COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia
MAYS TATE, JR.
Record No. 1774-95-2
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
JUDGE LARRY G. ELDER
JUNE 25, 1996
FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY
Timothy J. Hauler, Judge Designate
Scott Goodman for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Mays Tate, Jr. (appellant) appeals his convictions for
capital murder, first degree murder, second degree murder, three
counts of use of a firearm in the commission of the murders,
breaking and entering while armed with a deadly weapon, and grand
larceny of an automobile.
Appellant contends (1) that the trial
court erred in allowing the Commonwealth to introduce evidence
that he was wanted for "violent crimes against people" in two
other counties at the time of the instant offenses, and (2) that
the evidence failed to support his convictions.
We hold that the
trial court erred in allowing the Commonwealth to introduce too
many details about the other crimes that appellant allegedly
We therefore reverse appellant's convictions and
remand for further proceedings if the Commonwealth be so advised.
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
On May 31, 1992, the dead bodies of Clarence Stinson, Eva
Roberta Stinson, and Gloria Stinson, who lived together in a
house in rural Buckingham County, were discovered at their
In an upstairs bedroom, a dresser drawer had been
removed and its contents dumped on the bed.
The police located a
pocketbook near the bodies outside and found money still inside
Witnesses testified that appellant possessed hundreds of
dollars in cash on May 30, 1992.
Evidence showed that appellant
knew that Clarence Stinson kept up to $1,300 on his person and in
his house when he lived with appellant's grandmother in 1990.
Appellant's brother, Jeffrey Tate, testified that in May
1992, he paid appellant close to $400 for work appellant had done
Appellant's brother, Wilson Tate, testified that on May
24, 1992, he gave appellant $300 to $500 to use for his move to
Montana to be with his father and for payment for a car appellant
sold to Wilson Tate.
Although a bloody footprint linked appellant to the crime
scene, no evidence linked appellant to any firearms used in the
murders, the Commonwealth did not prove the whereabouts of the
specific murder weapons, and no testimony placed appellant at the
Over appellant's strenuous objections during pretrial
hearings, Deputy Donnie Michael of the Greene County Sheriff's
Office testified that on May 22, 1992, he was investigating
appellant in relation to "a crime of violence committed against a
person" in Greene County.
Michael testified that he had been
told that appellant had "fled the state."
Also over objection,
Investigator David Carter of the Culpeper Police Department
testified that three "crimes of violence" had been committed
against individuals in Culpeper County on May 9, 18, and 22,
Carter stated that he was looking for appellant in
connection with these crimes but that appellant "had fled" the
The trial court cautioned the jury that it could not
consider the officers' testimony as evidence of appellant's
Instead, the trial court admitted the testimony to show
appellant's possible motive for the killings, namely, that
appellant was on the run and looking for money to flee the area.
Appellant asserts that the Commonwealth's other crimes
evidence was not probative in proving his motive.
contends that if the other crimes evidence was probative, the
trial court should not have allowed the Commonwealth's witnesses
to testify specifically that appellant had committed "crimes of
violence against another person."
Instead the trial court should
have allowed witnesses to testify only that appellant had been
"involved in criminal altercations."
Agreeing with appellant's
second assertion, we hold that the trial court abused its
discretion in not excluding this detail of the evidence.
Bunting v. Commonwealth, 208 Va. 309, 157 S.E.2d 204 (1967).
"The rule excluding other crimes evidence is deeply rooted
in Virginia common law."
Tucker v. Commonwealth, 17 Va. App.
520, 522, 438 S.E.2d 492, 493 (1993).
Evidence of other
independent acts, including criminal acts, is generally
inadmissible unless offered to prove "motive, intent, plan, or
scheme, or any other relevant element of the offense on trial."
Scott v. Commonwealth, 228 Va. 519, 527, 323 S.E.2d 572, 577
Evidence that implicates an accused in
other crimes unrelated to the offense for which the accused is
being tried is inadmissible because it creates confusion of
issues, causes unfair surprise, and causes undue prejudice.
Boggs v. Commonwealth, 199 Va. 478, 488, 100 S.E.2d 766, 773
Thus, unless evidence of other crimes is relevant to
prove a material fact, and its relevance outweighs its
prejudicial effect, the evidence is inadmissible.
responsibility for balancing these competing considerations is
largely within the sound discretion of the trial judge."
Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986).
The fact that appellant's alleged prior crimes were violent
crimes against individuals was irrelevant and had considerable
tendency to prejudice the jury against appellant.
v. Commonwealth, 5 Va. App. 125, 127, 360 S.E.2d 876, 878 (1987).
The trial court should not have allowed testimony to include the
detail that the alleged prior crimes involved violence against
individuals, as this detail was more prejudicial than probative.
The Commonwealth, for example, adequately could have shown
appellant's motive to steal the Stinson's money by simply
eliciting testimony that appellant was under suspicion for
committing "serious" crimes in other counties and was on the run
from authorities in those counties.
The Commonwealth asserts that no error could have arisen
because the trial court gave a cautionary instruction to the jury
on this issue.
We are aware that a "jury is presumed to have
followed a trial court's limiting or cautionary instruction."
Jennings v. Commonwealth, 20 Va. App. 9, 19, 454 S.E.2d 752, 756,
aff'd en banc, 21 Va. App. 328, 464 S.E.2d 179 (1995).
in this case, the instruction erroneously permitted the jury to
consider overly-prejudicial evidence and did not cure the error
of having admitted this evidence.
See LaForce v. Commonwealth,
14 Va. App. 588, 590, 419 S.E.2d 261, 262 (1992); Powell v.
Commonwealth, 13 Va. App. 17, 27-28, 409 S.E.2d 622, 628-29
Furthermore, because it does not plainly appear that
appellant had a fair trial on the merits, the trial court's error
was not harmless.
Lavinder v. Commonwealth, 12 Va. App. 1003,
1005, 407 S.E.2d 910, 911 (1991)(en banc); Code § 8.01-678.
do not agree with the Commonwealth "that, excluding the disputed
testimony, the other evidence against [appellant] is so
overwhelming that any error in the admission of the testimony is
Cartera v. Commonwealth, 219 Va. 516, 519,
248 S.E.2d 784, 786 (1978).
"While the other evidence amply
supports the jury's verdicts, the disputed testimony may well
have affected the jury's decision."
Id.; see Hanson v.
Commonwealth, 14 Va. App. 173, 176, 416 S.E.2d 14, 16 (1992).
Accordingly, we reverse appellant's convictions and remand
for further proceedings if the Commonwealth be so advised.
Reversed and remanded.