Harward v. Com.

• Decision Date: 19 January 1988
• Docket Number: No. 0323-86-1,0323-86-1
• Citation: 5 Va.App. 468,364 S.E.2d 511
• Parties: Keith Allen HARWARD, v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 511

364 S.E.2d 511

5 Va.App. 468

Keith Allen HARWARD, v. COMMONWEALTH of Virginia.

Record No. 0323-86-1.

Court of Appeals of Virginia.

Jan. 19, 1988.

Roy H. Lasris (Buxton & Lasris, Yorktown, on brief), for appellant.

Margaret Poles Spencer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, COLEMAN and HODGES, JJ.

COLEMAN, Judge.

This is the second appeal by Keith Allen Harward of successive convictions for the murder of Jesse Perron. The Supreme Court reversed an earlier capital murder conviction in which Harward received a life sentence on the ground that a murderer/rapist could not be found guilty under Code § 18.2-31(a) where the person murdered was other than the rape victim. Harward v. Commonwealth, 229 Va. 363, 330 S.E.2d 89 (1985). On remand Harward was convicted by a jury of first degree murder and sentenced to life imprisonment. We review that conviction.

Those facts and procedural history essential to address the issues will be stated. Following established principles, the evidence and all reasonable inferences fairly deducible therefrom will be considered from the viewpoint most favorable to the Commonwealth. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The dominant issue at trial, and on appeal, is whether the circumstantial evidence was sufficient to identify Harward beyond a reasonable doubt as the perpetrator of the crime. In every criminal prosecution the Commonwealth must establish beyond a reasonable doubt all elements of the offense and that the accused did commit it. Stover v. Commonwealth, 222 Va. 618, 623, 283 S.E.2d 194, 196 (1981); Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 568 (1976). The evidence must exclude every hypothesis except that the accused is the criminal agent. Turner v. Commonwealth, 218 Va. 141, 146, 235 S.E.2d 357, 360 (1977). The appellant's additional allegations of error are that the trial court admitted opinion evidence of forensic dentists or odontologists about bite mark identification, permitted cross examination of the defendant about other acts of biting his girlfriend, and denied a mistrial motion when a witness mentioned a "prior trial." We find no error and affirm the conviction.

In the early morning of September 14, 1982, an intruder broke into the home of Jesse and Teresa Perron located in the 4900 block of Warwick Boulevard in Newport News. The Perrons and their three children were there asleep. Teresa awakened from a loud noise and discovered the intruder at her bedside striking her husband on the head with a crowbar. The assailant pulled Teresa from her bed to the floor and pinned her there by putting his legs over hers while continuing to strike Jesse with the crowbar until he was rendered unconscious.

The intruder told Teresa that he did not want to kill her husband, but only "knock him out." He threatened Teresa that unless she did as he demanded, he would "get" her children. The assailant raped Teresa Perron, forced her to commit oral sodomy and to submit to anal sodomy. During the sexual assaults, the assailant bit Mrs. Perron on the thighs and calves of her legs leaving multiple visible bite marks. During the course of events the assailant and Teresa Perron smoked at least one cigarette each. When the intruder eventually left, Teresa Perron called the police. They arrived and found Jesse Perron dead from multiple blows to the head.

Mrs. Perron was taken to Riverside Hospital for examination where a routine PERK (Physical Evidence Recovery Kit) examination to preserve evidence was conducted. The PERK test yielded a pubic hair and swabs were taken of the thigh vulva area and of the bite marks in an effort to obtain seminal fluid and saliva for analysis. Photographs of the bite marks on Mrs. Perron's legs were made. Various items of physical evidence from the home were preserved, including the cigarette butts presumably smoked by the assailant and Mrs. Perron, a soft drink bottle handled by the intruder, the crowbar, and numerous hair samples taken from Jesse Perron's clutched hand and from other locations in the Perrons' home.

Mrs. Perron was never able to identify her assailant. She provided a general description of her assailant's size and build and described him as a white male wearing a white sailor's uniform bearing an insignia of "three nested V's."

Upon hearing the evening news report of the murder, Donald L. Wade, a Newport News shipyard security guard, reported to the police having observed a sailor enter his gate in the early morning hours of September 14 behaving in an unusual manner, and wearing a uniform with what appeared to be blood splattered on it. Mr. Wade observed that the sailor was wearing the uniform of an E-3, that rank's insignia being three parallel slash marks. He noted that the sailor was not in proper attire because he wore no hat and his sleeves were rolled up. Wade's impression was that the sailor was oblivious to him. Gate 50 where Mr. Wade observed the sailor was close to the Perrons' home.

