COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Lemons and Senior Judge Cole 

Argued at Richmond, 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 COURT OF ALBEMARLE COUNTY 

Paul M. Peatross, Jr., Judge 

 David C. Dickey for appellant. 

 Jeffrey S. Shapiro, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Dwayne Anthony Douglas (appellant) was convicted in a jury 

trial of assault and attempting to elude the police. He contends 

that the trial court erred by (1) refusing his requested 

instruction on the charge of attempting to elude, and (2) 

sustaining the Commonwealth's objection to the defense's closing 

argument. We disagree and, for the following reasons, affirm the 

convictions. 

Facts

 At about 2:15 a.m. on September 7, 1997, appellant and 

Charles Eacho tried to enter a fraternity 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 leave. Appellant and Eacho became 

upset, said they did not want to cause trouble, but "perhaps they 

would be put in a situation where they may need to cause trouble." 

Four fraternity members followed appellant and Eacho outside to 

the parking lot to ensure that they did not vandalize cars or the 

fraternity house. When appellant reached into his truck, Stephen 

Myers (the victim) and the other three fraternity brothers 

stopped. Holding a knife, appellant turned and faced Myers and 

said, "Let's see how tough you are now." While holding the knife, 

appellant walked towards Myers until he was only ten feet away. 

As appellant approached the fraternity brothers, Eacho pulled out 

a gun. The fraternity brothers ran back to the fraternity house 

and called the police. 

 Moments later, two police officers arrived and parked so that 

the exit from the parking lot was blocked. Officer Debra Higgins 

shined a flashlight on appellant and Eacho, identified herself as 

a police officer, and ordered them to stop. Appellant made eye 

contact with Higgins and then jumped in his truck and ignored her 

order to stop. Appellant drove down the stairs at the 

Architecture School and onto a sidewalk. As Higgins radioed for 

help, appellant drove down a gravel pathway, which eventually 

turns into a service road behind the Architecture School building. 

Officer Michael Wells responded with his lights and siren 

activated and blocked off the exit from the service road. 

Appellant sped towards the roadblock at fifty miles per hour. 

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Appellant tried to drive around Wells' marked police car, but 

realized he could not drive over the four-foot-high embankment. 

Therefore, appellant stopped his vehicle. 

 Upon his arrest, the police found a "buck-style" knife in 

appellant's back pocket and a loaded handgun in appellant's 

vehicle. 

 Appellant and Eacho denied being hostile toward the 

fraternity brothers. Rather, they claimed that the fraternity 

brothers threatened them as they left the fraternity house. Eacho 

admitted waving a gun at the fraternity brothers, but appellant 

denied threatening anyone with a knife. They claimed they were 

trying to get away from the fraternity brothers and mistakenly 

drove down the stairs because they were unfamiliar with the area. 

They denied trying to go around the roadblock and claimed 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 

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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). 

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 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. 

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 "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 

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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 

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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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