                    COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Willis and Elder
Argued at Richmond, Virginia


CLARENCE WILLIAMS, JR.
                                          MEMORANDUM OPINION * BY
v.   Record No. 2423-96-2                  JUDGE LARRY G. ELDER
                                             OCTOBER 28, 1997
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      James B. Wilkinson, Judge

            D. Gregory Carr (Cary B. Bowen; Bowen,
            Bryant, Champlin & Carr, on briefs), for
            appellant.
            John K. Byrum, Jr., Assistant Attorney
            General (Richard Cullen, Attorney General, on
            brief), for appellee.



         Clarence Williams, Jr. (appellant) appeals his convictions

of capital murder, in violation of Code § 18.2-31(7), and of

using a firearm during the commission of capital murder, in

violation of Code § 18.2-53.1.   He makes five assignments of

error.   He contends that the trial court erred when it (1) denied

his motion for a continuance; (2) admitted out-of-court

statements made by one of the murder victims; (3) denied his

motion for a mistrial after a witness for the Commonwealth

testified that appellant's former counsel informed the

Commonwealth's attorney about appellant's jailhouse confession to

the witness; (4) denied his motion for a mistrial after the

Commonwealth's attorney made references to the nature of his
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
prior convictions; and (5) overruled his motions to exclude a

jury instruction on "concert of action" and include an

instruction on second degree murder.     For the reasons that

follow, we affirm.

                                I.

                            BACKGROUND

     On April 19, 1996, at approximately 8:30 a.m., Vicki Hodge,

Travis Hill, and Lori Johnson were murdered in Hodge's apartment

at 615 East 16th Street in the City of Richmond.    All three died

from gunshot wounds to the head fired at close range from a 9mm

pistol.
     On July 8, 1996, a Richmond grand jury charged appellant

with the capital murder of Hodge, Hill, and Johnson "as part of

the same act or transaction," and of using a firearm during the

commission of capital murder.   Appellant was tried by a jury on

September 26 and 27 and convicted of these crimes.    On appeal,

appellant does not argue that the evidence was insufficient to

support his conviction.   Instead, he raises five procedural

errors that he contends occurred during his trial.

                                II.

                     MOTION FOR A CONTINUANCE

     Appellant contends that the trial court erred when it denied

his motion to secure the presence of three missing witnesses:

Linda Connor, Yahya Murrell, and Corey Brown.    We disagree.

     "'[A] motion for a continuance in order to obtain the




                                -2-
presence of a missing witness is addressed to the sound

discretion of the trial court . . . .'"   Cherricks v.

Commonwealth, 11 Va. App. 96, 99, 396 S.E.2d 397, 399 (1990)

(quoting Shifflett v. Commonwealth, 218 Va. 25, 30, 235 S.E.2d

316, 319 (1977)).   The trial court's discretion "'must be

exercised with due regard to the constitutional guaranty of a

fair and impartial trial to one accused of crime, and the right

to call for evidence in his favor.'"   Id. (quoting Lacks v.
Commonwealth, 182 Va. 318, 323, 28 S.E.2d 713, 715 (1944)).     The

trial court's decision whether to grant or deny a continuance

will not be reversed on appeal unless the record affirmatively

shows both an abuse of discretion and prejudice to the moving

party.   See Cardwell v. Commonwealth, 248 Va. 501, 508, 450

S.E.2d 146, 151 (1994); Venable v. Venable, 2 Va. App. 178, 181,

342 S.E.2d 646, 648 (1986).

     It is well established that a litigant's request for a

continuance cannot be based on speculation.   See Cardwell, 248

Va. at 508, 450 S.E.2d at 151; Stewart v. Commonwealth, 10 Va.
App. 563, 569, 394 S.E.2d 509, 513 (1990); Lowery v.

Commonwealth, 9 Va. App. 304, 307, 387 S.E.2d 508, 510 (1990).

The party moving for a continuance has the burden to show

(1) that the missing witness is "material," see Gray v.

