COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia
ROBERT SYLVESTER DAVIS, JR.
MEMORANDUM OPINION * BY
v. Record No. 2960-98-2 JUDGE LARRY G. ELDER
FEBRUARY 8, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Elizabeth R. Muncy (Cary B. Bowen; Bowen,
Bryant, Champlin & Carr, on brief), for
appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Robert Sylvester Davis, Jr., (appellant) was convicted in a
jury trial for second degree murder. On appeal, he contends the
trial court erroneously (A) refused his proffered jury
instruction on "defense of others" and (B) refused to grant a
mistrial during the sentencing phase when the prosecutor
compared appellant and his codefendants to animals and said that
appellant and his codefendants would be eligible for parole. We
hold that the trial court did not err in refusing the jury
instruction or in refusing to declare a mistrial in the
sentencing phase based on the prosecutor's "animal" remark.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
However, because the trial court erred in failing to declare a
mistrial in the sentencing phase following the Commonwealth's
comments about appellant's eligibility for parole and its own
remarks about the likely reduction of appellant's sentence for
good time, we vacate appellant's sentence and remand for
resentencing.
A.
JURY INSTRUCTION
"A reviewing court's responsibility in reviewing jury
instructions is 'to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370
S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499,
503, 290 S.E.2d 856, 858 (1982)). "[T]he trial court should
instruct the jury only on those theories of the case which find
support in the evidence." Morse v. Commonwealth, 17 Va. App.
627, 632, 440 S.E.2d 145, 149 (1994). If any evidence in the
record "supports a proffered instruction on a lesser included
offense, failure to give the instruction is reversible error.
Such an instruction, however, must be supported by more than a
mere scintilla of evidence." Boone v. Commonwealth, 14 Va. App.
130, 132, 415 S.E.2d 250, 251 (1992) (citations omitted).
Whether evidence amounts "to more than a mere scintilla . . . is
a matter to be resolved on a case-by-case basis." Brandau v.
Commonwealth, 16 Va. App. 408, 412, 430 S.E.2d 563, 565 (1993).
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"[A] person who reasonably apprehends bodily harm by
another is privileged to exercise reasonable force to repel the
assault." Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382
S.E.2d 24, 25 (1989). The right of self-defense is not merely
personal, but extends to defending others against attack. See
Foster v. Commonwealth, 13 Va. App. 380, 385-86, 412 S.E.2d 198,
201-02 (1991).
[T]he right to defend another "is
commensurate with self-defense."
Consequently, . . . the limitations on the
right to defend one's self are equally
applicable, with slight modifications, to
one's right to defend another. One must
reasonably apprehend death or serious bodily
harm to another before he or she is
privileged to use force in defense of the
other person. The amount of force which may
be used must be reasonable in relation to
the harm threatened.
Id. (citation omitted).
We hold that the trial court did not err in refusing the
instruction because it was not supported by a scintilla of
evidence. The facts viewed in the light most favorable to the
proffered instruction support a finding that the crowd was angry
and upset over Vincent Hall's attack on Mabel and Shateema Smith
and that they "jumped in on [Hall]" only after Hall "got
physical with Shateema" by pushing her. However, the evidence
also establishes, as a matter of law, that the amount of force
appellant and the other assailants used was not reasonable in
relation to the amount of harm threatened. Hall was the only
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person posing a threat to Mabel and Shateema Smith, and by the
time appellant joined in the fray, Hall was already on the
ground and was no longer posing a direct threat to Mabel or
Shateema. Further, at least four males participated in the
attack which lasted more than five minutes, and no evidence
indicates that they could not merely have restrained Hall to
prevent him from threatening Mabel and Shateema Smith further.
Therefore, not even a scintilla of evidence supported a finding
that appellant used reasonable force to protect the Smiths, and
the trial court did not err in refusing the proffered
instruction.
B.
MISTRIAL MOTION
"Whether to grant a mistrial rests within the discretion of
the trial judge . . . ." Hall v. Commonwealth, 14 Va. App. 892,
902, 421 S.E.2d 455, 461 (1992) (en banc).
"[E]rror arising from an improper question
or improper conduct of counsel may usually
be cured by prompt and decisive action of
the trial court without granting a motion
for a mistrial." The trial court must make
an initial factual determination, in the
light of all the circumstances of the case,
whether the defendant's rights had been so
indelibly prejudiced as to require a new
trial. Unless we can say as a matter of law
that this determination was wrong, it will
not be disturbed on appeal. Unless the
record shows the contrary, it is to be
presumed that the jury followed an explicit
cautionary instruction promptly given.
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LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657
(1983) (quoting Black v. Commonwealth, 223 Va. 277, 286, 288
S.E.2d 449, 454 (1982)).
Here, we conclude the trial court did not abuse its
discretion in denying appellant's motion for mistrial based on
the prosecutor's statement that he was "not even going to call
[appellant and his codefendants] animals because animals don't
kill their own." In response to appellant's request for a
mistrial, the trial court immediately instructed the jury to
"disregard that [remark]." After the Commonwealth's attorney
concluded his remarks and the jury had retired, the trial court
brought the jurors back into the courtroom and gave an even
stronger instruction, saying, "[L]adies and gentlemen of the
jury, any reference by the Commonwealth's Attorney to the word
animal you completely disregard and dismiss it all together."
Under settled principles, we hold that the jury followed this
cautionary instruction absent evidence to the contrary.
Despite appellant's contentions, this case is
distinguishable from Rosser v. Commonwealth, 24 Va. App. 308,
482 S.E.2d 83 (1997), in which the prosecutor also referred to
the defendant as an animal. In Rosser, the defendant appeared
shackled in the jury's presence, and the trial judge merely
asked the jury to disregard the remark, saying he would
"appreciate it" if the jury "would ignore [the remark]." Id. at
314-15, 482 S.E.2d at 86. We held that this statement "lacked
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the direction" that should have been provided to the jurors.
