COURT OF APPEALS OF VIRGINIA
Present: Judge Benton, Senior * Judge Cole and Retired Judge Trabue Argued at Richmond, Virginia
DANIEL THOMAS COX
v. Record No. 2177-93-2 MEMORANDUM OPINION** BY JUDGE MARVIN F. COLE COMMONWEALTH OF VIRGINIA MAY 9, 1995
FROM THE CIRCUIT COURT OF HANOVER COUNTY Richard H. C. Taylor, Judge
J. Overton Harris (Hugh S. Campbell; Campbell, Campbell, Herbert & Harris, P.C., on brief), for appellant. Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
On appeal from his convictions of first degree murder and
use of a firearm in the commission of a felony, Daniel Thomas Cox
contends that the trial judge erred in admitting evidence of a
prior bad act. We hold that the evidence was properly admitted.
Therefore, we affirm.
On March 19, 1993, the appellant shot and killed his wife.
At a pretrial hearing on his motion in limine, the appellant
contested the Commonwealth's presentation of evidence of the
appellant's prior bad acts involving incidents of previous
marital difficulties between the appellant and the victim. The
* Retired Judge Kenneth E. Trabue took part in the consideration in this case by designation pursuant to Code § 17-116.01. ** Pursuant to Code § 17-116.010, this opinion is not designated for publication. trial judge overruled the motion, stating that the relationship
between the victim and the appellant was relevant evidence.
At appellant's trial Erin Moran testified, over the
appellant's objection, that eighteen months before the murder she
and her companion spent an evening playing cards and other games
with the appellant and the victim. Moran testified that the
victim and the appellant "exchanged cross words." The appellant
then pushed the victim, causing her to hit her head on the corner
of the kitchen cabinet. The appellant and the victim "scuffled"
until Moran and her companion ended the fight. As a general rule, evidence that shows or tends to show
crimes or other bad acts committed by the accused "is incompetent
and inadmissible for the purpose of showing the commission of the
particular crime charged." Kirkpatrick v. Commonwealth, 211 Va.
269, 272, 176 S.E.2d 802, 805 (1970). But the exceptions to the
general rule are as well established as the rule itself. Morton
v. Commonwealth, 227 Va. 216, 222, 315 S.E.2d 224, 228, cert. denied, 469 U.S. 862 (1984).
In Sutphin v. Commonwealth, 1 Va. App. 241, 337 S.E.2d 897
(1985), this Court enumerated the most common issues and elements
for which evidence of prior crimes and bad acts are potentially
relevant: (1) to prove motive to commit the crime charged; (2) to establish guilty knowledge or to negate good faith; (3) to negate the possibility of mistake or accident; (4) to show the conduct and feeling of the accused toward his victim, or to establish their prior relations; (5) to prove opportunity;
2 (6) to prove identity of the accused as the one who committed the crime where the prior criminal acts are so distinctive as to indicate a modus operandi; or (7) to demonstrate a common scheme or plan where the other crime or crimes constitute a part of a general scheme of which the crime charged is a part.
Id. at 245-46, 337 S.E.2d at 899.
Malice, motive, intent, and the relationship between the
accused and the victim are relevant matters for the consideration
of the jury in a murder trial. The trial judge specifically
found that evidence of the prior relationship between the
appellant and the victim was relevant evidence and admitted the
evidence of the prior bad act for this purpose. Thus, the
evidence was not admitted as tending to prove that the appellant
killed the victim, "but for the purpose of showing the relations
between the parties, their state of feeling and course of conduct
towards each other, and as reflecting light upon the motive and
intent with which the act was done." O'Boyle v. Commonwealth,
100 Va. 785, 792, 40 S.E. 121, 123 (1901). See also Smith v. Commonwealth, 239 Va. 243, 256, 389 S.E.2d 871, 878, cert.
denied, 498 U.S. 881 (1990); Gibson v. Commonwealth, 216 Va. 412,
415-16, 219 S.E.2d 845, 848 (1975), cert. denied, 425 U.S. 994
(1976). The evidence also tended to prove that the killing was
not accidental.
