Charles Rosser v Commonwealth

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.

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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

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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.