Evans-Smith v. Com.

• Decision Date: 20 October 1987
• Docket Number: EVANS-SMITH,No. 0079-86-4,0079-86-4
• Citation: 361 S.E.2d 436,5 Va.App. 188
• Parties: Williamv. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 436

361 S.E.2d 436

5 Va.App. 188

William EVANS-SMITH v. COMMONWEALTH of Virginia.

Record No. 0079-86-4.

Court of Appeals of Virginia.

Oct. 20, 1987.

Blair D. Howard and David H. Moyes (Howard & Howard; Moyes & Maggs, on briefs), for appellant.

Frank S. Ferguson, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and DUFF and HODGES, JJ.

KOONTZ, Chief Judge.

William Evans-Smith (appellant) was convicted in a jury trial of second degree murder in violation of Code § 18.2-32 and sentenced in accordance with the jury's recommendation to five years incarceration. On appeal, he argues that: (1) the trial court erred in admitting testimony pursuant to the state-of-mind exception to the hearsay rule; (2) the trial court erred in failing to set aside the verdict due to extraneous evidence not admitted at trial which the jury considered in its deliberations; (3) the evidence was insufficient as a matter of law to support the conviction; (4) the trial court erred in failing to set aside the verdict due to prejudicial and inaccurate statements made by the Commonwealth's attorney during closing argument; and (5) the trial court erred in failing to provide defense counsel information which the Commonwealth's attorney provided the court pursuant to a pretrial discovery order for exculpatory evidence.

I. Facts

On April 15, 1985, between 4:00 and 8:00 a.m., appellant's wife, Barbara Evans-Smith, was murdered at the couple's rural home. Although the exact time of death was not established, the medical examiner concluded that Mrs. Evans-Smith died thirty to sixty minutes after she had eaten breakfast.

Between 10:30 and 11:00 a.m., on April 15, Lesleigh Evans-Smith Cook arrived at her parents' home. Finding the outer doors unlocked, parts of the house in disarray, and receiving no response upon calling to her mother, Cook became alarmed and, using a CB car radio, summoned two friends. When they arrived, they discovered Mrs. Evans-Smith's semi-nude body in her upstairs bedroom. Her night clothes were ripped, giving the appearance of sexual assault. Her bedroom and appellant's bedroom had been ransacked, giving the appearance of a robbery. Downstairs, a hall table was overturned and some kitchen furniture had been moved. The rest of the house was undisturbed.

Mr. Evans-Smith was notified of his wife's death between 3:00 and 4:00 p.m. at his Washington office. He maintained then and at trial that his wife was alive when he left for work that morning shortly before 6:30 a.m.

Mr. Evans-Smith testified that he arose that day a few minutes before 5:00 a.m. as was his custom. He shaved, dressed in "barn clothes," and drove his car down the lane to get the newspaper. He testified that he drove with his headlights on because it was dark. On that morning, he testified that the beam of his headlights momentarily shone on a dark colored van that was parked on the opposite side of the road facing him. When he returned to the house, he parked the car in the garage and did his stable chores. He then returned to the house, ate breakfast with his wife and read the paper. Afterwards, he showered and dressed for work. Evans-Smith testified that his wife waved good-bye to him from her bedroom window as he left for work. He testified that no verbal or physical confrontation occurred between them on April 15. He further testified that he arrived at his office after dropping off some books at about 8:10 a.m., and that he worked there until the police arrived at 3:45 p.m. to inform him of his wife's death.

II. The Hearsay Issue ¹

At trial, the thrust of the Commonwealth's case was that the Evans-Smiths' marriage was deteriorating and unhappy. The Commonwealth attempted to show that in the year prior to Mrs. Evans-Smith's death, Mr. Evans-Smith had become increasingly hostile and depressed over troubles at his work, the unhappy ending of a long standing extramarital affair in August 1984, and his dissatisfaction with his marriage. These feelings of frustration and despair allegedly culminated in the murder of Barbara Evans-Smith. The Commonwealth attempted to show through the testimony of several witnesses that the victim was aware of the change in her husband's personality and that she was fearful of his increasingly volatile and hostile nature. The purported relevance of this evidence was that it would tend to prove motive and intent. Among the voluminous evidence presented was the testimony of Duane Dean, Mary Pitz and Lesleigh Cook. In ruling on the admissibility of the evidence proffered by Dean, Pitz and Cook, the court stated that no testimony as to appellant's behavior or the victim's state of mind would be allowed prior to August 1984 due to the remoteness of the events. The court reasoned that the period after August 1984 was a crucial time as it was when William Evans-Smith's extramarital affair ended and his lover moved to California.

