COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bray
Argued at Richmond, Virginia
JERMAINE ALFONZO HARRIS, s/k/a
JERMAINE ALFONSO HARRIS
MEMORANDUM OPINION * BY
v. Record No. 2568-98-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
JANUARY 11, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Kenneth C. Chrisman for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Jermaine Alfonzo Harris (appellant) and his two
codefendants were convicted in a joint jury trial of
second-degree murder, in violation of Code § 18.2-32. On
appeal, appellant contends the trial court erred by refusing to
grant his request for a mistrial because the Assistant
Commonwealth's Attorney: (1) improperly "maligned" defense
counsel during the guilt/innocence phase of trial; (2) referred
to the codefendants as "animals" during closing arguments in the
penalty phase of trial; and (3) mentioned parole during closing
*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
arguments in the penalty phase of trial. For the following
reasons, we reverse and remand for re-sentencing.
I. BACKGROUND
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to it all reasonable
inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that Darlene Kittrell and
Shateema Smith were walking home when Isham Davis told them that
Vincent Hall was beating Smith's mother. A fight ensued, and
Hall was thrown to the ground. After he fell, a group of
people, including appellant and two codefendants, attacked Hall.
Kittrell testified that the two codefendants kicked and
"stomped" Hall's head, while appellant kicked his legs. Julius
Gibson, another witness, confirmed that appellant was one of the
attackers. Hall died as a result of the head injuries sustained
in this attack.
At the conclusion of the guilt phase, the jury convicted
appellant and his two codefendants of second-degree murder. In
closing argument during the penalty phase of the trial, the
Assistant Commonwealth's Attorney described the violent nature
of Hall's death and stated the following:
. . . And, Vincent Hall, the manner in which
he died is horrendous, absolutely
horrendous. There is no excuse whatsoever.
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There is no excuse for somebody stomping on
somebody's head. . . . And [Hall] died
going through an absolutely horrible,
torturous experience.
I am not even going to call them
animals because animals don't kill their
own.
(Emphasis added). Appellant objected to the statement and moved
for a mistrial. Although denying a mistrial, the trial court
sustained the objection and instructed the jury to disregard the
statement.
In closing argument at the penalty phase, appellant's
attorney suggested to the jury that a sentence of five years
would keep appellant in prison until October 7, 2003. 1 In its
rebuttal argument, the Commonwealth argued that this statement
was untrue.
As I said before, the defense attorney's job
is to sell you a bill of goods in some
cases. And, they're telling you on
October 7, five years from now, [the
defendants will be released,] and that's not
really true. In Virginia they will be
eligible for parole--
1
Other counsel representing Isham Davis, one of the
codefendants in this case, first argued this issue in his
closing argument in the penalty phase. Counsel stated that by
sentencing Davis to five years imprisonment he would not "have
the opportunity to take a breath as a free man" until October 7,
2003. Counsel also stated: "I suggest to you that five years
incarceration for this crime is more than adequate. It is the
minimum of what you can impose and it's what you should impose."
Appellant's counsel made the same argument.
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Appellant and other counsel objected to the Commonwealth's
injecting the issue of parole. In the presence of the jury, the
trial court stated the following:
You are correcting what they said, but you
can't go into that. They were wrong. They
won't be serving five years. He gets a
certain amount of time off for good time.
. . . Don't go into the parole laws. Just
leave it like it is. That is not correct.
The Court will instruct them that is not
correct.
(Emphasis added).
During the jury's sentencing deliberations, the parties
debated at length the motion for a mistrial, including the
Commonwealth's reference to the defendants as "animals," the
mention of parole, and the trial court's statement regarding
early release for "good time." The trial court recalled the
jury and provided the following cautionary instruction:
All right, ladies and gentlemen of the jury,
any reference by the Commonwealth's Attorney
to the word animal you completely disregard
and dismiss it all together. On the
question of parole, you should not concern
yourself with that one way or the other.
You fix what you think is a just penalty.
What takes place after that is none of your
concern, nor of mine. You understand? So,
dismiss all that from your mind in your
deliberations. Does anyone have any
questions about that? All right. Thank
you. Y'all may retire.
The jury deliberated further and sentenced appellant to twenty
years imprisonment.
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II. MOTION FOR MISTRIAL
The decision to grant a mistrial lies within the sound
discretion of the trial court. See Kasi v. Commonwealth, 256
Va. 407, 424, 508 S.E.2d 57, 67 (1998); Clagett v. Commonwealth,
252 Va. 79, 88, 472 S.E.2d 263, 268 (1996). "Whether improper
evidence is so prejudicial as to require a mistrial is a
question of fact to be resolved by the trial court in each
particular case." Beavers v. Commonwealth, 245 Va. 268, 280,
427 S.E.2d 411, 420 (1993), cert. denied, 510 U.S. 859 (1993).
"Thus, a trial court's denial of a motion for a mistrial will
not be reversed on appeal unless there exists a manifest
probability as a matter of law that the improper evidence
prejudiced the accused." Mills v. Commonwealth, 24 Va. App.
