                  COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Benton and Overton
Argued at Norfolk, Virginia


CHARLES ROSSER
                                             OPINION
v.        Record No. 0422-95-2       BY JUDGE JOSEPH E. BAKER
                                         MARCH 11, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
                   W. Park Lemmond, Jr., Judge
          Connie Louise Edwards for appellant.

          John H. McLees, Jr., Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Charles Rosser (appellant) appeals from the judgment of the

Circuit Court of Greensville County (trial court) that approved

his jury trial conviction for knowingly and willfully inflicting

bodily injury on an employee of a correctional facility while a

prisoner therein in violation of Code § 18.2-55.   Appellant

contends that the trial court erroneously (1) overruled his

motion to strike the evidence as insufficient to support the

charge, (2) overruled his motion for a mistrial made after the

prosecutor in his closing argument in the sentencing phase of the

trial referred to appellant as an "animal," and (3) refused to

order the production of a general log, the initial report of the

investigation of the incident, and the operating procedures

manuals for the Departmental Operational Policy and Institutional

Operational Policy.   For the reasons hereinafter stated, we

reverse and remand this case to the trial court.
       Upon familiar principles, we view the evidence in the light

most favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.       Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

While in a correctional facility, appellant was convicted of

stabbing a prison guard.   Prior to trial, appellant filed a

motion for disclosure of exculpatory evidence and for discovery

under Rule 3A:11.   Appellant sought access to (1) a general log

book, (2) an initial incident report of the stabbing, and (3)

manuals setting forth the operating procedures of the institution

and the Department of Corrections.       The trial court refused to

order the Commonwealth to produce these materials and further

advised appellant that they could not be obtained by subpoena.
       Appellant also moved to appear in court unrestrained before

the jury.   Defense counsel argued that the shackling of appellant

was too prejudicial considering the nature of the charge against

him.   In a pretrial hearing, an investigator from the

correctional facility testified that appellant had a potential

for violent behavior in court.    He further testified that

appellant and his brother, Richard Rosser (Richard), had violent

histories as reflected by their institutional records.         The trial

court denied appellant's motion and admonished the jury at the

beginning of trial that the shackling was not indicative of

anything but court procedure.

       The stabbing occurred on the prison grounds but outside one



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of the prison buildings.   The victim, Sergeant Walker (Walker),

testified that on the day of the stabbing he had been assigned to

work in the Visitor Room and received a coded call which meant

that correctional officers should immediately render emergency

assistance.   In response, he hurried toward the building where

the disturbance had been reported.       He approached the building

and went through an open area where several inmates were present.

As he did so, he saw appellant emerge from one end of the

building and Richard emerge from the other end.      He saw Richard

running toward him with a weapon in his hand.      Walker did not

face Richard directly because he was trying to watch the other

inmates behind him for fear of an attack from the rear.      While

Walker fended off Richard's attempts to stab him from his right

side, he saw appellant out of the corner of his eye approach from

his left and strike him in his back.      Walker did not know

immediately that he was injured because of the "chaos out there

on the yard," his efforts to get back to safety in the building

from which he had come, and the rapidity of the assault.        He soon

discovered that appellant had inflicted a stab wound which

required fifteen stitches at the local hospital.
     Walker admitted that he first named Richard as his

assailant; however, at trial, he testified that he knew appellant

and Richard only by their last name and mistakenly assigned the

wrong first name to appellant.    He testified that he learned he

had used the wrong name "[w]hen the investigator came to [him]




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and told [him] which one had stabbed [him] and we was going to

court, and said, that's not the right one."     At trial, he

positively identified appellant as his assailant.

     Officer Darryl Turner (Turner) testified that he witnessed

the entire incident during daylight hours, from fifteen to twenty

feet away.   He stated that he saw Walker running from the B-4

building to the B-2 building, and that he observed appellant and

Richard come out of the B-2 building.     Both appellant and Richard

were armed with "shanks" or homemade knives.     Turner stated that

Richard was in front of Walker and appellant "came from behind

and stabbed [Walker] in the back."      The Commonwealth then rested.

Appellant's motion to strike was denied.
     Richard testified that he, not appellant, had stabbed

Walker.   He admitted that he had been convicted of malicious

wounding, murder, and use of a firearm in the commission of each

of those felonies.    He testified that if he were convicted of the

present offense, his parole date would be affected.

     At the conclusion of all the evidence, the defense again

moved to strike, claiming that the victim's initial

identification of Richard as the assailant and Richard's

admission of guilt established that the Commonwealth's evidence

was insufficient as a matter of law.     The court again overruled

appellant's motion.

