COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Overton
Argued at Richmond, Virginia
HALLIE JUNIUS BULLOCK
OPINION BY
v. Record No. 1325-97-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 28, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Brian J. Grossman (Eck, Collins & Marstiller,
on briefs), for appellant.
Marla Graff Decker, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Hallie Junius Bullock (appellant) was convicted in a jury
trial of malicious wounding, robbery, and two counts of use of a
firearm during the commission of the felony offenses. On appeal,
he contends the trial court erred in admitting evidence of his
subsequent "bad acts."
I.
On November 21, 1996, at approximately 5:00 p.m., Dr.
Alexander Yuzefovsky (the victim) was returning to his apartment
in the St. John's Woods apartment complex in Richmond. It was
daylight and a "little bit rainy." Shortly after Yuzefovsky got
out of his car, he heard what he believed to be a "jogger"
running up behind him. As he began to turn to the right to let
the person pass, he "heard a shot" and "felt [a sharp] pain in
[his] right shoulder." As he fell to the ground, Yuzefovsky saw
the attacker pick up his car keys and run back to his car, where
another man was standing. Both men drove away in Yuzefovsky's
vehicle.
Yuzefovsky was taken to the Medical College of Virginia,
where he had a total of nine surgeries. As a result of the
attack, Yuzefovsky suffered severe and permanent injury to his
right shoulder.
No shell casings or ballistic evidence was recovered at the
crime scene. The police concluded that Yuzefovsky was shot in
the shoulder with a weapon that was not a handgun.
Yuzefovsky saw his assailant's face when the man picked up
the keys and again at the time he opened the car door. The
victim made a conscious effort to "try to remember the face."
Neither the assailant nor his accomplice was wearing a mask.
Yuzefovsky described the man who shot him as an African-American,
seventeen to nineteen years old, 5'8"-5'9" tall and weighing
160-165 pounds. Appellant is a nineteen-year-old
African-American male. He is 5'9" and weighs 160 pounds.
On December 17, 1996, the police visited Yuzefovsky in the
hospital and showed him six photographs. 1 He told police that
his assailant was not in any of the photos. On December 23, the
police returned to the hospital and created a computer composite
drawing based on the victim's description of his assailant. On
January 23, 1997, Yuzefovsky reviewed a second photo spread at
1
Appellant's photograph was not among the six.
2
the police station. He picked appellant's photograph from the
group of eight and identified him as his attacker. Yuzefovsky
also identified appellant in court as the man who shot him.
At trial, the Commonwealth introduced evidence from two
witnesses over appellant's objection. Stanley Hawkins identified
a sawed-off shotgun as the gun he borrowed from appellant and
used in a robbery in Richmond on December 31, 1996, one month
after the Yuzefovsky shooting. 2 Hawkins recognized the gun by
its "taped" stock and its "pull bolt" and cartridge. Hawkins
added that on January 6, 1997, he purchased the shotgun from
appellant for $25. Hawkins further testified that on the evening
of January 6, 1997, he and appellant were riding in a vehicle
"being pursued by the police." During the pursuit, Hawkins
kicked the car door open and threw the shotgun out of the car.
Richmond Police Detective Michael Mabry testified that after
an undercover surveillance operation which resulted in the
January 6 chase, the police recovered the shotgun that was thrown
from the car. He further testified that appellant was one of the
occupants of the vehicle apprehended after the chase.
When counsel showed Yuzefovsky the shotgun recovered on
January 6, he testified that "[t]his thing looks . . . identical
[to what] that man had in his hands." The shotgun was introduced
into evidence as the weapon used to shoot Yuzefovsky.
2
At the time of his testimony, Hawkins had been charged with
the robbery.
3
Appellant's defense included four alibi witnesses who
testified that appellant was at his apartment in Stratford Hills 3
throughout the afternoon of November 21, 1996. Elanda Wilson,
appellant's roommate, testified that appellant was home when she
awoke around noon and she remained with him all afternoon, except
for a half-hour around 2:00 p.m. Kenya Moore, appellant's
friend, testified that he was with appellant at the apartment
from 1:30 or 2:00 p.m. until after 7:00 p.m. Jaroon Woodson,
another friend, testified that appellant was there when he
arrived at around 7:00 p.m. Additionally, appellant's
girlfriend, Tracie Walker, testified that she spoke to appellant
on the telephone at his home, sometime between noon and 4:00 p.m.
