                   COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Clements
Argued at Chesapeake, Virginia


LERICO KEARNEY
                                           MEMORANDUM OPINION ∗ BY
v.   Record No. 1078-00-1                  JUDGE RICHARD S. BRAY
                                              JANUARY 29, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                    Westbrook J. Parker, Judge

          Joseph R. Winston, Special Appellate Counsel
          (Public Defender Commission, on briefs), for
          appellant.

          John H. McLees, Jr., Assistant Attorney
          General (Randolph A. Beales, Attorney
          General, on brief), for appellee.


     Lerico Kearney (defendant) was convicted by a jury for

first-degree murder and related use of a firearm, violations of

Code §§ 18.2-32 and -53.1, respectively.   On appeal, defendant

contends that the trial court erroneously (1) denied his motion

for a mistrial resulting from the prosecutor's reference, during

closing argument, to defendant's failure to testify, and (2)

refused to instruct the jury on the abolition of parole.    For the
                                                 1
following reasons, we reverse the trial court.


     ∗
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Because we reverse on the first issue, we need not address
the remaining assignment of error, which is clearly controlled
by Fishback v. Commonwealth, 260 Va. 104, 532 S.E.2d 629 (2000),
and will govern the proceedings on remand.
     In accord with well established principles, "we review the

evidence in the light most favorable to the Commonwealth, granting

to it all reasonable inferences fairly deducible therefrom."

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987).

                                 I.

     On November 21, 1997, at approximately 9:00 p.m., David

Eugene Artis and his sister, Yvonne Giles, were murdered in Artis'

apartment, located on Franklin Street in the City of Suffolk.

According to the medical examiner, Giles died from a "[g]unshot

wound to the head" and Artis from "[g]unshot wounds to [the] chest

and head."   Giles was killed by a .45 caliber weapon, and

compatible shell casings were found at the scene.   Defendant was

indicted for both murders and attendant firearm offenses, but

convicted only of the Giles murder and related crimes.

     Testifying for the Commonwealth, Sabrina Norfleet, a woman

"dating" Artis at the time of the murder, acknowledged he "didn't

work" and "ma[d]e a living gambling" and "sell[ing] drugs."    She

specifically recalled a "dice" game between defendant and Artis in

November 1997, when Artis won "about five grand" from defendant.

In the early evening of November 21, 1997, the day of the murders,

Norfleet had seen defendant and Artis together in an automobile,




                               - 2 -
"head[ing] . . . towards Franklin Street," "where [Artis] was

living."

       Travis Chalk had been with defendant the day prior to the

murders and observed a "black .45" firearm in his possession.      The

following morning, Chalk was present when Artis arrived at

defendant's residence and overheard defendant declare, as Artis

approached, "if [he] don't have a G or better, I'm'a [sic] kill

him.   'Cause I'm tired of him winning my money and coming with no

money."    Defendant and Artis then began "shooting dice," and,

after "about an . . . hour," agreed to "get back up later and

finish shooting dice."   "[R]ight after it got dark," Chalk again

saw Artis, alone and driving "[a] little white Chevrolet,"

followed by defendant and Quinton Parrish, also known as "QP," in

a "white Mitsubishi Gallant," "heading toward Franklin Street."

When Chalk next encountered defendant, a "[f]ew days" after the

offenses, he instructed Chalk "to tell [police] . . . [h]e didn't

know him."

       Casey Davis also observed defendant in possession of "a .45"

caliber handgun on November 20, 1997, and "riding" with Parrish in

a "white Mitsubishi Gallant" the following evening.   When Parrish

was later seen by Veronica Davis, "walking" "[o]n Franklin

Street," "he started running."    Veronica Davis then observed

another man "getting in" "a white looking car . . . either white

or gray," parked opposite Artis' apartment.



                                 - 3 -
     Tony Boothe, a convicted "drug dealer" and federal prisoner,

recounted a visit with defendant in December 1997, "to collect

some money [defendant] owed [Boothe] for . . . drugs."

Defendant "didn't have all the money" and explained to Boothe

that "he lost the money gambling" and "had to kill two people to

get the money back."   Detailing the murders, defendant confessed

to Boothe, "he went . . . [with] PC . . . [t]o collect - to get

the money. . . . [H]e put the gun to the people heads

[sic]. . . . [T]he other guy searched the house, searched the

people, and . . . they killed – he killed the people after

that."   Boothe recalled that other people were present elsewhere

in "the house" during this conversation with defendant, and the

door was "pretty much open."   He confirmed defendant "was

arrested for this offense" "about a week" following the

conversation.

