Lowe v. Cunningham, 032707.

Citation268 Va. 268,601 S.E.2d 628
Decision Date17 September 2004
Docket NumberNo. 032707.,032707.
CourtSupreme Court of Virginia
PartiesJames Edward LOWE v. Barbara E. CUNNINGHAM.

Joseph A. Sanzone (Sanzone & Baker, on brief), Lynchburg, for appellant.

Henry M. Sackett, III (Edmunds & Williams, on brief), Lynchburg, for appellee.

Present: All the Justices.


In this appeal of a judgment in a personal injury action, we consider whether the circuit court erred in denying the plaintiff's motion for a mistrial.

The following facts are relevant to this appeal. In August 1998, James E. Lowe was operating a motor vehicle in the City of Lynchburg. After Lowe stopped his vehicle at a "red light" at an intersection, his vehicle was struck from behind by another vehicle operated by Barbara E. Cunningham.

Lowe filed a motion for judgment against Cunningham alleging that he was injured as a result of Cunningham's negligence. At trial, Lowe presented evidence that he sustained injuries to his back, right knee, and a wrist as a result of the accident. The evidence also showed that Lowe suffered from certain pre-existing conditions, including scoliosis of the spine and degenerative arthritis in his back and right knee. Lowe presented evidence of medical expenses allegedly related to the accident in the total amount of $11,314.75.

During cross-examination of Lowe, the following colloquy occurred between Lowe and Cunningham's counsel:

Q. At the time of this accident, you were living with Laquesta Andrews, who is the mother of one of your children; is that right?
A. Right.
Q. In fact, that's where you went after the accident ... to her home?
A. Yes.
Q. Is that right? And you continued to live with her until you got into a little trouble with the law about not paying child support?

Lowe did not answer this final question from Cunningham's counsel. Lowe's counsel immediately objected to the question and asked the court for permission to make a motion outside the presence of the jury. After the jury retired to the jury room, Lowe's counsel moved for a mistrial on the ground that Cunningham's counsel introduced "elements of [Lowe's] criminal record into a case when it's not relevant evidence."

Cunningham's counsel responded that Lowe stated in his pre-trial deposition that he had spent 90 days in jail for his failure to pay child support, and that Lowe had also complained that he suffered from injuries to his knee during that same time period. Cunningham's counsel argued that his question was relevant to show the nature of Lowe's activities and limitations during the time he claimed to be suffering from his injuries.

The circuit court sustained Lowe's "objection to the child support issue" on the ground that "the prejudicial value of that outweighs any probative value." The court denied Lowe's motion for a mistrial and instructed the jury to "disregard any information about child support or failure to pay."

Throughout the trial, Cunningham contested the cause of Lowe's injuries. She argued to the jury that his knee and back injuries resulted from his pre-existing conditions, rather than from the motor vehicle collision.

After the jury returned a verdict in favor of Lowe and fixed his damages at $575, Lowe renewed his motion for a mistrial. The court denied the motion and entered judgment in accordance with the jury verdict. Lowe appeals.

Lowe argues that the circuit court abused its discretion in denying his motion for a mistrial. He observes that his record for failing to pay child support was not competent impeachment evidence because he was not convicted of a felony or a misdemeanor involving moral turpitude. Lowe also asserts that his failure to pay child support was irrelevant to his personal injury claim, and that the deliberate injection of this issue into the case resulted in prejudice that could not be cured by a cautionary instruction.

In response, Cunningham argues that the circuit court did not abuse its discretion in denying Lowe's mistrial motion. She notes that Lowe did not answer her counsel's question, which Cunningham asserts was intended to refute Lowe's claim concerning the extent of his damages. Cunningham further observes that under this Court's jurisprudence, the jury is presumed to have followed the trial court's cautionary instruction. Alternatively, Cunningham contends that any error caused by the denial of the mistrial motion was harmless, and that the record supports the jury verdict because there was "ample evidence" from which the jury could have concluded that Lowe's injuries resulted from his pre-existing conditions.

We review a challenge to a trial court's denial of a mistrial motion in accordance with established principles. The decision whether to grant a motion for a mistrial is a matter submitted to the trial court's sound discretion. Clark v. Chapman, 238 Va. 655, 661, 385 S.E.2d 885, 888 (1989); State Farm Mut. Auto. Ins. Co. v. Futrell, 209 Va. 266, 274, 163 S.E.2d 181, 187 (1968); see Rose v. Jaques, 268 Va. 137, 157, 597 S.E.2d 64, 76 (2004)

; Robertson v. Metro. Wash. Airport Auth., 249 Va. 72, 77, 452 S.E.2d 845, 847 (1995). This broad discretionary power reflects in part the principle that a jury is presumed to have followed a timely and explicit cautionary instruction directing it to disregard an improper remark or question by counsel. See Stump v. Doe, 250 Va. 57, 62, 458 S.E.2d 279, 282 (1995); Hamer v. School Bd. of the City of Chesapeake, 240 Va. 66, 75, 393 S.E.2d 623, 628-29 (1990); Maxey v. Hubble, 238 Va. 607, 615-16, 385 S.E.2d 593, 597 (1989).

The general rule in this Commonwealth is that absent a manifest probability of prejudice to an adverse party, a new trial is not required when a court sustains an objection to an improper remark or question by counsel and thereafter instructs the jury to disregard the remark or question. Kitze v. Commonwealth, 246 Va. 283, 288, 435 S.E.2d 583, 585 (1993); Clark, 238 Va. at 661, 385 S.E.2d at 888; Carter v. Shoemaker, 214 Va. 16, 17, 197 S.E.2d 181, 182 (1973); Norfolk S. Ry. Co. v. Harris, 190 Va. 966, 975, 59 S.E.2d 110, 114 (1950). A different standard would place an undue burden on the trial courts that would impede the efficient administration of justice. Kitze, 246 Va. at 288, 435 S.E.2d at 585; Saunders v. Commonwealth, 218 Va. 294, 303, 237 S.E.2d 150, 156 (1977); Washington & Old Dominion Ry. v. Ward's Adm'r, 119 Va. 334, 339, 89 S.E. 140, 142 (1916).

