                     COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Felton and Kelsey
Argued at Richmond, Virginia


HARRY ALPHONSO CUTCHIN
                                               MEMORANDUM OPINION * BY
v.   Record No. 1736-01-2                       JUDGE ROBERT P. FRANK
                                                  NOVEMBER 26, 2002
COMMONWEALTH OF VIRGINIA


      FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                    Edward L. Hogshire, Judge

          Andrew L. Wilder for appellant.

          Marla Graff Decker, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Harry Alphonso Cutchin (appellant) was convicted in a jury

trial of robbery, in violation of Code § 18.2-58.        On appeal, he

contends the trial court erred in denying his motion for a

mistrial, claiming the Commonwealth attorney made prejudicial

remarks to the jury during voir dire.     For the reasons stated, we

affirm.

                            I.    BACKGROUND

     The trial court initially conducted voir dire of the

prospective jury panelists.      Thereafter, the Commonwealth

conducted further voir dire, asking:



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
          And if the law required you to propose a
          sentence . . . the maximum sentence
          available under law, would you do that if
          that was something that the law told you to
          do and by the same token, would you also
          impose a sentence that would be the lowest
          if the law required you to do that? 1

(Ellipsis in transcript.)   Before the venire had an opportunity

to respond, a prospective juror said, "I have a question."     The

court acknowledged her, and the venireman asked, "What is the

maximum allowable penalty in this case?"

     The prosecutor responded:

          This is a penalty . . . this is a robbery.
          Should defendant be convicted of a robbery,
          the maximum penalty would be life in prison.
          The . . . it's . . . and it's arranged [sic]
          from five to life. So, if the law said that
          you had to give him a five year sentence,
          would everybody be able to do that and if
          the law said you have to give the maximum
          sentence, would everybody be able to do
          that?

(Ellipses in transcript.)   Defense counsel did not object to the

venireman's question or to the prosecutor's response.    The

prosecutor completed his inquiry, and defense counsel asked his

questions of the veniremen.

     After the conclusion of voir dire, defense counsel raised

for the first time concerns about the Commonwealth's earlier


     1
       We are not asked to address the propriety of this type of
voir dire. See Commonwealth v. Hill, 264 Va. 315, 320, 568
S.E.2d 673, 676 (2002) (holding that, in a non-capital case,
neither the defendant nor the Commonwealth has a constitutional
or statutory right to question a jury panel about the range of
punishment that may be imposed upon the defendant).


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comments to the jury regarding the minimum and maximum penalty

for robbery.    Defense counsel complained that, since the

Commonwealth was going to ask for a mandatory life sentence

under the "three strikes law," Code § 19.2-297.1, he had misled

the jury by suggesting that a minimum punishment of five years

was possible.   Counsel indicated, "[T]his is my first chance

outside the presence of the jury to point it out."    Counsel

moved for a mistrial after some additional discussion of the

issue.   The trial court denied counsel's motion.

                            II.   ANALYSIS

     Appellant contends the trial court erred in failing to

grant a mistrial.   Essentially, appellant maintains the

Commonwealth misled the jury into believing they could sentence

within a range of punishment, five years to life, when, if

proved, the indictment required a mandatory life sentence. 2

Appellant also contends his due process rights were violated

when the trial court refused to grant the mistrial.   Further,

appellant argues the prosecutor usurped the duty of the court to

instruct the jury on the law and to answer jurors' questions.

     The Commonwealth argues appellant's motion for a mistrial

was untimely made and, therefore, was not preserved for appeal.

We agree.


     2
       The indictment listed Code § 19.2-297.1, which requires a
mandatory life sentence for any person "upon conviction of a
third or subsequent act of violence."


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          "A timely motion for a mistrial or a
          cautionary instruction is required to
          preserve the issue for appeal even if an
          objection was properly made to the conduct
          or comments and improperly overruled by the
          trial judge." Morris v. Commonwealth, 14
          Va. App. 283, 287, 416 S.E.2d 462, 464
          (1992) (en banc). "The recognized purpose
          of this requirement is to prevent retrials
          by calling error to the attention of the
          trial judge, who may then caution the jury
          to disregard the inappropriate remarks."
          Craddock [v. Commonwealth], 16 Va. App.
          [402,] 405, 429 S.E.2d [889,] 891 [(1993)].
          See Mack v. Commonwealth, 20 Va. App. 5, 8,
          454 S.E.2d 750, 751 (1995).

          "Making a timely motion for mistrial means
          making the motion 'when the objectionable
          words were spoken'" Yeatts v. Commonwealth,
          242 Va. 121, 137, 410 S.E.2d 254, 264 (1991)
          (quoting Reid v. Baumgardner, 217 Va. 769,
          774, 232 S.E.2d 778, 781 (1977)). "If
          counsel believes that an argument requires
          or justifies a mistrial, he has the duty to
          move promptly before conclusion of the
          argument so that the trial court may
          determine what corrective action, if any,
          should be taken." Pullen v. Nickens, 226
          Va. 342, 346-47, 310 S.E.2d 452, 454-55
          (1983). See Beavers [v. Commonwealth], 245
          Va. [268,] 278-79, 427 S.E.2d [411,] 419
          [(1993)] (holding that a complainant's
          failure to object and move for a mistrial
          until the conclusion of an opening statement
          constituted a waiver of its arguments on
          appeal). There appears to be no exception
          in Virginia law to the strict application of
          this rule.

Bennett v. Commonwealth, 29 Va. App. 261, 281, 511 S.E.2d 439,

448-49 (1999).

     Here, when the Commonwealth responded to the prospective

juror's question, appellant did not raise any objection.

Appellant did not move for a mistrial at that time.   The

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prosecutor continued with voir dire, and then appellant

questioned the panel.   Several veniremen were individually

questioned.   The trial court even recognized a witness who had

to leave the court that morning.    Two veniremen were removed for

cause.    Still appellant made no motion for a mistrial.

     Only when the trial court began to call up two additional

veniremen did appellant express concern over the Commonwealth's

mention of a sentencing range, claiming it was "my first chance

outside the presence of the jury to point it out."     After

further argument, appellant finally asked for a mistrial.

     The record belies appellant's assertion that his objection

and motion were timely.   He had every opportunity to make his

objection known when the prosecutor answered the potential

juror's question.   The fact that the panel was present is of no

moment.   Making a timely motion for mistrial means making the

motion "when the objectionable words were spoken."     Reid, 217

Va. at 774, 232 S.E.2d at 781.    Appellant could have objected

and asked for the panel to be excused while the objection was

discussed, if he believed the argument might prejudice the

panel.

     Appellant's motion, based on the Commonwealth's comments

during voir dire, fails the test of timeliness and was properly

denied.   We affirm the judgment of the trial court.

                                                           Affirmed.



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