     Boothe further testified that, in April 1999, he had a

second encounter with defendant, while the two were alone on a

basketball court, that touched upon the subject offenses.    When

Boothe inquired of defendant, "why did he kill the people to get

the money," defendant replied, "he had to do what he had to do

to get his money back."

     Defendant neither testified nor offered other evidence to

controvert Boothe's testimony, although he challenged Boothe's

credibility during cross-examination.




                               - 4 -
     During closing argument to the jury, the prosecutor

specifically addressed "the testimony of Tony Boothe," commenting:

          There were a lot of questions asked Tony
          Boothe about what he's getting. What his
          criminal record is. What he did for a
          living. Ten lawyers-a lawyer can come in
          here and say what he could or could not get.
          But has there been any evidence, any
          evidence in this case, that contradicts what
          he said—

Defense counsel immediately moved the court to declare a

mistrial, contending that, because only defendant could have

contradicted Boothe, the Commonwealth had improperly referenced

his failure to testify.   The trial judge denied the motion, but

admonished the prosecutor not to "dwell on it," noting he was

"get[ting] awfully close to saying something about the defendant

having to testify."

     The jury was subsequently instructed, retired to consider a

verdict, and found defendant guilty of the first-degree murder of

Giles and the related firearm offense, resulting in the instant

appeal.

                                II.

     Defendant maintains the prosecutor's closing argument, which

emphasized the absence of "any evidence . . . that contradicts

what [Boothe] said," was an improper comment on his failure to

testify, thereby necessitating a mistrial.   We agree.

     "As a general rule, any comment that the Commonwealth's

Attorney made referring to the defendant's election not to

testify is a violation of his rights against self-incrimination



                               - 5 -
as guaranteed by the Fifth Amendment."   Johnson v. Commonwealth,

236 Va. 48, 50, 373 S.E.2d 134, 136 (1988) (citing Griffin v.

California, 380 U.S. 609, 615 (1965)).

          In determining whether a remark falls within
          the boundary of the prohibition that a
          prosecutor shall not make an adverse comment
          before the jury on a defendant's failure to
          testify, the test is whether, in the
          circumstances of the particular case, "the
          language used was manifestly intended or was
          of such character that the jury would
          naturally and necessarily take it to be a
          comment on the failure of the accused to
          testify."

Hines v. Commonwealth, 217 Va. 905, 907, 234 S.E.2d 262, 263

(1977) (quoting Knowles v. United States, 224 F.2d 168, 170 (10th

Cir. 1955)) (emphasis added).

     Here, the prosecutor's argument to the jury expressly

referenced conversations between defendant and Boothe during

which defendant confessed to the offenses at issue. 2   Although

the evidence suggests others may have been within earshot of

defendant's first discussion with Boothe, the record clearly

reflects that the conversation at the basketball court was

exclusive to the two men.   Thus, the prosecutor's argument,

considered in the context of the evidence before the jury,

referenced the inescapable conclusion that only defendant could
                                3
"contradict" Boothe's testimony, thereby "naturally and

     2
       Defendant raises the identical argument with respect to
numerous additional comments of the prosecutor. However,
defendant objected only to the Boothe remarks and, therefore, is
procedurally barred from presenting the remaining issues on
appeal. Rule 5A:18; see Jacques v. Commonwealth, 12 Va. App.
591, 593, 405 S.E.2d 630, 631 (1991).
     3
       At the inception of the proceedings, the court admonished
the jurors to "judge [the] facts . . . judge what actually

                                - 6 -
necessarily" resulting in the jury "tak[ing] it to be a comment on

the failure of the accused to testify."   Hines, 217 Va. at 907,

234 S.E.2d at 263. 4

     Accordingly, the trial court erroneously denied defendant's

motion for a mistrial, and we reverse the convictions and remand

the prosecution to the trial court for such further proceedings

as the Commonwealth deems appropriate.

                                          Reversed and remanded.




happened in the case," "to make your decision based on what you
see and hear in the courtroom and not on something that's
outside the courtroom." Thus, the jury was properly precluded
from speculating upon other evidence that may have
"contradicted" Boothe.
     4
       The Commonwealth concedes, on brief, that the prosecutor's
remarks would have been improper, if "the contradiction referred
to could only have come from the defendant himself," a view
shared by a majority of jurisdictions. See 14 A.L.R. 3d 723,
730 (1967), and a circumstance clearly distinguishable from a
generalized reference to the "evidence of witnesses who had
testified." Washington v. Commonwealth, 216 Va. 185, 195, 217
S.E.2d 815, 824 (1975).

                              - 7 -
