COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and Senior Judge Hodges Argued at Richmond, Virginia
CLARENCE E. JONES
v. Record No. 1071-94-2 MEMORANDUM OPINION * BY JUDGE ROSEMARIE P. ANNUNZIATA COMMONWEALTH OF VIRGINIA AUGUST 1, 1995
FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY Robert G. O'Hara, Jr., Judge John F. McGarvey for appellant.
Katherine P. Baldwin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Clarence E. Jones (appellant) was tried by a jury and found
guilty of murder, attempted murder, and two counts of the use of
a firearm in the commission of a felony. On appeal, he argues
that the trial court erred in (1) permitting Calvin Maryland
(Maryland) to testify that he saw appellant and the murder victim
together in the nude at Maryland's house several months before
the murder; (2) refusing to allow him to impeach a witness with
inconsistent statements contained in a transcript of the witness'
preliminary hearing testimony; (3) refusing to admit evidence
about a conversation overheard between the decedent and an
unknown man; and (4) admitting into evidence bullets found in his
vehicle and the certificate of analysis of the bullet fragment
taken from the decedent. We find no reversible error and affirm
* Pursuant to Code § 17.116.010 this opinion is not designated for publication. the convictions.
"On appeal, 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).
On March 3, 1991, Patty Maryland (Patty) and Albert Garrett
(Garrett), sitting together in a parked vehicle, were approached
by a vehicle driven by appellant. Appellant got out of his
vehicle, walked towards Patty and Garrett, and threatened to kill
them. Appellant pulled out a handgun and began firing. Garrett
fled into the woods where he got lost and remained for several
hours. Patty's body was found in her vehicle. She had died from
a gunshot wound to her head. The police went to appellant's home at 4:00 a.m. on March 4
and received appellant's consent to search his home. Appellant
further consented to the search of the vehicles outside his home,
and supplied the keys to these vehicles. Inside one of the
vehicles, which appellant identified as his, police located a box
of bullets.
Several months prior to her death, Patty had had an affair
with appellant. However, at the time of her death she was having
an affair with Garrett, a fact known to the appellant. One week
prior to the murder, Garrett called Patty at her house. During
their conversation, appellant picked up the phone and joined the
conversation. Later that same day, appellant called Garrett from
2 Patty's home and advised him to end his affair with Patty.
3 I.
Maryland, the victim's husband, testified that, five months
before his wife was killed, he observed her and appellant
together in the nude at his home. Appellant argues that this
testimony was not relevant and was prejudicial.
"Every fact, however remote or insignificant, that tends to
establish the probability of a fact in issue, is relevant, and if
otherwise admissible, should be admitted." Harrell v. Woodson,
233 Va. 117, 122, 353 S.E.2d 770, 773 (1987). To establish
appellant's guilt of first degree murder, the Commonwealth was
required to prove that the killing was intentional, premeditated
and deliberate. "[A]lthough motive is not a necessary element of
the crime of first degree murder, `it is relevant and often most
persuasive upon the question of the actor's intent.'" Archie v.
Commonwealth, 14 Va. App. 684, 690, 420 S.E.2d 718, 722 (1992)
(quoting Epperly v. Commonwealth, 224 Va. 214, 232, 294 S.E.2d
882, 892-93 (1982)).
Maryland's testimony showed that Patty and appellant had an
intimate relationship five months prior to the killing and just
three and one-half months prior to her involvement with Garrett.
In light of the evidence of appellant's attempts to end Patty's
affair with Garrett, Maryland's testimony tended to establish
that appellant followed Patty and killed her out of jealousy or
retribution. The testimony was thus relevant to the issue of
whether the killing was intentional and premeditated.
4 Although relevant, evidence may be excluded if its
prejudicial effect is greater than its probative value. It is
the responsibility of the trial court to make the determination,
based on the court's sound discretion, and the ruling will not be
disturbed on appeal absent a clear abuse of discretion. Wise v.
Commonwealth, 6 Va. App. 178, 188, 367 S.E.2d 197, 203 (1988).
At trial, appellant himself testified that he had had an
affair with Patty. Therefore, any prejudice that may have
resulted from Maryland's testimony was outweighed by its
probative value. The trial court did not abuse its discretion in
admitting Maryland's testimony. II.
The trial court declined to permit defendant to use an
uncertified transcript to cross-examine Garrett about whether or
not the killer wore gloves on the night of the murder. The
transcript was based on a tape-recording of Garrett's preliminary
hearing testimony.
