Troy Alan Simmons v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
TROY ALAN SIMMONS
MEMORANDUM OPINION *
v. Record No. 0152-97-2 BY JUDGE MARVIN F. COLE
APRIL 7, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
Cary B. Bowen (Amy M. Curtis; Bowen, Bryant,
Champlin & Carr, on brief), for appellant.
Richard B. Smith, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Appellant, Troy Alan Simmons, was convicted of second degree
murder and burglary while armed. On appeal, he contends that the
trial court committed error when it (1) failed to declare a
mistrial when evidence of prior bad acts was admitted in evidence
in violation of an agreement between defense counsel and the
prosecutor that such evidence would be excluded; (2) introduced
in evidence a statement of the appellant made at the hospital,
which the trial court found to be unreliable; and (3) denied
appellant a fair trial because of cumulative prejudice. We
affirm.
On appeal, we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
fairly deducible therefrom. See Martin v. Commonwealth, 4 Va.
App. 438, 443, 358 S.E.2d 415, 418 (1987).
I. Mistrial
Before trial, appellant and the prosecutor made a joint
motion in limine, advising the court that they had agreed not to
go into evidence of other offenses and not to explore areas of
other ancillary offenses. The prosecutor stated, and defense
counsel concurred, that they did not want to dwell on specific
bad acts in front of the jury; this would apply to the
Commonwealth on direct examination of witnesses but that it might
not apply during cross-examination of witnesses. The court
granted the joint motion.
During the direct testimony of Melissa Schaack, daughter of
the victim and girlfriend of appellant, the following questioning
occurred:
Q. Now, let me ask you, had there been any
problems or had you seen any problems
between Mr. Simmons and your mother?
A. Yes. There was.
Q. Of what nature?
A. Troy and my mother never did get along.
. . . [N]either one of them liked each
other.
Q. Other than the fact that they didn't get
along, had there been any serious
problems?
A. There was a problem right after
Thanksgiving. He assaulted my brother
and sister's babysitter and we had out a
trespassing warrant.
Q. I'm talking about your mother and Mr.
Simmons. You had seen no trouble
between your mother and Mr. Simmons at
all?
Mr. Bowen: Judge, I'm going to reserve an
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objection to that comment to argue at the
proper time.
Later, while the jury was excused, defense counsel made a
motion for a mistrial based upon Schaack's testimony which
counsel claimed violated the agreement between the parties and
the in limine ruling of the trial court. The trial judge denied
the mistrial motion, but offered to give a curative instruction.
Defense counsel asked the judge not to give the curative
instruction.
The testimony of Melissa Schaack indicated that appellant
and her mother (the victim) did not get along. Although there
was no violence between them, there were arguments. Appellant
testified that when he phoned, the victim would refuse to let him
speak to Melissa and would hang up on him. Other evidence
indicated that the victim had instructed appellant not to call
her home.
In Martin v. Commonwealth, 11 Va. App. 397, 409, 399 S.E.2d
623, 629 (1990), we stated: "The defendant refused the
cautionary instruction. When a defendant not only does not
request an instruction, but denies the court's offer to give one,
any error which may have been committed otherwise is waived." By
refusing the trial judge's offer to give a curative instruction,
the defendant waived his objection to the alleged error.
Furthermore, even if defense counsel had not waived his
objection, the trial court did not err by denying the motion for
a mistrial. Although the parties agreed to exclude the evidence
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and the trial judge concurred in the agreement, the evidence was
otherwise admissible and the trial court did not err by admitting
relevant and material evidence.
Evidence of prior crimes or bad acts of a defendant are
inadmissible when offered only to prove a criminal predisposition
to commit the crime for which the defendant is charged.
"'Evidence of other offenses is [admissible] if it shows the
conduct and feeling of the accused towards his victim, if it
establishes their prior relations, or if it tends to prove any
relevant element of the offense charged.'" Foster v.
Commonwealth, 6 Va. App. 313, 323, 369 S.E.2d 688, 694 (1988)
(quoting Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176
S.E.2d 802, 805 (1970)). Here, the evidence was admissible to
prove the prior relationship between the defendant and the
victim, and we will not reverse the trial court for refusing to
declare a mistrial for not excluding admissible evidence.
II. Appellant's Hospital Statement
The appellant testified on his own behalf. During
cross-examination, the prosecutor asked if he recalled being
interviewed by Detective Church at the hospital. Defense counsel
objected to the admissibility of the appellant's statement to
Church because Miranda warnings were not given and because
appellant was in the recovery room after major surgery and was
under sedation. Defense counsel claimed that a statement given
under these circumstances was not reliable. The dispositive
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question is whether there was manifest prejudice when a statement
of the appellant, which the trial court later found to be
unreliable, was introduced into evidence.
After considering argument of counsel, the trial judge
stated:
I think you may ask Mr. Simmons if he had
given a statement to Detective Church that
differs significantly from the statement he
has given the court today, and if he says he
doesn't know, or if he doesn't remember, then
we'll bring Detective Church in. If he says,
"Yes, it was," then that's the end of it.
Defense counsel did not object to this procedure, but stated
that the Church statement given to him by the prosecutor did not
appear to be a complete interview. The trial judge stated that
defense counsel was entitled to have full information. It was
arranged for him to interview Church and to hear a tape of the
conversation between Church and Simmons at the hospital.
After interviewing Church and listening to the tape, defense
counsel advised the trial court:
I believe that what Mr. Simmons will say is
that there are differences in what Mr. Church
says and what he says today, and as well with
the statement to [Officer] Crews. I'm not
trying -- once Mr. Von Schuch asks him, we'll
know. I mean I don't know of any way to
handle it really.
At this point, the record indicates that every objection
made by defense counsel had been resolved to his satisfaction by
the trial judge. The prosecutor asked Simmons the questions
proposed by the judge with no further objection:
Q. Do you recall talking to Detective
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Church of the Chesterfield County Police
Department after you came out of surgery
at the Medical College of Virginia?
A. Vaguely, sir.
Q. And isn't it true that the statement you
made to him at that time was different
from the statement you've just given
this jury as to how Ms. Veca was
stabbed?
A. Yes, sir, that's entirely possible.
Q. So both of the statements that you gave
the police officer at the scene and the
statement that you gave Detective Church
are different than what you've told the
jury here today?
A. Yes, sir. I believe that's possible.
In view of these admissions, the prosecutor did not inquire
about the details or content of the appellant's statements to
Church. Although the hospital statement was marked as an exhibit
for identification purposes, the jury neither saw the hospital
statement, nor was it introduced into evidence.
We find that the defendant was not prejudiced by the
questioning about his hospital statement to Church because the
record does not reflect that the hospital statement was
introduced in evidence or shown to the jury.
III. Cumulative Prejudice
The appellant contends that he was denied a fair trial
because the two separate grounds for which he sought a mistrial
also amounted to cumulative prejudice. This argument was not
raised in the trial court and for this reason we will not
consider it on appeal. See Jacques v. Commonwealth, 12 Va. App.
591, 593, 405 S.E.2d 630, 631 (1991); Rule 5A:18.
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Accordingly, Rule 5A:18 bars our consideration of this
question. Moreover, the record does not reflect any reason to
invoke the good cause or ends of justice exception to Rule 5A:18.
Affirmed.
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