COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Clements 

Argued at Richmond, Virginia 

ALBERT MAURICE ROBERTS, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 2401-01-2 JUDGE JEAN HARRISON CLEMENTS 

 APRIL 29, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge 

 Joseph W. Kaestner (Tara-Beth Coleman; 

Kaestner & Associates, P.C., on brief), for 

appellant. 

 Steven A. Witmer, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 Albert Maurice Roberts, Jr., was convicted in a jury trial of 

possession of cocaine with intent to distribute, in violation of 

Code § 18.2-248. Based on that conviction, the trial court 

sentenced Roberts to eight years' confinement, with three years 

suspended, and revoked a portion of Roberts' suspended sentence 

for a prior conviction. On appeal, Roberts contends the trial 

court erred in (1) granting a coercive "Allen instruction" to the 

jury and (2) improperly suggesting to the deadlocked jury that it 

could reach a verdict by negotiating. Roberts further contends 

that, if his conviction of possession of cocaine with intent to 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
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distribute is reversed, the revocation of his previously suspended 

sentence must also be reversed. Finding appellate review of 

Roberts' claims that the trial court erred procedurally barred, we 

affirm Roberts' conviction and the resulting revocation of his 

previously suspended sentence. 

 As the parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedential 

value, this opinion recites only those facts and incidents of the 

proceedings as are necessary to the parties' understanding of the 

disposition of this appeal. 

I. BACKGROUND 

 After deliberating Roberts' guilt for approximately one hour 

and forty-five minutes, the jury returned and the foreperson asked 

the trial judge, "[W]hat do we do if we can't reach a unanimous 

decision?" A bench conference followed, during which the 

Commonwealth requested an "Allen instruction." Roberts' attorney 

responded, "I would ask for a mistrial at this time. I don't 

think the 'Allen instruction' is appropriate at this time." The 

trial judge stated: "I think it is appropriate. The question is 

to the time and they've been out roughly an hour and forty-five 

minutes. This case was not complicated. Otherwise, I'm inclined 

to give the 'Allen charge' right now." Roberts' attorney replied, 

"Fine. Note my objection." 
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 The trial judge then instructed the jury as follows: 

 [Foreperson] and Ladies and Gentlemen, I 

am going to respond to your question by 

reading you one additional instruction. It 

will not be provided to you in writing as the 

other instructions were. So I'm going to ask 

that you listen carefully to the reading of 

this instruction. What the court 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 deliberations until you 

arrive at a verdict. Trials are expensive, 

time consuming, inconvenient and troublesome 

to all persons involved. A jury must decide 

the issues in this case. If you cannot 

decide, then we shall have to get another 

jury to decide the issues. The court sees no 

reason why you as jurors are not as competent 

and able to decide the issues as any other 

jury. It is your duty to make an honest and 

sincere attempt to reach a verdict. The 

verdict must be unanimous. Jurors should be 

open minded and listen to the argument of 

others, talk over the issues and evidence 

freely and fairly. Each juror must decide 

the issues for himself or herself, but only 

after an impartial consideration 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 minority view should 

reconsider such minority view in light of the 

opinion of the majority. And likewise, each 

juror in the majority view should give equal 

consideration to the views of the minority. 

No juror should surrender 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 verdict. The Court cannot give 

you any further guidance at this time as to 

guilt or innocence. The Court is requesting 

that you as fair minded individuals retire to 

your jury room and make another honest effort 
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to come to a conclusion on all the issues 

presented in this case keeping in mind what 

the Court has stated to you in this 

instruction and the other instructions 

previously provided to you. Having said that 

ladies and gentlemen, I am going to ask that 

you return to your jury room for further 

deliberations and whatever determination you 

can make. And as the Court has suggested and 

as this instruction suggests, your verdict 

must be unanimous. Thank you. If you'll 

retire to your jury room. 

 After the jury deliberated for another one and one-half 

hours, the trial judge advised the parties it was "inclined to 

bring [the jury] back and inquire of the [foreperson] as to 

whether they're making any progress." Roberts' attorney asked the 

trial court "to inquire of the jury whether or not they have a 

verdict and if they don't have a verdict, declare a mistrial." 