It is unclear from the record whether defendant intended to
use the transcript to refresh Garrett's recollection or to
impeach him. However, based on his assumption that its use was
for the latter purpose, the trial judge correctly stated that a
transcript of a prior proceeding, introduced into evidence for
purposes of impeachment by prior inconsistent statement, must be
proven accurate by its proponent. See Hall v. Commonwealth, 233
Va. 369, 374, 355 S.E.2d 591, 594 (1987); Edwards v.
5 Commonwealth, 19 Va. App. 568, 571, 454 S.E.2d 1, 2 (1995)
(quoting 1 Charles E. Friend, The Law of Evidence in Virginia
§ 4-3(a), at 119 (4th ed. 1993)). Defendant's acquiescence in
the trial judge's statement of the law precludes reversal on the
ground that an uncertified transcript could be used for the
purpose of refreshing recollection. Rule 5A:18.
The court's ruling also prevented defendant's use of the
audiotape to authenticate the transcript of the prior testimony,
and the use of the audiotape itself for impeachment. Assuming
the ruling was error, it was harmless because it plainly appears
from the facts and circumstances of the case that the error did
not affect the verdict. See Lavinder v. Commonwealth, 12 Va.
App. 1003, 1005, 407 S.E.2d 910, 911 (1991). On three other
occasions during his testimony, Garrett testified that he did not
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and Senior Judge Hodges Argued at Richmond, Virginia
CLARENCE E. JONES
v. Record No. 1071-94-2 MEMORANDUM OPINION * BY JUDGE ROSEMARIE P. ANNUNZIATA COMMONWEALTH OF VIRGINIA AUGUST 1, 1995
FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY Robert G. O'Hara, Jr., Judge John F. McGarvey for appellant.
Katherine P. Baldwin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Clarence E. Jones (appellant) was tried by a jury and found
guilty of murder, attempted murder, and two counts of the use of
a firearm in the commission of a felony. On appeal, he argues
that the trial court erred in (1) permitting Calvin Maryland
(Maryland) to testify that he saw appellant and the murder victim
together in the nude at Maryland's house several months before
the murder; (2) refusing to allow him to impeach a witness with
inconsistent statements contained in a transcript of the witness'
preliminary hearing testimony; (3) refusing to admit evidence
about a conversation overheard between the decedent and an
unknown man; and (4) admitting into evidence bullets found in his
vehicle and the certificate of analysis of the bullet fragment
taken from the decedent. We find no reversible error and affirm
* Pursuant to Code § 17.116.010 this opinion is not designated for publication. the convictions.
"On appeal, 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).
On March 3, 1991, Patty Maryland (Patty) and Albert Garrett
(Garrett), sitting together in a parked vehicle, were approached
by a vehicle driven by appellant. Appellant got out of his
vehicle, walked towards Patty and Garrett, and threatened to kill
them. Appellant pulled out a handgun and began firing. Garrett
fled into the woods where he got lost and remained for several
hours. Patty's body was found in her vehicle. She had died from
a gunshot wound to her head. The police went to appellant's home at 4:00 a.m. on March 4
and received appellant's consent to search his home. Appellant
further consented to the search of the vehicles outside his home,
and supplied the keys to these vehicles. Inside one of the
vehicles, which appellant identified as his, police located a box
of bullets.
Several months prior to her death, Patty had had an affair
with appellant. However, at the time of her death she was having
an affair with Garrett, a fact known to the appellant. One week
prior to the murder, Garrett called Patty at her house. During
their conversation, appellant picked up the phone and joined the
conversation. Later that same day, appellant called Garrett from
2 Patty's home and advised him to end his affair with Patty.
3 I.
Maryland, the victim's husband, testified that, five months
before his wife was killed, he observed her and appellant
together in the nude at his home. Appellant argues that this
testimony was not relevant and was prejudicial.
"Every fact, however remote or insignificant, that tends to
establish the probability of a fact in issue, is relevant, and if
otherwise admissible, should be admitted." Harrell v. Woodson,
233 Va. 117, 122, 353 S.E.2d 770, 773 (1987). To establish
appellant's guilt of first degree murder, the Commonwealth was
required to prove that the killing was intentional, premeditated
and deliberate. "[A]lthough motive is not a necessary element of
the crime of first degree murder, `it is relevant and often most
persuasive upon the question of the actor's intent.'" Archie v.
Commonwealth, 14 Va. App. 684, 690, 420 S.E.2d 718, 722 (1992)
(quoting Epperly v. Commonwealth, 224 Va. 214, 232, 294 S.E.2d
882, 892-93 (1982)).
Maryland's testimony showed that Patty and appellant had an
intimate relationship five months prior to the killing and just
three and one-half months prior to her involvement with Garrett.
In light of the evidence of appellant's attempts to end Patty's
affair with Garrett, Maryland's testimony tended to establish
that appellant followed Patty and killed her out of jealousy or
retribution. The testimony was thus relevant to the issue of
whether the killing was intentional and premeditated.
