Clay v. Commonwealth

PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Stephenson, S.J.

ROBERT LEWIS CLAY
OPINION BY
v. Record No. 002112 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
June 8, 2001
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we determine whether the trial court

committed reversible error in (1) allowing certain evidence

under the state-of-mind exception to the hearsay rule and (2)

excluding certain testimony of a deputy sheriff.

I

Robert Lewis Clay was indicted in the Circuit Court of

Halifax County for the first-degree murder of his wife, Joy

Clay, in violation of Code § 18.2-32, and for using a firearm in

the commission of murder, in violation of Code § 18.2-53.1. A

jury found Clay guilty of second-degree murder and fixed his

punishment at 40 years' imprisonment. The jury also found Clay

guilty of the firearm offense and fixed his punishment at

imprisonment for three years, as prescribed by Code § 18.2-53.1.

Following a sentencing hearing, the trial court sentenced Clay

in accordance with the jury's verdict.

Clay appealed, and a panel of the Court of Appeals affirmed

the convictions. Clay v. Commonwealth, 30 Va. App. 650, 519

S.E.2d 393 (1999). Thereafter, the Court of Appeals granted
Clay a rehearing en banc, and the full Court also affirmed

Clay's convictions. Clay v. Commonwealth, 33 Va. App. 96, 531

S.E.2d 623 (2000). We awarded Clay this appeal.

II

On the morning of August 25, 1996, Clay went to the Halifax

County Sheriff's Office and asked to speak with Deputy Sheriff

Ernest Powell. Clay was visibly "shook up" and "upset." Powell

asked Clay what was wrong, and Clay requested to speak with

Powell in private. Clay then told Powell that he had shot his

wife.

Clay also told Powell that he did not know whether his wife

was still alive or whether his house was locked. Clay gave

Powell the key to his house, and Powell directed the dispatcher

to call the rescue squad. When members of the rescue squad

arrived at Clay's home, they found Joy Clay's dead body on the

den floor. Two telephone receivers in the house, one in the

kitchen and one in the den, were off the hook.

An autopsy revealed that Joy Clay had sustained two shotgun

wounds to her body. One wound was to her head and chest; the

other was to her left arm and side. According to the medical

examiner, both wounds were lethal, and the victim died in

minutes from the loss of blood.

A Remington 12-gauge, number four buckshot shell and a

Winchester 12-gauge, ought buckshot shell were found in the den.

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Buckshot recovered from the victim's body was consistent with

pellets that would have come from these shells. The police

seized a Model 58 Remington Sportsman 12-gauge shotgun from a

gun cabinet in the house.

A firearms expert testified that he test-fired the seized

shotgun four times, and the weapon did not malfunction. He

stated that three and three-quarters pounds of pressure was

required to pull the trigger and fire the weapon. The expert

also explained that the trigger had to be pulled and released in

order for a second shell to enter the chamber and before the

weapon could be fired a second time. A single pull of the

trigger, therefore, would not cause the weapon to fire twice.

In July 1996, the month before Joy Clay's death, Thelma

Burns, while talking on the telephone with Joy, overheard Clay

call his wife a bitch and say to her, "I'm tired of you, I'm

going to kill you." Burns' son, Carlos Ragland, heard the same

statement by Clay as he was listening on another telephone in

his mother's house. Three days before Joy's death, while Burns

and Joy were having another telephone conversation, Burns heard

Clay say, referring to a job Joy had secured as a school bus

driver, "[Y]ou might have got that school bus, but you won't

drive that school bus."

Clay's son, Robert Lewis Clay, Jr., testified that his

father was an avid hunter and had taught him to practice firearm

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safety. The son never had seen his father load or unload a gun

in the house, and Clay had advised his son to keep a firearm's

safety engaged until the gun was ready to be fired.

