Israel Musa Shaw v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia
ISRAEL MUSA SHAW
MEMORANDUM OPINION * BY
v. Record No. 0357-98-2 JUDGE ROBERT P. FRANK
JULY 20, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Matthew P. Geary (Goodwin, Sutton, DuVal &
Geary, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Israel Musa Shaw (appellant) appeals his conviction after a
jury trial of abduction and using a firearm during the
commission of a felony (abduction). On appeal, he challenges
the trial judge’s denial of his motion for a mistrial and the
trial judge’s denial of his request for a cautionary
instruction. We conclude that the trial court erred and reverse
the convictions and remand for a new trial.
I. BACKGROUND
According to well-settled principles of appellate review,
we recite the facts in the light most favorable to the
Commonwealth, the prevailing party below.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
On December 10, 1997, appellant was convicted of abducting
Alyssa Meyer and using a firearm during the commission of the
abduction.
Meyer drove into the parking lot of her apartment building
on September 14, 1997 at 11:00 p.m. She removed some groceries
from the trunk of her car and walked towards the apartment
building. A man, later identified as Duane Washington, came up
behind her. When she turned around, he had a gun to her head.
The man demanded her keys, forced her to walk back to her
vehicle, made her open the trunk and told her to get inside.
She hesitated, and then saw appellant approach. Meyer testified
that appellant told her that she “better get in the car.” The
first man, Washington, took her identification and keys. Then,
she struggled as someone attempted to push her into the trunk of
her car. She was able to break free and run. As she was
running, she was tackled from behind, and, then, was struck in
the forehead with the gun. She was able to escape a second time
and screamed for help. Someone inside the apartment building
came out onto a balcony and yelled at the men. Appellant and
Washington ran away.
Officer Kenneth Coleman testified that he received a radio
call regarding the abduction and stopped appellant a mile to a
mile and one-half from the apartment building because he matched
Meyer’s description of one of the suspects. Meyer’s description
to police was that the suspect was wearing a gray shirt with
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“USA” and a flag on it. Appellant was wearing such a shirt.
Officer Coleman testified that appellant was out of breath,
breathing heavily, and nervous when he stopped appellant on the
street. Appellant agreed to return to the scene with Officer
Coleman, and, there, Meyer identified him as one of the men
involved in the abduction.
On direct examination, Duane Washington, a witness for the
Commonwealth, testified that he pled guilty to robbery,
abduction and two counts of use of a firearm during the
commission of a felony. He stated that the Commonwealth had
made no promises to him in exchange for his testimony. He
testified that he and appellant were best friends and that
appellant was with his cousin, Lamont, and another friend,
Cartwright, on the night of September 14, 1997. Appellant and
his cousin had some guns that night, and appellant said he
wanted to rob someone. Washington gave appellant a mask, and
the four men went to Meyer’s apartment building. They were
there for twenty-five to thirty minutes. When no one would do
anything, Washington took the mask and ran up behind Meyer.
Washington grabbed Meyer. Appellant then came out with the
gun and told her to get in the trunk of her car. Meyer got
scared, and when appellant put the gun down, she ran.
Washington testified that Meyer was never hit with the gun.
Appellant’s cousin, Lamont, cut Meyer off as she was trying to
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run away, and appellant then hit her a couple of times.
Washington admitted to hitting her once.
On cross-examination, Washington was asked about two
charges against him that had been dropped:
[DEFENSE COUNSEL]: Didn’t you just come in
here a couple of hours ago and he [the
prosecutor] dropped a couple of charges
against you in return for your plea of
guilty; do you remember that?
The Commonwealth’s attorney then said, before Washington
could respond to defense counsel’s question and in the presence
of the jury, “They were dropped for the defendant [appellant]
also, Judge.”
Defense counsel moved for a mistrial. The trial judge told
defense counsel to move on and overruled the motion.
Washington then testified that the charges had not been
dropped, and the following exchange occurred:
[DEFENSE COUNSEL]: They weren’t dropped?
So, if he [the prosecutor] just said that
they were he is lying now, too?
[TRIAL JUDGE]: He didn’t say that, Mr.
Geary.
Defense counsel again asked Washington whether the charges
were dropped.
[TRIAL JUDGE]: Wait a minute, Mr. Geary.
Let’s get the whole fact out. Two charges
were dropped against him [Washington] and
two charges were dropped against him
[appellant], which were identical. Don’t
play games.
