COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Clements
Argued at Chesapeake, Virginia
LERICO KEARNEY
MEMORANDUM OPINION ∗ BY
v. Record No. 1078-00-1 JUDGE RICHARD S. BRAY
JANUARY 29, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Westbrook J. Parker, Judge
Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on briefs), for
appellant.
John H. McLees, Jr., Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Lerico Kearney (defendant) was convicted by a jury for
first-degree murder and related use of a firearm, violations of
Code §§ 18.2-32 and -53.1, respectively. On appeal, defendant
contends that the trial court erroneously (1) denied his motion
for a mistrial resulting from the prosecutor's reference, during
closing argument, to defendant's failure to testify, and (2)
refused to instruct the jury on the abolition of parole. For the
1
following reasons, we reverse the trial court.
∗
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Because we reverse on the first issue, we need not address
the remaining assignment of error, which is clearly controlled
by Fishback v. Commonwealth, 260 Va. 104, 532 S.E.2d 629 (2000),
and will govern the proceedings on remand.
In accord with well established principles, "we review the
evidence in the light most favorable to the Commonwealth, granting
to it all reasonable inferences fairly deducible therefrom."
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
I.
On November 21, 1997, at approximately 9:00 p.m., David
Eugene Artis and his sister, Yvonne Giles, were murdered in Artis'
apartment, located on Franklin Street in the City of Suffolk.
According to the medical examiner, Giles died from a "[g]unshot
wound to the head" and Artis from "[g]unshot wounds to [the] chest
and head." Giles was killed by a .45 caliber weapon, and
compatible shell casings were found at the scene. Defendant was
indicted for both murders and attendant firearm offenses, but
convicted only of the Giles murder and related crimes.
Testifying for the Commonwealth, Sabrina Norfleet, a woman
"dating" Artis at the time of the murder, acknowledged he "didn't
work" and "ma[d]e a living gambling" and "sell[ing] drugs." She
specifically recalled a "dice" game between defendant and Artis in
November 1997, when Artis won "about five grand" from defendant.
In the early evening of November 21, 1997, the day of the murders,
Norfleet had seen defendant and Artis together in an automobile,
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"head[ing] . . . towards Franklin Street," "where [Artis] was
living."
Travis Chalk had been with defendant the day prior to the
murders and observed a "black .45" firearm in his possession. The
following morning, Chalk was present when Artis arrived at
defendant's residence and overheard defendant declare, as Artis
approached, "if [he] don't have a G or better, I'm'a [sic] kill
him. 'Cause I'm tired of him winning my money and coming with no
money." Defendant and Artis then began "shooting dice," and,
after "about an . . . hour," agreed to "get back up later and
finish shooting dice." "[R]ight after it got dark," Chalk again
saw Artis, alone and driving "[a] little white Chevrolet,"
followed by defendant and Quinton Parrish, also known as "QP," in
a "white Mitsubishi Gallant," "heading toward Franklin Street."
When Chalk next encountered defendant, a "[f]ew days" after the
offenses, he instructed Chalk "to tell [police] . . . [h]e didn't
know him."
Casey Davis also observed defendant in possession of "a .45"
caliber handgun on November 20, 1997, and "riding" with Parrish in
a "white Mitsubishi Gallant" the following evening. When Parrish
was later seen by Veronica Davis, "walking" "[o]n Franklin
Street," "he started running." Veronica Davis then observed
another man "getting in" "a white looking car . . . either white
or gray," parked opposite Artis' apartment.
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Tony Boothe, a convicted "drug dealer" and federal prisoner,
recounted a visit with defendant in December 1997, "to collect
some money [defendant] owed [Boothe] for . . . drugs."
Defendant "didn't have all the money" and explained to Boothe
that "he lost the money gambling" and "had to kill two people to
get the money back." Detailing the murders, defendant confessed
to Boothe, "he went . . . [with] PC . . . [t]o collect - to get
the money. . . . [H]e put the gun to the people heads
[sic]. . . . [T]he other guy searched the house, searched the
people, and . . . they killed – he killed the people after
that." Boothe recalled that other people were present elsewhere
in "the house" during this conversation with defendant, and the
door was "pretty much open." He confirmed defendant "was
arrested for this offense" "about a week" following the
conversation.
