked 

the jury to state "what they mean by that [second] question." 

The jury restated the question as follows: "Once the intent is 

spoken by one member of a group and the act is performed, does 

the intent to commit the act apply to all? What is the law 

concerning this?" Over McLean's counsel's objection, the trial 

judge responded by informing the jury according to the following 

instruction offered by the Commonwealth: 

 If you find that there is a concert of action 

with the resulting crime one of its 

incidental, probable consequences, then 

whether such crime was originally 

contemplated or not, all who participate in 

any way in bringing it about are equally 

answerable and bound by the acts of every 

other person connected with the consummation 

of the resulting crime. 

 The jury convicted McLean of capital murder and robbery and 

recommended a sentence of life in prison on the capital murder 

conviction. The trial judge imposed that sentence. Because 

McLean was a juvenile at the time of the robbery offense, the 
- 6 - 

trial judge determined McLean's sentence for robbery and imposed 

a life sentence. 
- 7 - 

 II. 

 Rule 3A:16(a) provides that "[i]n all cases the court shall 

instruct the jury before arguments of counsel to the jury." The 

principle is also well established that "[i]t [is] . . . proper 

for the [trial judge] to fully and completely respond to inquiry 

which might come from the jury for information touching their 

duties." Williams v. Commonwealth, 85 Va. 607, 609, 8 S.E. 470, 

471 (1889). See also Marlowe v. Commonwealth, 2 Va. App. 619, 

625, 347 S.E.2d 167, 171 (1986). "The trial judge's 'imperative 

duty [to properly instruct the jury] . . . is one which can be 

neither evaded nor surrendered.'" Johnson v. Commonwealth, 20 

Va. App. 547, 554, 458 S.E.2d 599, 602 (1995) (citation omitted). 

 Thus, when read together, Rule 3A:16(a) and Virginia case 

decisions allow the trial judge to give a supplemental jury 

instruction which clarifies an existing instruction or a 

principle previously existing before the jury. 

 The jury's questions clearly indicate that the jury was 

seeking a definition of intent, an issue in the case. At the 

conclusion of the evidence, the trial judge had given the jury 

the following instructions concerning intent: 

 The defendant is charged with the crime of 

capital murder. The Commonwealth must prove 

beyond a reasonable doubt each of the 

following elements of that crime: 

 (1) That the defendant killed William 

Jones; and 

 (2) That the killing was willful, 

deliberate and premeditated; and 
- 8 - 

 (3) That the killing occurred during the 

commission of a robbery while the defendant 

was armed with a deadly weapon. 

* * * * * * * 

 "Willful, deliberate, and premeditated" 

means a specific intent to kill, adopted at 

some time before the killing, but which need 

not exist for any particular length of time. 

* * * * * * * 

 The defendant is charged with the crime of 

robbery of William Jones. The Commonwealth 

must prove beyond a reasonable doubt each of 

the following elements of that crime: 

 (1) That the defendant intended to steal; 

and 

 (2) That property was taken; and 

 (3) That the taking was from William 

Jones or in his presence; and 

 (4) That the taking was against the will 

of the owner or possessor; and 

 (5) That the taking was accomplished by 

beating William Jones. 

* * * * * * * 

 The principal elements of robbery, a crime 

against the person of the victim, are the 

taking, the intent to steal and violence. 

The violence must occur before or at the time 

of the taking. The intent to steal and 

taking must co-exist. The offense is not 

robbery unless the intent was conceived 

before or at the time the violence was 

committed. 

* * * * * * * 

 You may infer that every person intends

the natural and probable consequences of his 

acts. 

