William Michae Knowles v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
WILLIAM MICHAEL KNOWLES
MEMORANDUM OPINION * BY
v. Record No. 1814-97-3 JUDGE SAM W. COLEMAN III
OCTOBER 27, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
Max Jenkins (Jenkins & Jenkins, on brief),
for appellant.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
William Michael Knowles was convicted by a jury of first
degree murder, using a firearm in the commission of murder,
statutory burglary, using a firearm to commit burglary, attempted
capital murder, and using a firearm while attempting capital
murder. Knowles's appeal presents four issues: whether the
trial court erred (1) in denying a mistrial after Knowles
attempted to cut his throat in the presence of the jury; (2) in
denying a mistrial after Vanessa Knowles, defendant's daughter,
stated in an open court outburst that her father should be
incarcerated indefinitely; (3) in denying Knowles's post-trial
motion for an evidentiary hearing to ascertain Vanessa Knowles's
exact words; and (4) in refusing to admit computer records that
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
had been printed by a person who was unavailable to authenticate
the records. Finding no reversible error, we affirm the
convictions.
I. BACKGROUND
Knowles's convictions involved the murder of his wife and
wounding of his daughter, Vanessa Knowles. During the week
before Knowles shot his wife, he purportedly discovered documents
on her computer involving romantic correspondence with several
men. While Knowles was incarcerated, he hired a computer
professional to print copies of the communications. The judge
sustained the Commonwealth's objection to admitting the computer
documents into evidence without the computer person
authenticating them. The judge ruled that although Knowles had
seen the computer messages, he could not authenticate that the
documents proffered into evidence had been printed from the
computer. The judge did, however, permit Knowles to testify as
to the substance of the communications he had seen on the
computer screen.
After closing arguments, but before the jury retired,
Knowles stood and attempted to cut his throat with a disposable
razor. The razor was taken from him, and order was restored.
Shortly thereafter, Vanessa Knowles, a victim and the defendant's
daughter, stood and said, "don't set him free" or "words to this
effect." Knowles moved for a mistrial based on both outbursts. 1
1
The court reporter, for whatever reason, had not recorded
Vanessa Knowles's statement. In arguing the mistrial motion,
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The trial court admonished the jury to disregard both outbursts
and denied the mistrial motions.
II. ANALYSIS
A. Mistrial
"Whether improper evidence is so prejudicial as to require a
mistrial is a question of fact to be resolved by the trial court
in each particular case. Unless . . . the trial court's
resolution of that question was wrong as a matter of law" an
appellate court will not reverse a conviction. Beavers v.
Commonwealth, 245 Va. 268, 280, 427 S.E.2d 411, 420 (1993)
(citation omitted). Generally, a judgment will not be reversed
for the mention of evidence which the court promptly and
unequivocally instructs the jury to disregard "'unless there is a
manifest probability that the [jury could not disregard the
evidence and it] . . . has been prejudicial'" to the defendant.
Coffey v. Commonwealth, 188 Va. 629, 636, 51 S.E.2d 215, 218
(1949) (quoting Washington & O.D. Ry. v. Ward's Adm'r, 119 Va.
334, 339, 89 S.E. 140, 142 (1916)). However, "``if such illegal
evidence was so impressive that it probably remained on the minds
of the jury and influenced their verdict,'" then the jury
admonition is ineffective to cure the error. Mills v.
(..continued)
defendant's counsel stated that Vanessa Knowles had said "don't
set him free" or "words to this effect." In a post-trial motion,
Knowles proffered that two witnesses would have testified that
"Vanessa Knowles stated word [sic] to the effect ``don't ever let
him out.'" The Commonwealth does not contest the accuracy of the
statement.
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Commonwealth, 24 Va. App. 415, 420, 482 S.E.2d 860, 862 (1997)
(quoting Asbury v. Commonwealth, 211 Va. 101, 104, 175 S.E.2d
239, 241 (1970)).
1. Defendant Knowles's Misconduct
First, the Commonwealth, relying upon our decision in
Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239
(1992), contends that because Knowles failed to fully develop in
his brief an argument that his misconduct prejudiced the jury, we
should not consider Knowles's claim that the trial court erred by
refusing to grant a mistrial.
Knowles's brief recites the pertinent facts, frames the
issue, makes a brief argument, cites limited authority, and
refers to the record in addressing the issue. Although
abbreviated, Knowles's argument on brief is sufficient to present
the issue to this Court. Cf. Savino v. Commonwealth, 239 Va.
534, 547 n.4, 391 S.E.2d 276, 283 n.4 (1990) (refusing to
consider "bald assertion" that death penalty is applied in
discriminatory fashion in support of which appellant made no
argument and cited no authority).
Next, the Commonwealth claims that we are further
procedurally barred by Rule 5A:18 from considering the issue on
appeal because Knowles failed to explicitly object to the trial
court's denial of a mistrial regarding the defendant's
misconduct. The Commonwealth asserts that defendant only made a
motion for a mistrial based on Vanessa Knowles's outburst.
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In support of his mistrial motion, Knowles made a statement
at trial referring to both his conduct and Vanessa Knowles's
outburst. Knowles raised the issue at trial, the trial court
ruled on the issue and Knowles is not procedurally barred from
appealing whether his conduct warranted a mistrial.
The disruptive conduct of a defendant during his trial
generally does not create grounds for mistrial. Sound policy
dictates this result. See Winston v. Commonwealth, 12 Va. App.
