Hope v. Commonwealth

Benton, J.,

with whom Koontz, C.J., Barrow, J., and Keenan, J., join, dissenting.

The Commonwealth established sufficient facts and circumstances which, if believed by the jury, might have supported the burglary and larceny convictions. However, for no legitimate reason apparent on this record, the Commonwealth offered and was allowed to place before the jury a gun that had no proven relationship to those offenses. The gun was found in woods near the place where Mayfield B. Hope fell while fleeing from a police officer *388nearly twenty-four hours after the burglary. Hope’s companion had just sold some of the stolen goods to an undercover officer. No evidence connects the gun to Hope or to the commission of the burglary and larceny offenses. I believe that evidence concerning the gun was inadmissible, was prejudicial, and constitutes grounds for reversing the conviction.

The Commonwealth’s theory of prosecution was based upon a presumption of theft arising from Hope’s unexplained possession of recently stolen property. The Commonwealth made no showing of the relevance of the gun to proof of the larceny or burglary. In admitting the evidence “for whatever [the jurors] want to determine,” the trial judge made no determination that the gun was relevant to the charges. Our jurisprudence establishes evidentiary limits beyond which the Commonwealth may not proceed in attempting to obtain a conviction.

Evidence which has no tendency to prove guilt, but only serves to prejudice an accused, should be excluded on the ground of lack of relevancy. For evidence to be admissible it must relate and be confined to the matters in issue and tend to prove an offense or be pertinent thereto. Evidence of collateral facts or those incapable of affording any reasonable presumption or inference on matters in issue, because too remote or irrelevant, cannot be accepted in evidence.

Bunting v. Commonwealth, 208 Va. 309, 314, 157 S.E.2d 204, 208 (1967). Not only did the Commonwealth fail to establish that Hope possessed the gun, but the Commonwealth’s own evidence established that the gun had “no causal relation or logical and natural connection with the guilt of [Hope] and [was] irrelevant and immaterial to the charges against him.” Id.

The record established that as Officer Russell pursued Hope on foot into the woods, Officer Belviso drove his vehicle to the edge of the woods, got out, and also began to pursue Hope. At some point, Hope tripped and fell but got up and continued to run. Russell and Hope eventually fell side by side in the woods and Hope was arrested. According to Belviso, after Hope had been arrested and was being led back, Belviso saw a loaded .38 caliber revolver “laying on the . . . path where [Hope] had fallen the first time.”

*389When the Commonwealth offered testimony concerning the gun, over Hope’s objection, no explanation of its relevance was given to the trial judge. Moreover, the trial judge’s ruling did not address the basis upon which the evidence was admitted. The majority, however, concludes that the gun “may tend to show a ‘consciousness of guilt.’ ” Presumably, the majority believes that the jury could have inferred from the facts both that Hope had the gun on his person as he ran through the woods and that Hope dropped or discarded the gun when he fell. From those inferences the majority suggests that the jury could further have inferred Hope’s consciousness of guilt. I disagree with this reasoning. Basing an inference upon other inferences is an impermissible mode of proof which cannot be used to support the conclusion that the majority urges. In Virginia, “ [inferences must be based on facts, not other inferences.” Doughty v. Commonwealth, 204 Va. 240, 244, 129 S.E.2d 664, 666 (1963).

Once the gun was admitted in evidence, the Commonwealth proved that the gun was “a six shot [and] was loaded.” The only probative value of evidence that a loaded gun was found at a place in the field where Hope fell was to create an inference in the minds of the jurors that Hope possessed a concealed weapon on his person and was therefore a dangerous criminal. It has long been established that “evidence that the defendant has committed an unrelated crime is inadmissible against him.” King v. Commonwealth, 217 Va. 912, 914, 234 S.E.2d 67, 69 (1977) (In a prosecution for attempted rape, evidence that the defendant was planning to use cocaine was inadmissible). Where “[t]he probative value, if any, of . . . evidence ... is far outweighed by the prejudicial nature of such evidence,” the evidence must be excluded. Cumbee v. Commonwealth, 219 Va. 1132, 1138, 254 S.E.2d 112, 116 (1979).

The evidence in question served the dual purpose of allowing the Commonwealth to prove at once criminal propensity and bad character. Just as “[a] defendant introducing mitigating evidence at the guilt phase of a trial may be found to have put his character in issue,” Duncan v. Commonwealth, 2 Va. App. 342, 346, 343 S.E.2d 392, 394 (1986), the Commonwealth’s introduction of aggravating evidence likewise put Hope’s character in issue. However, the Commonwealth is not permitted to put in issue a defendant’s character unless the defendant first makes his character an *390issue. Weimer v. Commonwealth, 5 Va. App. 47, 52, 360 S.E.2d 381, 383 (1987); Fields v. Commonwealth, 2 Va. App. 300, 305-06, 343 S.E.2d 379, 382 (1986). Hope did not do so in this trial.

It also is abundantly clear from the record that the Commonwealth used the loaded gun to urge the jury to levy a stiff sentence on Hope. In closing argument, the Commonwealth’s attorney argued to the jury that this was not a “minor” case but, rather, was “a different kind of case” because Hope possessed a loaded firearm. The use of the gun in this fashion was a means of arguing bad character and aggravation of punishment. Evidence offered to prove an aggravating factor unrelated to proof of the elements of the charged offense is inadmissible prior to a determination of guilt. See McClain v. Commonwealth, 189 Va. 847, 861, 55 S.E.2d 49, 56 (1949); see also Peterson v. Commonwealth, 225 Va. 289, 298, 302 S.E.2d 520, 526 (by statute evidence in aggravation is admissible in capital murder cases but only in the penalty stage), cert. denied, 464 U.S. 865 (1983). Hope was entitled to “be adjudged guilty only on evidence admissible on that issue.” McClain, 189 Va. at 861, 55 S.E.2d at 56; cf. Duncan, 2 Va. App. at 346-47, 343 S.E.2d at 395 (evidence of mitigating factors is “relevant only to the issue of punishment;” therefore, it is not appropriate “evidence before the jury in mitigation of punishment”).

The gun was collateral to the issue of guilt and was not probative of any offense for which the defendant was being tried. “[T]he evidence elicited by the Commonwealth was prejudicial in that the implications it raised tended to divert the minds of the jurors from the issues before them.” Lewis v. Commonwealth, 225 Va. 497, 501, 303 S.E.2d 890, 892 (1983); see also Boggs v. Commonwealth, 199 Va. 478, 486, 100 S.E.2d 766, 772 (1957). “[T]he error in admitting the evidence could have affected the [guilt] verdict [as well as the sentence], thereby denying [Hope] the fair and impartial trial to which he was entitled.” King, 217 Va. at 915, 234 S.E.2d at 69. Accordingly, I would reverse and remand for a new trial.