                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Bray
Argued at Richmond, Virginia


JERMAINE ALFONZO HARRIS, s/k/a
 JERMAINE ALFONSO HARRIS
                                      MEMORANDUM OPINION * BY
v.   Record No. 2568-98-2        CHIEF JUDGE JOHANNA L. FITZPATRICK
                                         JANUARY 11, 2000
COMMONWEALTH OF VIRGINIA


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

          Kenneth C. Chrisman for appellant.

          John H. McLees, Jr., Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Jermaine Alfonzo Harris (appellant) and his two

codefendants were convicted in a joint jury trial of

second-degree murder, in violation of Code § 18.2-32.     On

appeal, appellant contends the trial court erred by refusing to

grant his request for a mistrial because the Assistant

Commonwealth's Attorney:    (1) improperly "maligned" defense

counsel during the guilt/innocence phase of trial; (2) referred

to the codefendants as "animals" during closing arguments in the

penalty phase of trial; and (3) mentioned parole during closing




     *
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
arguments in the penalty phase of trial.       For the following

reasons, we reverse and remand for re-sentencing.

                            I.   BACKGROUND

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to it all reasonable

inferences fairly deducible therefrom.        See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that Darlene Kittrell and

Shateema Smith were walking home when Isham Davis told them that

Vincent Hall was beating Smith's mother.       A fight ensued, and

Hall was thrown to the ground.     After he fell, a group of

people, including appellant and two codefendants, attacked Hall.

Kittrell testified that the two codefendants kicked and

"stomped" Hall's head, while appellant kicked his legs.       Julius

Gibson, another witness, confirmed that appellant was one of the

attackers.    Hall died as a result of the head injuries sustained

in this attack.

     At the conclusion of the guilt phase, the jury convicted

appellant and his two codefendants of second-degree murder.        In

closing argument during the penalty phase of the trial, the

Assistant Commonwealth's Attorney described the violent nature

of Hall's death and stated the following:

             . . . And, Vincent Hall, the manner in which
             he died is horrendous, absolutely
             horrendous. There is no excuse whatsoever.

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             There is no excuse for somebody stomping on
             somebody's head. . . . And [Hall] died
             going through an absolutely horrible,
             torturous experience.
                  I am not even going to call them
             animals because animals don't kill their
             own.

(Emphasis added).    Appellant objected to the statement and moved

for a mistrial.    Although denying a mistrial, the trial court

sustained the objection and instructed the jury to disregard the

statement.

     In closing argument at the penalty phase, appellant's

attorney suggested to the jury that a sentence of five years

would keep appellant in prison until October 7, 2003. 1     In its

rebuttal argument, the Commonwealth argued that this statement

was untrue.

             As I said before, the defense attorney's job
             is to sell you a bill of goods in some
             cases. And, they're telling you on
             October 7, five years from now, [the
             defendants will be released,] and that's not
             really true. In Virginia they will be
             eligible for parole--




     1
       Other counsel representing Isham Davis, one of the
codefendants in this case, first argued this issue in his
closing argument in the penalty phase. Counsel stated that by
sentencing Davis to five years imprisonment he would not "have
the opportunity to take a breath as a free man" until October 7,
2003. Counsel also stated: "I suggest to you that five years
incarceration for this crime is more than adequate. It is the
minimum of what you can impose and it's what you should impose."
Appellant's counsel made the same argument.


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Appellant and other counsel objected to the Commonwealth's

injecting the issue of parole.    In the presence of the jury, the

trial court stated the following:

          You are correcting what they said, but you
          can't go into that. They were wrong. They
          won't be serving five years. He gets a
          certain amount of time off for good time.
          . . . Don't go into the parole laws. Just
          leave it like it is. That is not correct.
          The Court will instruct them that is not
          correct.

(Emphasis added).

     During the jury's sentencing deliberations, the parties

debated at length the motion for a mistrial, including the

Commonwealth's reference to the defendants as "animals," the

mention of parole, and the trial court's statement regarding

early release for "good time."    The trial court recalled the

jury and provided the following cautionary instruction:

          All right, ladies and gentlemen of the jury,
          any reference by the Commonwealth's Attorney
          to the word animal you completely disregard
          and dismiss it all together. On the
          question of parole, you should not concern
          yourself with that one way or the other.
          You fix what you think is a just penalty.
          What takes place after that is none of your
          concern, nor of mine. You understand? So,
          dismiss all that from your mind in your
          deliberations. Does anyone have any
          questions about that? All right. Thank
          you. Y'all may retire.

The jury deliberated further and sentenced appellant to twenty

years imprisonment.




                                 - 4 -
                      II.   MOTION FOR MISTRIAL

     The decision to grant a mistrial lies within the sound

discretion of the trial court.     See Kasi v. Commonwealth, 256

Va. 407, 424, 508 S.E.2d 57, 67 (1998); Clagett v. Commonwealth,

252 Va. 79, 88, 472 S.E.2d 263, 268 (1996).       "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), cert. denied, 510 U.S. 859 (1993).