415, 420, 482 S.E.2d 860, 862 (1997).
A. Commonwealth's Reference to "Animals"
"It is well-settled that errors assigned because of a
prosecutor's alleged improper comments or conduct during
argument will not be considered on appeal unless an accused
timely moves for a cautionary instruction or for a mistrial."
Cheng v. Commonwealth, 240 Va. 26, 38, 393 S.E.2d 599, 605-06
(1990). "This requirement affords the trial court the
opportunity to provide cautionary instructions when appropriate
to correct the alleged error." Mack v. Commonwealth 20 Va. App.
5, 8, 454 S.E.2d 750, 751 (1995) (citing Beavers, 245 Va. at
279, 427 S.E.2d at 419). Thus, a judgment will not be reversed
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"for a statement of counsel which the court afterwards directs
the jury to disregard unless there is a manifest probability
that the . . . statement has been prejudicial to the adverse
party." Kitze v. Commonwealth, 246 Va. 283, 288, 435 S.E.2d
583, 585 (1993) (quoting Saunders v. Commonwealth, 218 Va. 204,
303, 237 S.E.2d 150, 156 (1977)).
In the instant case, the record established that the trial
court promptly and unequivocally instructed the jury to
disregard the Commonwealth's reference to animals. The jury is
presumed to have followed the trial court's curative
instruction. See Newton v. Commonwealth, 29 Va. App. 433, 450,
512 S.E.2d 846, 854 (1999); Mills v. Commonwealth, 24 Va. App.
415, 420, 482 S.E.2d 860, 862 (1997) ("Juries are presumed to
follow prompt, explicit, curative instructions from the trial
judge."). 2 Accordingly, the trial court did not abuse its
discretion in denying appellant's motion for a mistrial based
upon the Commonwealth's remarks about "animals."
2
Rosser v. Commonwealth, 24 Va. App. 308, 482 S.E.2d 83
(1997), cited by appellant, is factually distinguishable. In
that case, the prosecutor told the jury that the defendant,
while sitting shackled in plain view, was "an animal . . . in
every sense of the word. . . ." Id. at 313, 482 S.E.2d at 86.
Although the trial judge "requested" the jury to disregard the
statement, we held that the prosecutor was not "chastised" for
making an inappropriate argument and that the request "lacked
the direction that should be given when inappropriate argument
is made." Id. at 316, 482 S.E.2d at 87.
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B. Mention of Parole
Also, in closing argument in the penalty phase, appellant's
counsel argued that appellant was the least culpable of those
involved. He requested the jury to sentence appellant to the
five-year minimum term of imprisonment and said if so he would
be incarcerated until October 7, 2003. To address this
statement, the Assistant Commonwealth's Attorney referred to the
parole process: "In Virginia they will be eligible for
parole . . . ." While sustaining appellant's objection, the
trial court continued the colloquy in front of the jury and
injected the issue of "good time." The trial court stated:
"They won't be serving five years. He gets a certain amount of
time off for good time."
Although the trial court instructed the jury to disregard
the issue of parole, at that point the jury had heard from both
the Commonwealth and the trial court that appellant would not
serve the time imposed. These remarks were highly prejudicial
and there is a manifest probability that the statements
improperly influenced the jury's verdict. See, e.g., Kitze, 246
Va. at 288, 435 S.E.2d at 585 (statement to jury that the
defendant "may go free" if they found him not guilty by reason
of insanity was improper); Walker v. Commonwealth, 25 Va. App.
50, 63, 486 S.E.2d 126, 133 (1997) ("To inform the jury that
credit for good behavior exists may invite the jury to attempt
to compensate for the credit, resulting in a sentence longer
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than the jury intended to impose."). Additionally, the trial
court's cautionary instruction that the jury should not concern
itself with what happens after conviction did not remove the
prejudicial effect of the improper comments. See Kitze, 246 Va.
at 289, 435 S.E.2d at 586.
Accordingly, we reverse and remand the case for
re-sentencing. 3
Reversed and remanded
for re-sentencing.
3
Appellant's argument that the Assistant Commonwealth's
Attorney improperly "maligned" defense counsel during the
guilt/innocence phase of trial is procedurally barred.
Appellant did not object to any of the Commonwealth's remarks
and we will not address this issue for the first time on appeal.
See Rule 5A:18.
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