The investigation focused upon the personnel of the U.S.S. Carl Vinson which was docked at the gate where Mr. Wade had observed the sailor. Dental records of all E-3's assigned to the Carl Vinson were submitted for comparison with the photographs of the bite marks on Teresa Perron's legs. Similarities between the dental records of Harward and the photographs led the authorities to obtain an impression of Harward's teeth. Dr. L.J. Levine, a forensic odontologist, identified the alluwax impression of Keith Harward's teeth as having been made by the same person that left a bite mark on Teresa Perron's leg. Thereafter Donald L. Wade, the gate security guard, identified Keith Harward from a photo spread as the sailor he observed enter his gate on September 14 with a blood splattered uniform. At trial, Dr. Levine and a second forensic odontologist, Dr. A.W. Kagey, testified that they had compared the photographs of bite marks on Teresa Perron's legs with the alluwax impressions of Keith Harward's teeth. Based on general features in dentention and individual distinctive characteristics of Harward's teeth both dentists were of the opinion that Keith Harward inflicted the bites on Teresa Perron. Dr. Levine stated "[t]hat with reasonable medical certainty, Mr. Harward caused the bite marks on the leg." He demonstrated to the jury distinctive individual characteristics of Mr. Harward's teeth and features visible in the photographs which had led to his conclusion. One of Harward's teeth that "canted sideways" aligned with a bite mark in the photo, and a "hook type area" in the wax impression appeared uniquely compatible with features visible in the photograph of the bite mark. Dr. Levine also explained and displayed a "chipped area" and "breakage" that were present and distinctive in both the photo and the wax impression.

I.

In Harward's first trial a former girlfriend testified for the Commonwealth that Harward had bitten her on several occasions. Before his second trial, Harward's counsel moved in limine to suppress evidence that Harward had bitten her because it was irrelevant and prejudicial. Although Harward contends that the trial court ruled the evidence to be inadmissible, the court's pretrial order ruled the evidence "to be admissible to the extent that such evidence relates to the propensity of the defendant to bite others under those circumstances as set forth in the record." Harward objected to that portion of the order.

At trial the Commonwealth did not call the girlfriend as a witness; instead during cross examination of Harward the Commonwealth elicited, without further objection, that on several occasions during 1982 Harward had bitten his girlfriend. After the close of the evidence and during discussion of the jury instructions, Harward's counsel objected that the Commonwealth had violated the order in limine. The trial court ruled that the order had not been violated. Although Harward challenges the admissibility of the evidence on relevance grounds, the question which he presented and which the trial court ruled upon was whether the Commonwealth violated the ruling in limine. Thus, the initial question which must be answered is whether Harward's objection to the ruling in limine preserved his objection to the admissibility of evidence about biting his girlfriend, or whether he was required to make a contemporaneous objection when the evidence was offered.

Generally, a contemporaneous objection on stated specific grounds must be made in the trial court before an appellate court is authorized to review the question of admissibility of evidence. Rule 5A:18; Ingram v. Commonwealth, 1 Va.App. 335, 341, 338 S.E.2d 657, 660 (1986). To be timely, an objection to the admissibility of evidence must be made when the occasion arises--that is, when the evidence is offered, the statement made or the ruling given. Marlowe v. Commonwealth, 2 Va.App. 619, 621, 347 S.E.2d 167, 168 (1986). Among the purposes underlying the contemporaneous objection rule are to enable the trial court to prevent error, to cure alleged error with prompt and decisive instruction, and to prevent compounding any harmful consequences by dwelling on irrelevant matters. Harward's counsel did not object to the question or answer from Harward when he was cross-examined about biting his girlfriend. Accordingly, the trial judge was not presented the opportunity at the time the evidence was offered to consider and rule on its relevance, and Rule 5A:18 precludes our considering its admissibility unless Harward's objection to the ruling in limine dispensed with the necessity of a contemporaneous objection or unless it is necessary that we address it to attain the ends of justice.

Motions in limine have gained wide usage and acceptance. They serve worthwhile functions of narrowing issues, preventing trial delay, avoiding expense, and promoting judicial...