COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

RICHARD FRANKLIN PALMER 

 MEMORANDUM OPINION* BY 

v. Record No. 2507-95-2 JUDGE SAM W. COLEMAN III 

 AUGUST 5, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 Michael Morchower (Christopher C. Booberg; 

Morchower, Luxton and Whaley, on brief), for 

appellant. 

 Richard B. Smith, Assistant Attorney General 

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

brief), for appellee. 

 The defendant, Richard Franklin Palmer, was convicted by a 

jury of first degree murder and use of a firearm in the 

commission of a felony. He was sentenced to life imprisonment 

and five years, respectively, as recommended by the jury. On 

appeal, the defendant contends that the trial court erred by: 

(1) failing to strike two veniremen for cause; (2) refusing to 

grant a mistrial after the Commonwealth introduced evidence which 

it stipulated would not be introduced; (3) refusing to grant a 

mistrial after the prosecutor elicited evidence in rebuttal that 

the parties had stipulated would be excluded; (4) refusing to ask 

the jury on the second morning of trial whether they had read a 

newspaper article about the trial; (5) allowing the prosecutor to 

 

 * Pursuant to Code § 17-116.010, this opinion is not 

designated for publication. 
- 2 - 

present rebuttal argument at the sentencing phase after defense 

counsel had waived closing argument; and (6) allowing the 

prosecutor to read the name of the victim from the indictment 

when introducing evidence at sentencing of a prior conviction. 

 We hold that the trial court did not err by refusing to 

strike the two veniremen for cause or by refusing to grant a 

mistrial. We also hold that the trial judge did not abuse his 

discretion by allowing the Commonwealth's attorney to present 

"rebuttal" argument when neither the Commonwealth's attorney nor 

defense counsel had argued or by refusing to poll the jury about 

whether they had read a newspaper article. Accordingly, we 

affirm the defendant's convictions. 

I. CHALLENGES TO VENIREMEN

 During voir dire, defense counsel asked whether the 

venirepersons had family or friends who were police officers. 

Venireman Richard Brown answered that his father-in-law was a 

Chesterfield County detective and his uncle was a sheriff in 

Lancaster County. When asked if he could give the defendant a 

fair trial in light of these relationships, Mr. Brown replied 

that he might be "slightly biased" in favor of the Commonwealth. 

 When the trial judge asked Brown if his father-in-law had 

talked to him about the case or if he knew anything else about 

the case, Brown replied, "no." The judge then asked Brown if he 

could "listen to the evidence, be fair both to the Commonwealth 

and the defendant without being influenced by the directions of 
- 3 - 

your father-in-law or other relatives?" Mr. Brown replied, "I 

feel I can, but I want to make you aware of my situation also." 

 

 Defense counsel then asked if any of the venirepersons had 

friends or relatives working in any other area of law 

enforcement. Sheila Matthews replied that she was a parole 

officer for the Richmond juvenile court, but stated that her job 

would not interfere with her ability to give the defendant a fair 

trial. 

 At the end of voir dire, defense counsel moved to strike 

Brown and Matthews for cause. The trial court denied both 

motions. 

 "Absent the existence of a per se ground for exclusion, 

rulings concerning the qualifications of a juror are left to the 

sound discretion of the trial court and will not be overturned 

absent a showing of manifest error." Williams v. Commonwealth, 

21 Va. App. 616, 618, 466 S.E.2d 754, 756 (1996) (en banc). "A 

prospective juror is not subject to automatic exclusion because 

of an association with law enforcement personnel, provided that 

the juror has no knowledge of the facts of the case and 

demonstrates impartiality to the parties." Clozza v. 

Commonwealth, 228 Va. 124, 129, 321 S.E.2d 273, 276 (1984), cert. 

denied, 469 U.S. 1230 (1985). Prospective jurors must have a 

willingness to "`lay aside . . . impression or opinion and render 

a verdict based on the evidence presented in court.'" Calhoun v. 
- 4 - 

Commonwealth, 226 Va. 256, 258, 307 S.E.2d 896, 897 (1983) 

(citation omitted). Such evidence of impartiality "must emanate 

from the juror . . . unsuggested by leading questions." 

Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 389, 349 

S.E.2d 903, 907 (1986). 

 Here, the trial judge did not abuse his discretion by 

refusing to strike jurors Brown and Matthews for cause. Brown 

stated that he had no preconceived ideas about the case and that 

he could be a fair and impartial juror. Matthews testified that 

her job in law enforcement would not affect her ability to give 

the defendant a fair trial. A parole officer is not per se unfit 

to serve as a juror. Therefore, the trial court did not err in 

finding that Brown and Matthews were impartial and in seating 

them on the jury panel. 

II. MISTRIAL MOTIONS

 On the night the defendant shot and killed the victim, who 

was his mother-in-law, he also shot his wife. On the morning of 

trial, the defendant pled guilty to malicious wounding of his 

wife. Prior to trial, the parties stipulated that no evidence 

would be presented regarding the shooting of the defendant's wife 

because the defendant had pled guilty to those charges and 

because the defendant and his wife were still married. The 

stipulation was not recorded and not made part of the record. 

 At trial, the Commonwealth called as a witness the 

defendant's neighbor. The neighbor testified that on the night 
- 5 - 

of the charged offense she heard screaming and saw the defendant 

walk out his back door with a shotgun. When her doorbell rang, 

the neighbor went to her front door. 

 The following exchange took place between the neighbor and 

the prosecutor. 

 PROSECUTOR: When you got to the front door, 

Miss Palmer [defendant's wife] was there, 

Shelly Palmer? 

 WITNESS: It was Shelly there. 

 PROSECUTOR: After you talked to her, what 

did you do at that point? 

 WITNESS: I didn't really talk to her. She 

said, "Call 911. I've been shot." 

 Defense counsel objected and requested a mistrial on the 

ground that the parties had stipulated that no evidence would be 

presented regarding the shooting of the defendant's wife. The 

Commonwealth's attorney acknowledged that he had agreed to the 

stipulation and that he had instructed the witness to not mention 

the shooting of the defendant's wife. However, the witness 

surprised the prosecutor with her statement concerning the 

shooting of the defendant's wife. The trial judge overruled the 

motion for mistrial and instructed the jury to disregard the 

witness' statement about the wife's comments. 

 Defense counsel's second mistrial motion was made during the 

Commonwealth's rebuttal. This motion was also based upon the 

stipulation that the Commonwealth would not present evidence 

concerning the shooting of the defendant's wife. Describing how 
- 6 - 

he shot the victim, the defendant earlier had testified that, as 

the victim moved toward him, he backed up, tripping on a bag of 

dog food and the gun went off. On cross-examination, the 

prosecutor asked the defendant what happened after he shot the 

victim. The defendant said that he left the house. Upon further 

questioning, the defendant admitted that he fired a second shot. 

 Defense counsel did not object to the question or testimony. 

 In rebuttal, the prosecutor called the investigating 

detective and asked him whether a second shot had been fired and 

to describe where the second shotgun casing was found. The 

prosecutor also introduced into evidence photographs showing 

where both casings were found. Defense counsel objected and made 

a motion for a mistrial. The judge held the prosecutor's 

questions to be proper rebuttal in response to the defendant's 

testimony and overruled the defendant's mistrial motion. 

 Whether to grant a mistrial is a matter resting within the 

sound discretion of the trial court. Cheng v. Commonwealth, 240 

Va. 26, 40, 393 S.E.2d 599, 607 (1990). "When a motion for 

mistrial is made, based upon an allegedly prejudicial event, the 

trial court must make an initial factual determination, in the 

light of all the circumstances of the case, whether the 

defendant's rights are so 'indelibly prejudiced' as to 

necessitate a new trial." Spencer v. Commonwealth, 240 Va. 78, 

95, 393 S.E.2d 609, 619, cert. denied, 498 U.S. 908 (1990) 

(citation omitted). 
- 7 - 

 As to the neighbor's testimony, the trial court did not err 

by refusing to grant a mistrial. The scope of the stipulation is 

unclear and was not in writing. Moreover, the witness' testimony 

was admissible evidence. See Woodfin v. Commonwealth, 236 Va. 

