COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia
ISHAM D. DAVIS
MEMORANDUM OPINION * BY
v. Record No. 2785-98-2 JUDGE LARRY G. ELDER
FEBRUARY 8, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
William T. Linka (Boatwright & Linka, on
brief), for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Isham D. Davis (appellant) was convicted in a jury trial
for second degree murder. On appeal, he contends the trial
court erroneously (A) refused his motion for a continuance to
obtain a missing witness 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 abuse its discretion in
refusing the motion for a continuance. We also hold it did not
err in refusing to declare a mistrial in the sentencing phase
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
based on the prosecutor's "animal" remark. 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.
CONTINUANCE MOTION
"A motion for a continuance in order to obtain the presence
of a missing witness is addressed to the sound discretion of the
trial court whose decision will not be reversed unless the
record affirmatively shows an abuse of such discretion."
Shifflett v. Commonwealth, 218 Va. 25, 30, 235 S.E.2d 316, 319
(1977). "[A]bsent a showing of prejudice to a defendant by the
denial of a continuance, an appellate court will not find that
the trial court abused its discretion." Cardwell v.
Commonwealth, 248 Va. 501, 509, 450 S.E.2d 146, 151 (1994).
"In determining whether the trial court properly exercised
its discretionary powers, we look to the diligence exercised by
the moving party to locate the witness and secure his attendance
at trial." Cherricks v. Commonwealth, 11 Va. App. 96, 99-100,
396 S.E.2d 397, 399 (1990). The moving party bears the burden
of establishing due diligence. See McDonnough v. Commonwealth,
25 Va. App. 120, 127, 486 S.E.2d 570, 573 (1997). "Whether a
party has exercised due diligence is a factual question that
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will be reversed on appeal only if it is plainly wrong or
without evidence to support it." Id. Although a "party is not
required to engage in a futile act," "due diligence requires, at
a minimum, that a party attempt to subpoena the witness or
provide a reasonable explanation why a subpoena was not issued."
Id. at 129, 486 S.E.2d at 574. The moving party also must
allege that the missing witness' testimony is material and must
proffer the content of the expected testimony "so that a
reviewing court can examine [it] to determine prejudice." Gray
v. Commonwealth, 16 Va. App. 513, 517-18, 431 S.E.2d 86, 89
(1993). Finally, the court must "determine if there is anything
'in the circumstances to warrant the conclusion that the real
purpose in moving for a continuance is to delay or evade trial
and not to prepare for it.'" Cherricks, 11 Va. App. at 100, 396
S.E.2d at 399.
Here, the record establishes that appellant failed to
exercise due diligence in obtaining witness Evelyn Epps'
presence for trial, and the trial court implicitly so found.
Although counsel for appellant spoke with Epps, advised her of
the trial date and requested a subpoena for Epps' attendance,
the subpoena prepared bore an incorrect street address and was
marked "not found, no such address." Although the subpoena
return containing this information was filed in the circuit
court two days before trial, counsel for appellant clearly was
unaware of this fact until the time of trial and, therefore,
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made no effort prior to trial to obtain the proper address or
request additional attempts at service.
The record also fails to establish that Epps likely would
be available for trial on some future date were the court to
grant the requested continuance. The trial court was
cooperative in sending the sheriff to try to locate Epps on the
day of trial. However, Epps was not at home, and neither her
roommate nor counsel for appellant was able to say where she
was. Appellant provided no assurance, therefore, that he likely
would locate Epps and obtain her presence for trial if the court
granted his motion for a continuance.
Finally, the record fails to establish that appellant was
prejudiced by denial of the motion for a continuance.
As a general rule, when two or more
witnesses introduced by a party litigant
vary in their statements of fact, such party
has the right to ask the court or jury to
accept as true the statements most favorable
to him . . . . This is not true, however,
as to the testimony which he gives himself.
No litigant can successfully ask a court or
jury to believe that he has not told the
truth.
Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652, 656 (1922).
Here, appellant proffered Epps would testify that appellant
was at the scene of the attack but "left before anything got
started because he told [Epps] he had to be in court the next
morning." However, appellant took the stand in his own behalf
and admitted that he was at the scene when the attack began and
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that he kicked the victim in the back before leaving.
Appellant's testimony, therefore, was at odds with Epps'
proffered testimony. Under the above principles, appellant was
bound by his own testimony, in which he conceded his
participation in the charged offense. This testimony supports a
finding that, in fact, appellant was not prejudiced by his
inability to present Epps' testimony to the jury. 1
For these reasons, we hold that the trial court did not
abuse its discretion in denying appellant's motion for a
continuance.
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.
1
Appellant did not contend at trial that he would not have
testified if Epps had been present and given her version of
events.
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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
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314-15, 482 S.E.2d at 86. We held that this statement "lacked
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 appellant's counsel and counsel for codefendant
Jermaine Harris 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 appellant's and
Harris' counsel 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
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[the remarks] improperly influenced the jury's verdict" in the
sentencing phase of the bifurcated trial. 2 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.
2
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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Isham D. Davis v. Commonwealth of Virginia
Combined Opinion