Inge v. Com.

• Decision Date: 08 October 1976
• Docket Number: No. 760273,760273
• Citation: 228 S.E.2d 563,217 Va. 360
• Parties: Earl David INGE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 563

228 S.E.2d 563

217 Va. 360

Earl David INGE v. COMMONWEALTH of Virginia.

Record No. 760273.

Supreme Court of Virginia.

Oct. 8, 1976.

Richard M. Livingston, Rayner V. Snead, Jr., Lynchburg (Rhodes, Jennings & Livingston, Edmunds, Williams Robertson, Sackett, Baldwin & Graves, Lynchburg, on brief), for plaintiff-in-error.

Jim L. Chin, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant-in-error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COCHRAN, Justice.

Earl David Inge, defendant, was tried by a jury on an indictment charging him with the murder of Clifford Michael Smith. Inge was found guilty of murder of the first degree and by final judgment entered on the jury verdict was sentenced to life imprisonment in the State penitentiary. On appeal he has assigned numerous errors challenging the sufficiency of the evidence and certain rulings of the trial court.

The record shows that Smith, a student at Lynchburg Baptist College, resided with his wife and two infant sons in a ground floor apartment of the Greenwood Apartments, located on Sandusky Drive in the City of Lynchburg. Between 9:00 and 9:05 p.m. on April 26, 1975, as he sat on a sofa in his living room, Smith was struck in the chest and instantly killed by pellets from a shotgun shell fired through a glass windowpane and curtain at the rear of the apartment building.

The apartment complex in which Smith lived consisted of four buildings. Behind and below them was a wooded gulley through which flowed Black Water Creek, a stream 10 to 15 feet wide traversed by a water or sewer pipe 2 to 3 feet in diameter. Across the creek was a wooded slope at the top of which was the dead end of Fleetwood Drive, a street located in Campbell County just outside the Lynchburg corporate limits. From this dead end a dirt road extended into the woods, and footpaths led down to the creek. Smith's apartment was not more than a city block from the end of Fleetwood Drive. It was the Commonwealth's theory that Inge parked his camper at the end of Fleetwood Drive, proceeded on foot through the woods to Black Water Creek, crossed the stream on the pipe, went up the embankment to Smith's apartment, shot Smith, retraced his steps, and fled in the camper.

The evidence against Inge was entirely circumstantial. Taken in the light most favorable to the Commonwealth, it showed, in summary, that on the morning of April 8, 1975, Smith had pursued Inge from the apartment complex, had him arrested, and accused him of breaking into and entering Smith's apartment a few minutes earlier; that Inge had threatened Smith; that some days later the occupant of another apartment in the complex observed Inge looking at the woods behind the apartments and peering into apartment windows; that several days before his death Smith testified against Inge at a preliminary hearing in the general district court on the statutory burglary charge, which was then certified to the grand jury; that on April 26, the date of the murder, the owner of a residence near the dead end of Fleetwood Drive saw a camper which resembled Inge's go down the street at 8:30 to 8:40 p.m.; that this vehicle did not return from the dead end before the witness left the area at approximately 9:00 p.m.; that immediately after the killing no one was seen coming from the rear to the front of the apartment complex; that another resident of Fleetwood Drive heard the noise and saw the lights of a vehicle going out of that street at high speed between 9:30 and 10:00 p.m.; and that Inge, when interrogated a few hours after the crime, admitting having fired a shotgun on April 26, at his parents' home, and having returned to Lynchburg that night by circuitous route that took him past the Greenwood Apartments after 9:30 p.m.

At the conclusion of the Commonwealth's evidence Inge's motion to strike the evidence was overruled. Inge, a convicted felon, then introduced evidence to establish an alibi. He testified in his own defense that on April 26, accompanied by his eight-year-old son, Stacey, he twice drove to his parents' home in Bedford County, shown to be about fifteen miles from Fleetwood Drive; that his parents were away from home at the time of his first visit; that during this visit he fired one shot from a shotgun of his father's at some blackbirds; that upon returning in the afternoon he left Stacey at the house and went fishing alone in two nearby streams until dark; that he arrived back at his parents' home at approximately 9:00 to 9:15 p.m., picked up his son and drove to Lynchburg; that he went past the Greenwood Apartments after 9:30 p.m. on his way into Lynchburg, and saw a crowd in the street in front of the apartments; and that after stopping at a McDonald's Drive-In for refreshments he and Stacey arrived home between 10:00 and 10:30 p.m. His mother, father, and son corroborated portions of Inge's testimony.

