                  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).

                               - 2 -
     "[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


                                - 3 -
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.



                                - 4 -
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

                                - 5 -
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




                                - 6 -
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

                               - 7 -
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

                               - 8 -
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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