Isham D. Davis v. Commonwealth of Virginia ( 2000 )


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  •                   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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