                   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.
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



                               - 4 -
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


                                 - 5 -
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




                                - 6 -
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


                               - 7 -
conviction, we also affirm the revocation of Roberts' previously

suspended sentence resulting from the instant conviction.

                                                            Affirmed.




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