COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunzia ta and Clements Argued at Richmond, Virginia

ALBERT MAURICE ROBERTS, JR. MEMORANDUM OPINION * BY v. Record No. 2401-01-2 JU DGE JEAN HARR ISON CLEMENTS APRIL 29, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Robert W. Du ling, Judge Joseph W. Kaestner (Tara-Beth Coleman; Kaestner & Associates, P.C., on brief), for appellant. Steven A. Witmer, As sistant Attorn ey General (Jerry W. Kilg ore, Attorney General, on brief), for appellee.

Albert Maurice Robert s, Jr., was co nvicted in a ju ry trial of possession of co caine with intent to dist ribute, in violation of Code § 18.2-248. Based on th at conviction, the trial court sentenced Robe rts to eight years' confin ement, with three years suspended, and revoked a portion of Roberts' suspended sentence for a prior convic tion. On appe al, Roberts cont ends the trial court erred in (1) gr anting a coercive " Alleninstructio n" to the jury and (2) improp erly suggesting to the deadlocked jury that it could reach a verd ict by negotiating. Ro berts furthe r contends that, if his convictionof possession of co caine with intent to

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.- 2 - distribute is re versed, the revoca tion of his prev iously suspended sentence must also be reversed. Finding appellate re view of Roberts' claims that the trial court erred procedural ly barred, we affirm Roberts' convic tion and the resultin g revocationof his previously suspended sentence. As the parties are fu lly conversant with the record in this case and because this memorandum opinion carr ies no precedential value, this opin ion recites only those facts and in cidents of the proceedings as are nece ssary to the parties' understandin g of the disposition of this appeal.
I. BACKGROUND After deliberati ng Roberts' guilt for approximatel y one hour and forty-five minutes, the jury returned an d the foreperson asked the trial judge, "[W]ha t do we do if we ca n't reach a unanimous decision?" A bench conference followed, duri ng which the Commonwealth requested an " Allen instruction." Ro berts' attorney responded, "I wo uld ask for a mist rial at this time. I don't think the ' Alleninstruction' is appropriate at th is time." The trial judge stat ed: "I think it is appropriate. The question is to the time and they'v e been out roughly an hour and forty-five minutes. This ca se was not compli cated. Otherwis e, I'm inclined to give the ' Allencharge' right no w." Roberts' at torney replied, "Fine. Note my objection."- 3 - The trial judge th en instructed the jury as follows: [Foreperson] and Ladi es and Gentlemen, I am going to respond to your question by reading you one additional inst ruction. It will not be provided to you in writing as the other instruct ions were. So I'm going to ask that you listen carefu lly to the reading of this instruction. What the cour t is about to say does not mean that you are going to be made to agree or that you're going to be compelled to continue deliberation s until you arrive at a verd ict. Trials are expensive, time consuming, inconv enient and troublesome to all persons in volved. A jury must decide the issues in this case. If you cannot decide, then we shall have to get another jury to decide the issu es. The court sees no reason why you as jurors are not as competent and able to de cide the issues as any other jury. It is your duty to make an honest and sincere attempt to reach a ve rdict. The verdict must be unanimous. Juro rs should be open minded and listen to the argument of others, talk ov er the issues and evidence freely and fairly. Ea ch juror must decide the issues for himself or herself, but only after an impartial co nsideration of the evidence with his or her fellow jurors. In the course of deliberations, a juror should not hesitate to reexamine his or her views and change his or her opinion if convinced it is erroneous. Each juror in the mi nority view should reconsider such minority view in light of the opinion of the majority . And like wise, each juror in the majority vi ew should give equal consideration to the views of the minority. No juror should su rrender his or her convictions as to the weight of the evidence solely because of the opinion of his or her fellow jurors or for the mere purpose of returning a verd ict. The Cour t cannot give you any further gu idance at this time as to guilt or innocence. Th e Court is requesting that you as fair mindedindividuals retire to your jury room and make another honest effort- 4 - to come to a conclusi on on all the issues presented in this case keeping in mind what the Court has stated to you in this instruction an d the other in structions previously provided to yo u. Having said that ladies and gentlemen, I am going to ask that you return to your jury room for further deliberations an d whatever dete rmination you can make. And as the Court has su ggested and as this instru ction suggests, your verdict must be unanimou s. Thank you. If you'll retire to your jury room. After the jury deliberated for another one and one-half hours, the trial judg e advised the pa rties it was "inclined to bring [the jury] back and inquire of the [foreperson] as to whether they're ma king any progress ." Roberts' at torney asked the trial court "to in quire of the jury whethe r or not they have a verdict and if they don't have a verdict, declare a mistrial." When the jury wa s returned, th e trial judge asked the foreperson if she felt "additional de liberations [would] be beneficial," to which she responde d, "No, Your Ho nor." The judge then asked the other ju rors, "[I]s ther e anyone who di sagrees with that comment that furt her negotiations or deliberati ons would not be beneficial or fruitful?" One of the jurors in dicated that he felt additional delibe rations would be benefi cial. The judge then asked the jurors how many agreed withthe juror who felt additional deliberati ons would be benefi cial and how many disagreed with hi m. Roberts' attorney noted that three jurors indicated further deliberati ons would be benefi cial, six jurors- 5 - indicated further deliberati ons would not be be neficial and three were "in the middle." Roberts' attorney again moved for a mistrial, arguing, "At this point, the folks offered no indication that they're going to reach a verdict an d whether or not any furt her deliberations would be of benefit." Noting that, in light of th e jurors' co mments, he would "give them a little more ti me," the trial judge sent the jury back to the "jury room for furt her delibe rations." After the jury reti red, Roberts' attorn ey suggested to the trial judge that, given the hour and the am ount of time the jury had already spent on the case that day, the jury be allowed to return the next day to continue its delibera tions. Saying he would give the jury that option, the tr ial judge told the foreperson that the jury could continue de liberating th at evening or return the next mo rning to continue its deliberation s if it wished. Upon po lling the jury, th e foreperson ad vised the judge that the jury wa nted to stay. Later that evening, the jury advised th e trial court it had reached a verdict. The jury found Robert s guilty. The jury was polled individually, an d each member indicate d his or her approval of the verdict.
II. ANALYSIS Roberts cont ends the " Alleninstruction" gi ven by the trial court was coerci ve and, thus, improper. Spec ifically, he- 6 - challenges the admoniti on in that instruct ion addresse d to the minority jurors as fo llows: "Each juror in the minority view should reconsider suchminority view in li ght of the opinion of the majority." Roberts compla ins that the cour t's directive to the minority jurors to reconsider their vi ew "in light of the opinion of the majori ty" constituted one-sided coer cion of the jurors in the mi nority, in that no simi lar instructio n was given to the majority jurors. However, Roberts made no su ch argument be fore the trial court. At trial, Robe rts initially ob jected to the giving of an