     The guilt and penalty issues of the trial were bifurcated.

After the parties presented arguments on the issue of guilt, the




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jury found appellant guilty as charged.      Thereafter, the parties

presented arguments concerning the appropriate sentence to be

imposed.    As appellant sat shackled in plain view of the jury,

the prosecutor told the jury, "I don't think I'm overstating this

when I say [appellant] is an animal.      And, I say that in every

sense of the word . . . ."    Appellant objected to the

prosecutor's statement and, at his request, the jury was

excluded.    The trial court agreed that the statements were

inappropriate and sustained appellant's objection; however, the

trial court overruled appellant's motion for a mistrial.      After

requesting the jury to "disregard the argument," the trial court

said, "So, if you would ignore that I would appreciate it.      Thank

you."    The jury retired and returned its verdict recommending

imposition of the ten-year maximum sentence provided by law.
                      I. Sufficiency of Evidence

        The testimony of Turner, who witnessed the entire incident,

sufficiently supports the verdict.       He testified that he observed

appellant and Richard approach Walker and that appellant "came

from behind and stabbed [Walker] in the back."      That evidence is

sufficient to support the trial court's judgment.

                        II. Motion for Mistrial

        Every person charged with a crime is entitled to have his or

her case determined by the evidence produced at trial.       Dingus v.

Commonwealth, 153 Va. 846, 851, 149 S.E. 414, 415 (1929).       In his

closing argument before the jury, the Commonwealth's attorney



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said:
             It's rare that I would ask for a specific
             sentence . . . . However, I cannot ignore
             the vile and vicious nature of this offense
             . . . . I don't think I'm overstating this
             when I say [appellant] is an animal. And, I
             say that in every sense of the word, not
             ignoring that we're dealing with a human
             being here . . . .


        Appellant argued his objection out of the presence of the

jury, telling the trial court that the statement inferred that

"we are human beings and that implies that [appellant] is not a

human being but that he is an animal."    Appellant's objection was

sustained but his motion for a mistrial was overruled.     When the

jury returned to the courtroom, the trial court merely requested,

but did not directly order, the jurors to disregard the improper

argument in arriving at their conclusion.    The prosecutor, as the

following quote demonstrates, was not "chastised" for making an

inappropriate argument. Instead, the trial court told the jury:
            Ladies and gentlemen, I'd ask that you
          disregard the argument with reference to the
          comparing of the defendant to an animal. The
          reason is quite simple. Argument has to be
          based upon evidence presented. Biologically,
          he's correct. We're all from the animal
          kingdom, but there any [sic] many other
          connotations that one could give. We've had
          no particular evidence on animal-like traits.
          Let's take the trait of the female or male
          neutered pet Collie in your home. A
          reference to that pet or a reference to the
          gold fish as opposed to reference to a
          wolverine or a rattlesnake. They're all
          animal kingdom but they're all different, and
          I think that maybe that's what society sees.
          I'm not chastising the Commonwealth for it.
          But, rather than use a term that has so many
          meanings, I've suggested that we won't use
          those terms. So, if you would ignore that I



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           would appreciate it.    Thank you.


     When the prosecutor resumed argument, he said:
            MR. OWEN: Rather than referring to terms
          that may be inappropriate, let's talk about
          actions. You saw the defendant and what he
          did.


Because the jury did not witness the assault, these statements

could only have been interpreted by the jury as a further

reference to the "animal" remark and as a call for them to view

appellant sitting shackled, within their sight, not unlike a wild

animal.   In cases such as this, where the trial judge orders an

accused shackled, great care must be taken to assure that the

accused is not deprived of a fair trial.
          One accused of crime is entitled to a
          scrupulously fair and impartial trial.
          Nothing should be done or permitted to
          prejudice his case, or to obscure in the
          minds of the jurors the question, whether the
          evidence justifies them in a conclusion that
          he is guilty of the offense charged.


Harrison v. Commonwealth, 183 Va. 394, 402, 32 S.E.2d 136, 140

(1944).   An accused is entitled to the same principle in the

sentencing part of a bifurcated trial.

     In any prosecution of a person accused of committing a

crime, vile though it may be, the duty of the prosecutor extends

beyond vigorously presenting the Commonwealth's evidence and

commenting thereon; the prosecutor is required to see that the

accused is accorded a fair trial.         Id.   Conviction and punishment

should rest upon reason alone, and not upon appeals to emotion,

sympathy, passion, or prejudice.     In many cases, the effect of


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improper argument cannot be overcome by direction to the jury to

disregard it.     Id.   In this case, the statement to the jury was

not a "direction to the jury" but a mere request.

