Martinez v. Com.
| Decision Date | 19 April 1991 |
| Docket Number | No. 901248,901248 |
| Citation | 403 S.E.2d 358,241 Va. 557 |
| Court | Virginia Supreme Court |
| Parties | Raymond MARTINEZ, Jr. v. COMMONWEALTH of Virginia. Record |
Lawrence D. Gott, Cape Charles, for appellant.
Katherine B. Toone, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: CARRICO, C.J., STEPHENSON, RUSSELL, WHITING, LACY and HASSELL, JJ., and POFF, Senior Justice.
In this appeal, we consider whether the Commonwealth's attorney may ask a jury for the imposition of a specific sentence during closing argument in a criminal case.
On December 10, 17, and 18, 1987, Raymond Martinez, Jr., also known as "Beetle," approached an informant and an undercover officer of the Virginia State Police and asked what they wanted. They gave Martinez some money and asked him to purchase some cocaine. On each occasion, Martinez purchased cocaine and gave it to the law enforcement agent and the informant.
A grand jury for Northampton County indicted Martinez on four counts of distribution of cocaine in violation of Code § 18.2-248. 1 Martinez was tried before a jury and convicted on the three counts of distribution of cocaine. The jury returned a verdict fixing a penalty of imprisonment for seven years on each count for a total of 21 years. Martinez was sentenced in accordance with the jury's verdict.
During the trial, the Commonwealth's attorney made the following closing argument to the jury:
What you have in terms of that defendant [Martinez] is a crack dealer. You may have [thought] in the past ... they ought to do something about crack dealers. Well, here is one in front of you. You are now the they. You are the they that everyone talks about. They ought to do something.
Police have done something. They went out in the nighttime, an officer in an undercover role ... [made] this investigation to see if this man is going to sell drugs; to see if he is going to deal some drugs and he does [so] three times.
We brought this case before you. Now, I am asking you to do something. I am asking you to convict him on each count. All three counts individually. Each count.
The penalty, as you will see from the instructions, is five to forty years on each count, plus a fine of up to $100,000 on each count. The Commonwealth is not that interested in the amount of the fine. We are interested in the amount of time. I am asking you to give this crack dealer twenty years on each count.
I am asking you for twenty years. I am asking you for twenty years. I am asking you to look at the evidence to convict him and then give him twenty years on each count; to punish him for being a crack dealer, and the other reason [is] to deter others from doing it.
Martinez argues that a prosecutor may not recommend a specific punishment to the jury and, therefore, the trial court erred when it overruled his objection to the argument. The Court of Appeals considered this issue and held that it was not procedurally barred, 2 assumed that the argument was improper, but held that Martinez was not prejudiced by "the improper argument of the Commonwealth's attorney," and affirmed the judgment. 10 Va.App. 664, 395 S.E.2d 467.
Even though we have not specifically addressed the precise question presented in this appeal, we have discussed the parameters of a Commonwealth's attorney's right to prosecute and argue the Commonwealth's case with vigor. In Jackson v. Commonwealth, 193 Va. 664, 70 S.E.2d 322 (1952), we held that the Commonwealth's attorney, responding to the defendant's argument for a light punishment, had "a right to combat, and to argue the evidence and the fair inferences from it with respect both to the defendant's guilt and to a fitting punishment." Id. at 675, 70 S.E.2d at 329. In Timmons v. Commonwealth, 204 Va. 205, 129 S.E.2d 697 (1963), we stated that the Commonwealth's attorney has "a right to combat the argument of the defendant's counsel and to refer to the evidence and fair inferences from it ... both with respect to the guilt of the accused and a proper measure of punishment." Id. at 216-17, 129 S.E.2d at 705. In Hutchins v. Commonwealth, 220 Va. 17, 255 S.E.2d 459 (1979), we observed:
[I]t is proper...
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