                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Hodges
Argued at Alexandria, Virginia


JACOB DALE MONROE
                                           MEMORANDUM OPINION * BY
v.   Record No. 1254-00-4                  JUDGE WILLIAM H. HODGES
                                               OCTOBER 9, 2001
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                  Leroy F. Millette, Jr., Judge

             William J. Baker for appellant.

             Michael T. Judge, Assistant Attorney General
             (Mark L. Earley, Attorney General, on brief),
             for appellee.


     Jacob Dale Monroe, appellant, was convicted of second degree

murder and shooting into an occupied building or dwelling house.

On appeal, appellant argues the trial court erred by (1) admitting

a blanket into evidence; (2) refusing to consider his challenge to

two jurors; (3) denying his objections to the Commonwealth's

cross-examination of a witness; and (4) denying his objection to

the Commonwealth's closing argument.    Finding no error, we affirm

the trial court's judgment.

                              BACKGROUND

     On December 21, 1996, Steve Pogue had a party at his

residence.    At about midnight, a group of five men, including

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
appellant, attempted to enter the party.    However, Pogue would not

allow the men to stay at the party.     Pogue escorted one of the men

outside of his house and saw that one of the other men had picked

up a rock or brick.    The five men initially refused to leave the

property.   After a brief verbal dispute with appellant, Pogue

struck appellant and pushed him to the ground, and Pogue again

told the men to leave his property.     Several guests exited Pogue's

house to assist Pogue.    Appellant's companions urged him to leave

the party and, as the five men walked away, one of the men yelled,

"We'll be back," and "DRS will be back and pop caps in your ass."

DRS is a local gang called "Dirty Rotten Scoundrels."    On the

night of the incident, appellant wore a shirt with DRS written on

it.

       Jerry McDermit, one of the men who accompanied appellant that

night, testified that after they left the party, they retrieved a

.38 caliber gun from Josh Morrow's residence and a shotgun from

another residence.    McDermit testified appellant and Morrow shared

ownership of a .38 caliber gun.   Appellant indicated that he

wanted to return to the party and fight.    The five men drove past

Pogue's residence four times.   As they passed for the fifth time,

appellant said, "Fuck it.   So let's just shoot it.   Let's just do

it."   Appellant fired several shots from the car toward Pogue's

house with the .38 caliber gun.   Another member of the group fired

the shotgun toward the house, striking a vehicle parked near

Pogue's house.   Gerald Dillard, who was seated in front of a

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window inside Pogue's house, was shot in the head and died.    The

forensic evidence showed that he was shot with the .38 caliber gun

owned by appellant and Morrow.

     Appellant testified Morrow fired the .38 caliber gun at

Pogue's residence.

                     ADMISSIBILITY OF THE BLANKET

     After the victim was shot, he was placed on the floor and

someone placed a blanket over the victim.   The Commonwealth

offered the bloody blanket into evidence.   The trial court

admitted the blanket into evidence, ruling that the blanket

depicted the crime scene and that its probative value outweighed

the prejudicial impact of the evidence.

     "Evidence which 'tends to cast any light upon the subject of

the inquiry' is relevant."   Cash v. Commonwealth, 5 Va. App. 506,

510, 364 S.E.2d 769, 771 (1988) (citation omitted).   However,

"[i]f the prejudicial effect of nominally relevant evidence

outweighs its probative value, the evidence is inadmissible."

Singleton v. Commonwealth, 19 Va. App. 728, 734, 453 S.E.2d 921,

925 (1995) (en banc).

     Assuming without deciding that the bloody blanket was

inadmissible, we must determine whether its admission into

evidence was harmless error.   A non-constitutional error by the

trial court is harmless if "'it plainly appears from the record

and the evidence given at the trial that' the error did not affect

the verdict."   Lavinder v. Commonwealth, 12 Va. App. 1003, 1005,

                                 - 3 -
407 S.E.2d 910, 911 (1991) (en banc) (citation omitted).   "An

error does not affect a verdict if a reviewing court can conclude,

without usurping the jury's fact finding function, that, had the

error not occurred, the verdict would have been the same."     Id.

"Each case must . . . be analyzed individually to determine if an

error has affected the verdict."    Id. at 1009, 407 S.E.2d at 913.

     Based on our examination of the record and evidence presented

in the case, we are satisfied that the admission of the bloody

blanket did not affect the verdict or otherwise deprive appellant

of a fair trial on the merits.    The evidence of appellant's guilt

was overwhelming.   Evidence was presented that appellant fired the

.38 caliber weapon at the house, and the victim was killed by a

.38 caliber bullet that passed through the window of the house.

Moreover, the evidence of the bloody blanket was merely cumulative

of the photographic evidence of the crime scene that was admitted

into evidence.   We can conclude, therefore, without usurping the

jury's fact finding function, that, had the bloody blanket not

been admitted into evidence, the verdict would have been the same.

