Stover v. Com.
| Decision Date | 26 April 1971 |
| Parties | James David STOVER v. COMMONWEALTH of Virginia. |
| Court | Virginia Supreme Court |
Claude M. Hilton, Arlington (Varoutsos, Koutoulakos & Arthur, Arlington, on brief), for plaintiff in error.
C. Tabor Cronk, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., William P. Robinson, Jr., Asst. Atty. Gen., on brief), for defendant in error.
Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.
On January 27, 1969, James David Stover was convicted on separate charges of second degree murder of Francis (Frank) Koerner, malicious wounding of David Ricken, and unlawful wounding of Paul Koerner. His punishment was fixed at confinement in the penitentiary for ten years, ten years and one year, respectively, or a total of 21 years. From the judgment of the lower court sentencing him in accordance with the jury verdict, we granted Stover a writ of error.
We are concerned with the trial court's refusal to grant a motion for a mistrial because of an allegedly improper question asked Stover on cross-examination and its refusal to grant a new trial on the ground of suppression of evidence favorable to the accused.
On the evening of July 25, 1968, Stover and two companions, Burrell and Henderson, were riding in Fairfax County in Stover's 2-door Volkswagen Karmann Ghia. They overtook a 2-door Pontiac being driven by David Ricken, in which Thomas Bewick, Frank Koerner, age 17 Marlene McDaniels, and Frank's older brother, Paul Koerner, were passengers. Considerable beer had been drunk by all three persons in the Stover car and by Ricken, Paul Koerner and Bewick in the Ricken car.
Miss McDaniels testified that, as the Karmann Ghia passed, its occupants made obscene gestures and shouted at those in the Pontiac. A chase ensued over various streets and roads during which the cars passed each other, and insults and empty beer cans were hurled from one to the other, the Commonwealth's evidence being in conflict as to whether the first object was thrown from the Ricken car or the Stover car.
Bewick said that Frank Koerner was 'acting * * * belligerent the whole time' but that his companions did not share his desire to fight after seeing what they thought was a tire iron in the hands of one of Stover's passengers.
Ricken maintained that after trying to escape by a back road he drove into a service station which had closed for the night, cut his lights and coasted to a stop on the gravel parking lot, only to see the Stover car pull in behind him a few seconds later.
Bewick testified that on Ricken's directions, he then jumped out and threw rocks at the Karmann Ghia to keep Stover and his friends from getting out while Ricken and the Koerner brothers ran to hold the car doors shut.
According to Ricken, when he reached the driver's door Stover was already out of the car advancing with both hands up. Ricken, who had seen no weapon in Stover's hand, grabbed him by the wrists, pinned him against the car and hit him in the head twice with his right hand. Ricken was then struck in the head by someone behind him, stabbed in the mouth by Stover and knocked to one knee by another blow on the back of his head. Stover then pushed him down and stabbed him in the neck and again beside the right shoulder blade.
Ricken recalled that Frank Koerner ran up to Stover saying, 'I'm going to get you for this', and that Stover replied with an obscenity, '* * * I am going to kill you', and attacked Frank with his knife. Ricken next remembered Frank crying out, 'Dave, I am stabbed, I am stabbed.' Ricken assisted Frank to his car and, with Marlene McDaniels, drove him to a police substation, leaving their other two friends behind.
Paul Koerner and Bewick meanwhile had been on the passenger side grappling with Burrell through the window of the Karmann Ghia. When Stover with his knife and Henderson with an army intrenching shovel came at them Bewick ran for safety but Paul was held by the arm by Burrell. Paul testified that Henderson hit him in the back three times with the shovel and Stover slashed him with the knife and then held it to his throat. Conciliatory words were then exchanged, Stover offered assistance to Paul Koerner and the encounter abruptly ended.
A few hours later Frank Koerner died from his stab wounds. The same morning Stover heard a radio report of the death, turned himself in that afternoon with the army surplus bayonet used by him in the fight, and voluntarily gave a statement in writing to the police. In the statement and in his testimony he admitted using the bayonet but insisted that he used it only in self-defense to ward off the blows of his attackers.
According to Stover's testimony his windshield was shattered as he came to a stop at the service station and the occupants of Ricken's car rushed at him. He thought that they might have some kind of weapon. Stover pushed against the door to get out as two boys from the other car pushed it in and caught his leg. He grabbed the bayonet from the 'tunnel' in the floor and forced his way out, flailing about as he was attacked first by the two boys on the driver's side and then by the two boys on the other side. He admitted that in swinging the bayonet he stabbed one of his assailants in the back.
Stover maintains that the court erred in refusing to grant a mistrial after the Assistant Commonwealth's Attorney asked him about his subsequent use of a bayonet. The exact questioning was as follows:
At this time counsel for Stover objected and the court sustained the objection, directing that the question be stricken and that the jury disregard it. Defense counsel immediately moved for a mistrial which was denied and the motion was renewed at the conclusion of Stover's testimony.
After lengthy argument, during which the court reproved the Assistant Commonwealth's Attorney for jeopardizing the trial by his improper question, the court again overruled the motion for a mistrial but suggested another method of removing any prejudice. Stover would be permitted to return to the stand for questioning only by his own counsel to deny any previous or subsequent use of a bayonet and to explain that the incident of January 11 was an assault on him in his filling station by two apparent robbers, one of whom was carrying a knife. Without waiving his exception, counsel for Stover followed this suggested procedure.
While conceding that its questioning was improper, the Commonwealth contends that any prejudice which might have resulted was cured by the court's instruction to the jury to disregard the impropriety.
As a general rule any prejudice resulting from an improper question may be removed by prompt direction from the trial court to the jury to disregard it. Lewis v. Commonwealth, 211 Va. 80, 82--83, 175 S.E.2d 236, 238 (1970); Asbury v. Commonwealth, 211 Va. 101, 104--105, 175 S.E.2d 239, 241 (1970). Here, the court did not believe that the prejudicial effect could be so eliminated as shown in its comment that '(t)elling the jury to disregard it is like telling them not to look at that elephant in the corner.' So the additional remedial action was taken which the court believed to be adequate. See People v. Crews, 110 Cal.App.2d 218, 242 P.2d 64 (1952); State v. Fredeen, 167 Minn. 234, 208 N.W. 653 (1926).
On this ground alone, we find no abuse of discretion constituting reversible error in the refusal of the trial court to grant a mistrial.
After judgment had been entered on January 27, 1969, the effective date of the judgment order was extended by another order to February 28. On February 24 motions for a new trial were filed by Stover, supported by affidavit of his counsel, alleging that new material evidence had been found since the trial that would probably have caused the jury to reach a different verdict and that evidence favorable to Stover concerning the character of the prosecuting witnesses had been suppressed by the Commonwealth.
At the hearing on February 28 Stover's counsel testified that at the time of the preliminary hearing he...
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