(Emphasis added). 
- 9 - 

 When the jury asked the questions, "May we have a legal 

definition of intent?" and "Is the word intent collective?," the 

trial judge did not answer the first question and asked the jury 

to state "what they mean by that [second] question." The jury 

then asked, "Once the intent is spoken by one member of a group 

and the act is performed, does the intent to commit the act apply 

to all? What is the law concerning this?" In response to these 

inquiries, the trial judge interjected for the first time the 

issue of "concert of action." "However, if a supplemental jury 

instruction given in response to a jury's question introduces a 

new theory to the case, the parties should be given an 

opportunity to argue the new theory." United States v. Fontenot, 

14 F.3d 1364, 1368 (9th Cir.), cert. denied, 513 U.S. 966 (1994). 

 Failure to allow argument after a new issue is introduced in the 

case results in "unfair prejudice." Id. See also Bouknight v. 

United States, 641 A.2d 857, 861 (D.C. 1994) (after giving a 

supplemental instruction on aiding and abetting, a new theory of 

liability, the trial judge properly allowed limited additional 

argument). 

 None of the jury instructions had mentioned "concert of 

action" or touched upon that principle as a theory of liability. 

 Thus, this is not a case in which the trial judge amended an 

instruction that was erroneous when earlier given to the jury. 

See Blevins v. Commonwealth, 209 Va. 622, 628, 166 S.E.2d 325, 

330 (1969) (stating that the trial judge "not only has the right 
- 10 - 

but . . . a duty to amend instructions which appear to be 

erroneous or misleading after summation by counsel"). The jury 

had not been instructed on the concept of "concert of action," 

and the jury made no inquiry about that concept. By injecting in 

the trial for the first time during jury deliberations the 

concept of "concert of action," the trial judge deprived McLean 

of the right to have his counsel argue to the jury the principles 

contained in the instruction as they related to the facts of the 

case. See Rule 3A:16(a). 

 In addition, when responding to the jury's inquiry 

concerning their duties, the trial judge must fully and 

accurately inform the jury on matters upon which the jury makes 

inquiry. See Jones v. Commonwealth, 194 Va. 273, 278, 72 S.E.2d 

693, 696 (1952). The supplemental instruction that the trial 

judge gave to the jury falls short of this standard. Even if the 

trial judge's response to the jury's inquiry correctly stated the 

law of "concert of action," the trial judge erred by answering 

the jury in a manner that was incomplete and nonresponsive to the 

jury's inquiry. See Shepperson v. Commonwealth, 19 Va. App. 586, 

591-92, 454 S.E.2d 5, 8 (1995). Simply put, "the statement by 

the [trial judge] in the case in judgment did not fully inform 

the jury upon the point to which their inquiry was directed." 

Jones, 194 Va. at 278, 72 S.E.2d at 696. 

 The failure to respond to the jury's inquiry concerning 

intent and the giving of an instruction on "concert of action," 
- 11 - 

without directly responding to the jury's inquiry, "might have 

had the effect to mislead the jury as to the law of the case." 

Wren v. Commonwealth, 66 Va. (25 Gratt.) 989, 994 (1875). 

Indeed, as the Supreme Court observed in Wren, "[t]he jury, 

composed of . . . [people] without knowledge of legal principles, 

might have been led to believe [another proposition from the 

trial judge's nonresponsive answer]." Id. at 995. The jury 

certainly could have concluded that the question of intent, on 

which they sought further guidance, was not as germane to their 

inquiry as was the principle of "concert of action," which the 

trial judge injected at the request of the Commonwealth. 

 For these reasons, we reverse the convictions and remand for 

a new trial. 

 Reversed and remanded. 
- 12 - 

Lemons, J., dissenting. 

 As the majority fairly recites, substantial evidence 

supports McLean's convictions for capital murder and robbery. 

The victim's murder was committed in a particularly vicious 

manner. The evidence supports the jury's finding that McLean and 

others repeatedly dropped a heavy concrete splash block from a 

nearby drain spout onto the victim's head, chest and other parts 

of his body. The victim's jugular vein was cut, and he sustained 

a single stab wound to his chest. The majority reverses McLean's 

convictions for capital murder and robbery because a supplemental 

jury instruction was allegedly improperly given. For the reasons 

stated below, I respectfully dissent. 