Commonwealth, 16 Va. App. 513, 518, 431 S.E.2d 86, 89 (1993)

(citing Shifflett, 218 Va. at 30, 235 S.E.2d at 319-20); (2) that

the party exercised diligence to procure the witness' presence,



                                -3-
see Shifflett, 218 Va. at 30, 235 S.E.2d at 319-20 (citing

Atkinson v. Neblett, 144 Va. 220, 226-27, 132 S.E. 326, 328

(1926)); and (3) "that it is likely that the witness would be

present at a later date," Chichester v. Commonwealth, 248 Va.

311, 322, 448 S.E.2d 638, 646 (1994).    Specifically, the content

of a witness' expected testimony must be set forth in the trial

record by either "(1) a unilateral avowal of counsel, if

unchallenged; (2) a mutual stipulation of the parties; or (3) the

taking of testimony of the witness outside the presence of the

jury."     Lowery, 9 Va. App. at 307, 387 S.E.2d at 510.

     We hold that appellant has not presented a sufficient record

for us to properly review the denial of a continuance based on

the absence of Linda Connor and Yahya Murrell.    Specifically,

appellant failed to set forth in the trial record the expected

content of either witness' testimony.    Regarding Linda Connor,

appellant's counsel asserted to the trial court that she was an

"alibi witness," but never proffered the alibi to which she would

testify.    Like the bare assertion that a missing witness is

"material," the unsubstantiated avowal that a witness will

provide an "alibi" without some indication of the content of her

testimony does not enable this Court to determine whether the

witness' absence at trial caused prejudice to the party who

sought the continuance.     Compare Lowery, 9 Va. App. at 305-08,

387 S.E.2d at 509-10, with Lacks, 182 Va. at 321-22, 324, 28

S.E.2d at 714-15, 715.    Likewise, appellant's counsel did not



                                  -4-
indicate that Murrell would provide favorable or exculpatory

evidence on appellant's behalf.    Because the record does not

affirmatively indicate that either Connor or Murrell was material

to appellant's case, we cannot say without speculating that their

absence prejudiced appellant's defense.      See Stewart, 10 Va. App.

at 569, 394 S.E.2d at 513.

     We also hold that the trial court did not err when it

refused to grant appellant a continuance to secure the presence

of Corey Brown because appellant did not establish the likelihood

that Brown would be available at a later date.     Appellant's

counsel proffered that "Brown had confessed to [a third party]

about the killing in some detail."      He stated that he had

unsuccessfully "attempted to locate [Brown] through the

investigator" and that he "[had] not been able to even make

contact with [Brown]."   In light of Brown's constitutional

privilege against self-incrimination and the fact that appellant

provided no basis for the trial court to believe that Brown would

waive this right and claim responsibility for the triple murder

if called at trial, we cannot say that the trial court abused its

discretion when it denied appellant a continuance to secure

Brown's presence.
                                  II.

                VICTIM'S OUT-OF-COURT STATEMENTS

     Appellant contends that the trial court erred when it

admitted Officer Lewis' testimony regarding the out-of-court



                                  -5-
statements of Vicki Hodge, one of the murder victims, that

appellant damaged her property and threatened to kill her a few

days before she was murdered.   He argues that Hodge's statements

were hearsay not within an exception.   The Commonwealth argues

that appellant failed to preserve this issue for appeal because

he did not object to Officer Lewis' testimony.   We agree with the

Commonwealth.

     It is a well established component of this Court's procedure

that the only issues we may consider as a basis for reversal are

those that have been "preserved" in accordance with Rule 5A:18 or

that fall within one of Rule 5A:18's exceptions.   Rule 5A:18

states in relevant part:
          No ruling of the trial court . . . will be
          considered as a basis for reversal unless the
          objection was stated together with the
          grounds therefor at the time of the ruling,
          except for good cause shown or to enable
          [this Court] to attain the ends of justice.


(Emphasis added).   The purpose of Rule 5A:18 is to avoid

unnecessary appeals, reversals, and mistrials by requiring

litigants to inform the trial judge of the action complained of

so that the judge has the opportunity to consider the issue

intelligently and take timely corrective action.   See Robinson v.

Commonwealth, 13 Va. App. 574, 576, 413 S.E.2d 885, 886 (1992).

