COURT OF APPEALS OF VIRGINIA

Present: Judg es Elder, Lemons an d Senior Judge Cole Argued at Rich mond, Virginia

DWAYNE ANTHONY DOUGLAS MEMORANDUM OPINION * BY v. Record No. 1344-98- 2 JUDGE MARVIN F. COLE NOVEMBER 16, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF ALBEMARLE COUNTY Paul M. Peatro ss, Jr., Judge David C. Dickey for appellant. Jeffrey S. Shapiro, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Dwayne Anthony Doug las (appellant ) was convicte d in a jury trial of assault and at tempting to el ude the police. He contends that the trial cour t erred by (1) refu sing his requested instruction on the ch arge of atte mpting to elude, and (2) sustaining the Commonwe alth's objection to the defense' s closing argument. We di sagree and, for the following reas ons, affirm the convictions.

Facts At about 2:15 a.m. on Sept ember 7, 1997, appellant and Charles Eacho trie d to enter a frat ernity party at the University of Virginia. Because their names were not on the "guest list," a

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.fraternity member asked them to le ave. Appellant and Eacho became upset, said they did no t want to caus e trouble, but "perhaps they would be put in a situation where th ey may need to cause trouble." Four fraternity member s followed appellant and Eacho ou tside to the parking lot to ensure that they did no t vandalize ca rs or the fraternity house. Wh en appellant re ached into his truck, Stephen Myers (the victim) an d the other three fr aternity brothers stopped. Holdin g a knife, appellant turn ed and faced Myers and said, "Let's see how to ugh you are now. " While holdin g the knife, appellant walk ed towards Myers un til he was only ten feet away. As appellant appr oached the fraternity br others, Eacho pulled out a gun. The frat ernity brothers ran back to the fraternity house and called the police. Moments later, two po lice officers arrived and parked so that the exit from the park ing lot was bloc ked. Officer Debra Higgins shined a flashlight on appellant and Eacho, identifi ed herself as a police officer, and ordered them to stop. Appell ant made eye contact with Higgins an d then jumped in his truck and ig nored her order to stop. Ap pellant drove down the stairs at the Architecture School an d onto a sidewalk. As Higgins ra dioed for help, appellant dr ove down a gravel path way, which eventually turns into a service road behind the Architectu re School building. Officer Michael Wells responded with his lights and siren activated and bl ocked off the ex it from the se rvice road. Appellant sped toward s the roadblock at fifty mile s per hour.

- 2 -Appellant tried to drive around Wells' ma rked police car, but realized he coul d not drive over the four -foot-high embankment. Therefore, appellant st opped his ve hicle. Upon his arrest, th e police found a "buc k-style" knife in appellant's back pocket and a loaded handgun in appellant's vehicle. Appellant and Each o denied being ho stile toward the fraternity brothers. Rather, they claimed that the fraternity brothers threatened them as they left the frat ernity house. Eacho admitted waving a gun at the fraternity br others, but appellant denied threatening anyo ne with a knife. Th ey claimed they were trying to get away from the frat ernity brothers and mistakenly drove down the stairs because they were unfamiliar wi th the area. They denied trying to go around the roadbl ock and clai med that they stopped as soon as they saw the police.

I. Appellant contends that the trial court erred by refusing to give appellant's proffered instruction regarding the attempt to elude charge. Appellant's instruction provided, in part, that "unless you believe that [appellant speeded up and left the scene] . . . with the intent of eluding a police officer, rather than with the intent of eluding or escaping from those with whom he had had some difficulties that night, you cannot find him guilty of eluding a police officer." The trial court did not err in refusing appellant's proffered instruction. The trial

- 3 -court fully and accurately instructed the jury on the attempt to elude charge. "A reviewing court's responsibility in reviewing jury instructions is 'to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.'" Darnell v. Commonwealth , 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (citation omitted). Granted instruction 10 clearly states the law concerning the elements of the attempt to elude charge. Instruction 10 states that, in order to find defendant guilty of attempting to elude, the Commonwealth must prove beyond a reasonable doubt (1) That the defendant was driving a motor vehicle; and (2) That after having been given a visible and audible signal to stop his motor vehicle, drives such motor vehicle in a willful or wanton disregard of such signal so as to interfere with or endanger a law enforcement vehicle or any other property of any person or increases his speed and attempts to escape or elude any law enforcement officer. Instruction 10 fully and accurately instructed the jury regarding the attempt to elude charge. The court's instruction enabled the jury to consider all relevant circumstances, including whether appellant was attempting to elude the police officers or only the fraternity brothers, without emphasizing one particular factor as perhaps being more significant. See Lynn v. Commonwealth , 27 Va. App. 336, 349, 499 S.E.2d 1, 7 (1998), aff'd , 257 Va. 239, 514 S.E.2d 147 (1999).