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Defense counsel again asked Washington about the charges
being dropped.
[WASHINGTON]: Well, it was said, I mean,
but I haven’t seen any papers. But, he told
me that two charges were dropped against me
and two charges were dropped against him
[appellant] that way both of us have the
same charges.
At the conclusion of the evidence, the defense renewed its
motion for a mistrial and motion to strike. Both motions were
denied. The defense also requested a cautionary instruction
regarding the Commonwealth’s attorney’s statement about the
charges against appellant that were dropped, and the Court
denied the request.
Appellant was acquitted of robbery and use of a firearm
during the commission of a robbery, but he was convicted of
abduction and use of a firearm during the commission of an
abduction.
II. ANALYSIS
Appellant’s first assignment of error is that the trial
court erroneously denied his motions for a mistrial that arose
because of the prosecutor’s statement in front of the jury
regarding the two charges against appellant that were dropped.
We agree with appellant.
“A trial court exercises its discretion when it determines
whether it should grant a motion for a mistrial. Whether
improper evidence is so prejudicial as to require a mistrial is
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a question of fact to be resolved by the trial court in each
particular case.” Beavers v. Commonwealth, 245 Va. 268, 280,
427 S.E.2d 411, 420 (1993) (citing Lewis v. Commonwealth, 211
Va. 80, 83, 175 S.E.2d 236, 238 (1970)). Therefore, “[u]nless
[the appellate court] can say that the trial court’s resolution
of that question was wrong as a matter of law, it will not
disturb the decision on appeal.” Id. (citing Spencer v.
Commonwealth, 240 Va. 78, 95, 393 S.E.2d 609, 619 (1990)).
However, “[w]hen the evidence is so prejudicial that it
‘probably remained on the minds of the jury and influenced their
verdict,’ . . . the judgment will be reversed on appeal.” Id.(citing Asbury v. Commonwealth, 211 Va. 101, 104, 175 S.E.2d
239, 241-42 (1970)).
Evidence of other crimes or bad acts of an accused are
generally inadmissible in a criminal prosecution. See
Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802,
805 (1970). “The purpose of this rule is to prevent confusion
of offenses, unfair surprise to the defendant and a suggestion
of ‘criminal propensity,’ thus preserving the ‘presumption of
innocence.’” Crump v. Commonwealth, 13 Va. App. 286, 289, 411
S.E.2d 238, 240 (1991) (citing Lewis v. Commonwealth, 225 Va.
497, 502, 303 S.E.2d 890, 893 (1983); Sutphin v. Commonwealth, 1
Va. App. 241, 245-46, 337 S.E.2d 897, 899 (1985)).
Courts have recognized exceptions to the general rule
excluding evidence of other crimes or bad acts. See Sutphin, 1
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Va. App. at 245, 337 S.E.2d at 899. The threshold requirement
for admissibility of evidence of other offenses is relevancy to
an issue or element in the present case. See id. (citing
Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805). “[T]he test is
whether ‘the legitimate probative value outweighs the incidental
prejudice to the accused.’” Hawks v. Commonwealth, 228 Va. 244,
247, 321 S.E.2d 650, 652 (1984) (quoting Lewis, 225 Va. at 502,
303 S.E.2d at 893). We have held that evidence of other crimes
is admissible
(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;
(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.
Sutphin, 1 Va. App. at 245-46, 337 S.E.2d at 899.
The prosecutor’s statement does not come within any of the
exceptions to the general rule recognized by this Court. The
statement was not relevant to proving an element or issue in the
present case, and it was prejudicial in that it informed the
jury that appellant originally was charged with additional
offenses related to the incident for which he was being tried.
Further, the statement created an association of guilt between
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appellant and Washington. Washington admitted that he pled
guilty to the offenses for which appellant was being tried, but
after the prosecutor’s statement, the jury received the
additional information that appellant and Washington were
treated in the same manner by the Commonwealth in that both were
charged with identical offenses and both had identical charges
dropped. Such information may have created an association of
guilt in the minds of the jurors.
We hold, therefore, that the trial court committed error in
refusing to grant appellant’s motion for a mistrial because the
prosecutor’s statement was not relevant and was prejudicial to
appellant’s defense.
The Commonwealth argues that any error committed by the
trial court in overruling the motion for a mistrial was harmless
and did not result in prejudice to the appellant. We disagree.
