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HODGE v. COMMONWEALTH OF VA


HODGE v. COMMONWEALTH OF
VA

(unpublished)


JUNE 9, 1998
Record No. 0217-97-3

JAMES DOUGLAS HODGE

v.

COMMONWEALTH OF VIRGINIA

MEMORANDUM OPINION[1] BY JUDGE RUDOLPH BUMGARDNER,
III
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY

Charles B. Flannagan, II, Judge
Present: Judges Bray, Overton and Bumgardner
Argued at Salem, Virginia

Reelia R. Watson for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Richard
Cullen, Attorney General, on brief), for appellee.


James Douglas Hodge was indicted for malicious wounding of
Michael Brenson. After a two?day trial, a jury convicted him of
unlawful wounding and sentenced him to six months in jail and
fined him $1,500. The trial court suspended all but three days of
the sentence. The defendant argues that the trial court erred by
not striking and then giving a cautionary instruction after a
witness made prejudicial remarks and by giving an instruction on
character evidence when there was none presented. Finding that
the trial court committed no reversible error, we affirm.

The defendant and the victim were students at Emory and Henry
College. They were fraternity brothers and residents of the same
dormitory. An evening of drinking culminated in a fight between
the two. As it ended, Brenson was holding the defendant down on
the floor choking him when Hodge stabbed him three times in the
thigh and once in the buttock.

During the direct examination of Brenson’s roommate, the
Commonwealth’s attorney asked him to describe the defendant’s
appearance and demeanor. The witness responded, "Hodge was
obviously inebriated. At the same time, I could smell an odor of
marijuana." Defense counsel objected and asked that the
remark be stricken. The trial judge sustained the objection.

The Commonwealth’s attorney then asked the witness if he had
noticed something in the room that night or the next morning. The
witness replied, "Well, later that night I noticed a bowl
that we’d ??? you would use to smoke marijuana with."
Defense counsel again objected, and the court sustained the
objection. The court immediately held a conference with the
attorneys out of the presence of the jury. It reviewed in detail
what testimony the Commonwealth expected to present and ruled
that it could not present any evidence about marijuana. The trial
continued, and the Commonwealth went directly to other evidence.
The defendant did not request a cautionary instruction at any
point. In the general instructions given at the end of the trial,
the trial court did give an instruction that told the jury not to
consider any matter that was rejected or stricken.

When the trial court promptly ruled to sustain the objections
of the defendant, it ruled that the item was not proper evidence
in the case and it thereby rejected that item from consideration.
When evidence is improperly admitted, the appellant can request a
cautionary instruction to cure the prejudice. See LeVasseur
v. Commonwealth
, 225 Va. 564, 589, 304 S.E.2d 644, 657
(1983), cert. denied, 464 U.S. 1063 (1984). The
judge is not required to give the curative instruction sua
sponte. See Cheng v. Commonwealth, 240 Va.
26, 40, 393 S.E.2d 599, 607 (1990). Indeed, some defendants may
not want to draw attention to the objectionable statement. To
require a court to give the instruction sua sponte
would deprive defendants of this option in determining their
trial strategy. In this case, while no prompt cautionary
instruction was given, the jury was instructed to disregard
rejected evidence. Jurors are presumed to follow instructions to
disregard rejected evidence. See LeVasseur, 225 Va.
at 589, 304 S.E.2d at 657; Spencer v. Commonwealth, 240
Va. 78, 95, 393 S.E.2d 609, 619, cert. denied, 498
U.S. 908 (1990).

The defendant objected to Instruction 10[2] which told the jury that
it could consider the character of the defendant in determining
guilt. The defendant never presented evidence of his good
character. He offered no evidence of character traits that would
tend to prove he did not commit malicious wounding and,
therefore, did not put his character in issue. He did present
evidence to support his credibility in the form of testimony of
his reputation for truthfulness. The defendant testified, and in
doing so he did put his credibility in issue, but presenting
evidence of his reputation for truthfulness did not put his
character in issue. See Smith v. Commonwealth, 212
Va. 675, 676, 187 S.E.2d 191, 192 (1972). Instruction 10 should
not have been given, but in this case it was harmless error to do
so.

The instruction itself carried the caveat that character
evidence was only to be considered when it was proven. With no
evidence of his character, under this instruction there was
nothing for the jury to consider in its deliberations. In
addition, there was overwhelming evidence of guilt. The defendant
admitted that he had a knife in his pocket and that he stabbed
the victim, although he did not remember doing so, and the victim
testified that the defendant stabbed him during the fight.
"An error does not affect a verdict if 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." Lavinder v. Commonwealth, 12 Va. App. 1003,
1007, 407 S.E.2d 910, 912 (1991) (en banc). We do
so conclude.

Finding no reversible error, we affirm.

Affirmed.

 

 

 

 

FOOTNOTES:

[1] Pursuant to Code Sect. 17?116.010 this
opinion is not designated for publication.

[2]
"You may consider the character of the defendant when proven
by the evidence, whether good or bad, along with the other facts
and circumstances in the case in determining his guilt or
innocence."

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