Accordingly, its admission was harmless error.

                           BATSON MOTION

     The Commonwealth used two peremptory strikes to remove two of

the three African-Americans from the jury panel.   Appellant

objected to the strikes, stating that the Commonwealth had to give

a reason other than race for striking the potential jurors.    See

Batson v. Kentucky, 476 U.S. 79 (1986).    The trial court ruled

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that a Batson analysis did not apply to this case because

appellant was white and the challenged jurors were black.    The

jury was seated and sworn, and the remaining potential jurors

were released.

     After opening statements, the Commonwealth's Attorney

proffered for the record his reasons for striking the two

challenged jurors.    The prosecutor represented to the trial

court that he struck the male African-American juror because the

juror did not "look at counsel" during voir dire and was

"unattentive" or "perhaps not willing to listen to the

evidence."   The prosecutor stated that he struck the female

African-American juror because she had "a rather mean look on

her face" and appeared "unhappy with everything."   The trial

court again ruled that Batson did not apply, and the court

recessed for lunch.

     After a break in the trial, the trial court realized that

it had been mistaken in its earlier ruling that Batson was

inapplicable to the issue.   The trial court revisited the issue

and requested that appellant reiterate the bases of the motion.

See Powers v. Ohio, 499 U.S. 400, 409 (1990) (ruling that a

criminal defendant may object to race-based exclusions of jurors

through peremptory challenges whether or not defendant and

jurors are of the same race).   Appellant represented that

striking two of the three African-American potential jurors was



                                - 5 -
"disproportionate" based on the African-American population of

the area.

     Assuming, without deciding, that appellant made a prima

facie showing that the prosecutor exercised the two peremptory

strikes on the basis of race, the prosecutor articulated

racially neutral explanations for striking the jurors in

question.   Indeed, the trial court stated that it too had

observed that the male juror "appeared to be disinterested."

     The prosecutor then elaborated on his reasons for striking

the female African-American juror, stating that she "seemed like

she . . . was unhappy with being here," and "did not seem [to]

want to pay attention."   He stated that it appeared to be a

"burden" for her to be in court and that her reactions to

questions indicated to him that she would not be "receptive" to

evidence "in a normal method."    The prosecutor said the

potential juror appeared "bitter" and that he believed persons

who are not "happy with the system don't make good jurors."    The

trial court agreed that, based on its observations of the

potential juror's body language and demeanor, she "did not seem

to be very receptive."

     "Manifestly, disinterested jurors should be identified and

removed whenever possible, irrespective of race or gender."

Robertson v. Commonwealth, 18 Va. App. 635, 640, 445 S.E.2d 713,

716 (1994).   "A trial court's determination whether the reason

given is race-neutral is entitled to great deference . . . and

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will not be reversed on appeal unless it is 'clearly

erroneous.'"     Atkins v. Commonwealth, 257 Va. 160, 175, 510

S.E.2d 445, 454 (1999) (citations omitted).

         The prosecutor offered race-neutral, nondiscriminatory

reasons for striking the venirepersons.    The trial court did not

abuse its discretion in accepting the Commonwealth's

racially-neutral explanations.

     Appellant also argues that because the trial court

addressed the Batson motion after the jury had been sworn and

the remaining potential jurors had been released, appellant had

no meaningful redress because the jury panel had already been

sworn.    However, the record indicates that appellant failed to

present this argument to the trial court.    After the trial court

made its final ruling, appellant's counsel stated, "Please note

our objection."    Appellant offers no authority on this appeal

for the proposition that he had no effective remedy after the

panel was sworn.

     "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 Rule 5A:18.    Accordingly, Rule 5A:18 bars our consideration

of this question on appeal.    Moreover, the record does not

reflect any reason to invoke the good cause or ends of justice

exceptions to Rule 5A:18.



                                 - 7 -
                     CROSS-EXAMINATION OF MORROW

     Appellant called Morrow, one of his codefendants, as a

witness on his own behalf.    Appellant argues the trial court

erred in ruling that the prosecutor's cross-examination of

Morrow did not exceed the scope of appellant's direct

examination of the witness.

     On direct examination, appellant questioned Morrow

regarding statements concerning the crimes that Morrow had made

to codefendants and inmates while they were incarcerated.

Morrow testified that he initially asked the codefendants to go

along with his story that he was asleep in the car during the

shooting.    Morrow also denied that he suggested that they blame

the shooting on appellant and another juvenile because they were

juveniles.   In addition, Morrow denied telling one of the men

that he fired the .38 during the shooting.

     On cross-examination, the Commonwealth questioned Morrow

concerning how he knew appellant and his observations of what

occurred during the incident.   Morrow testified that appellant

fired the .38 caliber gun on the night of the shooting.