- 4 -During closing argument, the parties remained free to argue whether appellant attempted to elude the police or only the fraternity brothers. In fact, defense counsel argued that the evidence was not clear that Officer Higgins spoke to appellant in a tone appellant heard or that appellant made eye contact with the officer before leaving the scene. Defense counsel fully argued his theory of the case –- that appellant only intended to elude or escape from the fraternity brothers, and, therefore, could not be guilty of attempting to elude the police. Granted instruction 10 clearly and accurately informed the jury of the elements of the attempt to elude charge. Therefore, the trial judge did not err by refusing to grant appellant's proffered instruction regarding the attempt to elude charge. The trial court does not err by refusing to give another instruction related to the same legal principle. See League v. Commonwealth , 9 Va. App. 199, 210, 385 S.E.2d 232, 239 (1989), aff'd on reh'g en banc , 10 Va. App. 428, 392 S.E.2d 510 (1990).

II. Appellant contends that the trial court erred by sustaining the Commonwealth's Attorney's objection to defense counsel's closing argument. Because defense counsel's argument was improper, the trial court did not err by sustaining the objection.

- 5 -"The purpose of closing argument is to summarize the evidence for the jury, to persuade the jury to view the evidence in the light most favorable to the client, and to apply that evidence to the law in a manner which will result in a verdict favorable to the client." Canipe v. Commonwealth , 25 Va. App. 629, 639, 491 S.E.2d 747, 751 (1997) (quoting Charles E. Friend, The Law of Evidence in Virginia § 21-1(b)(1) (4th ed. 1993)). Defense counsel is entitled to make the full range of arguments relevant to persuading the jury that the defendant is not guilty of the charged crime. See id. at 640, 491 S.E.2d at 752. "The decision regarding the appropriateness of a closing argument is committed to the discretion of the trial court." Id. at 639, 491 S.E.2d at 751-52. Unless it "'affirmatively appears that such discretion has been abused and that the rights of the complaining litigant have been prejudiced,'" an appellate court will not interfere with the trial court's ruling. See id. at 640, 491 S.E.2d at 752 (citation omitted). During his closing argument, appellant's counsel attempted to present an opinion from a speech given by former Chief Justice Warren Burger concerning a sociological study allegedly indicating that most juries do not understand the burden of proof in a criminal case. Appellant's counsel stated "that 90% or 80%, . . . of jurors who were sworn to uphold the law, nevertheless believe the defendant has to prove his innocence." This study was not evidence in appellant's case and was

- 6 -irrelevant to appellant's case. The trial court sustained the Commonwealth's Attorney's objection and said, I've instructed the jury that the burden is on the Commonwealth so I don't want to state anything else that's a belief by any Chief Justice. . . . My instructions are clear and I don't want to confuse them. So the burden is on the Commonwealth. The Commonwealth has to prove it. The defendant doesn't have to prove anything. That's clear. So just go ahead and argue your case. In Canipe , Canipe's counsel made a closing argument regarding the crime of "hit and run" which was not relevant to the murder charge on which Canipe was being tried. 25 Va. App. at 639-40, 491 S.E.2d at 752. The trial court prohibited this argument. See id. This Court agreed that the trial court had not abused its discretion when it prohibited that argument because the argument was irrelevant to the charged crime of murder and it would have confused the jury. See id. Similarly, appellant's counsel's argument regarding former Chief Justice Burger's speech had no bearing on whether the Commonwealth had proved the charged offenses beyond a reasonable doubt. We cannot say that the trial court abused its discretion when it prohibited appellant's counsel from continuing his closing argument regarding Chief Justice Burger's speech about a sociological study. Such argument was improper as it was not relevant to the applicable law regarding the burden of proof in appellant's trial and would have confused the issues before the

- 7 -jury. The trial court's provision in its ruling that appellant's counsel should "just go ahead and argue [his] case," gave counsel sufficient latitude to advocate fully for his client during closing argument. Appellant's counsel continued and argued that appellant was "clothed in the presumption [of innocence] that stays with you throughout the trial, unless and until the Commonwealth upon whom the burden rests, proves the guilt beyond any reasonable doubt." Accordingly, the trial court's judgment is affirmed. Affirmed.

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