Rosser v. Commonwealth

In Rosser v. Commonwealth, 24 Va. App. 308, 482 S.E.2d 83 (1997), 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, the Court 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. In Rosser v. Commonwealth, 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." 24 Va. App. at 314-315, 482 S.E.2d at 86. The Court 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. The Court 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 it 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.