 After the jury was instructed, it retired for deliberation. 

 During deliberation, the jury returned with two written 

questions: "May we have a legal definition of intent?" and "Is 

the word intent collective?" McLean objected to any further 

communications with the jury on the grounds that "it unduly 

emphasizes a portion of the evidence and it invades the 

deliberations of the jury; and . . . [he] further object[ed] to 

any attempt of the Court to clarify whether the intent can be 

collective by offering a concert of action instruction." McLean 

also argued that "[t]he defense does not want such an 

instruction. It is prejudicial to the defendant for such an 

instruction to be granted when the defense will have no 

opportunity to argue the meaning of that instruction and how it 
- 13 - 

applies." Finally, McLean argued, "[b]asically, it violates the 

defense due process right to present its defense to have that 

instruction granted at this late hour when the prosecution could 

have had that instruction offered earlier." McLean stated, "[w]e 

would also request a mere presence instruction if a concert of 

action instruction were given." The trial judge did not answer 

the first question. The trial judge asked the jury to explain 

what it meant by the second question. 

 The jury restated its question as follows: "Once the intent 

is spoken by one member of a group and the act is performed, does 

the intent to commit the act apply to all? What is the law 

concerning this?" The following instruction was given to the 

jury over McLean's objection: 

 If you find that there is a concert of action 

with the resulting crime one of its 

incidental, probable consequences, then 

whether such crime was originally 

contemplated or not, all who participate in 

any way in bringing it about are equally 

answerable and bound by the acts of every 

other person connected with the consummation 

of the resulting crime. 

 McLean's question presented on appeal is stated generally: 

"Whether the trial court erred by instructing the jury on concert 

of action, over defendant's objection, in response to the jury's 

questions about intent during the middle of their deliberations?" 

 Only those arguments presented in the petition for appeal and 

granted by this Court will be considered on appeal. Rule 

5A:12(c); see Cruz v. Commonwealth, 12 Va. App. 661, 664 n.1, 406 
- 14 - 

S.E.2d 406, 407 n.1 (1991). "In order to be considered on 

appeal, an objection must be timely made and the grounds stated 

with specificity." Marlowe v. Commonwealth, 2 Va. App. 619, 621, 

347 S.E.2d 167, 168 (1986). "To be timely, an objection must be 

made when the occasion arises -- at the time the evidence is 

offered or the statement made." Id. at 621, 347 S.E.2d at 168. 

Matters raised on appeal that were not raised at trial are 

defaulted. Rule 5A:18. 

 A review of the record reveals that McLean objected for the 

following reasons: 

 1. "[W]e further object to any attempt of the court to 

 clarify whether intent can be collective by 

 offering a concert of action instruction. The 

 defense does not want such an instruction." 

 2. "It is prejudicial to the defendant for such an 

 instruction to be granted when the defense will 

 have no opportunity to argue the meaning of 

that instruction and how it applies." 

 3. "Basically, it violates the defense due process 

 right to present its defense to have that 

 instruction granted at this late hour when the 

 prosecution could have had that instruction 

offered earlier" 

 4. "We would also request a mere presence at the scene 

 is not enough instruction if a concert of action 

 instruction were given." 

 5. "We think that would inject a new issue in this 

 case that we won't have an opportunity to argue 

to the jury." 

 6. "We think it would be prejudicial to the defendant 

 and we think only the defendant would have a right 

 to ask for the instruction at this point and not 

 the Commonwealth . . . ." 

 7. "[T]he instruction the Commonwealth had offered, we 

 submit is unclear and improper." 
- 15 - 
- 16 - 

 I. 

 Each of these objections shall be considered seriatim: 

 1. "[W]e further object to any attempt of the court to 

 clarify whether intent can be collective by offering a 

 concert of action instruction. The defense does not 

 want such an instruction." 

