Burley v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia

JAMES HENRY BURLEY
OPINION BY
v. Record No. 0568-97-3 JUDGE RUDOLPH BUMGARDNER, III
FEBRUARY 2, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF AMHERST COUNTY
J. Michael Gamble, Judge
James J. Angel for appellant.

Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

James Henry Burley appeals his conviction of the murder of

Robin Burge and the related charges of use of a firearm during

the commission of the murder and possession of a firearm by a

convicted felon. On appeal he contends that the trial court

erred (1) by admitting evidence that he committed a second murder

and (2) by trying the charge of possession of a firearm by a

felon with the other charges. We find that the trial court

properly admitted evidence of the second murder and committed no

reversible error in not severing the possession of a firearm by a

felon charge.

A deputy sheriff found the body of Robin Burge on November

22, 1995, while hunting in a remote part of Amherst County. On

December 28, 1995, another hunter found the body of Jacqueline

Carter in another remote part of the county about four miles from

the location of Burge's body. Both victims had been shot with
the same pistol.

On February 28, 1996, the sheriff's office received

information that pointed their investigation toward the

defendant. Deputies went to his trailer with a search warrant

for the defendant's truck. While there, the sheriff's

investigator mentioned the murder of Robin Burge. The

investigator explained that he was looking for the murder weapon.

He asked the defendant for permission to search the trailer but

told the defendant that he did not have a search warrant for his

trailer and that the defendant did not have to give permission.

He told the defendant that if he would let him search the

trailer, he would not place any firearm charges unless he found

one of the type used to kill Burge. The investigator said he

knew the defendant was a convicted felon and was not supposed to

have any guns in his possession. The defendant gave permission

for the search saying that he had nothing to hide.
The deputies first found a box of Remington Express .32

caliber Smith and Wesson long shells in a jewelry box on the

defendant's dresser. When the deputies found the box of shells,

the defendant denied owning a .32 caliber pistol. Then they

found a loaded .32 caliber Colt revolver hidden in a box of

clothes under a clothes basket in the defendant's closet. When

the gun was found, the defendant expressed surprise and denied

owning the gun or knowing how it got among his clothes.

The deputies arrested the defendant and charged him with

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both murders. Later, the defendant admitted lying about the gun

and said that he had gotten it recently at a flea market.

Ballistic tests conclusively established that it was the weapon

used to kill both Robin Burge and Jacqueline Carter. The shells

found on the defendant's dresser and loaded in the pistol

cylinder were the type used to commit the murders.

In this case, the essential fact that the Commonwealth had

to prove was whether the defendant possessed the murder weapon at

the time of the murder. The fact could only be proven by

circumstantial evidence. The more times the witnesses put the

defendant in possession of the gun and the closer the occasions

were to the date of the murder the more convincing the inference

of guilt. The Commonwealth had to show, as completely as it

could, that the defendant always possessed the gun from before

the Burge murder until the time the deputies found it in his

closet.
Douglas Heirs testified that he had given the defendant the

Colt revolver in June 1995. Heirs said he had bought it twelve

years before at a flea market. He also gave the defendant a

holster, a gun case, and a box of .32 caliber Smith and Wesson

long cartridges for which he still had the receipt. Raymond

Goode testified that while he was in jail with the defendant the

defendant told him he had shot "Robin." Caroline Paul, the

defendant's girlfriend, identified the gun as the one she saw in

the defendant's truck around Christmas 1995. She said the

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defendant kept the pistol and case under the seat of his truck.

She also had seen the gun on the coffee table and under the

mattress in his trailer in January or February 1996. She further

testified that on December 27, 1995, the defendant identified the

place where Robin Burge's body had been found and pointed out a

yellow bus that he said was the place where she had been

murdered.

The Commonwealth presented evidence to show that the

defendant possessed the gun on December 27, 1995, when it was

used to murder Jacqueline Carter. Three witnesses testified:

Dr. David Oxley, David Gibbs, and Christopher Slusher.

