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Roberts v. Commonwealth2/6/2001
as merely cumulative of the testimony of Burns and Fasano. Thus, absent Moore's testimony, we find the testimony of Burns and Fasano, in conjunction with other evidence of appellant's statements and conduct before and after the murder, more than sufficient to prove beyond a reasonable doubt that appellant was the murderer. Accordingly, the trial court did not err in denying appellant's motion for a new trial.
DENIAL OF RIGHT TO PUBLIC TRIAL
After the presentation of evidence by both parties, the trial court advised the parties that two jurors admitted knowing Eric Roberts, appellant's brother and a witness for the defense. When he testified, they recognized him as a bus driver with whom they were familiar. The trial court agreed with defense counsel that it should voir dire the two jurors before the jury began deliberating. Appellant, through counsel, initially asserted that he should be present when the trial court questioned the jurors. However, the following colloquy then occurred between the trial court and counsel:
[DEFENSE COUNSEL]: Would the Court want to do it without us here and then tell us on the record what occurred? Do you think the Jurors would be less intimidated by that? Perhaps that might be the best way to do it.
THE COURT: I have no objection, particularly if you propose it, but -
[DEFENSE COUNSEL]: I think I will propose it that way. I certainly trust Your Honor's ability to ask them the right questions and perhaps with nobody in the courtroom, it might be certainly less intimidating.
[PROSECUTOR]: I agree.
[DEFENSE COUNSEL]: I agree with that too.
The trial court advised counsel that it would notify them if it appeared either juror's familiarity with the defense witness presented "a problem" with their continuing to sit on the jury.
The two jurors admitted knowing Eric Roberts through his employment as a bus driver. Both jurors indicated that they had no personal or social relationships with Roberts, they were not biased in any way against him, and they could judge his credibility fairly and impartially. After the in camera meeting with the jurors, the trial court advised counsel, "Gentlemen, I investigated the matter we discussed earlier and found no difficulty." Defense counsel thanked the trial court, after which the trial court instructed the jury.
Assuming that this was a critical stage of the proceedings, appellant cannot now complain that the trial court erred when it did as he requested through counsel. "'No litigant, even a defendant in a criminal case, will be permitted to approbate and reprobate - to invite error . . . and then to take advantage of the situation created by his own wrong.'" Manns v. Commonwealth, 13 Va. App. 677, 680, 414 S.E.2d 613, 615 (1992) (quoting Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988)). See also Doe v. Simmers, 207 Va. 956, 960, 154 S.E.2d 146, 149 (1967). Accordingly, the trial court did not commit reversible error.
For the foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.
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