 

 No basis for this "objection" is stated; McLean simply said 

he did not want it to be given. This "objection" does not meet 

the requirement of specificity required to preserve an issue for 

appeal. Rule 5A:18. 

 2. "It is prejudicial to the defendant for such an 

 instruction to be granted when the defense will have 

no opportunity to argue the meaning of that instruction 

and how it applies." 

 Rule 3A:16 provides in part that in "all cases the court 

shall instruct the jury before arguments of counsel to the jury." 

 Additionally, "it is proper for a trial court to fully and 

completely respond to a jury's inquiry concerning its duties." 

Marlowe, 2 Va. App. at 625, 347 S.E.2d at 171. Assuming without 

deciding that the concert of action instruction was new material 

and not clarification of previously given instructions, McLean 

never requested opportunity to argue the matter before the jury. 

 It may have been either a tactical decision or an oversight by 

McLean's counsel, but in either event, McLean cannot complain 

about his inability to argue based upon the new instruction 

because he failed to request an opportunity to do so. Rule 

5A:18. 

 In Blevins v. Commonwealth, 209 Va. 622, 166 S.E.2d 325 
- 17 - 

(1969), the trial court gave a supplemental instruction during 

jury deliberations. Among other observations made by the Supreme 

Court when it upheld the trial judge's decision, the Court said, 

 "As a result of the amendment, counsel for defendant moved for a 

mistrial, which was not granted. He did not ask for an 

opportunity to make additional argument to the jury." Id. at 

628, 166 S.E.2d at 329. 

 Had McLean asked permission to argue the matter before the 

jury, the request may have been granted, but the Commonwealth 

would have been granted an opportunity to address the jury as 

well. As a tactical decision, McLean may not have asked to 

address the jury because he did not want to afford the 

Commonwealth another opportunity to present its case to the jury. 

 McLean cannot allege error where he has not presented the issue 

to the trial judge and may not have wanted the opportunity at 

trial that he vigorously asserts on appeal. "This Court has said 

the primary function of Rule 5A:18 is to alert the trial judge to 

possible error so that the judge may consider the issue 

intelligently and take any corrective actions necessary to avoid 

unnecessary appeals, reversals and mistrials." Neal v. 

Commonwealth, 15 Va. App. 416, 422, 425 S.E.2d 521, 525. "The 

purpose of Rule 5A:18 is to provide the trial court with the 

opportunity to remedy any error so that an appeal is not 

necessary." Knight v. Commonwealth, 18 Va. App. 207, 216, 443 

S.E.2d 165, 170 (1994). 

 3. "Basically, it violates the defense due process right to 
- 18 - 

 present its defense to have that instruction granted at 

 this late hour when the prosecution could have had that 

 instruction offered earlier." 

 

 A conclusory allegation of a due process violation, absent 

some specific claim, does not preserve any issue for appeal. 

McLean complains the instruction was "granted at this late hour 

when the prosecution could have had that instruction offered 

earlier." As previously stated, however, a trial court has an 

obligation to respond fully and completely to a proper inquiry by 

the jury even if the inquiry is made during deliberations. See

Marlowe, 2 Va. App. at 625, 347 S.E.2d at 171. McLean's argument 

that the instruction was granted at a "late hour" is, therefore, 

without merit. 

 4. "We would also request a mere presence at the scene is 

 not enough instruction if a concert of action 

 instruction were given." 

 McLean's counsel made this statement during argument over 

whether the concert of action instruction would be given to the 

jury. Although counsel indicated that "we would . . . request" 

an instruction concerning "mere presence at the scene," when the 

trial judge made his decision to give the concert of action 

instruction, no further request and no tender of an instruction 

were made. 