Christopher Slusher testified that while he and the defendant

were both in jail he overheard the defendant admit that he had

shot Jacqueline Carter. Oxley and Gibbs established that the

Burge murder weapon was also the Carter murder weapon. The

defendant objected to any reference to the Carter murder. As

each item related to that murder was presented, the trial court

overruled the objection but gave a cautionary instruction that

the jury must only consider the evidence on the issue of

ownership or possession of the firearm.
As a rule, evidence of other criminal conduct is

inadmissible. See Kirkpatrick v. Commonwealth, 211 Va. 269, 272,

176 S.E.2d 802, 805 (1970). Such evidence is usually excluded

"because it may confuse the issues being tried and cause undue

prejudice to the defendant." Guill v. Commonwealth, 255 Va. 134,

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138, 495 S.E.2d 489, 491 (1998) (citation omitted). However,

evidence of other criminal conduct is admissible if it tends to

prove any relevant element of an offense charged. See id. at

139-40, 495 S.E.2d at 492 (other crimes evidence admissible where

there is an "intimate" or "'logical and natural connection

between the two acts'"); Kirkpatrick, 211 Va. at 272, 176 S.E.2d

at 805. The exceptions allow the evidence to be considered when

it tends to prove method, intent, identity, or criminal agency.
See id.; Cheng v. Commonwealth, 240 Va. 26, 33, 393 S.E.2d 599,

603 (1990); Spencer v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d

609, 616, cert. denied, 498 U.S. 908 (1990); Scott v.

Commonwealth, 228 Va. 519, 526, 323 S.E.2d 572, 577 (1984).

The Supreme Court has consistently upheld the admission of

evidence that the defendant committed an additional crime when

that evidence connects the defendant to the murder weapon. In

Woodfin v. Commonwealth, 236 Va. 89, 372 S.E.2d 377 (1988), cert.

denied, 490 U.S. 1009 (1989), the defendant was tried for capital

murder. The trial court admitted the evidence that he shot a

deputy sheriff two hours after the capital murder and that he

shot a police officer two days later. The same revolver was used

at each shooting. The court permitted the evidence of the second

and third shootings because the case was "based on circumstantial

evidence, proof that defendant was the criminal agent, an

essential element of the offenses, depended on linking him with

the revolver used to kill the victims." Id. at 95, 372 S.E.2d at

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381.

In Cheng, 240 Va. 26, 393 S.E.2d 599, the defendant was

tried for capital murder. Evidence that he had planned to use a

shotgun in a robbery was properly admitted because it was

connected and led up to the murder charge. In Tuggle v.

Commonwealth, 228 Va. 493, 323 S.E.2d 539 (1984), also a capital

murder, the defendant's statement that he had robbed a service

station was permitted because it linked him to the murder weapon.

"Tuggle's voluntary exclamation established his possession of

the murder weapon. Therefore, this evidence was connected with

the charge for which Tuggle was on trial. Seizure of the weapon

from Tuggle's possession and the scientific evidence derived

therefrom were most important in the truth-finding process." Id.

at 507, 323 S.E.2d at 547.

In Kirkpatrick, 211 Va. 269, 176 S.E.2d 802, the Court

permitted evidence that the defendant stole the murder weapon.
The mere fact that one or more links of that
chain consist of circumstances which indicate
that Poole and Kirkpatrick were involved in
the larceny of the gun from Lawson Jones is
no reason why the court should exclude those
circumstances. They are "so intimately
connected and blended with the main facts
adduced in evidence, that they cannot be
departed from with propriety; and there is no
reason why the criminality of such intimate
and connected circumstances, should exclude
them, more than other facts apparently
innocent."

Id. at 276, 176 S.E.2d at 807-08 (quoting Walker v. Commonwealth,

1 Leigh (28 Va.) 574, 576 (1829)).

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 The leading case of Walker, 1 Leigh (28 Va.) 574,

established the general principle that other crimes evidence may

be admissible. As its illustration of this principle, the Court

gives a hypothetical case in which a murder weapon is linked to

the defendant through proof that he committed a separate crime.
Thus, if a man be indicted for murder, and
there be proof that the instrument of death
was a pistol; proof, that that instrument
belonged to another man, that it was taken
from his house on the night preceding the
murder, that the prisoner was there on that
night, and that the pistol was seen in his
possession on the day of the murder, just
before the fatal act committed, is
undoubtedly admissible, although it has the
tendency to prove the prisoner guilty of a
larceny.
Id. at 576-77.