     We hold that Rule 5A:18 bars our consideration of the

admissibility of Officer Lewis' testimony regarding Hodge's

out-of-court statements because there is no "ruling" on this

issue by the trial court for us to reverse or affirm.   Although



                                -6-
we agree with appellant that references were made to the

admissibility of Hodge's statements during the oral argument on

his motion in limine, the only ruling actually made by the court

pertained to the admissibility of the warrants which were never

introduced by the Commonwealth at trial.

     The record indicates that, despite appellant's references to

Hodge's statements, the trial court never ruled on their

admissibility prior to Officer Lewis' testimony, making it

incumbent upon appellant to object at that time.   During the

initial round of argument on appellant's motion in limine to
exclude the warrants, appellant's counsel referred to the

out-of-court statements made by Hodge to both the police and the

magistrate.   Appellant's counsel and the trial court had the

following exchange:
     APPELLANT'S COUNSEL:      Well, it's our understanding
                               that [the Commonwealth's
                               attorney] would argue that [a
                               warrant] is a Court document.
                                We would disagree with all
                               respect. We have submitted a
                               memorandum in support of that,
                               and it would be our position
                               that what she told the officer
                               or what she told the
                               magistrate is beyond --

     TRIAL COURT:              What she told the magistrate
                               would not be admissible unless
                               she comes in and testifies
                               herself.

     APPELLANT'S COUNSEL:      She is deceased, Judge.

     TRIAL COURT:              Well, she won't be here, then.

     APPELLANT'S COUNSEL:      Yes, sir.



                                -7-
     TRIAL COURT:               But, I think it's possible for
                                the Commonwealth to show the
                                deceased took out a warrant
                                against [appellant] and that
                                would be a motive for her
                                death.


The trial court's response to appellant's counsel's comments

indicated that it did not think that Hodge's out-of-court

statements would be admissible if offered by the Commonwealth.

However, the trial court's statements also indicate that the only

issue it believed was before it was the admissibility of the
warrants, not Hodge's out-of-court statements.    In either case,

the trial court declined to rule on appellant's motion in limine

at this time and instead stated that it was taking the matter

under advisement "until [it] hear[d] the evidence."

     The record indicates that the trial court never reconsidered

the admissibility of Hodge's out-of-court statements prior to

Officer Lewis' testimony.   When the trial court revisited

appellant's motion in limine, the context and wording of its

ruling indicate that it made only one ruling -- that the warrants

were admissible.    The Commonwealth's first witness was Officer

Lewis, who testified about Hodge's out-of-court statements

without objection by appellant.

                                III.

       MOTION FOR MISTRIAL REGARDING ANDERSON'S TESTIMONY

     Appellant contends that the trial court abused its

discretion when it denied his motion for a mistrial based upon

the testimony of Larry Anderson.    He argues that Anderson


                                  -8-
unfairly bolstered the credibility of his testimony by testifying

that appellant's former counsel conveyed his statement about

appellant's jailhouse confession to the Commonwealth's attorney.

We disagree.

     Whether to grant a mistrial rests within the sound

discretion of the trial judge, and "absent a showing of abuse of

discretion, the court's ruling will not be disturbed on appeal."

 Cheng v. Commonwealth, 240 Va. 26, 40, 393 S.E.2d 599, 607

(1990).   "When a motion for a mistrial is made, based upon an

allegedly prejudicial event, the trial court must make an initial

factual determination, in the light of all the circumstances of

the case, whether the defendant's rights are so 'indelibly

prejudiced' as to necessitate a new trial."   Spencer v.

Commonwealth, 240 Va. 78, 95, 393 S.E.2d 609, 619 (1990).

"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).   "A trial court's ruling will be

permitted to stand unless it is made to appear probable that the

party complaining has been substantially prejudiced by the

objectionable remarks or arguments."   Martinez v. Commonwealth,

10 Va. App. 664, 669, 395 S.E.2d 467, 470 (1990), aff'd as

modified, 241 Va. 557, 403 S.E.2d 358 (1991); see also Beavers,

245 Va. at 280, 427 S.E.2d at 420 (stating that denial of

mistrial will be reversed on appeal "[w]hen the evidence is so



                                -9-
prejudicial that it 'probably remained on the minds of the jury

and influenced their verdict'").

