Evidence of victim’s bad acts excluded

A murder defendant, who is claiming self-defense, will not be allowed to introduce the victim’s convictions for a 1995 robbery and for a later assault and battery of defendant.

Overview

Defendant has been charged with first-degree murder and arson of a dwelling house. She intends to claim self-defense. The commonwealth has filed a motion in limine to exclude evidence of the victim’s prior bad acts that defendant seeks to admit at trial.

Under Virginia’s rules of evidence, “character evidence is not admissible to prove conduct, except as ‘evidence of a pertinent character trait or acts of violence by the victim of the crime offered by an accused who has adduced evidence of self defense.’ …

“Whether or not the defendant has laid the foundation for self-defense is within the sound discretion of the trial court[,]” as is “the decision to admit or exclude character evidence, as well as the decision to impose a time limitation on such evidence. …

“The Court will not admit evidence of the victim’s character before the Defendant has established a foundation for her claim of self-defense. … Assuming that the Defendant were to make a prima facie case of self-defense, then she would offer evidence of the victim’s prior bad acts to demonstrate her reasonable apprehensions for her life and safety.”

Discussion

As to the 1995 robbery, it did not involve defendant. “Whether she was aware of the victim’s conviction at the time of the homicide is immaterial. … What is material is the passage of twenty-three years between the robbery and homicide. To be admissible, the robbery must be ‘sufficiently connected in time and circumstances with the homicide.’ …

“This robbery is too far removed in time from the homicide to reflect the victim’s character toward the Defendant; therefore, the Court would be unjustified in admitting this evidence.”

The victim in this case was previously convicted of assaulting and battering defendant. “It would not be unreasonable for the Defendant to fear that it would happen again.

“In self-defense, ‘[a] defendant may always act upon reasonable appearance of danger, and whether the danger is reasonably apparent is always to be determined from the viewpoint of the defendant at the time he acted.’

“As the Commonwealth did not argue that the domestic assault and battery was too distant in time to show the victim’s present character toward the Defendant, the Court will consider that argument waived. Therefore, the domestic assault and battery is relevant because it was ‘sufficiently connected in time and circumstances with the homicide as to be likely to characterize the victim’s conduct toward the defendant.’ [Barnes v. Commonwealth, 214 Va. 24 (1973)]. …

“Nevertheless, the Court is compelled to exclude this evidence, absent production of additional violent acts by the victim that pass the Barnes tests of relevance, because ‘[a] single act of bad conduct does not establish one’s unfavorable character.’”

The commonwealth’s motion in limine is granted.

Commonwealth v. Johnson, Case No. CR19-652 & 657, June 29, 2020; (Order) Petersburg City Cir. Ct. (Teefey). VLW 020-8-083, 5 pp.