As a principle of law, evidence of other crimes is

admissible when it links the murder weapon to the defendant

because it is so highly relevant that its probative value

outweighs any prejudice. The principle applies to the present

case. Evidence of the Carter murder inextricably linked the

Burge murder weapon to the defendant. The criminal agency of the

defendant was an essential element of the charge of murder of

Robin Burge. The physical evidence alone supplied sufficient

direct evidence to prove all other elements of the crime, but

only circumstantial evidence could establish the criminal agency

of the defendant.

The person who murdered Robin Burge possessed the Colt

revolver and the .32 caliber Smith and Wesson long shells when

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the murder occurred. If the defendant possessed the weapon at

that time, he killed Robin Burge. Any evidence that linked him

to the weapon tended to make his guilt more probable. The more

times he was found in possession and the closer the occasions

were to the date of the murder, the more convincing the inference

that he possessed it when Robin Burge was killed. The links

between the defendant and the murder weapon were highly relevant

because they tended logically to establish the essential premise

of the Commonwealth: the defendant possessed the murder weapon

when the victim was shot.
The defendant initially denied possession and ownership of

the weapon, denied knowing or murdering Burge, and later only

claimed to have bought it recently. During the trial, he

vigorously attacked any testimony linking him to the gun. The

Commonwealth was not required to rely on the fact that the murder

weapon was found in the defendant's possession three months after

the murder, nor was it required only to use instances that did

not also connect the defendant to other crimes. The Commonwealth

had to prove beyond a reasonable doubt that the defendant

possessed the weapon on November 22, 1995. The Commonwealth is

"not obliged to have faith that the jury would be satisfied with

any particular one or more items of proof. Therefore, it was

entitled to utilize its entire arsenal." Pittman v.

Commonwealth, 17 Va. App. 33, 35-36, 434 S.E.2d 694, 696 (1993).
[T]he perpetrator has no right to have the
evidence "sanitized" so as to deny the jury
knowledge of all but the immediate crime for

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which he is on trial. The fact-finder is
entitled to all of the relevant and connected
facts, including those which followed the
commission of the crime on trial, as well as

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 those which preceded it; even though they may
show the defendant guilty of other offenses.

Scott, 228 Va. at 526-27, 323 S.E.2d at 577 (citations omitted).

The trial court appropriately cautioned the jury to consider

the evidence for the limited purpose of determining the

defendant's possession of the gun at the time of the Burge

murder. See Kelly v. Commonwealth, 8 Va. App. 359, 370-71, 382

S.E.2d 270, 276 (1989). Juries are presumed to follow prompt

cautionary instructions regarding the limitations placed upon

evidence. See LeVasseur v. Commonwealth, 225 Va. 564, 589, 304

S.E.2d 644, 657 (1983), cert. denied, 464 U.S. 1063 (1984).

The evidence that linked the defendant to the murder weapon

when Jacqueline Carter was killed was highly probative of his

criminal agency during the Robin Burge murder. However,

admissibility is still "subject to the further requirement that

the legitimate probative value . . . exceed[s] the incidental

prejudice caused the defendant." Guill, 255 Va. at 139, 495

S.E.2d at 491-92 (citation omitted). The probative value in

proving the essential issue in the trial outweighed any

incidental prejudice it caused the defendant. We find that the

evidence of Carter's murder was properly admitted for the limited

purpose of establishing the defendant's possession of the murder

weapon on November 22, 1995. The trial court properly admitted

evidence regarding the defendant's possession of the firearm

during Carter's murder.

Next, the defendant complains that the court erred in not

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severing the charge of possession of a firearm by a felon from

the other charges. When the case first came for trial, all

charges arising from the two murders were scheduled to be heard

together. The defendant in a written motion asked the court to

sever the Burge murder charges from the Carter murder charges.

The trial court granted the motion as made. On the morning of the

first day of trial, the defendant made a new motion requesting

that the trial court also sever the charge of possession of a

firearm by a felon. The trial court ruled that the fact the

defendant was a felon was intertwined with the proof of the

murder charge and that it was independently admissible during the

trial of the murder charge.
In Hackney v. Commonwealth, 28 Va. App. 288, 295, 504 S.E.2d

385, 389 (1998) (en banc), we held that "a trial court must sever

a charge of possession of a firearm by a convicted felon from

other charges that do not require proof of a prior conviction."

