Clinton v. Com.

• Decision Date: 22 April 1963
• Docket Number: No. 5558,5558
• Citation: 204 Va. 275,130 S.E.2d 437
• Parties: CATHERINE CLINTON v. COMMONWEALTH OF VIRGINIA. Record
• Court: Virginia Supreme Court

Page 437

130 S.E.2d 437

204 Va. 275

CATHERINE CLINTON v. COMMONWEALTH OF VIRGINIA.

Record No. 5558.

Supreme Court of Appeals of Virginia

April 22, 1963.

Calvin H. Childress (Herbert S. Reid, Jr., on brief), for the plaintiff in error.

D. Gardiner Tyler, Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for the Commonwealth.

JUDGE: SNEAD

SNEAD, J., delivered the opinion of the court.

Catherine Clinton was indicted on two counts charging (1) that she did feloniously receive money from the earnings of Katherine R. Taylor, who was engaged in prostitution, for a consideration not deemed good and valuable in law in violation of § 18.1-208, Code of 1950, as amended, and (2) that she did unlawfully and feloniously place Katherine R. Taylor in a house of prostitution with intent that she should live a life of prostitution in violation of § 18.1-205. The jury found defendant guilty as charged under the first count and fixed her punishment at 5 years imprisonment and a fine of $500. The trial court overruled defendant's motion to set aside the verdict on the grounds that it was contrary to the law and the evidence and entered judgment in accordance with the verdict. We granted defendant a writ of error.

The defendant did not testify or offer any evidence in her behalf.

The evidence discloses that the defendant and Mrs. Katherine Taylor had been friends for quite a while, but had not seen each other 'in years'. In September 1961, pursuant to a telephone call made by defendant to Katherine Taylor the parties met in a restaurant in the city of Norfolk. There they had a 'general conversation.' They discussed their financial difficulties. Defendant revealed that she had a $1,000 fine to pay and Katherine Taylor said she had unpaid bills. Defendant stated that she had 'some numbers that she could contact and we could both make some money'; and that 'she had the best clientele in town.'

About 10 days later defendant went to Katherine Taylor's home to ascertain if she was still interested in the proposition. Later they toured different sections of the city to locate an apartment, but a location was not decided upon. Subsequently defendant advised her that she had rented an apartment at Ocean View. According to the landlord's desk clerk, defendant, who was accompanied by her husband, Harry Clinton, rented the one-room efficiency apartment at 9630 1st View street in the fictitious name of 'Mr. and Mrs. Charles Morrison.' Katherine Taylor testified that defendant called 'different numbers' to let 'the men know that she [defendant] was in business.' When asked what her compensation was, she replied that the men paid $10 and that she received $5. Defendant received one-half because she had the 'numbers' and had to pay the telephone bill and the 'upkeep of the apartment.' With one exception, all of the engagements Katherine Taylor had with men for sexual intercourse secured by defendant were had at the defendant's apartment. Prostitution was not a new experience for Katherine Taylor. She testified that she had formerly worked with defendant in Richmond.

The defendant's apartment was kept under surveillance by Norfolk police officers for four days, during which time they observed men visit the apartment. Part of the time officer Earl H. Beach was stationed in the adjoining apartment where he heard conversations and sounds which tended to show that the premises were used as a house of prostitution. This evidence was obtained by listening through the medicine cabinet in the wall dividing the two apartments and by an amplifying device 'stuck in the wall.'

On the morning of October 25, 1961, a man, later identified as S. N. Edwards, entered the apartment. The defendant arrived shortly thereafter. About 10 minutes later she and Betty Johnson left the premises and took a seat in Harry Clinton's automobile which was parked across the street in the Colonial Stores' parking lot. The police officers broke the glass in the door of the apartment, entered and found Katherine Taylor and Edwards undressed and preparing for sexual intercourse. They, along with defendant, her husband and Betty Johnson, were taken into custody and the indictment of defendant followed.

Here, defendant argues that the trial court erred (1) in refusing to declare a mistrial for admitting certain evidence of S. N. Edwards which tended to show that she formerly operated a house of prostitution at another place; (2) in admitting evidence obtained in the adjoining apartment through the use of a mechanical listening device stuck in the wall which separated the two apartments; and (3) in refusing Instruction No. D-3. These questions will be discussed in the order mentioned.

