Rose v. Com.

Present: All the Justices

HARLESS FITZGERALD ROSE
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
v. Record No. 041737 June 9, 2005

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

I.

In this appeal of a criminal conviction, we consider

whether the Commonwealth was entitled to present evidence of a

defendant's prior criminal acts to establish that he was the

perpetrator of the charged crimes.

II.

A grand jury in the Circuit Court of the County of Wise

and the City of Norton indicted Harless Fitzgerald Rose for

the capital murder of Timothy Dale Hughes in the commission of

robbery or attempted robbery in violation of Code § 18.2-31,

robbery in violation of Code § 18.2-58, and use of a firearm

during the commission of a robbery or attempted robbery in

violation of Code § 18.2-53.1. During a jury trial, the

Commonwealth was permitted, over Rose's objection, to present

evidence that he had committed a robbery several months before

the capital murder that is the subject of this appeal.

The jury found Rose guilty of the charged offenses. The

jury fixed his punishment at life imprisonment for the capital

murder offense, 35 years imprisonment for the robbery offense,
and three years imprisonment for the use of a firearm while

committing the robbery.

The circuit court entered a judgment confirming the

jury's verdict, and Rose appealed the judgment to the Court of

Appeals. Rose argued in the Court of Appeals, among other

things, that the circuit court abused its discretion by

permitting the Commonwealth to introduce evidence of his prior

criminal conduct during the guilt phase of the trial. The

Court of Appeals, in an unpublished opinion, held that the

circuit court did not err because this evidence "was

sufficiently idiosyncratic and similar to the charged robbery

to establish the probability of a common perpetrator and the

record supports a finding that the probative value of the

evidence of the [prior] robbery outweighed its potential

prejudicial effect." Rose v. Commonwealth, Record No. 0995-

03-3 (July 6, 2004) (unpublished). Rose appeals.

III.

Applying well-established principles of appellate review,

we must consider the evidence and all reasonable inferences

fairly deducible therefrom in the light most favorable to the

Commonwealth, the prevailing party below. Correll v.

Commonwealth, 269 Va. 3, 6, 607 S.E.2d 119, 120 (2005);

Zimmerman v. Commonwealth, 266 Va. 384, 386, 585 S.E.2d 538,

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539 (2003); Phan v. Commonwealth, 258 Va. 506, 508, 521 S.E.2d

282, 282 (1999).

The prior robbery, which is pertinent to this appeal,

occurred on July 18, 2000, about 10:30 p.m., when Linda Couch

returned to her home in Coeburn, located in Wise County.

Couch was the driver of her car, and Couch's mother was a

passenger in the car. Couch parked the car in front of her

home and exited from the driver's door. She placed her

pocketbook on her shoulder, and she began to walk around the

car to help her mother. Suddenly, someone hit her in the back

and "knocked" her against the car. Couch stated, "It felt

like . . . it was really hard; I don't know if it was a fist

or not. And they hit me once, and I kept hanging on to my

pocketbook, and they hit me again, and had me down on the

ground dragging me, and I let my pocketbook go. And my keys

flew over in the yard, so they took, took my pocketbook;

everything but my keys."

Peggy Wireman, Couch's next-door neighbor, heard Couch's

screams for help. Wireman left her home, went outside, and

chased the assailant. The assailant, who wore a stocking

mask, dark jogging pants and a hooded jacket, eluded Wireman

by running up a hill through some dense "really harsh"

vegetation that included briars.

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 Rose was the perpetrator of this crime. His girlfriend

at the time, Jessica Amanda Counts Salyers, and two other

friends, had helped him plan the robbery. They also helped

him leave the scene of the robbery.

The crimes in the present case occurred on October 5,

2000, around 10:30 p.m., after Timothy Hughes, James Brown,

and Lucas Hurley, employees of the PayLess Supermarket in

Coeburn, closed the store and walked together to a nearby bank

where they intended to deposit the store's money. Unbeknownst

to the men, Rose had made plans to rob them, and he had been

at the store earlier that same evening.

As Hughes, Brown, and Hurley approached the bank's night

deposit box, a man "came around the corner," holding a pistol

in his right hand. The man wore a ski mask, a dark sweatshirt

and sweatpants. The man told Hughes, Brown, and Hurley to

"stop and give me the money." Hurley tossed the money to the

robber. Hughes "shuffled or moved," and the robber shot

Hughes. Hughes fell to the ground, but stood up and began to

chase the robber, who was running away. Hurley and Brown

"froze."