       We hold that the trial court did not abuse its discretion

when it denied appellant's motion for a mistrial based upon

Anderson's testimony about his interaction with appellant's

former counsel.   The trial court found that Anderson's testimony

on this subject was not likely to influence the jury's

credibility determination in a manner prejudicial to appellant,

and we cannot say that this conclusion was wrong as a matter of

law.   Anderson's testimony about appellant's former counsel was

elicited near the end of a long line of questioning during his

direct examination that told the chronological "story" of how

Anderson came to learn of appellant's confession.   His allegedly

prejudicial comment was in response to a question about the

timing of his decision to disclose appellant's confession to this

attorney, who was also his counsel.    The question was not worded

in a way that either asked for or drew attention to the

subsequent actions of appellant's former counsel.   Moreover,

Anderson's testimony on this topic was immediately followed by

testimony that damaged his credibility:   Anderson admitted that

the Commonwealth had dropped all pending charges against him and

had paid his bills and moving expenses.   When considered in

context, it is unlikely that Anderson's testimony about

appellant's former counsel lingered prejudicially on the minds of

the jury.



                                -10-
                               IV.
      MOTION FOR MISTRIAL REGARDING QUESTIONS AND COMMENTS
               ABOUT APPELLANT'S PRIOR CONVICTIONS


     We also disagree with appellant that the trial court abused

its discretion when it denied his motion for a mistrial after the

Commonwealth's attorney made references to the nature of

appellant's prior convictions.

     During his cross-examination of appellant, the

Commonwealth's attorney stated the names of the crimes of which

appellant had been previously convicted and made comments

insinuating that appellant was lying about his criminal record.

Appellant objected to these questions and comments, and the trial

court instructed the jury to disregard them.   Later in the trial,

appellant's counsel moved for a mistrial based on this exchange.

The trial court denied appellant's motion, reasoning that it had

"full faith in the jury that they will follow the [instruction]

of the Court."
     We hold that the trial court did not abuse its discretion

when it denied appellant's motion for a mistrial following the

questions and comments of the Commonwealth's attorney about the

nature of appellant's prior convictions.   Assuming that the

Commonwealth's attorney's references to appellant's prior

convictions were improper, the trial court immediately instructed

the jury to disregard them.   Generally, a trial court may cure

errors arising from inadmissible evidence or improper argument by

promptly instructing the jury to disregard what they just heard.



                                 -11-
 See LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644,

657 (1983); Lewis v. Commonwealth, 211 Va. 80, 83, 175 S.E.2d

236, 238 (1970).   "'Unless the record shows to the contrary, it

is presumed that the jury followed an explicit cautionary

instruction promptly given.'"   Albert v. Commonwealth, 2 Va. App.

734, 741, 347 S.E.2d 534, 538 (1986) (quoting LeVasseur, 225 Va.

at 589, 304 S.E.2d at 657).   Nothing in the record indicates that

the jury failed to abide by the trial court's instruction.      See
Beavers, 245 Va. at 280, 427 S.E.2d at 420 (stating that "a

judgment will not be reversed for the improper admission of

evidence that a court subsequently directs a jury to disregard").

                                 V.

                         JURY INSTRUCTIONS

     Appellant contends that the trial court erred when it

overruled his objection to the jury instruction regarding

"concert of action" and when it refused his request for an

instruction on second degree murder.     We disagree.

     "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)).      "'Both the Commonwealth and

the defendant are entitled to appropriate instructions to the

jury of the law applicable to each version of the case, provided




                                -12-
such instructions are based upon the evidence adduced.'"

Stewart, 10 Va. App. at 570, 394 S.E.2d at 514 (quoting Simms v.

Commonwealth, 2 Va. App. 614, 616, 346 S.E.2d 734, 735 (1986)).