II.
Appellant challenges the admission of Hawkins' and Mabry's
testimony regarding appellant's role in the events of December
31, 1996 and January 6, 1997. He contends the trial court erred
in finding the probative value of the evidence outweighed the
prejudicial effect on appellant.
"Evidence of other crimes or bad acts is inadmissible if it
is offered merely to show that the defendant is likely to have
committed the crime charged." Goins v. Commonwealth, 251 Va.
442, 462, 470 S.E.2d 114, 127, cert. denied, 117 S. Ct. 222
(1996). However,
there are important exceptions to that rule.
3
Stratford Hills apartments are approximately one mile from
St. John's Woods apartments, the site of the shooting.
4
Evidence of other crimes is admissible if it
tends to prove any fact in issue, even though
it also tends to show the defendant guilty of
another crime.
Hewston v. Commonwealth, 18 Va. App. 409, 412, 444 S.E.2d 267,
268 (1994) (citing Spencer v. Commonwealth, 240 Va. 78, 89, 393
S.E.2d 609, 616, cert. denied, 498 U.S. 908 (1990)).
"'[O]ne of the issues upon which "other crimes" evidence may
be admitted is that of the perpetrator's identity, or criminal
agency, where that has been disputed.'" Id. Moreover,
"[e]vidence of 'other crimes' is relevant and admissible if it
tends to prove any element of the offense charged," Guill v.
Commonwealth, 255 Va. 134, 138, 495 S.E.2d 489, 491 (1998), "or
if 'the evidence is connected with . . . the offense for which
the accused is on trial.'" Woodfin v. Commonwealth, 236 Va. 89,
95, 372 S.E.2d 377, 381 (1988), cert. denied, 490 U.S. 1009
(1989) (citation omitted).
"Admission of evidence under [the] exceptions . . . is
subject to the further requirement that the legitimate probative
value of the evidence must exceed the incidental prejudice caused
the defendant." Guill, 255 Va. at 139, 495 S.E.2d at 491-92.
"'The responsibility for balancing the competing considerations
of probative value and prejudice rests in the sound discretion of
the trial court. The exercise of that discretion will not be
disturbed on appeal in the absence of a clear abuse.'" Hewston,
18 Va. App. at 414, 444 S.E.2d at 269 (citation omitted). See
Battle v. Commonwealth, 24 Va. App. 440, 482 S.E.2d 873 (1997).
5
"[T]he test for admission of evidence of other crimes is met when
there is 'a causal relation or logical and natural connection
between the two acts, or they . . . form parts of one
transaction.'" 4 Guill, 255 Va. at 140, 495 S.E.2d at 492
(quoting Barber v. Commonwealth, 182 Va. 858, 868, 30 S.E.2d 565,
569 (1944)). This test does not distinguish between subsequent
or prior bad acts. See also United States v. Whaley, 786 F.2d
1229, 1232 (4th Cir. 1986) ("The mere fact that the 'other acts'
at issue occurred after the events charged in the indictment does
not render them irrelevant.").
In the instant case, Hawkins and Mabry provided testimony
that linked appellant to the shotgun introduced as the weapon
used in the charged offenses. This evidence tended to prove the
identity of appellant as the criminal agent in the robbery and
malicious wounding counts. In addition, appellant's possession
of the shotgun was an element of the two counts of use of a
firearm in the commission of a felony. Consequently, the
disputed evidence was sufficiently related to the crimes charged
4
In Guill, the Commonwealth introduced evidence of a 1985
burglary and attempted rape which it argued was sufficiently
similar to the charged burglary to show the defendant's intent
was to rape. The trial court found the circumstances of the
prior crime sufficiently similar to the charged offense and
admitted the evidence. The Supreme Court reversed, noting
several factual differences and holding that "evidence of the
1985 crime was inadmissible . . . because that offense was not
idiosyncratic in relation to the facts of the present offense.