A few seconds later, Brown and Hurley heard a pistol

discharge. They ran towards Hughes, who had been shot a

second time. Hurley tried to help Hughes walk back to the

bank. Hughes was unable to do so. Hurley and Brown contacted

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the Sheriff's Department, and Hughes later died of gunshot

wounds to his chest and abdomen.

Several persons were in the vicinity of the PayLess

Supermarket and observed someone run through yards and "up the

gravel road." Deputy Sheriff Ernie Caldwell, an employee of

the Wise County Sheriff's Department, used a bloodhound to

track the scent of the robber that night. The trail that the

bloodhound was able to detect indicated that the robber ran

through an area that "was overgrown with brush and vines and

thorns."

When Jessica Salyers was romantically involved with Rose,

they were addicted to Oxycontin. They sold illegal drugs and

engaged in other criminal acts to support their addiction.

The day after the robbery, Rose went to Salyers' home

that she shared with her mother. When Salyers got into a car

that Rose was driving, she noticed that he had "scratches on

his face . . . really bad scratches." Rose also had scratches

on his arm. Salyers stated, "[the scratches] were, they had

been made recent. They were fresh. They were really, really

bad. Not like a cat scratch; it was all over. It was on his

nose, his cheeks, on his chin, his neck. And they wasn't as

bad on his arms, but they were pretty bad." However, a deputy

sheriff who saw Rose on the night of the murder testified that

he did not see any scratches on Rose's face.

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 Rose gave Salyers between 30 to 60 Dilaudid pills, a

controlled medication. Rose and Salyers spent the night in a

hotel room, and they ingested "a bunch" of pills. Rose "had a

roll, a wad of money." Rose had also purchased new clothes

and shoes. When Salyers asked Rose where he obtained the

money, he lied by responding that he was working in the coal

mines and that he "was making pretty good money." Rose was

actually unemployed.

Some time before Rose robbed the employees of PayLess

Supermarket and killed Hughes, Rose made statements to Salyers

about committing "a robbery of the supermarket." Salyers

stated that Rose "commented that [there were] no cops that

escorted the person with the money bag."

One night after the murder, Kelly N. Sexton was at a

party. Rose, Jessica Salyers, and others were present, and

they were ingesting Oxycontin. Sexton overheard Rose say

"something about killing something, or he has killed

something."

Patrick R. Sexton had a conversation with Rose before

Hughes was robbed and murdered. Rose asked Sexton if Sexton

had a "handgun" or shotgun because Rose "was having some

trouble with some boys . . . in Coeburn." Kenneth Miller, an

acquaintance of Rose, saw Rose within a week after the murder.

Rose had scratches on his face, and Miller asked Rose, "[D]id

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your girlfriend scratch you up or something hit you?" Rose

replied, "no," and that "he got [them] running through a briar

patch. . . . he was running through the briar patch, running

from the law."

Rose discussed the murder and robbery of Timothy Hughes

with numerous persons who were inmates with him when he was in

jail awaiting trial. Rose told Otis B. Luther that Rose shot

Hughes the second time because Hughes "hollered" Rose's name.

Rose told Joshua E. T. Spears that Rose shot Hughes because

Hughes was able to identify Rose.

Spears also testified that Rose stated that after he shot

and robbed Hughes, Rose ran by the house where the assailant's

mask was eventually found. Captain Michael Holbrook, the

chief investigator for the Wise County Sheriff's Department,

recovered a dark-colored ski mask from the residence of

Kenneth Richardson. Spears testified that when he was

incarcerated with Rose, Rose said he "ran up by a coach's

house." According to Richardson, some of the students in Wise

County called him "Coach." Ricky A. Church, another person

who was incarcerated in jail with Rose, stated that when Rose

learned that the mask had been found, Rose stated: "Well, if

they got the mask, then they got me."

Rose told George D. Hobbs, another inmate in the Wise

County Jail, that "none of this shit would have happened here

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today if the guy had just gave him the money." Rose also told

Hobbs that "[i]f they've got the ski mask, they've got my

ass." Rose admitted to Charles Hodge, who was an inmate with

Rose when he was incarcerated in the Lee County Jail, that

Rose "killed someone making a night deposit, then threw the

weapon in the river."

James Stidham met with Rose sometime after the murder.

Rose identified himself as "Robbie." Rose told Stidham that

Rose "wouldn't a killed him if he wouldn't have identified him

or chased him." Rose showed Stidham a "medium-sized

revolver."