89, 95, 372 S.E.2d 377, 380-81 (1988) (holding that evidence of 

other crimes is admissible if it "is connected with or leads up 

to the offense for which the accused is on trial . . . ."), cert. 

denied, 490 U.S. 1009 (1989); Code § 19.2-271.2 (prohibiting a 

spouse from testifying against the other without consent but not 

excluding evidence of a crime committed against a spouse). 

Although the Commonwealth agreed not to present evidence about 

the defendant shooting his wife, the trial judge was not bound by 

the parties' informal stipulation to exclude admissible evidence 

and did not abuse his discretion by refusing to grant a mistrial. 

Cf. Odum v. Commonwealth, 225 Va. 123, 132, 301 S.E.2d 145, 150 

(1983) (holding that trial court did not err by refusing to admit 

polygraph evidence even though the prosecutor and the accused 

stipulated to its admissibility); Hunter v. Commonwealth, 15 Va. 

App. 717, 724-26, 427 S.E.2d 197, 202-03 (1993) (holding that 

trial court did not err by admitting evidence of the nature of 

the felony in a willful failure to appear prosecution where the 

parties had stipulated that the accused was charged with a 

felony). 

 As to the defendant's second mistrial motion, the 

Commonwealth attorney's questions elicited proper rebuttal 
- 8 - 

testimony; therefore, the trial court did not err by refusing to 

grant a mistrial. The defendant testified on direct examination 

that he left the house after he unintentionally fired one shot. 

On cross-examination, he acknowledged that he reloaded and fired 

a second shot. The Commonwealth was entitled to prove, in 

rebuttal, that the defendant testified falsely about leaving the 

house and about firing a second shot, which would tend to prove 

that the shooting was intentional and not accidental. 

III. POLLING THE JURY

 After the jury found the defendant guilty, the sentencing 

phase of the trial was continued until the next day. The trial 

court did not admonish the jurors to avoid newspaper or media 

accounts of the trial. An article about the trial appeared in 

the Richmond Times Dispatch the morning of the sentencing 

hearing. The article contained information that was not 

introduced at trial concerning the defendant having shot his wife 

and his guilty plea on that charge. When the sentencing hearing 

convened, defense counsel asked the trial judge to poll the 

jurors to determine whether they had read the newspaper article. 

 The judge refused to poll the jurors to determine whether they 

had read the newspaper article; however, he did ask the jurors 

whether anyone had violated his admonition to not discuss the 

case. As previously noted, the evidence that the defendant had 

also shot his wife was admissible and the jury was aware of that 

fact prior to publication of the newspaper article. 

 [J]urors serving in a criminal case may not, 
- 9 - 

during the trial, properly read newspaper 

stories or listen to media reports discussing 

the proceedings. The basis for this 

elementary proposition is that a juror's 

information about the case should come only 

from the evidence presented at trial and not 

from any extraneous source. 

Thompson v. Commonwealth, 219 Va. 498, 500, 247 S.E.2d 707, 708 

(1978). Whether to question jurors about possible exposure to 

news articles during trial rests within the sound discretion of 

the trial court. Keil v. Commonwealth, 222 Va. 99, 107, 278 

S.E.2d 826, 831 (1981). "Where there is no substantial reason to 

fear prejudice, a trial court is not required to question jurors 

concerning their possible exposure to information outside the 

courtroom." Waye v. Commonwealth, 219 Va. 683, 701, 251 S.E.2d 

202, 213, cert. denied, 442 U.S. 924 (1979). 

