PRESENT: All the Justices
JAMES EDWARD LOWE
v. Record No. 032707 OPINION BY JUSTICE BARBARA MILANO KEENAN
September 17, 2004
BARBARA E. CUNNINGHAM
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
J. Leyburn Mosby, Jr., Judge
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.
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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
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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
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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, 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
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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
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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
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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 the opprobrium that rightly attaches to
the actions of parents who shirk their child support
obligations. The probable effect of deliberately placing Lowe's
child support delinquency before the jury was to suggest that
because he had failed to honor this most basic social and legal
obligation, he should not be "rewarded" with a significant
damage award.
Our conclusion is not altered by the fact that the trial
court did not require Lowe to answer the improper question, or
by the fact that counsel did not persist in attempting to place
that information into evidence before the jury. While the
presence of these factors could have caused Lowe greater
prejudice, their absence does not negate the inherently
prejudicial impact of defense counsel's question.
Because we hold that defense counsel's question was
inherently prejudicial, we do not reach the issue whether the
jury could have arrived at the same verdict based on the
disputed evidence concerning the cause of Lowe's injuries.
Accordingly, we conclude that the trial court abused its
discretion in denying Lowe's motion for a mistrial.
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For these reasons, we will reverse the trial court's
judgment and remand the case for a new trial limited to the
issue of damages.
Reversed and remanded.
JUSTICE AGEE, with whom JUSTICE LACY and JUSTICE KINSER join,
dissenting.
The majority concludes that the “deliberate and improper
reference to Lowe’s child support delinquency . . . 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.” I disagree. In my
view, the trial court’s denial of Lowe’s request for a mistrial
was properly within its sound discretion and in accord with our
prior precedent. The circumstances surrounding the improper
question, combined with the trial court’s cautionary instruction,
sufficiently negated any deemed prejudice. Furthermore, counsel’s
conduct in this case did not rise to the level of impropriety that
we found objectionable in the cases cited by Lowe and the
majority.
Where counsel makes an improper statement and
the court takes prompt action to remove it by
appropriate instruction to the jury, it will
ordinarily be presumed that the jury heeded the
instruction and that no lasting harm was done. But
where the prejudicial effect is so overwhelming
that it cannot be removed by the court's
instruction, the injured party, if he requests it,
is entitled to a new trial. The injured party's
right to a new trial is especially strong where his
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opponent has persisted in an objectionable course
of conduct after the trial judge has expressed
disapproval of it, sustained an objection to it, or
instructed the jury to disregard it. In that
situation, an appellate court will presume that the
prejudicial effect of the improper conduct was too
strong to be removed by further admonitions or jury
instructions.
Maxey v. Hubble, 238 Va. 607, 615-16, 385 S.E.2d 593, 597 (1989)
(emphasis added) (citation omitted).
Although not cited by the majority, Lowe relied extensively
on this Court’s opinion in Payne v. Carroll, 250 Va. 336, 461
S.E.2d 837 (1995). In Payne, defense counsel asked the following
question during cross-examination of the plaintiff: “Now, you,
ma’am, have been convicted of a felony involving fraud, haven’t
you?” 250 Va. at 338, 461 S.E.2d at 838. The plaintiff responded
affirmatively and her counsel objected on the basis “that the
defense had no right to disclose the nature of the felony.” Id.
(internal quotation marks omitted). The trial court denied the
plaintiff’s motion to set aside the verdict and refused to grant a
new trial. We reversed the trial court and held that, “for
purposes of impeachment, the fact of a prior conviction of a
felony may be shown against a party-witness in a civil case, but
that the name of the felony, other than perjury, and the details
thereof may not be shown.” Id. at 340, 461 S.E.2d at 839.
