                  COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia


ISHAM D. DAVIS
                                         MEMORANDUM OPINION * BY
v.   Record No. 2785-98-2                 JUDGE LARRY G. ELDER
                                             FEBRUARY 8, 2000
COMMONWEALTH OF VIRGINIA


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

          William T. Linka (Boatwright & Linka, on
          brief), for appellant.

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


     Isham D. Davis (appellant) was convicted in a jury trial

for second degree murder.   On appeal, he contends the trial

court erroneously (A) refused his motion for a continuance to

obtain a missing witness 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 abuse its discretion in

refusing the motion for a continuance.   We also hold it did not

err in refusing to declare a mistrial in the sentencing phase


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
based on the prosecutor's "animal" remark.    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.

                        CONTINUANCE MOTION

     "A motion for a continuance in order to obtain the presence

of a missing witness is addressed to the sound discretion of the

trial court whose decision will not be reversed unless the

record affirmatively shows an abuse of such discretion."

Shifflett v. Commonwealth, 218 Va. 25, 30, 235 S.E.2d 316, 319

(1977).   "[A]bsent a showing of prejudice to a defendant by the

denial of a continuance, an appellate court will not find that

the trial court abused its discretion."    Cardwell v.

Commonwealth, 248 Va. 501, 509, 450 S.E.2d 146, 151 (1994).

     "In determining whether the trial court properly exercised

its discretionary powers, we look to the diligence exercised by

the moving party to locate the witness and secure his attendance

at trial."   Cherricks v. Commonwealth, 11 Va. App. 96, 99-100,

396 S.E.2d 397, 399 (1990).   The moving party bears the burden

of establishing due diligence.     See McDonnough v. Commonwealth,

25 Va. App. 120, 127, 486 S.E.2d 570, 573 (1997).    "Whether a

party has exercised due diligence is a factual question that

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will be reversed on appeal only if it is plainly wrong or

without evidence to support it."     Id.    Although a "party is not

required to engage in a futile act," "due diligence requires, at

a minimum, that a party attempt to subpoena the witness or

provide a reasonable explanation why a subpoena was not issued."

Id. at 129, 486 S.E.2d at 574.     The moving party also must

allege that the missing witness' testimony is material and must

proffer the content of the expected testimony "so that a

reviewing court can examine [it] to determine prejudice."          Gray

v. Commonwealth, 16 Va. App. 513, 517-18, 431 S.E.2d 86, 89

(1993).   Finally, the court must "determine if there is anything

'in the circumstances to warrant the conclusion that the real

purpose in moving for a continuance is to delay or evade trial

and not to prepare for it.'"     Cherricks, 11 Va. App. at 100, 396

S.E.2d at 399.

     Here, the record establishes that appellant failed to

exercise due diligence in obtaining witness Evelyn Epps'

presence for trial, and the trial court implicitly so found.

Although counsel for appellant spoke with Epps, advised her of

the trial date and requested a subpoena for Epps' attendance,

the subpoena prepared bore an incorrect street address and was

marked "not found, no such address."       Although the subpoena

return containing this information was filed in the circuit

court two days before trial, counsel for appellant clearly was

unaware of this fact until the time of trial and, therefore,

                                 - 3 -
made no effort prior to trial to obtain the proper address or

request additional attempts at service.

       The record also fails to establish that Epps likely would

be available for trial on some future date were the court to

grant the requested continuance.   The trial court was

cooperative in sending the sheriff to try to locate Epps on the

day of trial.   However, Epps was not at home, and neither her

roommate nor counsel for appellant was able to say where she

was.   Appellant provided no assurance, therefore, that he likely

would locate Epps and obtain her presence for trial if the court

granted his motion for a continuance.

       Finally, the record fails to establish that appellant was

prejudiced by denial of the motion for a continuance.

            As a general rule, when two or more
            witnesses introduced by a party litigant
            vary in their statements of fact, such party
            has the right to ask the court or jury to
            accept as true the statements most favorable
            to him . . . . This is not true, however,
            as to the testimony which he gives himself.
            No litigant can successfully ask a court or
            jury to believe that he has not told the
            truth.

Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652, 656 (1922).

       Here, appellant proffered Epps would testify that appellant

was at the scene of the attack but "left before anything got

started because he told [Epps] he had to be in court the next

morning."   However, appellant took the stand in his own behalf

and admitted that he was at the scene when the attack began and


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that he kicked the victim in the back before leaving.

Appellant's testimony, therefore, was at odds with Epps'

proffered testimony.   Under the above principles, appellant was

bound by his own testimony, in which he conceded his

participation in the charged offense.   This testimony supports a

finding that, in fact, appellant was not prejudiced by his

inability to present Epps' testimony to the jury. 1

     For these reasons, we hold that the trial court did not

abuse its discretion in denying appellant's motion for a

continuance.

                                 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.

     1
       Appellant did not contend at trial that he would not have
testified if Epps had been present and given her version of
events.

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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


                                - 6 -
314-15, 482 S.E.2d at 86.   We held that this statement "lacked

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


                                - 7 -
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

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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 appellant's counsel and counsel for codefendant

Jermaine Harris 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 appellant's and

Harris' counsel 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

                               - 9 -
[the remarks] improperly influenced the jury's verdict" in the

sentencing phase of the bifurcated trial. 2   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.




     2
       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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