Moreover, the probative value of this evidence was not
defeated by its remoteness in time from the crime charged. [T]he test is whether the evidence of prior character is "so distant in time as to be
3 void of real probative value in showing present character."
. . . Once a nexus for relevancy of prior conduct or character has been established . . . the issue of remoteness concerns the weight of the evidence and the credibility of the witnesses, both of which are within the province of the jury.
Lafon v. Commonwealth, 17 Va. App. 411, 419, 438 S.E.2d 279, 284
(1993) (citations omitted). In this case, eighteen months was
not sufficient to eradicate all probative value. Further, the
trial judge correctly found that the fact that the incident
occurred about eighteen months before the murder related only to
the weight to be afforded the evidence, which was for the jury to
determine. See O'Boyle, 100 Va. at 792, 40 S.E. at 123.
Therefore, the trial judge did not abuse his discretion in
admitting the evidence.
For the reasons stated, the judgment of the trial court is
affirmed.
4 BENTON, J., dissenting.
Daniel Cox did not deny that he fired the gun that
discharged the bullet that killed his wife. His defense to the
murder indictment was that the bullet accidentally hit her. The
physical evidence was consistent with Cox's defense.
The Commonwealth's forensic expert testified that the bullet
fragment recovered from the body of Cox's wife was "consistent
with that bullet having struck something before it went into the
head." The forensic expert also testified that the irregular
shaped entrance wound "confirms or . . . it supports the idea
that the bullet has struck something prior to hitting [the
body]." She testified that it was possible that the bullet
struck a defect that she had examined in the kitchen floor,
deflected at an angle of ricochet, and hit Cox's wife in the
head. In Cox's defense, Cox presented evidence from his own
ballistic expert who similarly testified that the bullet had in
fact ricocheted before hitting Cox's wife. The ballistic expert
also testified that the defect on the floor could have been the
point from which the bullet ricocheted.
Despite the physical evidence, the Commonwealth argued that
evidence of an event of marital disharmony was relevant and
admissible to prove that the bullet did not accidentally enter
Cox's wife's head and cause her death. The trial judge agreed
and allowed the Commonwealth to prove, over Cox's objection, that
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COURT OF APPEALS OF VIRGINIA
Present: Judge Benton, Senior * Judge Cole and Retired Judge Trabue Argued at Richmond, Virginia
DANIEL THOMAS COX
v. Record No. 2177-93-2 MEMORANDUM OPINION** BY JUDGE MARVIN F. COLE COMMONWEALTH OF VIRGINIA MAY 9, 1995
FROM THE CIRCUIT COURT OF HANOVER COUNTY Richard H. C. Taylor, Judge
J. Overton Harris (Hugh S. Campbell; Campbell, Campbell, Herbert & Harris, P.C., on brief), for appellant. Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
On appeal from his convictions of first degree murder and
use of a firearm in the commission of a felony, Daniel Thomas Cox
contends that the trial judge erred in admitting evidence of a
prior bad act. We hold that the evidence was properly admitted.
Therefore, we affirm.
On March 19, 1993, the appellant shot and killed his wife.
At a pretrial hearing on his motion in limine, the appellant
contested the Commonwealth's presentation of evidence of the
appellant's prior bad acts involving incidents of previous
marital difficulties between the appellant and the victim. The
* Retired Judge Kenneth E. Trabue took part in the consideration in this case by designation pursuant to Code § 17-116.01. ** Pursuant to Code § 17-116.010, this opinion is not designated for publication. trial judge overruled the motion, stating that the relationship
between the victim and the appellant was relevant evidence.
