Antonio Francis Buck v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bray
Argued at Richmond, Virginia
ANTONIO FRANCIS BUCK
MEMORANDUM OPINION * BY
v. Record No. 1806-98-2 JUDGE SAM W. COLEMAN III
JANUARY 11, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Carolyn V. Grady (Epperly, Follis & Schork,
P.C., on brief), for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Antonio Francis Buck, the appellant, was convicted in a
jury trial of two counts of first-degree murder, in violation of
Code § 18.2-32, and two counts of use of a firearm during the
commission of a felony, in violation of Code § 18.2-53.1. The
sole issue on appeal is whether the trial court erred by
admitting evidence of other crimes and prior bad acts. For the
following reasons, we affirm the convictions.
BACKGROUND
The Richmond Police Department received an emergency call
that a shooting had occurred at a residence on Calhoun Street.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Detectives were dispatched to Annette Morris' apartment. Upon
arrival, the detectives found two homicide victims, Annette
Morris and Theresa Newton, lying on the floor next to the front
door. Evidence indicated that the front door had been forcibly
entered. The back door of the apartment was barricaded from the
inside with a chair. The apartment was not in disarray, and
there was no evidence that Morris had been robbed.
At trial, a forensic scientist testified that Newton had
been shot at point blank range and that Morris had been shot
twice at close range, approximately twenty-four inches from the
gun barrel. All three bullets were fired from the same weapon.
The forensic scientist also testified that the weapon was most
likely a .38 caliber firearm.
On the evening of the shooting, Morris' nine-year-old son,
Tyree Morris, was asleep upstairs. Tyree was awakened suddenly
and heard his mother, Annette Morris, and Buck arguing. Tyree
had known Buck for almost a year while Buck was dating Tyree's
mother. Tyree heard his mother scream "don't shoot" a number of
times, and then he heard a gunshot and someone fall against a
chair. Soon after hearing the gunshot, Tyree went to the pay
phone across the street and called 9-1-1.
At trial, the Commonwealth introduced, over the defendant's
objection, several arrest warrants which had been sworn out
against Buck by Morris, charging him with assault and battery of
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Morris, trespass, and pointing and brandishing a firearm at
Morris. Some of the warrants had been sworn out eight months
before Morris was shot.
A Richmond police officer testified that twelve days before
Morris was killed, he investigated a complaint by Morris that
Buck had assaulted her. The officer arrested Buck nine days
before Morris was killed and while being taken into custody,
Buck stated that Morris should not have taken out a warrant for
him, that "she was going to pay," and that he was "going to get
her." Another deputy testified that while Buck was in custody
on this charge, he was in a "rage." The deputy overheard Buck
on the telephone stating that he was "going to kill [Morris],
she didn't have to have me arrested, I'm going to kill her."
The deputy testified that she interceded and told Buck not to
make threats, but he persisted in stating that he would kill
Morris for having him arrested.
Morris' brother testified that he saw Buck with a
.38 caliber handgun two months before his sister's death.
Morris' sister testified that during that same time period, she
witnessed Buck "grabbing" Morris and heard Buck "threaten to
kill Morris." Tyree Morris testified that during the month
before his mother's death, he witnessed Buck push her over a
balcony and into a wall.
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ANALYSIS
The question on appeal, as framed by appellant, is whether
the trial court erred by permitting the Commonwealth to
introduce irrelevant and prejudicial evidence in the form of
warrants charging unadjudicated crimes and witnesses' testimony
about past unrelated acts of violence between Morris and Buck.
The issue, as we perceive it, is whether the evidence of prior
bad acts by Buck against Morris and the fact that Morris had
Buck arrested is sufficiently relevant to prove a material fact.
In order to be admissible under one of the exceptions to the
rule barring the admission of evidence of other crimes or prior
bad acts, the evidence must be relevant and the probative value
of the evidence must outweigh any incidental prejudice.
"'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.'" Crews v.
Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407, 409 (1994)
(quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838,
842 (1988)). "Evidence which 'tends to cast any light upon the
subject of the inquiry' is relevant." Cash v. Commonwealth, 5 Va.
App. 506, 510, 364 S.E.2d 769, 771 (1988) (citation omitted).
Evidence which tends to prove a material fact is relevant and
admissible, "'unless excluded by a specific rule or policy
consideration.'" Evans v. Commonwealth, 14 Va. App. 118, 122, 415
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S.E.2d 851, 853-54 (1992) (quoting Cash, 5 Va. App. at 510, 364
S.E.2d at 771).
Evidence that the accused committed crimes or other bad
acts is inadmissible if offered solely to prove the accused
committed or likely committed the crime charged. See
Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802,
805 (1970). To infer that an accused probably committed the
charged offense because he or she has committed a similar
offense is unsound reasoning and, without other evidence making
the proof of a prior bad act or crime relevant to a material
fact in the case, such evidence is highly prejudicial and
inadmissible. "[Similar crimes evidence] merely show[s] that
[an accused] has the propensity to commit the crime [charged]
and this inference has been held to be error because it reverses
his presumption of innocence." Spence v. Commonwealth, 12 Va.