Boothe further testified that, in April 1999, he had a
second encounter with defendant, while the two were alone on a
basketball court, that touched upon the subject offenses. When
Boothe inquired of defendant, "why did he kill the people to get
the money," defendant replied, "he had to do what he had to do
to get his money back."
Defendant neither testified nor offered other evidence to
controvert Boothe's testimony, although he challenged Boothe's
credibility during cross-examination.
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During closing argument to the jury, the prosecutor
specifically addressed "the testimony of Tony Boothe," commenting:
There were a lot of questions asked Tony
Boothe about what he's getting. What his
criminal record is. What he did for a
living. Ten lawyers-a lawyer can come in
here and say what he could or could not get.
But has there been any evidence, any
evidence in this case, that contradicts what
he said—
Defense counsel immediately moved the court to declare a
mistrial, contending that, because only defendant could have
contradicted Boothe, the Commonwealth had improperly referenced
his failure to testify. The trial judge denied the motion, but
admonished the prosecutor not to "dwell on it," noting he was
"get[ting] awfully close to saying something about the defendant
having to testify."
The jury was subsequently instructed, retired to consider a
verdict, and found defendant guilty of the first-degree murder of
Giles and the related firearm offense, resulting in the instant
appeal.
II.
Defendant maintains the prosecutor's closing argument, which
emphasized the absence of "any evidence . . . that contradicts
what [Boothe] said," was an improper comment on his failure to
testify, thereby necessitating a mistrial. We agree.
"As a general rule, any comment that the Commonwealth's
Attorney made referring to the defendant's election not to
testify is a violation of his rights against self-incrimination
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as guaranteed by the Fifth Amendment." Johnson v. Commonwealth,
236 Va. 48, 50, 373 S.E.2d 134, 136 (1988) (citing Griffin v.
California, 380 U.S. 609, 615 (1965)).
In determining whether a remark falls within
the boundary of the prohibition that a
prosecutor shall not make an adverse comment
before the jury on a defendant's failure to
testify, the test is whether, in the
circumstances of the particular case, "the
language used was manifestly intended or was
of such character that the jury would
naturally and necessarily take it to be a
comment on the failure of the accused to
testify."
Hines v. Commonwealth, 217 Va. 905, 907, 234 S.E.2d 262, 263
(1977) (quoting Knowles v. United States, 224 F.2d 168, 170 (10th
Cir. 1955)) (emphasis added).
Here, the prosecutor's argument to the jury expressly
referenced conversations between defendant and Boothe during
which defendant confessed to the offenses at issue. 2 Although
the evidence suggests others may have been within earshot of
defendant's first discussion with Boothe, the record clearly
reflects that the conversation at the basketball court was
exclusive to the two men. Thus, the prosecutor's argument,
considered in the context of the evidence before the jury,
referenced the inescapable conclusion that only defendant could
3
"contradict" Boothe's testimony, thereby "naturally and
2
Defendant raises the identical argument with respect to
numerous additional comments of the prosecutor. However,
defendant objected only to the Boothe remarks and, therefore, is
procedurally barred from presenting the remaining issues on
appeal. Rule 5A:18; see Jacques v. Commonwealth, 12 Va. App.
591, 593, 405 S.E.2d 630, 631 (1991).
3
At the inception of the proceedings, the court admonished
the jurors to "judge [the] facts . . . judge what actually
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necessarily" resulting in the jury "tak[ing] it to be a comment on
the failure of the accused to testify." Hines, 217 Va. at 907,
234 S.E.2d at 263. 4
Accordingly, the trial court erroneously denied defendant's
motion for a mistrial, and we reverse the convictions and remand
the prosecution to the trial court for such further proceedings
as the Commonwealth deems appropriate.
Reversed and remanded.
happened in the case," "to make your decision based on what you
see and hear in the courtroom and not on something that's
outside the courtroom." Thus, the jury was properly precluded
from speculating upon other evidence that may have
"contradicted" Boothe.
4
The Commonwealth concedes, on brief, that the prosecutor's
remarks would have been improper, if "the contradiction referred
to could only have come from the defendant himself," a view
shared by a majority of jurisdictions. See 14 A.L.R. 3d 723,
730 (1967), and a circumstance clearly distinguishable from a
generalized reference to the "evidence of witnesses who had
testified." Washington v. Commonwealth, 216 Va. 185, 195, 217
S.E.2d 815, 824 (1975).
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