Clay testified that, prior to the shooting, he discovered

that $5,000 in cash was missing from his gun cabinet. He went

into the den where his wife was seated on a sofa and confronted

her about the missing money. Clay's wife first denied any

knowledge of the money, but she later admitted taking the money

and refused to return it. Clay stated that he "just got all

upset" and retrieved a gun from the gun cabinet. He did not

look to see if the gun was loaded, and he did not load it. Clay

told his wife that he "needed the money," and he thought she

would tell him where the money was upon seeing the gun. Clay

claimed that, "when [he] raised the gun up[,] it just went off."

He said the gun had discharged twice, but he did not recall

having pulled the trigger.

III

At trial, Burns and Ragland were allowed to testify, over

Clay's objection, that, in the months prior to Joy's death, she

had told them that she planned to move because she was afraid of

what Clay might do to her. Clay contended then, as he does on

appeal, that the testimony was inadmissible hearsay. The Court

of Appeals ruled that the testimony was admissible under the

state-of-mind exception to the hearsay rule, reasoning that

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Joy's state of mind was relevant and material to show Clay's

motive and intent in order to counter his assertion that the

killing was accidental. Clay, 33 Va. App. at 107, 531 S.E.2d at

628.

Clay was charged with first-degree murder. Therefore, the

Commonwealth had the burden of proving that he killed his wife

and that the killing was willful, deliberate, and premeditated.

See Stokes v. Warden, 226 Va. 111, 117, 306 S.E.2d 882, 885

(1983).

Generally, statements made by a crime victim that show the

victim's state of mind are admissible as an exception to the

hearsay rule, provided the statements are relevant and probative

of some material issue in the case. Karnes v. Commonwealth, 125

Va. 758, 764-65, 99 S.E. 562, 564-65 (1919); see Compton v.

Commonwealth, 219 Va. 716, 729, 250 S.E.2d 749, 757 (1979).

Evidence is relevant if it tends to prove or disprove, or is

pertinent to, matters in issue. Boggs v. Commonwealth, 199 Va.

478, 486, 100 S.E.2d 766, 772 (1957).

While it is difficult to reconcile the conflicting cases as

to when a victim's statements are relevant, much must be left to

the trial court's discretion. Karnes, 125 Va. at 764, 99 S.E.

at 564. There seems to be substantial agreement, however, that

a victim's statements regarding fear of the accused are

admissible to rebut claims by the defense of self-defense,

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suicide, or accidental death. See, e.g., United States v.

Brown, 490 F.2d 758, 767 (D.C. Cir. 1973); John W. Strong, 2

McCormick on Evidence § 276 (5th ed. 1999).

When Joy's state of mind regarding her fear of Clay is

viewed in the light of the other facts and circumstances of the

case, we cannot say that the trial court abused its discretion

in admitting evidence of her statement. Clay placed his intent

at issue, claiming Joy's death was accidental. Thus, Joy's

expressed fear of Clay, coupled with his threats to kill her,

was relevant and probative of a material issue in the case;

i.e., whether the killing was willful and deliberate.

IV

Next, we consider whether the trial court erred in

excluding certain testimony of Deputy Sheriff David Martin.

Clay proffered Martin's testimony by calling him to the stand

and interrogating him in the absence of the jury. The proposed

testimony can be summarized as follows:

His name is David Martin. He was instructed to obtain
a full statement from Mr. Clay if he was willing to
give one. He indicated he would give one. He was
read his standard Miranda rights. The statement is
approximately four pages long in Martin's handwriting.
About thirty minutes later, Martin returned and asked
Clay some more questions. During the thirty minute
interim, Clay was in the presence of Martin, except
maybe for a second or two. Clay's demeanor throughout
the entire process was somber and quiet. Those two
words best described Clay to Martin. Clay was
cooperative.

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 Deputy Sheriff Ernest Powell previously had testified that

Clay came to the sheriff's office, appearing "shook up" and

"upset," and told Powell that he had shot his wife. Clay gave

his house key to Powell so law enforcement officers and members

of the rescue squad could enter the house.

Clay later testified on his own behalf. Clay testified

that he had told Martin that he did not know the gun was loaded

and that he felt terrible about what had happened.

