Clay v. Com., Record No. 1893-97-2.

CourtCourt of Appeals of Virginia
Citation531 S.E.2d 623,33 Va. App. 96
Docket NumberRecord No. 1893-97-2.
PartiesRobert Lewis CLAY v. COMMONWEALTH of Virginia.
Decision Date01 August 2000

J. William Watson, Jr. (Watson & Nelson, P.C., on brief), for appellant.

Leah A. Darron, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., BENTON, COLEMAN, ELDER, BRAY, ANNUNZIATA and BUMGARDNER, JJ., and OVERTON, Senior Judge.

UPON A REHEARING EN BANC

ANNUNZIATA, Judge.

On October 5, 1999, a panel of this Court affirmed the convictions of Robert Lewis Clay for second degree murder and use of a firearm in the commission of murder. We granted Clay's petition for rehearing en banc to consider his contention that the trial court erred by (1) refusing to allow him to cross-examine witnesses Thelma Burns and Carlos Ragland during the voir dire conducted outside the jury's presence, (2) admitting hearsay evidence from these two witnesses, and (3) refusing to allow him to call Deputy David Martin as a witness. We find no reversible error and, for the following reasons, we affirm the convictions.

FACTS

On August 25, 1996, Clay entered the Halifax County Sheriff's Office and asked to speak to Lieutenant Ernest Powell. Appearing "shook-up" and "upset," Clay told Powell he had shot his wife, Joy Clay. Powell told the dispatcher to call the rescue squad. When the rescue squad arrived at Clay's home, they found Mrs. Clay's dead body on the den floor. Mrs. Clay had died from two gunshot wounds.

At trial, Thelma Burns testified outside the presence of the jury, and later before the jury, that she spoke with Mrs. Clay every other day. In the months prior to her death, Mrs. Clay asked Burns whether she could move boxes to Burns' home, as she planned to move because she "was very scared of what her husband might do to her." During one telephone conversation, Burns overheard Clay say to Mrs. Clay, who had just attended a funeral, "I'm going to kill you bitch, you can't never go with me to any of my family's funerals and I'm tired of you, I'm going to kill you, bitch." During a telephone conversation only days before Mrs. Clay was killed, Burns overheard Clay say to Mrs. Clay, "[Y]ou might have got that school bus, but you won't drive that school bus."1

At trial, Carlos Ragland testified outside the presence of the jury, and subsequently to the jury, that Mrs. Clay told him about a month before her death that she was planning to move "because she was afraid of what might happen to her." During another telephone conversation, Ragland overheard Clay call Mrs. Clay a "B" and say that "he was going to kill her because he was tired of her."

Robert Lewis Clay, Jr., the only son of Clay and Mrs. Clay, testified that his mother told him in phone conversations during the month leading up to her death that "she was moving away and getting another job in Roxboro somewhere" because she "couldn't take it no more." Robert testified that Clay was an avid hunter who practiced "safe firearms." Robert never saw Clay load or unload a gun inside the house, and Clay taught him to keep the safety switch on until ready to shoot.

Clay testified that when he confronted his wife about $5,000 missing from his gun cabinet, she first denied knowing anything about the money but then admitted taking the money and refused to return it. Clay "just got all upset" and took a gun from his gun cabinet. Clay testified that he thought his wife would tell him where the money was if she saw the gun. Clay claimed that when he "raised the gun up it just went off." Clay claimed the gun discharged twice, although he did not recall pulling the trigger.

CROSS-EXAMINATION DURING VOIR DIRE

Clay contends the trial court erred by refusing to allow him to cross-examine Burns and Ragland during the voir dire conducted outside the presence of the jury. He claims that the Sixth and Fourteenth Amendments to the Constitution of the United States, and Article I, Section 8, of the Virginia Constitution give him the right to confront his accusers. Therefore, he contends the trial court erred in refusing to allow defense counsel to cross-examine Burns and Ragland during voir dire conducted outside the presence of the jury.

Although Clay objected when the trial judge refused to allow defense counsel to cross-examine Burns and Ragland on voir dire conducted out of the presence of the jury, he did not do so on constitutional grounds and did not specify any constitutional grounds. No ruling of the trial court will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice. See Rule 5A:18.