"The evidence to support an instruction 'must be more than a

scintilla.'"   Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d

267, 280 (1986).   When determining whether sufficient evidence

warranted a particular instruction, we view the evidence in the

light most favorable to the party offering the instruction.        See
Foster v. Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200

(1991).

                                A.

                         CONCERT OF ACTION

     We hold that the trial court did not err when it instructed

the jury on "concert of action."     "Concerted action is defined as

'[a]ction that has been planned, arranged, adjusted, agreed on

and settled between parties acting together pursuant to some

design or scheme.'"   Rollston v. Commonwealth, 11 Va. App. 535,

542, 399 S.E.2d 823, 827 (1991).     "All participants in such

planned enterprises may be held accountable for incidental crimes

committed by another participant during the enterprise even

though not originally or specifically designed."     Berkeley v.

Commonwealth, 19 Va. App. 279, 283, 451 S.E.2d 41, 43 (1994).       In

this case, more than a scintilla of credible evidence supported

the Commonwealth's theory that appellant was responsible for the

murders under a concert of action theory.    At trial, a witness




                               -13-
who lived in the apartment adjacent to the one in which the

murders were committed, testified that he heard five or six shots

in rapid succession coming from the apartment around 8:30 a.m. on

April 19.   He testified that thirty seconds later he heard two

separate pairs of footsteps descending from the apartment.     He

then looked through the peephole in his front door and saw

appellant followed by his brother "running real fast" around the

corner of the apartment building.      Based on this evidence, the

jury could conclude that appellant's brother was the triggerman

and that appellant was guilty of capital murder and of using a

firearm during the commission of capital murder due to their

concerted action.
                                 B.

                        SECOND DEGREE MURDER

     We also hold that the trial court properly refused to grant

appellant an instruction on second degree murder.     First, it is

well established that a defendant accused of capital or first

degree murder is not entitled to an instruction on second degree

murder based on the legal presumption that all homicides are

second degree murder.   See Buchanan v. Commonwealth, 238 Va. 389,

409, 384 S.E.2d 757, 769 (1989).      Instead, "[a] second degree

murder instruction is only appropriate where it is supported by

the evidence."   Id. (citation omitted).

     In addition, the evidence, even when viewed in the light

most favorable to appellant, does not warrant a second degree



                                -14-
murder instruction.   The element of premeditation is an essential

element of capital murder and is what distinguishes first degree

murder from second degree murder.      See Code §§ 18.2-31, 18.2-32;

Smith v. Commonwealth, 220 Va. 696, 700, 261 S.E.2d 550, 553

(1980).   "To premeditate means to adopt a specific intent to

kill."    Smith, 220 Va. at 700, 261 S.E.2d at 553.    The specific

intent to kill "may be formed only a moment before the final act

is committed provided the accused had time to think and did

intend to kill."    Giarratano v. Commonwealth, 220 Va. 1064, 1074,

266 S.E.2d 94, 100 (1980).   "It is the will and purpose to kill,

not necessarily the interval of time, which determine the grade

of the offense."    Akers v. Commonwealth, 216 Va. 40, 48, 216

S.E.2d 28, 33 (1975).

     In this case, no evidence in the record supports the theory

that the person who committed the murders did so without

premeditation.   The manner in which the victims were murdered

-- all were shot in the head at close range within a span of ten

seconds -- is strong circumstantial evidence that the murderer

had a pre-formed, specific intent to kill.     No evidence in the

record suggests that the victims and the murderer argued or

struggled prior to the shootings.      In his case-in-chief,

appellant offered evidence that he was sleeping at his

grandmother's at the time of the killings and that another

person, Corey Brown, confessed to the killings.     However,

appellant's alibi has no tendency to prove that the murders were



                                -15-
committed with malice rather than premeditation.   In addition,

even the testimony about Brown's confession indicated that, if

Brown committed the murders, he did so with premeditation.

Because none of the evidence suggests that the murders themselves

were committed with mere malice, the trial court did not err when

it refused appellant's request for an instruction on second

degree murder.

     For the foregoing reasons, we affirm the convictions of

capital murder and use of a firearm during the commission of

capital murder.

                                                        Affirmed.




                              -16-