4 Although relevant, evidence may be excluded if its
prejudicial effect is greater than its probative value. It is
the responsibility of the trial court to make the determination,
based on the court's sound discretion, and the ruling will not be
disturbed on appeal absent a clear abuse of discretion. Wise v.
Commonwealth, 6 Va. App. 178, 188, 367 S.E.2d 197, 203 (1988).
At trial, appellant himself testified that he had had an
affair with Patty. Therefore, any prejudice that may have
resulted from Maryland's testimony was outweighed by its
probative value. The trial court did not abuse its discretion in
admitting Maryland's testimony. II.
The trial court declined to permit defendant to use an
uncertified transcript to cross-examine Garrett about whether or
not the killer wore gloves on the night of the murder. The
transcript was based on a tape-recording of Garrett's preliminary
hearing testimony.
It is unclear from the record whether defendant intended to
use the transcript to refresh Garrett's recollection or to
impeach him. However, based on his assumption that its use was
for the latter purpose, the trial judge correctly stated that a
transcript of a prior proceeding, introduced into evidence for
purposes of impeachment by prior inconsistent statement, must be
proven accurate by its proponent. See Hall v. Commonwealth, 233
Va. 369, 374, 355 S.E.2d 591, 594 (1987); Edwards v.
5 Commonwealth, 19 Va. App. 568, 571, 454 S.E.2d 1, 2 (1995)
(quoting 1 Charles E. Friend, The Law of Evidence in Virginia
§ 4-3(a), at 119 (4th ed. 1993)). Defendant's acquiescence in
the trial judge's statement of the law precludes reversal on the
ground that an uncertified transcript could be used for the
purpose of refreshing recollection. Rule 5A:18.
The court's ruling also prevented defendant's use of the
audiotape to authenticate the transcript of the prior testimony,
and the use of the audiotape itself for impeachment. Assuming
the ruling was error, it was harmless because it plainly appears
from the facts and circumstances of the case that the error did
not affect the verdict. See Lavinder v. Commonwealth, 12 Va.
App. 1003, 1005, 407 S.E.2d 910, 911 (1991). On three other
occasions during his testimony, Garrett testified that he did not
recall his earlier testimony about whether the killer wore gloves
on the night of the murder. Garrett also admitted
inconsistencies existed between his present and former testimony
at the preliminary hearing. That the jury was not exposed to yet
another inconsistency on a collateral issue had no significant
effect upon Garrett's impact as a witness. Williams v.
Commonwealth, 4 Va. App. 53, 78, 354 S.E.2d 79, 93 (1987). Thus,
any error the trial judge may have committed was harmless. III.
Appellant proffered Lawrence Riley's testimony that he
overheard an unknown man threaten to kill Patty a few days before
6 her death. The man was not appellant, and Riley could not
identify him. The trial court ruled the statement was hearsay
and not admissible.
On appeal, appellant argues that, although hearsay, the
statement falls under the "state-of-mind" exception to the
hearsay rule. The "state-of-mind" exception is one of . . . [the] recognized exceptions. If the declarant's state of mind is relevant to the case, then admissions of the declarant's mental state are admissible, providing they "refer to a presently existing state of mind" and there is "no obvious indication of falsification or contrivance."
Evans-Smith v. Commonwealth, 5 Va. App. 188, 197, 361 S.E.2d 436,
441 (1987) (citation omitted).
Here, the state of mind of the unidentified man was not
relevant to any issue in the case. Furthermore, such statements
may be admitted into evidence only when there is some "factual
support in the record which would tend to substantiate or
corroborate them." Id. at 199, 361 S.E.2d at 442. There was no
inherent reliability in or corroboration of Riley's hearsay
statement. See id. Thus, the trial judge did not err in
excluding it. IV.
When the police went to appellant's home after the killing,
appellant gave the officers the keys to the vehicles parked
outside and permitted the police to search them. Inside a
vehicle that appellant identified as his, the police found a box
7 containing .38 and .357 caliber bullets. The certificate of
analysis regarding the bullet fragment taken from the victim
stated that the bullet was fired from a .38 or a .357 caliber
weapon.
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed
on appeal in the absence of an abuse of discretion." Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).
"Evidence which bears upon and is pertinent to matters in issue,
and which tends to prove the offense, is relevant and should be
admitted." Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986).
When considered in conjunction with the certificate of
analysis, the bullets found in appellant's car were relevant to
link him to the murder. We find no abuse of discretion in the
trial court's decision to admit the bullets and the certificate
of analysis.
The judgment of the trial court is affirmed.
Affirmed.