The Court of Appeals concluded that Martin's testimony

"would have been corroborative of Clay's testimony but

cumulative of Powell's testimony." Clay, 33 Va. App. at 109,

531 S.E.2d at 629. ∗ The Court held, therefore, that the trial

court erred in excluding Martin as a witness because Clay "was

entitled to call witnesses in his defense, and Martin's

testimony, subject to appropriate objections by the

[Commonwealth], was admissible." Id. at 110, 531 S.E.2d at 630.

We will assume, without deciding, that the exclusion of Martin's

testimony was erroneous because we agree with the Court of

Appeals' finding that any error was harmless.

∗
At the time Martin's testimony was offered, Clay had not
testified, and, therefore, the trial court could not have known
whether Martin's testimony would be corroborative of Clay's
testimony. After Clay's testimony, Clay did not recall Martin
to testify.

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 When a federal constitutional error is involved, a

reviewing court must reverse the judgment unless it determines

that the error is harmless beyond a reasonable doubt. Chapman

v. California, 386 U.S. 18, 24 (1967); Pitt v. Commonwealth, 260

Va. 692, 695, 539 S.E.2d 77, 78 (2000), cert. denied, ___ U.S.

___, 121 S.Ct. 1616 (2001). We have not decided, however, what

standard applies where, as here, a federal constitutional error

is not involved.

In determining that standard, which is a matter of state

law, we are guided by Virginia's harmless-error statute, Code

§ 8.01-678. That statute provides, in pertinent part, as

follows:

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

We have applied Code § 8.01-678 in criminal as well as

civil cases. See, e.g., Greenway v. Commonwealth, 254 Va. 147,

154, 487 S.E.2d 224, 228 (1997). In 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.

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 In Kotteakos v. United States, 328 U.S. 750 (1946), the

Supreme Court adopted the standard to be applied in determining

whether nonconstitutional error is harmless under the federal

"harmless error statute," 28 U.S.C. § 2111 (1994) (formerly 28

U.S.C. § 391). Id. at 757-58. That statute, which is similar

in substance to Code § 8.01-678, provides that a reviewing court

"shall give judgment after an examination of the entire record

before the court, without regard to technical errors, defects,

or exceptions which do not affect the substantial rights of the

parties."

The test for nonconstitutional harmless error adopted in

Kotteakos is as follows:

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.

Id. at 764-65 (citation omitted).

We adopt the Kotteakos harmless-error test and will apply

the test in the present case in the light of Code § 8.01-678.

The evidence showed that Clay discovered that $5,000 was missing

from his gun cabinet and confronted his wife about the money.

When Clay's wife admitted taking but refused to return the

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money, Clay became upset. Clay went to his gun cabinet,

obtained a 12-gauge shotgun, returned to the den, and told his

wife that he "needed the money." Clay then raised the gun

without determining whether it was loaded. The gun fired twice.

In the month before the shooting, Burns and Ragland heard

Clay threaten to kill his wife. Clay's wife had also expressed

to Burns and Ragland that she feared her husband.

The firearms expert testified that a person intending to

fire the gun, had it been loaded, would have had to disengage

the safety and pull the trigger. This would have caused the

shell in the chamber to fire, the empty shell to eject from the

gun, and the next shell to load into the chamber from the

magazine. The gun then could be fired again, but the trigger

would have to be pulled for the gun to fire a second time. The

expert further testified that the gun could not be fired easily;

indeed, it would take three and three-quarters pounds of

pressure to pull the trigger. Finally, the expert testified

that he had test-fired the weapon four times and that it did not

malfunction.

Applying the Kotteakos harmless-error test in the light of

Code § 8.01-678, we can say, "with fair assurance, after

pondering all that happened without stripping the erroneous

action from the whole," that it plainly appears that Clay has

had a fair trial and the verdict and the judgment were not

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substantially affected by the exclusion of Martin's testimony.

We conclude that the evidence, especially that of the firearms

expert, overwhelmingly proved that the gun was not fired

accidentally. Therefore, we hold that any error in this case is

harmless.

Accordingly, we will affirm the judgment of the Court of

Appeals.

Affirmed.

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