 Even if McLean had tendered such an instruction, the trial 

judge would have been justified in rejecting the instruction 

based upon the evidence in the case. The Commonwealth's evidence 

was that the defendant was an active participant in the crime; 
- 19 - 

the defendant contended he was not present. Neither theory of 

the case supported a "mere presence" instruction. When the 

evidence does not support an instruction, it is not error for the 

court to refuse to grant it. See Satcher v. Commonwealth, 244 

Va. 220, 256-57, 421 S.E.2d 821, 843 (1992). 

 5. "We think that would inject a new issue in this case 

 that we won't have an opportunity to argue to the 

jury." 

 The majority cites United States v. Fontenot, 14 F.3d 1364, 

1368 (9th Cir. 1994): "if a supplemental jury instruction given 

in response to a jury's question introduces a new theory to the 

case, the parties should be given an opportunity to argue the new 

theory." The majority ignores the failure of McLean's counsel to 

request an opportunity to argue to the jury. In Fontenot, 

counsel similarly "contend[ed] that his counsel should have been 

permitted to make further argument to the jury after its question 

was answered." Id. at 1368. However, recognizing that "no 

request for leave to reopen the argument was made," the Ninth 

Circuit declined to consider the issue on appeal, stating, "[w]e 

have no ruling to review." Id. As previously stated, assuming 

without deciding that a new issue was contained in the 

supplemental instruction on concert of action, the record 

contains no reference to any request by counsel to argue to the 

jury after the court gave the supplemental instruction. 

 6. "We think it would be prejudicial to the defendant and 

 we think only the defendant would have a right to ask 

 for the instruction at this point and not the 

 Commonwealth . . . ." 
- 20 - 

 Virginia law does not support McLean's position. A trial 

court may provide supplemental instructions to a jury over a 

defendant's objection. Blevins, 209 Va. at 628, 166 S.E.2d at 

330. In fact, "[i]t is proper for a trial court to fully and 

completely respond to a jury's inquiry concerning its duties." 

Marlowe, 2 Va. App. at 625, 347 S.E.2d at 171. The trial court 

must "give a direct and correct response to an inquiry by the 

jury and its failure to do so is ground for reversal." 

Shepperson v. Commonwealth, 19 Va. App. 586, 591, 454 S.E.2d 5, 8 

(1995). 

 7. "[T]he instruction the Commonwealth had offered, we 

 submit is unclear and improper." 

 

 Nothing in this assertion preserves an issue for appeal. 

Rule 5A:18. McLean did not inform the trial judge in what manner 

the instruction was unclear, and his mere assertion that it was 

improper adds nothing specific for the court to consider. 

 McLean maintained that, for the reasons stated in the 

objections listed above, it would be "prejudicial" to the defense 

to give the concert of action instruction. Before giving the 

concert of action instruction to the jury, the trial judge asked, 

"Tell me in what particulars you think that is an improper 

instruction." Incorporating all of the above-referenced 

objections, McLean's counsel replied, "We have already indicated, 

Judge, why we think it would be improper." Thereafter the 

following colloquy ensued: 

 THE COURT: But insofar as if there is 

 to be an answer to that 
- 21 - 

 question, is that not a 

 proper legal answer to 

 the question notwithstanding 

 the prejudice? 

 DEFENSE COUNSEL: That you include in there 

 if – 
- 22 - 

 THE COURT: If there is concert of 

 action. 

 DEFENSE COUNSEL: I think it would be better 

 if you find there was 

 concert of action. 

 THE COURT: Well, that's okay I think. 

 PROSECUTOR: That's fine, Judge. 

 THE COURT: All right. Bring them 

 out Mr. Sheriff. 

 DEFENSE COUNSEL: We would agree that 

 that language is the 

 definition, but we are 

 opposed to you giving 

 that at all. 

 THE COURT: I understand and I note 

 your exception for the 

 record. 

 Thereafter, the trial judge gave the instruction McLean 

conceded was a "proper legal answer to the question." 