At appellant's trial Erin Moran testified, over the
appellant's objection, that eighteen months before the murder she
and her companion spent an evening playing cards and other games
with the appellant and the victim. Moran testified that the
victim and the appellant "exchanged cross words." The appellant
then pushed the victim, causing her to hit her head on the corner
of the kitchen cabinet. The appellant and the victim "scuffled"
until Moran and her companion ended the fight. As a general rule, evidence that shows or tends to show
crimes or other bad acts committed by the accused "is incompetent
and inadmissible for the purpose of showing the commission of the
particular crime charged." Kirkpatrick v. Commonwealth, 211 Va.
269, 272, 176 S.E.2d 802, 805 (1970). But the exceptions to the
general rule are as well established as the rule itself. Morton
v. Commonwealth, 227 Va. 216, 222, 315 S.E.2d 224, 228, cert. denied, 469 U.S. 862 (1984).
In Sutphin v. Commonwealth, 1 Va. App. 241, 337 S.E.2d 897
(1985), this Court enumerated the most common issues and elements
for which evidence of prior crimes and bad acts are potentially
relevant: (1) to prove motive to commit the crime charged; (2) to establish guilty knowledge or to negate good faith; (3) to negate the possibility of mistake or accident; (4) to show the conduct and feeling of the accused toward his victim, or to establish their prior relations; (5) to prove opportunity;
2 (6) to prove identity of the accused as the one who committed the crime where the prior criminal acts are so distinctive as to indicate a modus operandi; or (7) to demonstrate a common scheme or plan where the other crime or crimes constitute a part of a general scheme of which the crime charged is a part.
Id. at 245-46, 337 S.E.2d at 899.
Malice, motive, intent, and the relationship between the
accused and the victim are relevant matters for the consideration
of the jury in a murder trial. The trial judge specifically
found that evidence of the prior relationship between the
appellant and the victim was relevant evidence and admitted the
evidence of the prior bad act for this purpose. Thus, the
evidence was not admitted as tending to prove that the appellant
killed the victim, "but for the purpose of showing the relations
between the parties, their state of feeling and course of conduct
towards each other, and as reflecting light upon the motive and
intent with which the act was done." O'Boyle v. Commonwealth,
100 Va. 785, 792, 40 S.E. 121, 123 (1901). See also Smith v. Commonwealth, 239 Va. 243, 256, 389 S.E.2d 871, 878, cert.
denied, 498 U.S. 881 (1990); Gibson v. Commonwealth, 216 Va. 412,
415-16, 219 S.E.2d 845, 848 (1975), cert. denied, 425 U.S. 994
(1976). The evidence also tended to prove that the killing was
not accidental.
Moreover, the probative value of this evidence was not
defeated by its remoteness in time from the crime charged. [T]he test is whether the evidence of prior character is "so distant in time as to be
3 void of real probative value in showing present character."
. . . Once a nexus for relevancy of prior conduct or character has been established . . . the issue of remoteness concerns the weight of the evidence and the credibility of the witnesses, both of which are within the province of the jury.
Lafon v. Commonwealth, 17 Va. App. 411, 419, 438 S.E.2d 279, 284
(1993) (citations omitted). In this case, eighteen months was
not sufficient to eradicate all probative value. Further, the
trial judge correctly found that the fact that the incident
occurred about eighteen months before the murder related only to
the weight to be afforded the evidence, which was for the jury to
determine. See O'Boyle, 100 Va. at 792, 40 S.E. at 123.
Therefore, the trial judge did not abuse his discretion in
admitting the evidence.
For the reasons stated, the judgment of the trial court is
affirmed.
4 BENTON, J., dissenting.
Daniel Cox did not deny that he fired the gun that
discharged the bullet that killed his wife. His defense to the
murder indictment was that the bullet accidentally hit her. The
physical evidence was consistent with Cox's defense.