Chris Fisher, the store manager of the PayLess

Supermarket, testified that the amount of the deposit that the

robber stole totaled $13,485.18: "[S]ilver and currency was

$4,478.00, food stamps was $548.00, office checks was

$1,414.74, [and] registered checks was $7,044.44."

Patricia Taylor, a forensic scientist with the Virginia

Division of Forensic Science, testified that she performed DNA

analysis on the mask that was recovered. A DNA profile

obtained from a sample from the inside of the ski mask was

consistent with a mixture. This means that DNA was present

from more than one individual. Taylor opined that "Harless

Rose and another individual cannot be eliminated as possible

co-contributors to the genetic material that I detected from

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the ski mask. The DNA profile, at five specific regions of

the DNA obtained from the sample from the inside of the ski

mask, is eight thousand, three hundred times more likely to

have originated from Harless Rose and one unknown individual,

than from two unknown individuals in the Caucasian

population."

IV.

A.

Rose argues that the Court of Appeals erred by concluding

that the Commonwealth was permitted to introduce evidence of

his prior crimes because the robbery of Linda Crouch did not

bear a singular strong resemblance to the robbery of Hughes

and, thus, the robberies were not sufficiently idiosyncratic.

The Commonwealth responds that the robberies were similar and

that evidence of the prior robbery was properly used to

identify Rose as the perpetrator of the charged crimes. We

disagree with the Commonwealth.

The principles that govern our resolution of this appeal

are well-established. In our jurisprudence, evidence of other

crimes is generally not admissible to prove that a defendant

is guilty of the crime charged. Commonwealth v. Minor, 267

Va. 166, 171, 591 S.E.2d 61, 65 (2004); Scates v.

Commonwealth, 262 Va. 757, 761, 553 S.E.2d 756, 758 (2001);

Guill v. Commonwealth, 255 Va. 134, 138, 495 S.E.2d 489, 491

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(1998). Explaining this rule, we stated that "[s]uch evidence

implicating an accused in other crimes unrelated to the

charged offense . . . may confuse the issues being tried and

cause undue prejudice to the defendant." Id.

We have, however, recognized exceptions to this general

rule:

"Evidence of other offenses is admitted if it
shows the conduct and feeling of the accused toward
[the] victim . . . or if it tends to prove any
relevant element of the offense charged. Such
evidence is permissible in cases where the motive,
intent or knowledge of the accused is involved, or
where the evidence is connected with or leads up to
the offense for which the accused is on trial.
Also, testimony of other crimes is admissible [when]
the other crimes constitute a part of the general
scheme of which the crime charged is a part."

Minor, 267 Va. at 172, 591 S.E.2d at 65. See also Satcher v.

Commonwealth, 244 Va. 220, 230, 421 S.E.2d 821, 828 (1992);

Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802,

805 (1970); accord Scates, 262 Va. at 761, 553 S.E.2d at 759.

Additionally, evidence of other crimes is also admissible

if such evidence is relevant to show the perpetrator's

identity when some aspects of the prior crime are so

distinctive or idiosyncratic that the fact finder reasonably

could infer that the same person committed both crimes.

Minor, 267 Va. at 174, 591 S.E.2d at 66; Guill, 255 Va. at

141, 495 S.E.2d at 493; Spencer v. Commonwealth, 240 Va. 78,

90, 393 S.E.2d 609, 616 (1990); Turner v. Commonwealth, 259

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Va. 645, 651, 529 S.E.2d 787, 790-91 (2000); Chichester v.

Commonwealth, 248 Va. 311, 326-27, 448 S.E.2d 638, 649 (1994);

see Powell v. Commonwealth, 267 Va. 107, 141, 590 S.E.2d 537,

558 (2004).

Admission of evidence of other crimes committed by a

defendant, under these exceptions, is subject to the further

requirement that the legitimate probative value of the

evidence must exceed the incidental prejudice to the

defendant. Minor, 267 Va. at 172, 591 S.E.2d at 65; Guill,

255 Va. at 139, 495 S.E.2d at 491-92; Lewis v. Commonwealth,

225 Va. 497, 502, 303 S.E.2d 890,893 (1983).

Applying the aforementioned principles, we hold that the

circuit court erred by permitting the Commonwealth to present

evidence that Rose had committed the robbery of Couch. When

Rose robbed Couch, he hit her with his fist; he dragged her on

the ground and took her purse; and he fled by running through

some bushes and eventually through vegetation that contained

briars. Rose wore a black or dark blue jogging outfit, and a

hood or stocking covered his head when he committed these

criminal acts.