 When the jury was returned, the trial judge asked the 

foreperson if she felt "additional deliberations [would] be 

beneficial," to which she responded, "No, Your Honor." The judge 

then asked the other jurors, "[I]s there anyone who disagrees with 

that comment that further negotiations or deliberations would not 

be beneficial or fruitful?" One of the jurors indicated that he 

felt additional deliberations would be beneficial. The judge then 

asked the jurors how many agreed with the juror who felt 

additional deliberations would be beneficial and how many 

disagreed with him. Roberts' attorney noted that three jurors 

indicated further deliberations would be beneficial, six jurors 
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indicated further deliberations would not be beneficial 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 and whether or not any further deliberations would 

be of benefit." Noting that, in light of the jurors' comments, he 

would "give them a little more time," the trial judge sent the 

jury back to the "jury room for further deliberations." 

 After the jury retired, Roberts' attorney suggested to the 

trial judge that, given the hour and the amount of time the jury 

had already spent on the case that day, the jury be allowed to 

return the next day to continue its deliberations. Saying he 

would give the jury that option, the trial judge told the 

foreperson that the jury could continue deliberating that evening 

or return the next morning to continue its deliberations if it 

wished. Upon polling the jury, the foreperson advised the judge 

that the jury wanted to stay. 

 Later that evening, the jury advised the trial court it had 

reached a verdict. The jury found Roberts guilty. The jury was 

polled individually, and each member indicated his or her approval 

of the verdict. 

II. ANALYSIS 

 Roberts contends the "Allen instruction" given by the trial 

court was coercive and, thus, improper. Specifically, he 
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challenges the admonition in that instruction addressed to the 

minority jurors as follows: "Each juror in the minority view 

should reconsider such minority view in light of the opinion of 

the majority." Roberts complains that the court's directive to 

the minority jurors to reconsider their view "in light of the 

opinion of the majority" constituted one-sided coercion of the 

jurors in the minority, in that no similar instruction was given 

to the majority jurors. 

 However, Roberts made no such argument before the trial 

court. At trial, Roberts initially objected to the giving of an 

"Allen instruction," but, once the trial court decided to give the 

instruction, Roberts made no objection to the contents of the 

instruction given by the court. Indeed, he did nothing to apprise 

the trial court that the instruction itself was erroneous or 

deficient in any way. His only objection was to the denial of his 

motion for a mistrial and the giving of an "Allen instruction." 

 "The Court of Appeals will not consider an argument on appeal 

which was not presented 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 purpose of this rule is to insure that 

the trial court and opposing party are given the opportunity to 

intelligently address, examine, and resolve issues in the trial 

court, thus avoiding unnecessary appeals. See Lee v. Lee, 12 
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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 argument at trial regarding the 

contents of the "Allen instruction" 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 disagreed with the "comment that further negotiations or 

deliberations would not be beneficial or fruitful," the trial 

court improperly suggested to the jury that they could resolve 

their inability to reach a unanimous verdict by negotiation. The 

court's suggesting to the jury that it could negotiate a verdict, 

Roberts argues, is "fatal to a fair and impartial verdict." 

 Roberts made no contemporaneous objection to the trial 

court's use of the word "negotiations." Likewise, he did not 

request a cautionary instruction or move for a mistrial on that 

ground. The trial court, therefore, had no opportunity to 

consider the matter and, if necessary, take steps to correct it. 

Consequently, this claim is also procedurally barred. 

 Moreover, our review of the record in this case does not 

reveal any reason to invoke the "good cause" or "ends of justice" 

exceptions to Rule 5A:18 as to either of Roberts' claims of 

alleged error. 

 Accordingly, we affirm Roberts' conviction of possession of 

cocaine with intent to distribute. Because we do not reverse that 
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conviction, we also affirm the revocation of Roberts' previously 

suspended sentence resulting from the instant conviction. 

Affirmed.