See id. at 316, 482 S.E.2d at 87. In appellant's case, by
contrast, the trial court's prompt cautionary instruction and
subsequent follow-up instruction explicitly directed the jury to
"disregard" the remark and to "dismiss it all together."
Therefore, we cannot say the trial court abused its discretion
in denying the motion for mistrial based on the "animal" remark.
We hold next that both the prosecutor's statement regarding
appellant's parole eligibility and the trial court's subsequent
remarks regarding appellant's ability to have his sentence
reduced based on good behavior constituted error. It is
well-established that
[i]t is error for the court, by its
instructions, or for counsel in argument, to
tell the jury that its sentence imposed and
confirmed may be set aside or cut down by
some other arm of the State. It is their
duty to inflict such punishment as appears
to be just and proper and this is the full
measure of their duty.
Coward v. Commonwealth, 164 Va. 639, 646, 178 S.E. 797, 799
(1935); see Walker v. Commonwealth, 25 Va. App. 50, 60-67, 486
S.E.2d 126, 131-35 (1997); id. at 68-72, 486 S.E.2d at 135-37
(Annunziata, J., concurring). Further, the prosecutor's comment
that appellant and his codefendants "will be eligible for
parole" was not an accurate statement of the law. See Walker,
25 Va. App. at 60 & n.1, 486 S.E.2d at 131 & n.1 (noting that
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legislature abolished parole for most felonies committed after
January 1, 1995, but that it provided certain exceptions).
The more difficult question is whether the trial court
erred in refusing to grant a mistrial based on these remarks.
As outlined above, whether to grant a mistrial rests within the
sound discretion of the trial court, see Hall, 14 Va. App. at
902, 421 S.E.2d at 461, and error resulting from improper
conduct of counsel may usually be cured by a prompt cautionary
instruction without the necessity of granting a mistrial, see
Black, 223 Va. at 286, 288 S.E.2d at 454. However, some errors
are so prejudicial that a cautionary instruction, no matter how
carefully crafted or promptly given, is insufficient to cure the
error. See, e.g., Kitze v. Commonwealth, 246 Va. 283, 287, 289,
435 S.E.2d 583, 584, 586 (1993) (where prosecutor told jury in
guilt phase of trial that defendant charged with rape and
malicious wounding would "go free" if the jury found he acted
under an irresistable impulse, statement was "highly
prejudicial" and there was "'manifest probability' that it
improperly influenced the jury's verdict").
Here, the remarks of the trial court about "good time," see
Code §§ 53.1-202.2 to 53.1-202.4 (providing rules for
eligibility for "earned sentence credits" for felons convicted
of offenses committed on or after January 1, 1995), were
inappropriate, as detailed above, and the comments of the
prosecutor about appellant's eligibility for parole, in addition
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to being inappropriate, constituted an incorrect statement of
the law, see Walker, 25 Va. App. at 60 & n.1, 486 S.E.2d at 131
& n.1. When the prosecutor suggested, incorrectly, that
appellant and his codefendants would be eligible for parole if
sentenced to serve the statutory minimum of five years, he also
implied that counsel for appellant's codefendants had misled the
jury about the amount of time appellant and his codefendants
would serve if given a five-year sentence. The trial court said
it "will instruct them that [the prosecutor's comment about
parole] is not correct," but it actually compounded the problem
by agreeing that the codefendants' attorneys were wrong about
the length of the sentences appellant and his codefendants would
serve because of the availability of "good time."
After the jury had retired to deliberate, counsel for
appellant renewed his motion for a mistrial, and the trial court
instructed the jury "not to concern [itself]" with "the question
of parole" or what would happen after the jury fixed "what [it]
think[s] is a just penalty." We assume without deciding that
the court's cautionary instruction given almost immediately
after the jury retired was prompt within the meaning of
LeVasseur, 225 Va. at 589, 304 S.E.2d at 657. Nevertheless, we
hold that the prosecutor's remarks about parole, coupled with
the trial court's remarks about "good time," were "highly
prejudicial" and that "there is a 'manifest probability' that
[the remarks] improperly influenced the jury's verdict" in the
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sentencing phase of the bifurcated trial. 1 Kitze, 246 Va. at
289, 435 S.E.2d at 586. Accordingly, we hold the trial court
abused its discretion in denying appellant's mistrial motion.
For these reasons, we vacate appellant's sentence and
remand for resentencing in accordance with Code § 19.2-295.1.
Sentence vacated and remanded.
1
The court's curative instruction also contained erroneous
information. In addition to telling the jury that it should not
concern itself with parole or anything else that might take
place after imposing what it thought was a "just penalty," the
court said, "What takes place after that [also] is none of [the
court's] concern." First, this assertion was an incorrect
statement of the law. See, e.g., Rule 3A:15 (allowing court to
set aside jury's verdict under certain circumstances); Code
§ 19.2-303 (allowing court to suspend part or all of sentence
recommended by jury). Second, as set out above, the jurors
"'must not concern themselves'" with what may happen after they
fix their verdict. Kitze, 246 Va. at 289, 435 S.E.2d at 586
(quoting Jones v. Commonwealth, 194 Va. 273, 275, 72 S.E.2d 693,
694 (1952)). Therefore, whether the trial court would have any
further involvement in the ascertainment or imposition of
appellant's punishment was irrelevant and potentially
misleading.
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Robert Sylvester Davis, Jr. v. Commonwealth of VA
Combined Opinion