“When it plainly appears from the record and the evidence given
at the trial that the parties have had a fair trial on the
merits and substantial justice has been reached,”
non-constitutional error is harmless. Code § 8.01-678. If
error at trial has affected the verdict, then “a fair trial on
the merits and substantial justice” have not been reached. See
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d
910, 911 (1991) (en banc). “An error does not affect a verdict
if a reviewing court can conclude, without usurping the jury’s
fact finding function, that, had the error not occurred, the
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verdict would have been the same.” Id. In Lavinder, we
explained that “in order to determine if it plainly appears that
the error did not affect the verdict, we must review the record
and the evidence and evaluate the effect the error may have had
on how the finder of fact resolved the contested issues.” Id.
at 1007, 407 S.E.2d at 912. The first step in determining
whether an error may have affected a verdict is to determine
whether the trial court gave a curative instruction. See id.If the trial court did give a curative instruction, the jury is
presumed to have followed such instruction unless the record
indicates otherwise. See id. If a curative instruction was not
given, the presumption is that the error was prejudicial
“‘unless it plainly appears that it could not have affected the
result.’” Id. (quoting Caldwell v. Commonwealth, 221 Va. 291,
296, 269 S.E.2d 811, 814 (1980)).
At trial, the court did not give a curative instruction.
Thus, we begin with the presumption that the prosecutor’s
statement was prejudicial. We cannot say, as a matter of law,
that the prosecutor’s statement did not affect the outcome of
appellant’s trial. As we discussed above, the prosecutor’s
statement provided the jury with information about other
offenses committed by appellant and may have created an
association of guilt between appellant and Washington.
Therefore, we hold that the denial of the motion for a mistrial
was not harmless error.
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The Commonwealth further argues that appellant waived any
objection to the prosecutor’s statement because Washington later
testified during cross-examination that the two charges were
dropped against appellant. The Commonwealth correctly cites
Saunders v. Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638
(1970), for the rule that an accused, who unsuccessfully objects
to evidence he considers improper, waives the objection if he
introduces evidence of the same character on his own behalf.
However, the rule from Saunders must be understood in
conjunction with this Court’s holding in McGill v. Commonwealth,
10 Va. App. 237, 391 S.E.2d 597 (1990). In McGill, we held that
the defendant’s attempt to rebut evidence of other crimes did
not constitute waiver of his objection to such evidence. See
id. at 244, 391 S.E.2d at 601. This Court distinguished
evidence elicited on cross-examination and during rebuttal from
evidence actually introduced on a defendant’s own behalf. See
id. Therefore, the Saunders rule does not apply to
cross-examination.
Washington’s answers were in response to questions during
the defense’s cross-examination, and, therefore, appellant did
not waive his objection to the prosecutor’s statement.
Appellant’s second assignment of error is the trial judge’s
refusal to grant a cautionary instruction regarding the
prosecutor’s statement about the dropped charges against
appellant. We find this assignment without merit.
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A motion for a mistrial or a cautionary instruction must be
timely made in order to preserve the issue for appeal even if an
objection to the prosecutor’s alleged improper comments was
properly made and overruled. See Cheng v. Commonwealth, 240 Va.
26, 38, 393 S.E.2d 599, 605-06 (1990). “This requirement
affords the trial court the opportunity to provide cautionary
instructions when appropriate to correct the alleged error.”
Beavers, 245 Va. at 279, 427 S.E.2d at 419.
Appellant did not request a cautionary instruction at the
time the prosecutor interjected with the statement regarding the
dropped charges. Instead, appellant waited to request the
instruction at the conclusion of all the evidence, and the trial
court did not have the opportunity to instruct the jury at the
time the error occurred. We find that appellant’s request for
an instruction was not timely made, and, therefore, the trial
judge’s denial of the instruction at the conclusion of the
evidence was not error.
III. CONCLUSION
For these reasons, we hold that the trial court committed
error when it refused to grant appellant’s motion for a
mistrial. The prosecutor’s statement was prejudicial in that it
introduced information about other offenses committed by the
appellant which were not relevant to proving the offenses for
which appellant was being tried. The trial court, however, did
not commit error in refusing appellant’s request for a
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cautionary instruction at the conclusion of all of the evidence
as such request was not timely made.
Reversed and remanded.
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