The Commonwealth's forensic expert testified that the bullet
fragment recovered from the body of Cox's wife was "consistent
with that bullet having struck something before it went into the
head." The forensic expert also testified that the irregular
shaped entrance wound "confirms or . . . it supports the idea
that the bullet has struck something prior to hitting [the
body]." She testified that it was possible that the bullet
struck a defect that she had examined in the kitchen floor,
deflected at an angle of ricochet, and hit Cox's wife in the
head. In Cox's defense, Cox presented evidence from his own
ballistic expert who similarly testified that the bullet had in
fact ricocheted before hitting Cox's wife. The ballistic expert
also testified that the defect on the floor could have been the
point from which the bullet ricocheted.
Despite the physical evidence, the Commonwealth argued that
evidence of an event of marital disharmony was relevant and
admissible to prove that the bullet did not accidentally enter
Cox's wife's head and cause her death. The trial judge agreed
and allowed the Commonwealth to prove, over Cox's objection, that
5 Cox and his wife "scuffled" more than eighteen months prior to
the death of Cox's wife. I disagree with the majority's holding
that the evidence was admissible.
As a general rule, evidence that an accused has committed
bad acts other than the offense for which the accused is being
tried is inadmissible. Kirkpatrick v. Commonwealth, 211 Va. 269,
272, 176 S.E.2d 802, 805 (1970). In addition, the following rule
is well established: Evidence which has no tendency to prove guilt, but only serves to prejudice an accused, should be excluded on the ground of lack of relevancy. For evidence to be admissible it must relate and be confined to the matters in issue and tend to prove an offense or be pertinent thereto. Evidence of collateral facts or those incapable of affording any reasonable presumption or inference on matters in issue, because too remote or irrelevant, cannot be accepted in evidence.
Bunting v. Commonwealth, 208 Va. 309, 314, 157 S.E.2d 204, 208
(1967).
Evidence that proved Cox and his wife quarrelled and
scuffled while drinking and playing cards one year and six months
prior to the death of Cox's wife was not relevant to negate
accident or to prove any element at Cox's murder trial. Other
than an exchange of cross words, nothing is known about the
nature or circumstances of that incident. "The fact that he had
[pushed] her at some previous time without any evidence as to the
circumstances or the character or effect of it, furnishes no
proof that he willfully, deliberately and premeditatedly killed
6 her on this occasion." Williams v. Commonwealth, 203 Va. 837,
840, 127 S.E.2d 423, 425-26 (1962). Furthermore, this prior
event did not involve a gun and was not so "strikingly similar[]"
as the events on the night of Cox's wife's death. Lafon v.
Commonwealth, 17 Va. App. 411, 418, 438 S.E.2d 279, 284 (1993).
It bore no nexus to the incident for which Cox was being tried.
Nothing about the earlier event had any tendency to prove whether
the bullet from the gun was deliberately or accidentally
discharged. Moreover, even if one assumes that factual relevance had
been established, the trial judge was required to exclude
evidence of a prior bad act when "the expanse of time has truly
obliterated all probative value." Id. at 419, 438 S.E.2d at 284.
Thus, to be admissible, the prior event must be "'sufficiently
connected in time and circumstances with the homicide as to be
likely to characterize'" Cox's conduct toward his wife in order
to be admissible. Id. (citation omitted). In this case, an
incident whereby a married couple "exchanged cross words" over
eighteen months prior to the death of one of the parties is
simply too remote in time to have any probative value regarding
the deliberate or accidental nature of the shooting.
The evidence tended only to prove to the jury that Cox had a
"propensity [for violence and] tend[ed] to reverse his
presumption of innocence." Lewis v. Commonwealth, 225 Va. 497,
502, 303 S.E.2d 890, 893 (1983). "The only purpose it could
7 serve, and the only effect it would have, was to prejudice [Cox]
in the minds of the jury." Williams, 203 Va. at 840, 127 S.E.2d
at 426.
I would hold, therefore, that the trial judge erred in
admitting the evidence. Thus, I would reverse the conviction.