Duane Dean was voir dired and testified that she had known the Evans-Smiths for five years and that subsequent to August 1984, Barbara Evans-Smith told her outside of William Evans-Smith's presence that he "was getting ... much testier." Dean stated that Mrs. Evans-Smith "was concerned, very concerned and she felt that Bill [Evans-Smith] was becoming much more violent," and that on April 2, 1985, the victim told her that he was "often in a very bad mood [and there] was not the cooperation between them that there had been before."

Mary Pitz was voir dired and testified that she had been good friends with Barbara Evans-Smith for fifteen years. She stated that subsequent to August 1984, Mrs. Evans-Smith told her outside of William Evans-Smith's presence that he "was becoming more violent and easily upset." She also stated that on March 23, 1985, she and her husband were dining at the Evans-Smiths' when Mrs. Evans-Smith realized the oven was not on and she said, "Oh my God, the oven isn't on, and Bill will be angry...." She proceeded to heat a casserole on top of the stove because, "Bill is going to be furious" and "I don't want any problem." Pitz also recalled an incident during December 1984 when the Evans-Smiths were leaving the Pitzes' house. Pitz stated that Mr. Evans-Smith yelled to his wife, who was talking with Mrs. Pitz at the front door, "Dammit, Barbara, come on or I'll push you in the pond...." Mrs. Evans-Smith said to Pitz: "You know, I think he would." On cross-examination Pitz acknowledged that they were standing "half a block" from the pond at the time of this exchange.

As to Pitz's testimony, the court ruled:

The court is of the view that she may relate the kitchen incident to be shown personally to the decedent's state of mind. The court makes the same ruling respecting the incident on the steps ... the party during Christmas of 84.

The court concluded that all of the foregoing testimony was admissible pursuant to the state-of-mind exception to the hearsay rule. See C. Friend, The Law of Evidence in Virginia § 238 (2d ed. 1983).

Both Dean and Pitz specifically acknowledged that they had never seen William Evans-Smith strike his wife and both testified that Mrs. Evans-Smith had never indicated to them that her husband had ever struck her.

Lesleigh Evans-Smith Cook was also called as a Commonwealth's witness to establish her mother's state of mind concerning Barbara Evans-Smith's fear of appellant. Cook was voir dired in the judge's chambers and during that examination stated that her father's personality had changed "somewhat" since August 1984 and that her mother had noticed this change and discussed it with her outside of her father's presence. Cook stated that one day during the 1984 Christmas season, she telephoned her mother who seemed "very distressed," but would not discuss the problem on the telephone. When Cook arrived at her parents' house, her mother had been crying and told Cook, "Your father tried to kill me last night." However, Barbara Evans-Smith refused to discuss any of the specifics with her daughter. Cook also stated that her mother refused to discuss the basis of her opinion or conclusions on these matters.

Defense counsel argued to the court that the victim's statements to Cook, especially, "Your father tried to kill me last night," were inadmissible because they were merely conclusions for which there was no factual basis which could be gleaned from the evidence. Furthermore, counsel argued that the statements were inadmissible because of their highly prejudicial and potentially devastating effect on Evans-Smith's defense. Counsel also contended that the statements were inadmissible because they were not made in Evans-Smith's presence and were not part of the res gestae. The Commonwealth's attorney argued that the testimony was admissible to show that the victim was fearful of her husband. He argued that Mrs. Evans-Smith had related only facts, not conclusions.

In ruling on Cook's proffered testimony, the trial court stated:

I don't know how to cure the problem the court has with the statement of ["]your father tried to kill me last night["] because I think that is an opinion and as such is not admissible. However, I do think that the witness should be permitted to testify concerning the state of mind of her mother on that occasion. I think it should be linked to the conduct of the father without reference to the attempt to kill. It shows the state of mind of [Barbara Evans-Smith]. ²

The court further ruled that Cook's testimony would be allowed to show the victim's state of mind and not for the truth of the matter asserted and the court so instructed the jury.

In open court, Cook testified that since August 1984 she had noticed that her father "was more easily angered" and stated that during the holiday season of 1984:

I had telephoned my mother ... and realized that she was upset so I went to the farm and she had been crying and I asked her what was wrong and at that time she related to me an...