363, 370, 404 S.E.2d 239, 243 (1991) (citing Donald M. Zupanec,
Annotation, Disruptive Conduct of Accused in the Presence of Jury
as Ground For Mistrial or Discharge of Jury, 89 A.L.R.3d 960, 963
(1979)). See, e.g., United States v. Harris, 2 F.3d 1452,
1455-56 (7th Cir. 1993) (affirming a denial of mistrial after
defendant climbed upon a table, shouted "kill me!" and "shoot
me!" and attempted to flee the courtroom); Reynolds v. State, 625
N.E.2d 1319, 1320-21 (Ind. App. 1993) (affirming a denial of
mistrial after defendant volunteered incriminating evidence to
the jury). If trial courts were to grant mistrials for a
defendant's purposeful misconduct, defendants would be motivated
to disobey rules of courtroom decorum and would be allowed to
benefit from their own misconduct. We decline to adopt such a
policy.
2. Vanessa Knowles's Outburst
The trial court did not err in refusing to declare a
mistrial because of Vanessa Knowles's outburst in open court.
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Immediately after the incident, out of the jury's presence,
defense counsel moved for a mistrial on grounds that Vanessa
Knowles had exclaimed "don't set him free," or "words to this
effect." The trial court overruled the motion and stated that he
did not "believe the actions of Miss Knowles . . . were such that
the jury in any way would be tainted by what they heard if, in
fact, they heard anything."
The trial judge offered to voir dire the jury to determine
whether any juror had heard Vanessa Knowles's utterance. The
defendant rejected the trial court's offer. Thereafter, the
trial judge admonished the jury to disregard any utterance they
may have heard from Vanessa Knowles.
Knowles relies on our holding in Witt v. Commonwealth, 15
Va. App. 215, 224-25, 422 S.E.2d 465, 471 (1992), for the
proposition that an in-court outburst potentially overheard by a
jury creates a rebuttable presumption of juror prejudice.
Although Witt involved spectator misconduct in the jury's
presence, our holding in Witt was that the trial court erred in
failing to poll the jury to determine whether they had heard
remarks from a witness that "might have . . . prejudiced" them.
Id. In the Witt case we said that "if [the jurors] might have
been prejudiced, then . . . a new trial is awarded." Id. Here,
however, the trial court offered to voir dire the jury to
determine whether they heard remarks from Vanessa Knowles.
Therefore, we will not presume -- as we did in Witt where no
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cautionary instruction was given -- that the jurors were
prejudiced by Vanessa Knowles's remarks when the court offered to
determine whether the jury heard and were prejudiced by the
remarks but defendant's counsel elected not to do so. To the
contrary, we will presume that the jury, if they did hear the
remarks, complied with the trial court's cautionary instruction
to disregard the remarks. See Spencer v. Commonwealth, 240 Va.
78, 95, 393 S.E.2d 609, 619 (1990). Accordingly, the trial court
did not err in refusing to grant a mistrial based on Vanessa
Knowles's outburst.
B. Motion For Evidentiary Hearing
Knowles contends that the trial court erred in overruling
his objection to the trial transcript which failed to include
Vanessa Knowles's statement during her outburst. Knowles asserts
that the trial court should have granted his motion to conduct an
evidentiary hearing in order to determine Vanessa Knowles's exact
words.
Although the court reporter failed to record Vanessa
Knowles's statement, defense counsel proffered that her words
were: "[D]on't set him free." For purposes of its ruling, the
trial court considered the statement as reiterated by defense
counsel. The Commonwealth made no objection regarding its
accuracy. Moreover, defense counsel proffered that had the trial
court granted an evidentiary hearing, witnesses would have
testified that Vanessa Knowles words were: "[D]on't ever let him
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out."
The additional testimony would have been inconsequential to
our review. Furthermore, as previously noted, the evidence fails
to establish that the jury heard Vanessa Knowles and the
defendant rejected the trial court's effort to make that
determination. Accordingly, the trial court did not err in
overruling the objection to the trial transcript and in refusing
the motion for an evidentiary hearing.
C. Authentication of Evidence
Finally, Knowles contends that the trial court erred in
ruling that his testimony was insufficient to authenticate the
documents.
"``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.'" Braxton v.
Commonwealth, 26 Va. App. 176, 186, 493 S.E.2d 688, 692 (1997)
(quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d
838, 842 (1988)). Knowles proffered testimony that he had
examined each of the computer files prior to his incarceration
and that he could identify the documents as exact copies of those
computer files that he had observed on the computer's video
monitor.
The trial court ruled that Knowles was not present when the
computer expert extracted the records from the computer and,
therefore, Knowles had no personal knowledge of the records'
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immediate origin. Knowles could not verify that the documents
proffered into evidence had come from a particular computer, when
the messages had been received, stored, or printed, or other
information that a computer expert would know in order to
authenticate a computer document. Although a party may
authenticate a writing in various ways, including through
circumstantial evidence, "[t]he amount of evidence sufficient to
establish authenticity will vary according to the type of
writing, and the circumstances attending its admission." Walters
v. Littleton, 223 Va. 446, 451, 290 S.E.2d 839, 842 (1982); see
Ragland v. Commonwealth, 16 Va. App. 913, 919, 434 S.E.2d 675,
679 (1993). A computer record is peculiarly susceptible to
tampering and to unidentifiable alterations by any person who has
access to the computer. We cannot say, therefore, that the trial
court abused its discretion by refusing to admit into evidence
the computer documents absent the authenticating testimony of the
computer professional who extracted the documents. Furthermore,
the trial court's exclusion of the documents did not prejudice
Knowles because he was allowed to testify as to the substance of
the computer messages that he had observed.
For the reasons stated, the decision of the trial court is
affirmed.
Affirmed.
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