Multiple factors distinguish the case at bar from Payne and
argue against classifying counsel’s statement in the present case
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as so “overwhelming” that a finding that the trial court abused
its discretion is warranted. Among them: (1) the trial court
sustained Lowe’s objection to defense counsel’s question, (2) Lowe
did not answer the improper question, (3) the trial court promptly
gave a cautionary instruction, (4) the improper question did not
establish a conviction or that the subject matter related to a
crime, and (5) there was no continuing course of conduct by
defense counsel. In my view, the ameliorative effect of these
cumulative circumstances mitigated any prejudicial effect such
that Lowe was not entitled to a mistrial.
The cases cited by the majority can be readily distinguished
from the case at bar, both factually and by the scope of the
prejudicial statement at issue. In Kitze v. Commonwealth, 246 Va.
283, 435 S.E.2d 583 (1993), we set aside a criminal conviction
because the prosecutor, during his closing argument, improperly
argued that a finding of insanity would result in the defendant
going free. 246 Va. at 287-88, 435 S.E.2d at 584-85. Unlike the
present case, the trial court in Kitze overruled the defendant’s
objection and did not give an immediate or directly related
cautionary instruction. Id. at 288, 435 S.E.2d at 585.
In Hamer v. School Bd. of the City of Chesapeake, 240 Va. 66,
393 S.E.2d 623 (1990), we reversed a trial court’s denial of a
mistrial because “[c]ounsel’s persistence in a course of conduct
which the court had disapproved and instructed the commissioners
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to exclude from their considerations . . . raised a presumption
that ‘the prejudicial effect of the improper conduct was too
strong to be removed by further admonitions.’ ” Id. at 76, 393
S.E.2d at 629. Moreover, the trial court overruled objections to
some of trial counsel’s prejudicial remarks. By contrast, the
inappropriate but unanswered question posed to Lowe did not
reflect a continuing course of conduct and a prompt cautionary
instruction was given.
Likewise, in Maxey, it was also the attorney’s pernicious and
persistent conduct, despite repeated admonition by the trial
court, which required reversal of that court’s decision not to
grant a mistrial. We based that decision “upon the cumulative
effect of plaintiff’s counsel’s repeated statements, [which]
persisted . . . notwithstanding the trial court’s rulings.”
Maxey, 238 Va. at 616, 385 S.E.2d at 597; see also Rinehart &
Dennis Co. v. Brown, 137 Va. 670, 675-76, 120 S.E. 269, 271 (1923)
(plaintiff’s counsel persisted in alluding to insurance in a tort
case).
According to the majority, the improper question posed by
defense counsel in this case constituted an attempt to take
advantage of the “opprobrium that rightly attaches to the actions
of parents who shirk their child support obligations” by
suggesting to the jury that such a miscreant ought not to be
rewarded. However, child support often involves a civil, not
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criminal, matter and a question about “a little trouble with the
law about not paying child support,” left unanswered, does not
establish that Lowe was ever convicted of a crime. Neither does
it establish Lowe was ever, in fact, deficient in any child
support due from him.
There is one additional distinguishing characteristic of the
case at bar; the plaintiff received a verdict in his favor. Lowe
argues that “[e]ven though the jury found for [him] on the issue
of liability, the damage award did not even cover [his] emergency
room visit and attendant bills.” However, there was evidence
before the jury that many of Lowe’s injuries resulted from
preexisting conditions and Lowe has not shown how the unanswered
question at issue in this case prejudiced the jury to such a
degree that it did not make a fair award. As the trial court
stated in entering an order on the jury’s verdict, “[the award is]
certainly within the evidence that the Court’s heard.”
In my view, the mitigating factors discussed above placed the
inappropriate conduct squarely within the presumption “that the
jury heeded the [trial court’s] instruction and that no lasting
harm was done.” Maxey, 238 Va. at 615, 385 S.E.2d at 597. This
is particularly true in this case because a verdict was returned
for the plaintiff and there is evidence in the record supporting
the amount of the verdict. For all these reasons, I do not find
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the trial court abused its discretion in denying the mistrial
motion and, therefore, I respectfully dissent.
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