This Court held "as a matter of public policy, we will not

condone a trial court's clear error in disregarding our decisions

in Johnson [v. Commonwealth, 20 Va. App. 49, 455 S.E.2d 261
(1995),] and Long [v. Commonwealth, 20 Va. App. 223, 456 S.E.2d

138 (1995),] by refusing to sever the possession . . . charge

predicated on the assumption that an accused will testify and

render the error harmless." Id. at 295, 504 S.E.2d at 389.

In the present case, the trial court failed to apply the

holdings in Johnson and Long requiring severance. The trial

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court erroneously ruled that the fact the defendant was a felon

was intertwined with proof of the murder charge and was

independently admissible during the murder trial. The

defendant's primary charges were murder and use of a firearm

during the murder. The defendant's felony status was not an

element of those charges. Nevertheless, the defendant made no

objection to the deputy testifying about his conversation with

the defendant concerning the fact that he was a convicted felon.

Thus, while the fact that the defendant was a convicted felon

was interjected without objection, the actual felony order of

conviction, which specified the crime and the sentence imposed,

was not independently admissible. Assuming the trial court erred

when it did not sever the charges and permitted introduction of

the felony conviction order, we find that the error was harmless

under the circumstances of this case.
The reason the trial court refused to sever the charges is

different from the reasons that caused this Court to refuse in

Hackney to apply harmless error analysis. Accordingly, that

precedent does not prevent a harmless error review in this case.

The harmless error doctrine "enables an appellate court . . . to

ignore the effect of an erroneous ruling when an error clearly

has had no impact upon the verdict or sentence in a case."

Hackney, 28 Va. App. at 296, 504 S.E.2d at 389 (citation

omitted). See Rozier v. Commonwealth, 219 Va. 525, 528, 248

S.E.2d 789, 791 (1978) (error does not require automatic reversal

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of conviction). An error is harmless when a "'reviewing court,

can conclude, without usurping the jury's fact finding function,

that, had the error not occurred, the verdict would have been the

same.'" Davies v. Commonwealth, 15 Va. App. 350, 353, 423 S.E.2d

839, 840 (1992) (quoting Lavinder v. Commonwealth, 12 Va. App.

1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc)). See Harris v.

Commonwealth, 27 Va. App. 554, 568, 500 S.E.2d 257, 264 (1998)

(admission of evidence was nonconstitutional error).
The conviction order informed the jury that the defendant

had committed grand larceny thirteen years earlier. Considering

the totality of circumstances and the weight of the

Commonwealth's evidence, we find that evidence of that conviction

did not affect the verdict. See Lavinder, 12 Va. App. at 1005,

407 S.E.2d at 911 (citation omitted). The evidence of

defendant's guilt was overwhelming. See, e.g., Brown v.

Commonwealth, 25 Va. App. 171, 183, 487 S.E.2d 248, 254 (1997).

The physical evidence clearly proved all the elements of murder

except who was the criminal agent. The criminal agency of the

defendant was the essential issue. The circumstantial evidence

of the defendant's criminal agency was similarly so clear and

overwhelming that we can find that the evidence of an earlier

conviction for grand larceny plainly had no affect on the verdict

or the sentence.

The circumstantial evidence which proved that the defendant

was the criminal agent was the following: Heirs testified that

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in June 1995 he gave the defendant the gun that was used to kill

Robin Burge. Paul testified that she observed the gun in the

defendant's truck around Christmas 1995. When the investigator

found the gun in the defendant's possession, he first denied

ownership of the weapon but then admitted that he recently

obtained it. Goode testified that the defendant told him that he

shot Robin, a prostitute, when she took his drugs and did not

have sex with him. The victim's body contained evidence of

cocaine, and there was no evidence of sexual assault. Expert

evidence excluded the defendant as a contributor of the semen

obtained from swabs of the victim. The defendant repeatedly told

Paul that prostitutes needed to be "blown off the face of the

earth." The conviction order proving the defendant committed

grand larceny thirteen years earlier would have exerted no

prejudicial influence on the jurors who heard the Commonwealth's

evidence that the defendant was the person who murdered Robin

Burge. Accordingly, any error in refusing to sever the trial of

possession of a firearm by a convicted felon was harmless.
For the foregoing reasons, we affirm the convictions.

Affirmed.

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