When Rose robbed the PayLess Supermarket employees and

murdered Hughes, Rose also wore dark clothing, described as a

sweatsuit. However, Rose wore a mask, and he was armed with a

pistol with a short barrel. Unlike the purse-snatching and

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assault of Couch, Rose committed an armed robbery and murder

of Hughes. Even though Rose fled the scene of the robbery and

murder by running through a parking lot, yards, and a hill

where there were trees and briars, the facts surrounding the

two crimes are not sufficiently distinctive or idiosyncratic

to permit the jury to draw an inference that Rose was the

perpetrator of both crimes. Accordingly, we hold that the

circuit court and the Court of Appeals erred by concluding

that the evidence of Rose's prior criminal acts was

admissible.

B.

The Commonwealth argues that even if the circuit court

erred in admitting the evidence of prior crimes, such error

was harmless because of the "wealth of evidence [that]

connected Rose to the robbery and murder of Tim Hughes."

Responding, Rose argues that the error was not harmless and

that such error affected the jury's factual findings. We

disagree with Rose.

When deciding whether non-constitutional error is

harmless in the context of a criminal proceeding, we must

apply Code § 8.01-678 that states in pertinent part:

"When it plainly appears from the record and
the evidence given at the trial that the parties
have had a fair trial on the merits and substantial
justice has been reached, no judgment shall be
arrested or reversed . . . [f]or any . . . defect,

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 imperfection, or omission in the record, or for any
error committed on the trial."

We stated in Clay v. Commonwealth, 262 Va. 253, 259, 546

S.E.2d 728, 731 (2001) that "[i]n a criminal case, it is

implicit that, in order to determine whether there has been 'a

fair trial on the merits' and whether 'substantial justice has

been reached,' a reviewing court must decide whether the

alleged error substantially influenced the jury. If it did

not, the error is harmless."

In Clay, we adopted the following test for non-

constitutional harmless error that was applied by the United

States Supreme Court in Kotteakos v. United States, 328 U.S.

750 (1946):

"If, when all is said and done, the conviction
is sure that the error did not influence the jury,
or had but slight effect, the verdict and the
judgment should stand . . . . But if one cannot
say, with fair assurance, after pondering all that
happened without stripping the erroneous action from
the whole, that the judgment was not substantially
swayed by the error, it is impossible to conclude
that substantial rights were not affected. . . . If
so, or if one is left in grave doubt, the conviction
cannot stand."

Clay, 262 Va. at 260, 546 S.E.2d at 731-32 (quoting Kotteakos,

328 U.S. at 764-65.

Applying the harmless error test and Code § 8.01-678, we

conclude that the circuit court's decision to admit evidence

of the prior crime was indeed harmless error. The evidence of

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Rose's guilt is overwhelming. Rose told his former girlfriend

several months before the murder and robbery that he was

considering robbing PayLess Supermarket employees. He stated

to Salyers that there were "no cops that escorted the person

with the money bag." Rose was seen outside the PayLess

Supermarket the day of the robbery and murder.

After the robbery, two persons observed scratches on

Rose's face, arms, nose, cheeks, chin, and neck. Rose told

Kenneth Miller that Rose received the scratches when "he was

running through the briar patch, running from the law." Rose

admitted his involvement in the robbery and murder to numerous

persons including Ricky Church, George Hobbs, Charles Hodge,

Otis Luther, Kenneth Miller, Josh Spears, and James Stidham.

Additionally, Rose, who used a pistol during the commission of

the robbery and murder, showed a small or medium-sized pistol

to James Stidham.

Additionally, Rose told Josh Spears he ran by "a coach's

house" after the murder, and students in Wise County called

Kenneth Richardson "Coach." Captain Michael Holbrook

recovered a dark-colored ski mask from Richardson's home. As

we have already stated, Patricia Taylor, a forensic scientist,

testified that "[t]he DNA profile [of DNA samples inside the

mask], is eight thousand, three hundred times more likely if

it originated from Harless Rose and one unknown individual,

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than if it originated from two unknown individuals in the

Caucasian population." Several weeks after the robbery and

murder, a police officer observed Rose crying at the scene of

the robbery and murder.

Applying Code § 8.01-678 and the test we adopted in Clay,

and upon our consideration of the record, we conclude "with

fair assurance, after pondering all that happened without

stripping the erroneous action from the whole," that it

plainly appears that Rose had a fair trial and that the

verdict and judgment were not substantially affected by the

admission of evidence of the purse-snatching crime.

V.

Accordingly, we will affirm the judgment of the Court of

Appeals.

Affirmed.

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