Appellant repeatedly objected that the Commonwealth was

exceeding the scope of cross-examination.    The trial court ruled

that appellant, by asking Morrow what he had told people about

the incident, had opened the door to the line of questioning

related to how Morrow "knows things about what happened, where

he was, whether he was asleep or not."    The trial court also

                                - 8 -
ruled that, while the Commonwealth could ask whether Morrow and

appellant were members of DRS, he could not indicate what "DRS

means."

     On further cross-examination, Morrow testified that he and

appellant were friends and were affiliated with DRS.    Morrow

testified concerning the events of the night of the shooting,

and he stated that he saw appellant fire the .38 caliber gun.

When the prosecutor attempted to show Morrow the gun, the trial

court ruled that the Commonwealth could go no further with the

line of questioning unless it called Morrow as its own witness.

     "Subject to such reasonable limitations as the trial court

may impose, a party has an absolute right to cross-examine his

opponent's witness on a matter relevant to the case, which the

opponent has put in issue by direct examination of the witness."

Washington v. Commonwealth, 228 Va. 535, 549, 323 S.E.2d 577,

587 (1984).    "'Once a [witness] has testified as to certain

matters, the proper scope of cross examination lies within the

sound discretion of the trial court.'"     Fisher v. Commonwealth,

16 Va. App. 447, 455, 431 S.E.2d 886, 891 (1993) (citation

omitted).     See also United States v. Gravely, 840 F.2d 1156,

1163 (4th Cir. 1988) (citing United States v. Atwell, 766 F.2d

416, 419-20 (10th Cir. 1985) ("limiting the extent of

cross-examination is within the discretion of the trial court

and does not warrant reversal absent an abuse of discretion

clearly prejudicial to the defendant")).

                                 - 9 -
     The limited cross-examination permitted by the trial court

was within the trial court's discretion because appellant

initiated the line of inquiry when he elected to question Morrow

on direct examination about statements he had made concerning

the crimes.   When, on direct examination, Morrow denied making

certain statements about the crimes, the Commonwealth was

entitled to explore how Morrow knew of the crimes.   Furthermore,

with the exception of who fired the gun, appellant testified to

many of the same facts that Morrow testified to on

cross-examination concerning details of the night of the

shooting, including the fact that appellant was a member of DRS.

Accordingly, we cannot say that appellant suffered prejudice

from the evidence elicited in the cross-examination of Morrow.

                         CLOSING ARGUMENT

     Appellant argues the trial court erred in overruling his

objection to a statement made in the Commonwealth's rebuttal

closing argument.   During its rebuttal closing argument, the

prosecutor argued, "If they had had these weapons at the first

instant [sic] I submit to you we'd probably have a lot of dead

people."   Appellant objected, and the trial court overruled the

objection stating, "It's a matter of argument."

                "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."

                              - 10 -
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)).   "A trial court has broad

discretion in the supervision of . . . closing argument."    O'Dell

v. Commonwealth, 234 Va. 672, 703, 364 S.E.2d 491, 509 (1987).

"'This Court will not interfere with the exercise of this broad

discretion unless it affirmatively appears that such discretion

has been abused and that the rights of the complaining litigant

have been prejudiced.'"   Canipe, 25 Va. App. at 639, 491 S.E.2d at

752 (citation omitted).   "'In rebuttal argument, a prosecutor has

the right to answer the argument made by defense counsel and to

refer to evidence and fair inferences suggested by the evidence

touching the subjects covered by the adversary.'"   Clark v.

Commonwealth, 3 Va. App. 474, 483, 351 S.E.2d 42, 46 (1986)

(citation and emphasis omitted).

     Appellant argued in his closing argument that Pogue's house

had not been "sprayed" by gunfire and that "unfortunately, the

bullet struck the house."   The evidence at trial showed that

appellant and his companions drank alcoholic beverages earlier

that evening before attempting to attend the party.   They were not

invited and knew none of the people in the house.   After one of

appellant's companions attempted to enter Pogue's house, a

confrontation occurred in which one of appellant's companions

picked up a rock.   When appellant and his companions returned to

the Pogue residence the second time, they fired several shots

                               - 11 -
toward Pogue's house, striking a vehicle parked in the driveway,

the house, and the victim through a window of the house.

     In view of the deadly consequences that occurred after the

initial confrontation, the trial judge did not abuse his

discretion in ruling that the prosecutor could properly argue that

had a gun been fired during the initial heated confrontation, the

people who were standing outside the residence and openly exposed

could have been killed.   The argument was based on evidence

presented and fair inferences suggested by the evidence.

Accordingly, the trial court did not abuse its discretion in

overruling appellant's objection.

     Therefore, the trial court's judgment is affirmed.

                                                    Affirmed.




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