As such, the evidence lacked a logical relationship to the
offense charged and, thus, was irrelevant and showed only the
defendant's propensity to commit the crime charged." Guill, 255
Va. at 141, 495 S.E.2d at 493.
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and satisfied this threshold requirement.
Appellant presented an alibi defense, disputing his identity
as the criminal agent. The Commonwealth bore the burden of
proving beyond a reasonable doubt that appellant was the man who
attacked Yuzefovsky and that he used a weapon, the shotgun later
found and identified by the victim, when he did so. Evidence
tending to establish appellant's ownership of the weapon used in
the shooting was critical to link appellant to the crimes and to
corroborate the victim's identification.
Detective Mabry testified that the police recovered the
shotgun following pursuit and apprehension of a vehicle in which
appellant was a passenger. This testimony linked the passengers
of the car, including appellant and Hawkins, to the weapon used
in the Yuzefovsky shooting. Hawkins testified that he borrowed
the shotgun from appellant on December 31, 1996 and that
appellant sold him the weapon on January 6, 1997. Both of these
facts tended to establish that appellant was in possession and
control of the shotgun one month after the shooting. Mabry's and
Hawkins' testimony, taken together, established a connection
between appellant and the shotgun and corroborated Yuzefovsky's
eyewitness identification of appellant as the shooter. There was
a "'logical and natural connection between'" appellant's
subsequent possession of the weapon and the crime charged, Guill,
255 Va. at 140, 495 S.E.2d at 492 (citation omitted), and the
information was highly probative of appellant's identity as the
7
criminal agent.
Appellant next argues that the probative value of the
disputed testimony was outweighed by its highly prejudicial
nature, because it connected him to an admitted robber, a police
chase, providing a gun used in the commission of another felony,
and the sale of a gun. We disagree. Although the evidence
reflected that appellant was involved with questionable
associates in questionable circumstances, which might have had an
adverse effect on him, the trial court did not abuse its
discretion in finding that the substantial probative value of the
evidence outweighed this incidental prejudicial effect.
Appellant also contends that even if the evidence was
admissible in some form, the Commonwealth failed to limit the
scope of the prejudicial testimony to information necessary to
link him with the weapon several weeks after the shooting.
Appellant claims the evidence that he had been under
surveillance, that Hawkins had used the weapon to rob a drug
store, and that Hawkins and appellant had been in a police chase
was irrelevant and should have been excluded. Appellant's
contention lacks merit.
No witness testified that appellant was the person under
surveillance. Mabry testified only that he was conducting
surveillance when he became involved in the police chase. Any
one of the occupants of the vehicle, or the vehicle itself, could
have been the subject of police interest. Hawkins' reasons for
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borrowing the shotgun were closely connected to the probative
information that he borrowed it from appellant. Hawkins' and
Mabry's testimony about the police chase explained how the police
recovered the shotgun and proved that appellant and the shotgun
were both in the vehicle. Appellant "had 'no right to have the
evidence sanitized,' and we cannot say that the trial judge
abused his discretion in admitting relevant and material
evidence." Brown v. Commonwealth, 15 Va. App. 232, 235, 421
S.E.2d 911, 913 (1992) (citation omitted).
Finally, appellant contends the challenged evidence was too
remote in time from the crime charged and should not have been
admitted. "[T]he trial court may consider remoteness as one of
the factors in determining evidentiary relevance of prior bad
acts evidence, but it should not withhold such evidence solely on
the basis of remoteness unless the expanse of time has truly
obliterated all probative value." Lafon v. Commonwealth, 17 Va.
App. 411, 419, 438 S.E.2d 279, 284 (1993). We hold that this
principle applies equally in cases of subsequent bad acts. See,
e.g., Whaley, 786 F.2d 1229. Therefore, any remoteness in time
of the contested evidence relates only to the weight it should be
given. The disputed testimony concerned events occurring
approximately six weeks after the shooting. Under these facts,
the evidence was not so remote that its admission was error.
For the foregoing reasons, the decision of the trial court
is affirmed.
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Affirmed.
10