COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Frank and Alston Argued by t eleconference

DERRICK GANSON MAXWELL, S/K/A

DERICK GANSON MAXWELL MEMORANDUM OPINION * BY v. Record No. 0047

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- 4 CHIEF JUDGE WALTER S. FELTON, JR. APRI L 16, 2013 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FREDERICK COUNTY Herman A. Whisenant, Jr. , Judge Designate Kathleen M. Griffin, Senior Assistant Public Defender (Office of the Public Defender, on briefs) , for appellant.
Elizabeth C. Kiernan, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief) , for appellee.

Derrick Ganson Maxwell, s / k

/ a Derick Ganson Maxwell , (“appellant”) was indicted for malicious wounding, in violation of Code § 18.2

- 51. He was the reafter tried by a jury in the Circuit Court of Frederick County (“trial court”) and convicted of unlawful wounding , in violation of Code § 18.2

- 51. On appeal, appellant contends the trial court erred by responding
sua sponte to questions posed by the jur y to the trial court outside of the presence of appellant
and counsel , thereby violating his Sixth Amendment rights, Code § 19.2

- 259 , and Code § 19.2

- 263.1

. We conclude from the record on appeal that appell ant failed to timely notify the
trial court of th e asserted error . Accordingly, we affirm appellant’s conviction

.

* Pursuant to Code § 17.1

- 413, this op inion is not designated for publication.UNPUBLISHED- 2

- I. BACKGROUND
W e recite only those facts necessary to resolve the issue presented on appeal. O n December 5, 2010, appellant initiated an altercation with the victim inside a gas station

c onvenience store. During the altercation , appellant stabbed the victim in h is side and back with
a knife. The two men continued their struggle until the police arrived and separated them. The
victim was treated at the hospital for stab wounds to his sid e and back, as well as cuts on his face and finger. Deputy Sheriff S. Madigan , who arrested appellant, testified that appellant had no visible injuries or cuts from the fight and did not request or receive any medical treatment

. Appellant was indicted fo r malicious wounding , in violation of Code § 18.2

- 51. On September 26, 2011, appellant was tried by a jury before the trial court. The jury
retired to deliberate its verdict of appellant’s guilt or innocence at 3:38 p.m. A t that time, appellant’s counsel received permission from the trial court to return to her office, which was
about ten minutes from the courthouse, pending the jury ’ s return with its verdict. Appellant’s counsel left her teleph one number with the trial court and the Commonwealth’s attor ney to reach
her if needed

. During its deliberations, while neither appellant nor counsel were present, the jury sent
two written questions to the trial court . The trial court replied in writing. 1 [Jury Question 1:] We need a clearer definition between [ jury instructions] 1 & 2

. 2 [Trial Court Answer:] Please read the instructions provided to you. They will explain the difference between [jury instructions] 1 & 2.

1 The record is silent as to how the jury’s questions were delivered to the trial court and how the trial court’s written answers were returned to the jury.

2 Jury instruction 1 contained definitions for maliciou s wounding and unlawfu l wounding. J ury instruction 2 defined reas onable doubt as to the grade of the offense charged.- 3

- [Jury Question 2:] Is there a booking picture of [appellant] ? Can we see this photo? [Tri al Court Answer:] N O

- You must proc eed on the evidence before you. (Footnote added). T he prosecutor , appellant’s counsel, and appellant were not present when the jury’s questions were delivered to the trial court and when the tr ial court sent its writte n answers to the jury

. At 5:14 p.m., t he jury returned its verdict finding appellant guilty of unlawful wounding,
a lesser

- included offense of malicious wounding

. The trial court accepted the jury verdict and immediately proceeded to the sentencing phase of the trial. After the prosecution and appellant presented sentencing evidence and the trial court gave sentencing instructions, the jury retired to
fix appellant’s punishment at 5:28 p.m. The jury returned its sent encing verdict at 5:50 p.m., fixing a ppellant’s punishment at five years’ imprisonment. The jury was then excused from
further service and departed

. After the jury had been excused from service and departed , appellant’s counsel informed
the trial court for the first time that she had been ma de aware that, while the jury deliberated appellant’s guilt or innocence , the trial court had given written answers to the jury in response to the jury’s written questions . Appellant’s counsel stated, “I would just inquire because I was not present in [ c ] ourt.” The trial court confirmed to counsel that during its deliberations, the jury present ed two written questions to it , which it answered in writing . The trial court told counsel

t hat the jurors “were not given any new instructions whatsoever or were not given any new
directions. It was just simply to read the instructions.” At that time, a ppellant’s counsel raised no objection to the trial court’s responding to the jury’s questions when neither appellant nor counsel were present , nor did counsel cha llenge the language of the trial court’s written response to the jury ’s questions. When the written questions and responses could not be found that day ,- 4

- appellant’s counsel requested that the questions be made part of the record once they were
located. 3
O n October 31, 2011, a little over a month after the jury had been discharged, appellant’s
counsel filed a written motion to set aside appellant’s conviction. O n December 8, 2011, a t the hearing to impose sentence , appellant ’s counsel argued that appellant ’s conviction should be set aside on multiple grounds, including the denial of his right , pursuant to the Sixth Amendment , 4 Code § 19.2

- 259 , 5 and Code § 19.2

- 263.1 , 6 to be present during all stages of the trial , specifically when the trial court responded sua sponte to the written jury questions outside the presence of appellant and counsel

. The Commonwealth argued that appellant’s counsel knew
that while the jury was deliberating, it sent the written questions to the trial court and the trial court respon ded to those questions

. 7 The Commonwealth argued that because appellant ’s
counsel failed to note any objection to the trial court when s he first learned of the trial court’s ex

3 The record is silent as to when and where the written jury questions and responses were located. However, they were included in the r ecord prior to appellant’s sentencing hearing.