S. N. Edwards testified that after a telephone conversation with defendant he went to her apartment. There the conversation between the two was 'more or less a sparring deal' as he was attempting to identify himself and show he was not connected with law enforcement. He told her that the purpose of the visit was to meet her and look the place over as he had out-of-town friends who might be interested in contacting her.

On direct examination Edwards testified as follows:

'Q. Tell us what actually was said. * * *.

'A. All right; what I said first. I told her that I thought her name was familiar and I asked her if she operated in the other place in town.

'The Court: Operated what? * * *?

* * *

'A. Well, a house of prostitution, but those words weren't used. I didn't ask her.

'The Court: What did you use? How did you come to the understanding?

'A. Just what I said, sir, because it was obvious what was going on. It was just a line of conversation and it was taken, well, that both parties knew what was going on.

'She asked me if I had ever visited places down at East Ocean View and I told her I had not and she mentioned some other places, I believe, but I don't recall where it was and I said, no, that I had never visited any other places.

'Then I asked her, to prolong the conversation, if she was ever down at Lynnhaven.

'Mr. Reid: Your Honor, I object to this.

'The Court: Overruled.

'Mr. Reid: I save the point.

'A. She says, 'Yes, I did.' I said, 'Well, did you have a young girl working for you that had long hair and wore it up in a pony tail, about five years ago?' Then she mentioned some name which was vague to me because I was just carrying on a conversation and Mrs. Clinton and this Betty were dressing, that is, putting on their hats, getting ready to go out.'

The defendant now argues that the Commonwealth was thus allowed to present evidence that five years previously the defendant ran a house of prostitution; and that to compound the error further evidence was allowed tending to show that the defendant had a young girl working for her at that time.

But she made no such objection. Her objection was to the question asked her by Edwards whether 'she was ever down at Lynnhaven.' She offered no objection at all to the further question asked her by Edwards about a young girl working for her about five years ago, and she made no answer to that question.

Rule 1:8 of the Rules of Court requires that the grounds for objection to the admissibility of evidence be stated with reasonable certainty, and if it does not appear from the record to have been so stated, 'such objections will not be considered by this Court except for good cause shown or to enable this Court to attain the ends of justice.' Here, counsel for defendant stated no reason for the objection to Edwards' testimony under question at the time it was made and offered no motion to strike such evidence. Counsel merely said 'Your Honor, I object to this.' After the objection was overruled, counsel stated 'I save the point.'

Moreover, Katherine Taylor thereafter testified without objection that defendant told her before the apartment was rented 'she had the best clientele in town.' She stated that defendant during her conversation with Edwards 'described the other place she used to have and was talking about a girl with red hair.' On cross-examination she testified that she had 'worked with' defendant in Richmond. The time was not designated, but it must have been several years prior to this incident because she had previously stated that she had not seen defendant 'in years.'

Helen Buckridge said she had only one 'paid date' in the apartment for which she received $10 and that she gave defendant one-half of it. At the time she was introduced to defendant, she stated that defendant told her 'she needed money and she had a fine to pay and that she was going to start operations again if she could get some girls and get a place.' There was no objection made to this testimony. The testimony of Helen Buckridge and Katherine Taylor clearly established that defendant had formerly operated such an illicit business.

Aside from the fact that the grounds for the objection to Edward's testimony were not stated at the time the objection was made, there has been no good cause shown why the requirement of Rule 1:8, supra, should not be applied. The evidence amply supports the conviction of the defendant and it is not necessary to disregard the requirement to state the grounds for objection with reasonable certainty in order to attain the ends of justice.

Here the Commonwealth was not seeking to prove independent and unconnected crimes in violation of the settled principle recently stated in Fleenor v. Commonwealth, 200 Va. 270, 275, 105 S.E.2d 160. Evidence of other offenses may be admitted only when it shows motive, intent or guilty knowledge, or is connected with or leads up to the offense for which the accused is on trial, Colvin v. Commonwealth, 147 Va. 663, 669-70, 137 S.E. 476; or when there is only incidental disclosure of other offenses, Barber v. Commonwealth, 182 Va. 858, 867, 30 S.E.2d 565. The evidence now claimed to be error came from the defendant in a conversation with Edwards in which the...