"Conversely, as an exception to the [general] rule, if the prejudicial effect of the impropriety cannot be removed by the instructions of the trial court, the [adverse party] is entitled to a new trial." Kitze, 246 Va. at 288, 435 S.E.2d at 585 (quoting Saunders, 218 Va. at 303,237 S.E.2d at 156); see Harris, 190 Va. at 975,

59 S.E.2d at 114. Thus, a court is required to grant a new trial, if requested, when the prejudicial effect of an improper remark or question is overwhelming, such that it cannot be cured by a cautionary instruction. Hamer, 240 Va. at 75,

393 S.E.2d at 629; Maxey, 238 Va. at 616,

385 S.E.2d at 597.

The trial court's determination whether a statement or question of counsel is so inherently prejudicial that the prejudice cannot be cured by a cautionary instruction must be guided by a consideration of several factors. These factors include the relevance and content of the improper reference, and whether the reference was deliberate or inadvertent in nature. The court also must consider the probable effect of the improper reference by counsel. All these factors must be considered because not every irrelevant statement or question will result in prejudice to an opposing party. See Virginia-Lincoln Furniture Corp. v. Southern Factories & Stores Corp., 162 Va. 767, 781, 174 S.E. 848, 854 (1934). To justify a new trial, the nature of counsel's improper reference must be "likely to inflame the passion or instill a prejudice in the minds of the jury." Id.; see also Kitze, 246 Va. at 288,

435 S.E.2d at 585; Meade v. Belcher, 212 Va. 796, 799, 188 S.E.2d 211, 213 (1972).

In the present case, counsel's question addressed matters that were irrelevant to the issue of Lowe's damages. Lowe was not seeking damages for lost wages during the time that he was incarcerated after the accident. In addition, Lowe's failure to pay child support did not result in either a felony conviction or a misdemeanor involving moral turpitude and, therefore, could not be used to impeach his credibility. See Godbolt v. Brawley, 250 Va. 467, 472, 463 S.E.2d 657, 660 (1995)

; Great Coastal Express, Inc. v. Ellington, 230 Va. 142, 147, 334 S.E.2d 846, 850 (1985); Lincoln v. Commonwealth, 217 Va. 370, 374, 228 S.E.2d 688, 691 (1976); Land v. Commonwealth, 211 Va. 223, 226, 176 S.E.2d 586, 588 (1970). Thus, in the absence of any demonstrated probative value or proper purpose, the content of defense counsel's question served only to imply that Lowe had been in "trouble with the law" for failing to pay child support, and that he may have been incarcerated for that reason.

We also observe that defense counsel's reference to these matters was deliberate, rather than inadvertent. When counsel deliberately places irrelevant issues before a jury for an improper purpose, the likely necessity of granting a mistrial increases. See Forsberg v. Harris, 238 Va. 442, 445, 384 S.E.2d 90, 91 (1989)

; Davis v. Maynard, 215 Va. 407, 408, 211 S.E.2d 32, 32-33 (1975).

We conclude that defense counsel's deliberate and improper reference to Lowe's child support delinquency and "trouble with the law" was so inherently prejudicial to the jury's perception of his character and credibility that the effect of the impropriety could not be removed by the trial court's instruction. This holding is necessarily specific to the facts of this case and does not signal a departure from the general principle that a jury is presumed to have followed a court's timely and explicit cautionary instruction. Rather, our decision is required by...

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13 cases
  • Hodges v. Com.
    • United States
    • Virginia Supreme Court
    • June 7, 2005
    ...irrelevant issues before a jury for an improper purpose, the likely necessity of granting a mistrial increases." Lowe v. Cunningham, 268 Va. 268, 274, 601 S.E.2d 628, 631 (2004). Whether improper evidence is so prejudicial as to require a mistrial is a question of fact to be resolved by the......
  • Lewis v. Com.
    • United States
    • Virginia Supreme Court
    • March 3, 2005
    ...The decision whether to grant a mistrial motion is a matter submitted to the circuit court's sound discretion. Lowe v. Cunningham, 268 Va. 268, 272, 601 S.E.2d 628, 630 (2004); Burns v. Commonwealth, 261 Va. 307, 341, 541 S.E.2d 872, 894 (2001); Cheng v. Commonwealth, 240 Va. 26, 40, 393 S.......
  • Shifflett v. Commonwealth
    • United States
    • Virginia Court of Appeals
    • January 14, 2014
    ...error irrespective of a cautionary instruction. Powell, 13 Va. App. at 27, 409 S.E.2d at 628; see, e.g., Lowe v. Cunningham, 268 Va. 268, 274, 601 S.E.2d 628, 631 (2004). Therefore, notwithstanding that the majority assumes, without deciding, that the trial court erred in allowing an errone......
  • Riverside Hosp., Inc. v. Johnson
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    • Virginia Supreme Court
    • November 3, 2006
    ...209, 214, 608 S.E.2d 907, 910 (2005), or to caution the jury when questions by counsel are inappropriate. See Lowe v. Cunningham, 268 Va. 268, 273, 601 S.E.2d 628, 631 (2004). When considering the prejudicial nature of a statement or question offered before a jury, we examine the relevance ......
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