 Our decision on this issue is controlled by the Supreme 

Court's holding in Asbury v. Commonwealth, 211 Va. 101, 175 

S.E.2d 239 (1970). In Asbury, the Supreme Court held that the 

trial court did not abuse its discretion in refusing to poll the 

jury about a newspaper article after having admonished the jury 

"not to discuss the case with anyone, nor allow anyone to discuss 

it with you or in your presence." As in Asbury, the jurors here 

were already aware of the information in the newspaper article, 

which was admissible evidence, that the defendant also shot his 

wife during the incident. Moreover, that information and the 

fact that he had pled guilty to shooting his wife would have been 

admissible evidence during the sentencing hearing. Thus, the 
- 10 - 

trial court, after reviewing the newspaper article, did not abuse 

its discretion in refusing to poll the jurors as to whether they 

had read the article. 

 IV. COMMONWEALTH'S REBUTTAL ARGUMENT

 At the close of the sentencing phase of the defendant's 

bifurcated trial, the prosecutor waived closing argument but 

asked to reserve rebuttal argument. Defense counsel also waived 

closing. The prosecutor then requested an opportunity to argue 

but defense counsel objected, contending that because the defense 

waived closing, there was nothing for the Commonwealth to rebut. 

 The trial judge overruled the objection and allowed the 

Commonwealth to make a closing argument to the jury. Defense 

counsel did not thereafter request the opportunity to argue to 

the jury. 

 A trial court has broad discretion in the 

supervision of opening and closing arguments 

and will be reversed only upon a finding of 

abuse of discretion. O'Dell v. Commonwealth, 

234 Va. 672, 703, 364 S.E.2d 491, 509, cert. 

denied, 488 U.S. 871 (1988). "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 
- 11 - 

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. . . ." 

Griffin v. Commonwealth, 22 Va. App. 622, 624, 472 S.E.2d 285, 

287 (1996) (quoting People v. Caballero, 464 N.E.2d 223, 235 

(Ill.), cert. denied, 469 U.S. 963 (1984)). 

 The trial judge exercised his discretion by allowing the 

Commonwealth to make a closing argument to the jury. Here, the 

Commonwealth was not being allowed to make "rebuttal" argument 

after the defendant had waived closing argument; the defendant 

had made no argument to rebut. Although the Commonwealth's 

attorney attempted to reserve his entire argument for rebuttal 

and defense counsel attempted to preempt all argument by waiving 

oral argument, the trial judge did not err by allowing the 

Commonwealth in proper order to present its closing argument to 

the jury. See People v. Bandhauer, 426 P.2d 900 (Cal. 1967) 

("[T]here is no reasonable probability that the sequence of 

closing argument alone would affect the result . . . ."). 

Defense counsel made no further effort to make a closing 

argument; therefore, no prejudice to the defendant has been 

demonstrated. 

V. INDICTMENT

 The defendant contends that the trial court erred by 

allowing the prosecutor during sentencing to read the charges 
- 12 - 

from the indictments regarding the charges pertaining to the 

defendant's shooting of his wife. The three indictments that 

were read to the jury contained the defendant's wife's name. The 

defendant objected based upon the stipulation that the 

Commonwealth would not introduce evidence that the defendant had 

shot his wife. The defendant also argued that Code § 19.2-295.1, 

which permits evidence of prior convictions, does not allow 

indictments to be read to a jury. The trial judge overruled the 

defendant's objection and allowed the prosecutor to read the 

indictments to the jury. 

 The term "record of conviction" in Code § 19.2-295.1 

includes the indictment for any prior conviction as well as the 

final order and sentencing records because these documents are 

all "recorded evidence that the court convicted appellant for the 

crimes charged." Folson v. Commonwealth, 23 Va. App. 521, 525, 

478 S.E.2d 316, 318 (1996). Facts contained in the record of 

conviction other than the mere fact of conviction are admissible 

during the sentencing phase under Code § 19.2-295.1. See Gilliam 

v. Commonwealth, 21 Va. App. 519, 465 S.E.2d 592 (1996) (holding 

that punishment as well as fact of conviction is admissible). 

Thus, reading the defendant's wife's name from the indictments 

was permissible and the trial court did not err by allowing the 

indictments to be read to the jury. Furthermore, as we have 

noted, the parties' stipulation did not preclude the trial court 

from admitting relevant, material, and otherwise admissible 
- 13 - 

evidence. 

 Accordingly, we affirm the defendant's convictions. 

Affirmed.