4 The Sixth Amendment provides that [i] n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall ha ve been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

5 Code § 19.2

- 259 provides, in pertinent part, “[a] person tried for felony shall be personally present during the trial. ”

6 Code § 19.2

- 263.1 provides that “[n]o judge shall communicate in any way with a juror in a criminal proceeding concerning the juror’s conduct or any aspect of the case during the course of the trial outside the presence of the parties or their counsel.”

7 Appellant’s counsel did not challenge this statement during the hearin g.- 5

- parte communication with the jury during its guilt deliberations and before th e jury was discharged , appellant’s counsel deprived the trial court of any opportunity to fashion a remedy
for the asserted error. The trial court denied appellant’s motion to set aside the jury verdict and
sentenced appellant to five years ’ incarceration , consistent with the jury ’ s sentencing verdict

. II. ANALYSIS
Rule 5A:18 provi des, in pertinent part, that “ [n]o ruling of the trial court

. . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the
ti me of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.” Appellant’s counsel has not asserted good cause for failing to object to the trial
court’s ex parte communication with the jury prior to the ju ry being discharged.

“ The main purpose of the contemporaneous objection rule ‘ 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 ap peals, rever sals and mistrial.’” Ludwig v.
Commonwealth , 52 Va. App. 1, 10, 660 S.E.2d 679, 683 (2008) (quoting Martin v.
Commonwealth , 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992) ( en banc )). “‘ A specific, contemporaneous objection also provides the opposing pa rty an opportunity to address an issue at a time when the course of the proceedings may be altered in resp onse to the problem presented.’” Murillo

- Rodriguez v. Commonwealth , 279 Va. 64, 79, 688 S.E.2d 199, 207 (2010) (quoting Shelton v. Commonwealth , 274 Va. 121, 126, 645 S.E.2d 914, 916 (2007))

. “ When objections are timely raised, ‘ orderly and efficient justice ’ may be accomplished, for ‘ [e]rrors usually can be corrected in the trial court

. . . without the necessity of appeal. ’ Furthermore,
when correc tive action is timely made by the trial court, mistrials may also be avoided. ” Perry v.
Commonwealth , 58 Va. App. 655, 667 , 712 S.E.2d 765, 771 (2011) (quoting Brown v. Commonwealth , 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989)) (alteration in original)

.- 6

- From the record on appeal, we conclude that appellant ’s counsel failed to timely object to
the trial court’s communication with the jury outside the presence of appellant and counsel

. That
failure depriv ed the trial court , while the jury was still present , to consult with counsel and to
determine whether corrective actions c ould be taken, or whether a mistrial sh ould be declared. “[A] party litigant should not await the return of the verdict and have a chance of securing a favorable one, and then, if unfa vorable, make a motion for a new trial. When such delay is indulged in, it is usually considered a waiver of his rights. ” Crockett v. Commonwealth , 187 Va. 687, 707 , 47 S.E.2d 377, 386

- 87 ( 1948)

. It was not until after the jury had been discharged from
further service that appellant first asked the trial court what the jury questions were and what its

answers were
. Even at that time, a ppellant ’s counsel did not note any objection regarding the questions and answers. 8 It was not until October 31, 2011 , five days after entry of the October 26, 2011 trial order accepting the jury verdicts , that appellant file d his motion to set aside the
conviction . Because appellant failed to timely raise any objection to the trial court’s challenged
communication with t he jury , appellant thereby deprived the trial court of any opportunity for
curative action or to declare a mistrial. We will not consider an asserted trial court error on appeal when appellant’s counsel failed to timely bring that error to the trial court ’s attention. Appellant does not argue that we should invoke either the good cause or ends of justice exceptions to Rule 5A:18. See Redman v. Commonwealth , 25 Va. App. 215, 221, 487 S.E.2d

8 At oral argument appellant’s counsel asserted that she could not have raised the issue to the trial court because she did not know the nature of the jury questions and the trial court’s answers to those questions. However, even after she was informe d of the questions and answers, appellant’s counsel failed to timely object and bring any concerns to the trial court’s attention. Had it been timely notified of appellant’s objection, the trial court had the option to bring the jurors back, ask them what the questions were, and after consultation with counsel, answer them in appellant’s presence.- 7

- 269, 272 (1997). The Court will not consider Rule 5A:18 exception s sua sponte

. Edwards v.
Commonwealth , 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) ( en banc ).
III. CONCLUSION For the aforementioned reasons, we affirm appellant’s conviction for unlawful wounding.
Affirmed

.