App. 1040, 1045, 407 S.E.2d 916, 918 (1991).
However,
[t]he many exceptions to the rule are as
well established as the rule itself.
Specifically, other crimes evidence is
admissible where it shows the conduct and
feeling of an accused toward his victim or
establishes their prior relationship; where
it proves motive or opportunity to commit
the crime charged; where it proves an
element of the crime charged; where it
proves intent or guilty knowledge on the
part of the accused . . . . Thus, in order
to be admissible under one of the
exceptions, evidence of other crimes must
tend to prove a material fact and its
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probative value "must outweigh the prejudice
inherent in proving that an accused has
committed other crimes."
Rodriguez v. Commonwealth, 18 Va. App. 277, 280-81, 443 S.E.2d
419, 422 (1994) (en banc) (citations omitted).
Here, the evidence that Morris had sworn out warrants
against Buck for assaults and trespasses allegedly committed
against her and the witnesses' testimony concerning prior bad
acts committed by Buck against Morris were properly admitted to
show the nature of the relationship between the accused and the
victim and to prove that Buck harbored a motive to harm or kill
Morris. It is the fact that warrants had been sworn out by
Morris against Buck, irrespective of the allegations in the
warrants, that proved that a contentious and tumultuous
relationship existed between the two.
The fact that Morris had sworn out warrants against Buck
also proved that Buck had a motive and an intent to kill or do
harm to Morris. See Callahan v. Commonwealth, 8 Va. App. 135,
141-42, 379 S.E.2d 476, 480 (1989) (finding that evidence of
defendant's threats and assaults on wife and children were
properly admitted to show the defendant's relationship with his
victims, which proves motive and intent). Proof that an accused
has a motive to harm or kill a victim is admissible as
circumstantial evidence that the person committed the crime, see
Wilson v. Commonwealth, 16 Va. App. 213, 220, 429 S.E.2d 229,
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233-34, aff'd en banc, 17 Va. App. 248, 436 S.E.2d 193 (1993),
and did so with a specific intent. See Robinson v.
Commonwealth, 228 Va. 554, 557, 322 S.E.2d 841, 843 (1984).
Thus, we hold that the evidence that Morris had Buck arrested
was relevant to prove motive and to show the nature of the
relationship between the accused and the victim. See Kelly v.
Commonwealth, 8 Va. App. 359, 369-71, 382 S.E.2d 270, 275-77
(1989) (finding that evidence that defendant previously
assaulted and battered his wife and was subsequently arrested
was admissible to show a past course of violence by the
defendant and a motive for killing his wife).
In addition to the evidence that Morris had Buck arrested
on several occasions, on two occasions after Buck had been
arrested for allegedly assaulting Morris, he, in the presence of
two law enforcement officers, angrily expressed his intention to
kill Morris for having him arrested. See generally, Moore v.
Commonwealth, 222 Va. 72, 76, 278 S.E.2d 822, 824 (1981) (noting
that where motive is a relevant fact, evidence of other offenses
is admissible if it shows the conduct or attitude of the accused
toward his victim or establishes the relationship between the
parties). The evidence of specific threats by an accused to
harm or kill the victim is highly relevant to prove motive and
intent and is a circumstance that the fact finder may consider
in determining an accused's guilt. Thus, the admission of the
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specific threats Buck made after he was arrested, to kill or
harm Morris for having him arrested, was highly relevant to
prove motive. In addition, the specific instances of Buck
"grabbing" and "pushing" Morris and threatening to kill her were
also relevant to prove the nature of the relationship between
the parties and to prove motive.
Our inquiry does not end there, however. In order for the
relevant evidence of other crimes and prior bad acts to be
admissible, the legitimate probative value of the evidence must
exceed any incidental prejudice caused Buck. See Guill v.
Commonwealth, 255 Va. 134, 139, 495 S.E.2d 489, 491-92 (1998).
Buck contends that the prejudicial effect of the evidence
outweighed the probative value because the offenses charged in
the warrants included allegations of unadjudicated crimes. His
contention has no merit.
The evidence was not offered to prove the truth of the
charges or crimes allegedly committed by Buck; but rather, the
evidence was offered to show that Morris had him arrested, which
defined their relationship and caused him to threaten to kill
her. The trial court instructed the jury that the warrants were
not to be considered as proof of the charges in the warrants or
to prove that Buck had assaulted Morris in the past. Rather,
the warrants were offered and admitted to prove that over an
eight-month period Morris had Buck arrested on numerous
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occasions and that the continuous arrests provided a motive for
Buck to kill Morris. The jury is presumed to have followed the
trial court's limiting or cautionary instruction. See LeVasseur
v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657 (1983).
In summary, we find that the trial court's admission of the
evidence of the warrants falls within an exception to the rule
barring the admission of evidence of prior bad acts and that the
trial judge did not err by finding that the probative value of
the testimony outweighed any prejudicial effect. See Rodriguez,
18 Va. App. at 280-81, 443 S.E.2d at 422. The admission of the
evidence was not an abuse of discretion. We, therefore, affirm
the judgment of the trial court.
Affirmed.
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