Inge introduced employment records and other evidence to show that he was at work at the time the witness testified that he was examining the rear and interior of the Greenwood Apartments. He also relied upon the negative results of tests initiated by the police of tire tracks and of water and soil samples taken from Inge's socks and shoes, all of which failed to connect him with the area of the Greenwood Apartments.

Inge first contends that the trial court erred in permitting the Commonwealth's Attorney, in his opening statement, in his examination of Smith's widow, and in his cross-examination of the defendant, to reveal in excessive detail the circumstances under which Smith had accused Inge of statutory burglary. As an exception to the general rule of inadmissibility, evidence of other offenses is admissible to show prior relations between victim and accused, motive, intent, or knowledge. Jordan v. Commonwealth, 216 Va. 768, 770, 222 S.E.2d 573, 575--76 (1976); Webb v. Commonwealth, 154 Va. 866, 874, 152 S.E. 366, 368 (1930); O'Boyle's Case, 100 Va. 785, 792, 40 S.E. 121, 123 (1901).

Inge concedes that it would have been proper to establish that he had been charged with the earlier offense, that Smith had testified against him in the preliminary hearing, that the charge had been certified to the grand jury, and that it was anticipated that Smith would testify against him before the grand jury and in any other proceedings. This skeletal outline, however, would have omitted important details, such as Smith's pursuit and identification of Inge as the man who had broken into his apartment, and Inge's threat to Smith. The details of the burglary tended to show not only motive on the part of Inge to silence his accuser but also familiarity with the area and with the interior of the Smith apartment. Therefore, since the evidence was relevant, unlike that proscribed in Boggs v. Commonwealth, 199 Va. 478, 100 S.E.2d 766 (1957), on which the defendant telies, the trial court did not err in admitting it.

Inge next argues that the trial court improperly admitted into evidence two black-and-white photographs taken of the victim's body before it was removed from the sofa on which he was sitting at the time of his death. In objecting to the introduction of those photographs as irrelevant and inflammatory, defense counsel offered to stipulate that Smith was killed by a criminal agency. The photographs showed the pattern and location of the pellets as they struck the victim, and the force of the shotgun blast. The admissibility of the photographs was within the sound discretion of the trial court. Evans v. Commonwealth, 215 Va. 609, 614, 212 S.E.2d 268, 272 (1975); Brown v. Commonwealth, 212 Va. 515, 519, 184 S.E.2d 786, 789 (1971); Timmons v. Commonwealth, 204 Va. 205, 213--14, 129 S.E.2d 697, 703 (1963). We find no abuse of discretion.

Inge also maintains that the trial court erred in refusing to instruct the jury to disregard the testimony of Commonwealth witness Robert G. Hooper, an Appalachian Power Company employee. Hooper testified that about 11:00 a.m. on a day in early April, 1975, he was driving his truck up the driveway of the Greenwood Apartments to the back of the complex when he saw a barefooted man in pajamas who was chasing another man, and '(w)hen they got to the gulley the man in front kept on and the man in the blue pajamas, he stopped.'

When defense counsel undertook on cross-examination to show that the gulley referred to by the witness was not the one in which Black Water Creek flowed, the witness had difficulty in relating his testimony to the aerial photographs of the area around the apartment complex. Nevertheless, Hooper testified that the gulley was deep, 'fairly wide, and contained either a water line or a sewer pipe' which crossed 'a little branch.' He had previously known Inge but, although the two men ran within 40 to 45 feet of him, he did not recognize the defendant.

The trial court did not err in permitting the jury to consider Hooper's testimony. It was for the jury to determine the credibility of the witness and the weight to be accorded his testimony. The jury reasonably could have inferred from Hooper's testimony that Smith pursued Inge from the apartment into the gulley where the pipe crossed Black Water Creek, and that Inge was familiar with the gulley, the pipe, and the area behind the Greenwood Apartments. See Durham v. Commonwealth, 214 Va. 166, 169, 198 S.E.2d 603, 606 (1973). ...