The record does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18. Prior to the trial, defense counsel advised the trial court that he had ascertained that the Commonwealth might present certain witnesses to whom Mrs. Clay made statements before she died. He assumed they would be adverse. Defense counsel stated that "it would be appropriate to let Mr. Greenbacker [Commonwealth's Attorney] ask them the questions that he's going to ask them and hear their responses so I can make the appropriate objections, because there's some indication that she said she was going to leave or that he had been mean to her or something along those lines...."

The Commonwealth's Attorney stated that he did not want to have a mini-trial but would "submit to the court or make a proffer." Defense counsel replied: "All I wanted to do was to see if I could hear what they were going to say before so I could object to it, preserve the record, make the appropriate objections, and then the jury can hear whatever you see fit." Both the trial judge and the Commonwealth's Attorney agreed to this procedure.

In due course, the Commonwealth called Burns as a witness. She submitted to what is called in the record a "Voir Dire Examination," out of the presence of the jury. Mr. Greenbacker first fully examined the witness. When he concluded, defense counsel commenced to cross-examine the witness. The Commonwealth's Attorney objected, stating, "[I] think the proffer of the evidence without cross-examination is probably the appropriate way to go at this point." The trial judge sustained the objection and refused to permit cross-examination until such time as the witness was called as a witness in the trial before the jury. After argument of counsel, the judge further held that the evidence was admissible. Upon this record, we find no abuse of the trial court's discretion. The purpose of the voir dire, as enunciated by defense counsel, was to permit defense counsel to hear the evidence prior to trial for the purpose of permitting him to "object to it, preserve the record, [and] make the appropriate objections." That purpose was met. Furthermore, in the presence of the jury, defense counsel ultimately fully cross-examined both witnesses.

VICTIM'S HEARSAY TESTIMONY

Clay contends the trial court erred in admitting in evidence the testimony of Burns and Ragland regarding statements made to them by the victim, Joy Clay, indicating that she was going to leave Clay because she was afraid of what he might do to her.2 Burns testified that on numerous occasions before the death of Joy Clay, she had telephone conversations with Mrs. Clay in which Mrs. Clay "asked [her if she] could ... bring some boxes to [her] house. [Mrs. Clay] stated that she was going to move because she was very scared of what her husband might do to her." Burns testified she received like requests and intentions up to the time of Mrs. Clay's death.

In similar phone conversations, Ragland testified the victim "told [him] she was planning on moving to Roxboro, North Carolina" and "she was going to move because she was afraid of what might happen to her." Clay argued that the evidence that Joy Clay had to get out of the house because she was afraid of what he might do to her did not prove that he intended to kill her. He contends the evidence was, therefore, not material, was highly prejudicial, and should not have been admitted in evidence. We disagree and find the evidence admissible under the state of mind exception to the hearsay rule to show Clay's motive and intent.

A person seeking to have hearsay declarations admitted must clearly show that they are within an exception to the rule. See Doe v. Thomas, 227 Va. 466, 472, 318 S.E.2d 382, 386 (1984)

(citations omitted); Foley v. Commonwealth, 8 Va.App. 149, 161, 379 S.E.2d 915, 921,

aff'd en Banc, 9 Va.App. 175, 384 S.E.2d 813 (1989). Hearsay evidence is inadmissible at trial unless it falls into one of the recognized exceptions to the rule. See Evans-Smith v. Commonwealth, 5 Va.App. 188, 197, 361 S.E.2d 436, 441 (1987).

The Commonwealth argues that the testimony of Burns and Ragland relating Joy Clay's statements regarding her fear of Clay fall within the state of mind exception. The problem which arises in connection with the admissibility of such statements made by homicide victims is discussed in McCormick on Evidence: "The possibility of overpersuasion, the prejudicial character of the evidence, and the relative weakness and speculative nature of the inference, all argue against admissibility as a matter of relevance.. . . [T]he cases have generally excluded the evidence. . . ." McCormick on Evidence § 276 (John W. Strong, ed., 4th ed. 1992) (footnotes omitted); see also United States v. Brown, 490 F.2d 758, 766 (D.C.Cir. 1973)

.

Notwithstanding the general rule favoring exclusion, several exceptions have evolved, dictated by recurring factual circumstances which make the statements' relevance manifest.

[I]n some circumstances, [a victim's state of mind] statements may be admissible under other hearsay exceptions, such as that for startled utterances or dying declarations.... There is broad
...

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