" Allen instruction," bu t, once the trial court decided to give the instruction, Roberts made no ob jection to the co ntents of the instruction give n by the court. Indeed, he did no thing to apprise the trial court that the instruction it self was erroneous or deficient in any way. His only objection was to the denial of his motion for a mistrial an d the giving of an " Alleninstruction." "The Court of Appeal s will not consider an argument on appeal which was not pr esented to the trial court." Ohree v. Commonwealth , 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998); see also Rule 5A:18. The pu rpose of this rule is to insure that the trial court an d opposing party are gi ven the oppo rtunity to intelligently address, examine, and resolve issu es in the trial court, thus av oiding unnecess ary appeals. See Lee v. Lee , 12- 7 - Va. App. 512, 514, 404 S.E.2d 736, 737 (1991); Kaufman v. Kaufman , 12 Va. App. 1200 , 1204, 409 S.E.2d 1, 3-4 (1991). Hence, because he made no ar gument at tria l regarding the contents of the " Alleninstruction" given by the court, Roberts is barred from raising this claim for the first time on appeal. Roberts next contends that, in later asking the jurors if any of them disagree d with the "comment that further negoti ations or deliberations would not be beneficial or fruitful," the trial court improper ly suggested to the jury that they co uld resolve their inability to reach a unanimou s verdict by nego tiation. The court's suggesti ng to the jury that it could negotiat e a verdict, Roberts argues, is "fatal to a fair and impartial verdict." Roberts made no contemporaneou s objection to the trial court's use of the wo rd "negotiations." Likewise, he did not request a cautiona ry instruction or move for a mistrial on that ground. The trial co urt, therefore, had no opportunity to consider the matter and, if necessary, take steps to correct it. Consequently, th is claim is also pr ocedurally barred. Moreover, our re view of the re cord in this case does not reveal any reason to in voke the "good cause" or "ends of justice" exceptions to Ru le 5A:18 as to either of Robert s' claims of alleged error. Accordingly, we affi rm Roberts' conviction of possession of cocaine with intent to distribute. Because we do not re verse that- 8 - conviction, we al so affirm the re vocation of Robe rts' previously suspended senten ce resulting from th e instant co nviction. Affirmed.