Boney v. Com.

• Court: Virginia Court of Appeals
• Writing for the Court: BRAY.
• Citation: Boney v. Com., 514 S.E.2d 810, 29 Va.App. 795 (Va. App. 1999)
• Decision Date: 01 June 1999
• Docket Number: Record No. 0591-98-2.
• Parties: Joseph C. BONEY v. COMMONWEALTH of Virginia.

514 S.E.2d 810

29 Va. App. 795

Joseph C. BONEY v. COMMONWEALTH of Virginia.

Record No. 0591-98-2.

Court of Appeals of Virginia, Richmond.

June 1, 1999.

Jerry E. Waldrop (C. Gilbert Hudson, Jr., on brief), Emporia, for appellant.

Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: ELDER and BRAY, JJ., and BAKER, Senior Judge.

BRAY, Judge.

Joseph C. Boney (defendant) was convicted by a jury of burglary, first-degree murder, malicious wounding, and related firearms offenses. Defendant complains on appeal that the trial court erroneously admitted evidence of prior offenses and related misconduct.¹ We agree and reverse the convictions.

In accordance with well established principles, we review the record on appeal in the light most favorable to the Commonwealth. See Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997).

Defendant and his wife, Anita Boney, were married in 1989, and four children were born to their union. In October, 1996, Mrs. Boney separated from defendant, relocating with the children to a rental house in Emporia.² Although defendant remained in the former marital home, Mrs. Boney "saw him all the time, just about every day." Defendant "would come to any window at the house that he could look into to see what [she] was doing," "come by and see the children," and sometimes "park his car outside [Mrs. Boney's house] and sleep in the car." During the week preceding the instant offenses, defendant asked Mrs. Boney "what James Ricks [the murder victim] was doing at [her] house," and threatened, "don't ever let me catch James at your house or I'm going to kill him."

In the late evening of December 21, 1996, Mrs. Boney arrived home from work and "saw [defendant] pulling away from [her] driveway." Defendant soon returned, however, "knocked on the door," and was told by Mrs. Boney that "he could [not] come in." Defendant inquired, "where was the children?" Mrs. Boney answered that "they were at [her] mother's house," and he drove away. Within minutes, defendant appeared at Mrs. Boney's bedroom window, again questioned her about the children, and, once more, left the area.

Shortly after midnight, defendant returned to the window and observed Mrs. Boney in bed with a man, later identified as Ricks, apparently "making love." Defendant recalled that he immediately entered the house through the rear door, "seen two peoples jump off the bed, no clothes or nothing" but, "that's all [he] remember[ed] right there." Mrs. Boney testified that she and Ricks "were talking" in the bed, following sexual intercourse, and "heard ... the screen door crack ... [and] a very loud, kicking, banging noise" as defendant "broke through the door." The couple "jump[ed] out of bed," naked, and Ricks fled through the living room and "out the front door" with defendant in pursuit, shouting "go ahead you m___ f___ and run, I'm going to get you." Mrs. Boney "heard some shots," and Ricks was found nearby, dead from gunshot wounds inflicted by the defendant.

Moments later, Mrs. Boney saw defendant approaching the kitchen window. Fearful, she began "pushing the back door," previously damaged by defendant, "to keep him from coming into the house." However, defendant soon overpowered Mrs. Boney and entered the home, holding a gun "in an upward motion." Once inside, defendant turned toward Mrs. Boney, declared, "I told you if ... I ever saw you with anybody else I would get you too," and shot her. Defendant watched Mrs. Boney "fall down between the kitchen table and the back door [and] walked away." Wounded, Mrs. Boney "crept out of the back door ... to [her] neighbor's house," summoned police, and defendant was arrested at the scene.

During a hearing on several pretrial motions, the Commonwealth urged the court to permit evidence at trial of defendant's "prior bad acts and conduct relating to" Mrs. Boney, "to prove his motive, ... intent and ... conduct and feeling" toward her. Despite repeated references by the prosecutor to "assaults," "similar incident[s]," and "other threats," crimes and prior bad acts of the defendant "involving" Mrs. Boney, dating to 1986, the hearing record provides few details of such misconduct. Nevertheless, over defendant's objection, the court ruled that "in light of ... the history between the parties," it would allow evidence of assaults by defendant that resulted from "incidents" in 1992 and 1993.

At trial, Mrs. Boney initially testified that "quite a few times" she had been "in a situation with [defendant] and a gun," later recalling an "incident" in 1993 which "involved" defendant, a man identified only as Larry Fields, and "a gun." She was unsure of any offenses committed by defendant, but "kn[ew] that he stayed in jail for awhile." After defendant stipulated "that he was convicted of an assault and battery on Larry Fields," the court noted that, "[t]he fact that there was a conviction is in evidence." Mrs. Boney also vaguely alluded to an "incident" in 1992 between defendant and herself.

The court instructed the jury, "You may consider evidence that the defendant committed offenses other than the offense for which he is on trial only as evidence of the defendant's motive and intent in connection with the offense for which he is on trial and for no other purpose." The court also instructed the jury on both first and second-degree murder, but denied defendant jury instructions on manslaughter and unlawful wounding. Defendant was convicted of first-degree murder, malicious wounding, breaking and entering with the intent to commit a felony while armed with a deadly weapon, and related firearm offenses, the subject crimes. He now appeals, arguing that the court erroneously admitted evidence of the prior misconduct and assault conviction.

It is well established that evidence tending to show that defendant committed a prior crime is generally inadmissible. See, e.g., Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970); Burley v. Commonwealth, 29 Va.App. 140, 144, 510 S.E.2d 265, 267 (1999). Such evidence invites confusion of the issues and unfair surprise and suggests criminal propensity, circumstances that compromise the fact-finding process and the presumption of innocence, to the distinct prejudice of an accused. See Wilkins v. Commonwealth, 18 Va.App. 293, 297, 443 S.E.2d 440, 443 (1994) (en banc); see also Guill v. Commonwealth, 255 Va. 134, 138, 495 S.E.2d 489, 491 (1998). However, "the `general rule ... must sometimes yield to society's interest in ... truth-finding ...,' and numerous exceptions allow evidence of prior misconduct `[w]henever the legitimate probative value outweighs the incidental prejudice to the accused.'" Wilkins, 18 Va. App. at 297, 443 S.E.2d at 443.

Thus,

[e]vidence that tends to establish a fact at issue is relevant and material and, therefore, admissible, if its probative value is not outweighed by any prejudicial effect. Despite the

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