"Thus, a trial court's denial of a motion for a mistrial will

not be reversed on appeal unless there exists a manifest

probability as a matter of law that the improper evidence

prejudiced the accused."    Mills v. Commonwealth, 24 Va. App.

415, 420, 482 S.E.2d 860, 862 (1997).

             A.   Commonwealth's Reference to "Animals"

     "It is well-settled that errors assigned because of a

prosecutor's alleged improper comments or conduct during

argument will not be considered on appeal unless an accused

timely moves for a cautionary instruction or for a mistrial."

Cheng v. Commonwealth, 240 Va. 26, 38, 393 S.E.2d 599, 605-06

(1990).   "This requirement affords the trial court the

opportunity to provide cautionary instructions when appropriate

to correct the alleged error."     Mack v. Commonwealth 20 Va. App.

5, 8, 454 S.E.2d 750, 751 (1995) (citing Beavers, 245 Va. at

279, 427 S.E.2d at 419).    Thus, a judgment will not be reversed

                                 - 5 -
"for a statement of counsel which the court afterwards directs

the jury to disregard unless there is a manifest probability

that the . . . statement has been prejudicial to the adverse

party."   Kitze v. Commonwealth, 246 Va. 283, 288, 435 S.E.2d

583, 585 (1993) (quoting Saunders v. Commonwealth, 218 Va. 204,

303, 237 S.E.2d 150, 156 (1977)).

     In the instant case, the record established that the trial

court promptly and unequivocally instructed the jury to

disregard the Commonwealth's reference to animals.    The jury is

presumed to have followed the trial court's curative

instruction.    See Newton v. Commonwealth, 29 Va. App. 433, 450,

512 S.E.2d 846, 854 (1999); Mills v. Commonwealth, 24 Va. App.

415, 420, 482 S.E.2d 860, 862 (1997) ("Juries are presumed to

follow prompt, explicit, curative instructions from the trial

judge."). 2   Accordingly, the trial court did not abuse its

discretion in denying appellant's motion for a mistrial based

upon the Commonwealth's remarks about "animals."




     2
       Rosser v. Commonwealth, 24 Va. App. 308, 482 S.E.2d 83
(1997), cited by appellant, is factually distinguishable. In
that case, the prosecutor told the jury that the defendant,
while sitting shackled in plain view, was "an animal . . . in
every sense of the word. . . ." Id. at 313, 482 S.E.2d at 86.
Although the trial judge "requested" the jury to disregard the
statement, we held that the prosecutor was not "chastised" for
making an inappropriate argument and that the request "lacked
the direction that should be given when inappropriate argument
is made." Id. at 316, 482 S.E.2d at 87.

                                - 6 -
                       B.    Mention of Parole

     Also, in closing argument in the penalty phase, appellant's

counsel argued that appellant was the least culpable of those

involved.   He requested the jury to sentence appellant to the

five-year minimum term of imprisonment and said if so he would

be incarcerated until October 7, 2003.      To address this

statement, the Assistant Commonwealth's Attorney referred to the

parole process:   "In Virginia they will be eligible for

parole . . . ."   While sustaining appellant's objection, the

trial court continued the colloquy in front of the jury and

injected the issue of "good time."       The trial court stated:

"They won't be serving five years.       He gets a certain amount of

time off for good time."

     Although the trial court instructed the jury to disregard

the issue of parole, at that point the jury had heard from both

the Commonwealth and the trial court that appellant would not

serve the time imposed.     These remarks were highly prejudicial

and there is a manifest probability that the statements

improperly influenced the jury's verdict.        See, e.g., Kitze, 246

Va. at 288, 435 S.E.2d at 585 (statement to jury that the

defendant "may go free" if they found him not guilty by reason

of insanity was improper); Walker v. Commonwealth, 25 Va. App.

50, 63, 486 S.E.2d 126, 133 (1997) ("To inform the jury that

credit for good behavior exists may invite the jury to attempt

to compensate for the credit, resulting in a sentence longer

                                 - 7 -
than the jury intended to impose.").   Additionally, the trial

court's cautionary instruction that the jury should not concern

itself with what happens after conviction did not remove the

prejudicial effect of the improper comments.   See Kitze, 246 Va.

at 289, 435 S.E.2d at 586.

     Accordingly, we reverse and remand the case for

re-sentencing. 3

                                         Reversed and remanded
                                         for re-sentencing.




     3
       Appellant's argument that the Assistant Commonwealth's
Attorney improperly "maligned" defense counsel during the
guilt/innocence phase of trial is procedurally barred.
Appellant did not object to any of the Commonwealth's remarks
and we will not address this issue for the first time on appeal.
See Rule 5A:18.

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