     The standard for prosecutorial conduct in presenting

argument to the jury has been defined by former Chief Justice

Prentis:
            If, after the testimony has been presented
            and in the performance of his public duty, he
            concludes therefrom that he should ask for a
            conviction, it is not only his right, but his
            duty, to sum up the evidence and, in
            argument, to give the jury his reasons based
            thereon for his conclusion that it justifies
            such conviction.

Dingus, 153 Va. at 853, 149 S.E. at 416.        Chief Justice Prentis

continued by saying, "[t]he mental attitude of the attorney for

the Commonwealth in this case, as indicated by [his] remarks,

ignores these salutary doctrines."        Id.   Chief Justice Prentis'

statement is equally applicable here.
            We have repeatedly said that it is the duty
          of the Commonwealth's Attorney to see that
          the accused is accorded a fair trial. In
          doing so, he should refrain from observations
          or remarks that evince feeling and prejudice,
          or that are irrelevant and derogatory to the
          witness. During his examination of
          witnesses, and in his argument, he should not
          resort to appeals to sympathy, passion or
          prejudice.

Jones v. Commonwealth, 196 Va. 10, 17, 82 S.E.2d 482, 486 (1954).

If reason alone cannot be relied upon, the verdict should be set

aside.     See Taylor v. Commonwealth, 180 Va. 413, 23 S.E.2d 139

(1942); see also McReynolds v. Commonwealth, 177 Va. 933, 15



                                  - 8 -
S.E.2d 70 (1941).

     Where, as in the case before us, the prosecutor tells the

jury that the accused, while sitting shackled in plain view, is

in every sense of the word an "animal," and, after the trial

court sustains appellant's objection to those remarks, the

prosecutor further states that his remark "may be inappropriate"

but reminds the jury, "You saw the defendant and what he did,"

the jury's attention was necessarily drawn to appellant's

shackles.   Based upon the record before us, we cannot say that

this was not one final reminder to the jury that they should view

appellant as a caged animal.
     The prosecutor's inappropriate conduct deprived appellant of

the "scrupulously fair and impartial trial" to which he was

entitled.     Harrison, 183 Va. at 402, 32 S.E.2d at 140.   The trial

court's request that the jury disregard the prosecutor's remarks

lacked the direction that should be given when inappropriate

argument is made.    Even a clear direction to the jury was

unlikely to have cured the inappropriate conduct of the

prosecutor.    Therefore, we reverse and remand this case for such

further proceedings as the Commonwealth may be advised.

                      III.   Production of Records

     Because a retrial on the merits may occur, we address the

further issue of the records.     After overruling appellant's

motion made pursuant to the discovery rules, the trial court

instructed appellant that the requested records could not be



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obtained with a subpoena duces tecum.   We agree with the trial

court's decision with respect only to the initial incident

report; however, we disagree with the trial court's ruling

regarding appellant's right, under Rule 3A:11(b)(2), to

production of the general log and the operating procedures

manuals.

     We hold that the initial incident report is not discoverable

pursuant to Rule 3A:11(b)(2), which states in relevant part:

"This subparagraph does not authorize the discovery or inspection

of . . . reports, memoranda, or other internal Commonwealth

documents made by agents in connection with the investigation or

prosecution of the case . . . ."   The initial incident report

clearly falls within this portion of Rule 3A:11(b)(2); see

Ramirez v. Commonwealth, 20 Va. App. 292, 296-97, 456 S.E.2d 531,

533 (1995).

     However, the exclusionary portion of Rule 3A:11(b)(2) does

not apply to the general log or the operating procedures manuals.

These items were not made "in connection with the investigation

or prosecution of the case . . . ."   Instead, these items are

described in the first sentence of Rule 3A:11(b)(2):
          Upon written motion of the accused a court
          shall order the Commonwealth's attorney to
          permit the accused to inspect and copy or
          photograph designated books, papers,
          documents, tangible objects, buildings or
          places, or copies or portions thereof, that
          are within the custody, or control of the
          Commonwealth, upon a showing that the items
          sought may be material to the preparation of
          his defense and that the request is
          reasonable.


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Appellant filed a written motion seeking discovery of the general

log and the operating procedures manuals.    Appellant also

proffered how these items "may be material to the preparation of

his defense."

     Upon retrial, if appellant requests discovery of the general

log and the operating procedures manuals, such records as are in

the possession of an agency of the Commonwealth must be produced

subject to an in camera review by the trial court for relevance

and for such redactment as is appropriate.
     Accordingly, the case is reversed and remanded.
                                           Reversed and remanded.




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