 On appeal, McLean contends for the first time that the 

concert of action instruction was out of context, misleading and 

incomplete; that intent was not defined; that the instruction 

failed to emphasize that the intent had to exist before or during 

the violence; and that the trial court violated Rule 3A:16(a). 

McLean failed to object to the trial judge's decision not to 

answer the first question raised by the jury ("May we have a 

legal definition of intent?"). These arguments are not properly 

before us on appeal. See Able v. Commonwealth, 16 Va. App. 542, 

550, 431 S.E.2d 337, 342 (1993) (where defendant failed to raise 

objection regarding "confusing nature" of jury instruction at 
- 23 - 

trial, he is barred from raising issue on appeal). 

 II. 

 The majority opinion advances the following reasons for 

reversal of McLean's convictions: 

 1. The jury was seeking a legal definition of intent, and 

 the trial judge failed to provide it. 

 2. The trial judge "injected the issue of 'concert of 

 action'" into the case, "and the jury made no inquiry 

 about that concept." 

 3. The trial judge's response to the jury's second question 

 was "incomplete and nonresponsive to the jury's 

 inquiry." 

 4. The trial judge's failure to answer the first question 

 combined with the giving of the instruction on 

"concert of action," at the request of the Commonwealth, 

may have misled the jury as to the law of the case. 

 Each of these shall be considered seriatim: 

 1. The jury was seeking a legal definition of intent, and 

 the trial judge failed to provide it. 

 When the trial judge stated that he would not answer the 

jury's question, "May we have a legal definition of intent?," 

McLean's counsel raised no objection to the failure to respond. 

In fact, McLean objected to any response. This issue was not 

before the trial court and is not even presented to us in 

McLean's appeal. 

 An alleged error will not be considered a basis for reversal 

where counsel fails to make a contemporaneous objection. Rule 

5A:18. 

 2. The trial judge "injected the issue of 'concert of 

 action'" into the case, "and the jury made no inquiry 

 about that concept." 
- 24 - 

 The majority states that in responding to the questions 

asked by the jury during its deliberations, the trial court 

introduced a new theory to the case. The majority states that 

because the jury made no inquiry about the concept of "concert of 

action," "the trial judge erred by answering the jury in a manner 

that was incomplete and nonresponsive to the jury's inquiry." I 

respectfully disagree. The jury asked, "Is the word intent 

collective?" Upon further inquiry from the court, the jury 

asked, "Once the intent is spoken by one member of a group and 

the act is performed, does the intent to commit the act apply to 

all? What is the law concerning this?" The trial judge, the 

prosecutor, and McLean all believed the question implicated the 

concept of "concert of action." McLean agreed that it was a 

proper response; he objected for other reasons stated above. 

 3. The trial judge's response to the jury's second question 

 was "incomplete and nonresponsive to the jury's 

 inquiry." 

 The objections made by McLean at trial had nothing to do 

with whether the court's response was incomplete or 

nonresponsive. In fact, McLean agreed that the instruction was a 

correct statement of the law; he objected on other grounds, 

stated earlier in this dissenting opinion. 

 4. The trial judge's failure to answer the first question, 

 combined with the giving of the instruction on "concert 

 of action," at the request of the Commonwealth, may have 

 misled the jury as to the law of the case. 

 

 The majority states that the trial court's failure to 

respond to the jury's first inquiry about the legal definition of 
- 25 - 

intent, and the subsequent "giving of an instruction on 'concert 

of action,' may have caused the jury to believe that the question 

of intent . . . was not as germane to their inquiry as was the 

principle of 'concert of action,' which the trial court injected 

at the request of the Commonwealth." Again, McLean never raised 

an objection that the jury could be misled about the law of the 

case because the court answered only their second question. See

Able, 16 Va. App. at 550, 431 S.E.2d at 342. 

 The majority decides this case on grounds that have been 

raised for the first time on appeal. These issues are not 

properly before us. For the foregoing reasons, I would affirm 

the convictions.