Johnson v. Com., 0096-84

• Decision Date: 05 August 1986
• Docket Number: No. 0096-84,0096-84
• Citation: 347 S.E.2d 163,2 Va.App. 598
• Parties: James Leon JOHNSON v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 163

347 S.E.2d 163

2 Va.App. 598

James Leon JOHNSON v. COMMONWEALTH of Virginia.

Record No. 0096-84.

Court of Appeals of Virginia.

Aug. 5, 1986.

Thomas J. Harrigan, Fairfax, (Robert L. Tomlinson II, Arlington, on brief), for appellant.

Lucy H. Allen, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.

Present: BAKER, COLEMAN and KEENAN, JJ.

COLEMAN, Judge.

In this appeal from convictions for first degree murder and robbery, we examine two rulings by the trial court. The first involves the admission of evidence which the appellant contends was of his bad character, admitted over his objection. The second challenges the court's refusal to grant a cautionary instruction to the jury on circumstantial evidence.

The evidence presented at trial by the Commonwealth revealed that Lorraine Parsons, the victim, was last seen alive by Susan Moles at 3:30 p.m. on November 5, 1983, at the apartment they shared in Arlington. Ms. Parson's body was discovered by Ms. Moles and her boyfriend when they returned to the apartment between 8:00 and 8:30 p.m. that evening. The cause of death was determined to be strangulation. Three hairs which were recovered from the victim and the apartment were determined by comparative analysis not to have come from the victim or from the other individuals who were known to have been in the apartment.

The appellant, James L. Johnson, who was on leave from Camp Lejuene, North Carolina, was visiting the Washington, D.C. area on November 5. Johnson shared quarters at Camp Lejuene with Gregory A. Johnson, Ms. Parsons' fiance. Gregory Johnson had told the appellant, who was a native of the Washington area, about his girlfriend and had disclosed where she lived and the place where she worked in Washington. The evidence also showed that Ms. Parsons' home address was written on Gregory Johnson's desk blotter in the office in which the appellant worked and that letters with her home address written on the envelope were received in the office. Although the appellant and Ms. Parsons had never met, they had talked on the telephone when he mistakenly answered her calls to Gregory Johnson.

During the week prior to Ms. Parsons' murder, the appellant twice went to the restaurant where she was employed and asked for her. The bartender, Juan Ojeda, testified that on both occasions the appellant gave him only his last name and left when he did not find Ms. Parsons there.

On the evening of November 4, the day before Ms. Parsons' murder, the appellant had dinner with Ronald E. Jones, who testified that Johnson was short of cash, borrowed five dollars from him and had no other money. The evidence established that on the afternoon of November 5 at about 5:45 p.m., Johnson borrowed the car of Ms. Juanda Smith purportedly to go to Virginia to pick up luggage. Although Ms. Smith had specifically directed that he return by 7:00 p.m., he did not return until shortly after 8:00 p.m., at which time they went to dinner. The appellant paid cash for the bill of approximately twenty-five dollars.

After the homicide, on November 6 or 7, the appellant was seen in possession of three rings which were identified as belonging to Ms. Parsons. On November 23 the Arlington police recovered the three rings from a local jewelry store where they had been pawned. The pawn records, which were determined to match the appellant's handwriting, revealed that the items had been sold by James L. Johnson of Camp LeJuene, North Carolina. Appellant was also seen in possession of a camera, similar in all respects to a camera belonging to Ms. Parsons, and an Italian horn necklace belonging to her. When the appellant was arrested in Wilmington, North Carolina on November 13, he was allowed to go to his bedroom to collect his belongings and was observed removing from a tote bag three necklaces and a camera, which he explained he was leaving because they belonged to his girlfriend. The camera was identified as belonging to Ms. Parsons. Following Johnson's arrest a hair sample was taken from him and, upon comparative analysis, was found to be visually consistent with regard to approximately forty characteristics with the three samples taken from the victim's body and apartment.

I. THE EVIDENTIARY ISSUE

The challenged evidence consisted of testimony from Gregory Johnson that he had instructed Ms. Parsons not to speak to the appellant on the telephone after the appellant had on at least two occasions intercepted her calls. Gregory Johnson testified that the reasons he gave her were that she could not afford it and because "he is a pervert." The appellant contends that the statement, "he is a pervert," dealt with "peripheral areas which don't deal with the issue" and was character evidence which was inadmissible and prejudicial. The appellant elected not to testify, and he did not place his character in issue. In admitting the evidence, the trial court stated: "The jury is instructed ... [that] the question and answer are received not for the truth of the words of Gregory Johnson, but to show that that was put into the mind of Lorraine Parsons." We hold that the evidence was inadmissible, but its admission was harmless error.

For the statement, "he is a pervert," to have been admissible it must have been both relevant and material; otherwise, as the appellant notes, the focus of the trial would be diverted to peripheral and extrinsic matters that had little or no bearing upon proof of the elements necessary to establish guilt. The ultimate inquiry in determining whether evidence is both material--tending to prove a matter which is properly at issue in the case--and relevant--tending to establish the proposition for which it is offered--is: Does the evidence tend to prove a proposition which is itself provable in the case? C. Friend, The Law of Evidence in Virginia § 134 (2d ed. 1983). The Commonwealth asserts that the statement was material to prove force as an element of robbery, and relevant as proof of the victim's state of mind. The Commonwealth reasons that the jury could infer that the victim, hearing that the appellant was a pervert, would not have voluntarily parted with her property; therefore, it follows that force was used to obtain the victim's property. We conclude that the statement was neither material nor relevant in the context in which it was proffered.

Out of court statements offered to show the state of mind of the declarant are admissible in Virginia when relevant and material. See, e.g., Compton v. Commonwealth, 219 Va. 716, 729, 250 S.E.2d 749, 757 (1979); Jones v. Commonwealth, 217 Va. 226, 228, 228 S.E.2d 124, 126 (1976); Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E. 562, 565 (1919). Similarly, a statement made by a declarant is admissible for the purpose of showing the probable state of mind thereby induced in the hearer, such as being put on notice or having knowledge, or motive, or good faith of the subsequent conduct of the hearer, or anxiety, when relevant and material. E. Cleary, McCormick on Evidence § 249 (3d ed. 1984). In the present case, however, it would be illogical, and improper, for the jury to draw an inference that because of Gregory Johnson's statement to Ms. Parsons the accused would have had to have used forcible means to have gained possession of her personal property. The inference suggested by the Commonwealth--that one would not...