John Raymond Langowski v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
JOHN RAYMOND LANGOWSKI MEMORANDUM OPINION* BY
v. 	Record No. 1274-95-1 	JUDGE RICHARD S. BRAY
NOVEMBER 19, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
Andrew G. Wiggin, Assistant Public Defender,
for appellant.
Daniel J. Munroe, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Richard B. Smith, Assistant Attorney General,
on brief), for appellee.
John Raymond Langowski (defendant) was convicted by a jury
for malicious wounding and petit larceny. 	On appeal, he contends
that the trial court erroneously (1) permitted closing arguments
during the sentencing phase of the bifurcated trial, (2) required
him to open the arguments, and (3) assured the Commonwealth a
right to argue, even if defendant elected to waive a like
opportunity. 	Finding no error, we affirm the convictions.
On April 1, 1994, defendant, suspected of stealing a
microwave oven, shot a K-Mart security guard investigating the
offense and was charged with malicious wounding, the related use
of a firearm and petit larceny. 	During the sentencing phase of
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

- 2 -
the bifurcated trial for malicious wounding, defendant objected
to the court "allowing any argument," reasoning that Code
§ 19.2-295.1 made no mention of "argument at all." 	In overruling
the objection, the court determined that "[e]ach side will be
allowed an opportunity to argue sentencing with defense opening
and the Commonwealth closing." 	Defendant then objected to the
order of argument, complaining that he was not "the one to go
second," and requested that the Commonwealth be precluded from
argument should defendant elect to waive. 	Again, however, the
objection was overruled and closing arguments proceeded in
accordance with the court's ruling.
"On appeal, the judgment of the trial court is presumed
correct. 	The burden is on the party who alleges reversible error
to show by the record that reversal is the remedy to which he is
entitled." 	Johnson v. Commonwealth, 12 Va. App. 391, 396, 404
S.E.2d 384, 387 (1991) (citation omitted). 	The trial court
exercises broad discretion in the supervision of closing
arguments, and its rulings will be reversed on appeal only for an
abuse of such discretion. 	O'Dell v. Commonwealth, 234 Va. 672,
703, 364 S.E.2d 491, 509, cert. denied, 488 U.S. 871 (1988);
Jordan v. Taylor, 209 Va. 43, 51, 161 S.E.2d 790, 795 (1968).
At oral argument, defendant conceded that our recent
decision in Griffin v. Commonwealth, 22 Va. App. 622, 472 S.E.2d
285 (1996), resolves the first and third assignments of error in

- 3 -
favor of the Commonwealth.1 Nevertheless, defendant persists in
his contention that the court erroneously required him to first
present his closing argument, thereby denying him "the last word
to the jury."
As we observed in Griffin,
"[i]n the normal course of a summation to the jury, of
necessity, only one side may open. 	The other party
then has the opportunity to reply to his opponents
[sic] opening argument, and in turn make his own
argument to the jury. 	The one who spoke first then has
the opportunity to answer the argument of his opponent.
No new material should be injected into this final
statement."
Id. at 624, 472 S.E.2d at 287 (quoting People v. Caballero, 464
N.E.2d 223, 235 (Ill.), cert. denied, 469 U.S. 963 (1984)). 	"In
Virginia[,] the Commonwealth traditionally has been permitted to
'combat the argument of defendant's counsel . . . both with
respect to the guilt of the accused and a proper measure of
punishment.'" 	Id. at 624, 472 S.E.2d at 286 (quoting Martinez v.
Commonwealth, 241 Va. 557, 560, 403 S.E.2d 358, 359-60 (1991)).
Guided by these well established principles, we are unable to
conclude that the trial judge abused his discretion in
structuring the closing arguments in this instance. 	See O'Dell,
234 Va. at 703, 364 S.E.2d at 509; Jordan, 209 Va. at 51, 161
S.E.2d at 795; Griffin, 22 Va. App. at 624-25, 472 S.E.2d at
286-87.
Moreover, defendant did not request leave to present
1Defendant filed his opening brief on May 30, 1996, and our
decision in Griffin was released on June 25, 1996.

- 4 -
rebuttal following the Commonwealth's argument, but simply sought
to "go second." 	Defendant, therefore, "failed to obtain a ruling
from the court [on this issue]. . . . 	Because he was denied
nothing by the trial court, there is no ruling for us to
review."2 Fisher v. Commonwealth, 16 Va. App. 447, 454, 431
S.E.2d 886, 890 (1993); see Rule 5A:18.
Accordingly, we affirm the convictions.
Affirmed.
2Under such circumstances, we do not decide whether the
refusal to allow rebuttal argument to a similarly situated
accused would constitute an abuse of discretion. 	See Rule 5A:18.