HODGES, II v. COMMONWEALTH

http://www.courts.state.va.us:80/opinions/opncavwp/0120042.pdf

KENNETH ALONZO HODGES, II v. COMMONWEALTH
VA Court Of Appeals
06/07/2005
No reversible error found in trial court’s admissions of the challenged hearsay statements and the eyewitness identifications; trial court did not err in denying appellant’s motions for mistrial and in finding evidence sufficient to support appellant’s convictions

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Frank and Humphreys
Argued at Richmond, Virginia

KENNETH ALONZO HODGES, II
OPINION BY
v. Record No. 0120-04-2 JUDGE LARRY G. ELDER
JUNE 7, 2005
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge

Frank K. Friedman (Glenn L. Berger; Woods Rogers PLC; Berger &
Thornhill, on briefs), for appellant.

Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.

Kenneth Alonzo Hodges, II (appellant), appeals from his jury trial convictions for murder
and use of a firearm in the commission of murder. On appeal, he contends the trial court
erroneously (1) admitted certain out-of-court statements in violation of the Confrontation Clause
and Virginia?s hearsay rule; (2) admitted unduly suggestive and tainted out-of-court and in-court
identifications; (3) denied his motions for mistrial based on prosecutorial misconduct; and
(4) concluded the evidence was sufficient to support his convictions. We hold the trial court?s
admissions of the challenged statements, only some of which were admitted for their truth, and
the eyewitness identifications did not constitute reversible error. We hold further that the trial
court did not abuse its discretion in denying appellant?s motions for mistrial. Finally, we
conclude the circumstantial evidence was sufficient to support appellant?s convictions. Thus, we
affirm.
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I.
BACKGROUND
On Sunday, September 1, 2002, Shelly Marie Jackson (the victim) failed to return home
as scheduled. On Wednesday, September 4, 2002, police found Jackson?s body on property
owned by appellant?s father. Evidence adduced at trial established the following:
On March 24, 2002, Jackson reported a burglary at her apartment. Police Lieutenant
Brian Lovelace, who investigated the report, received ?information in from other people that?
Jackson had had a gun and a safe taken in the burglary and that Jackson was distributing
marijuana for appellant from her apartment. As a result, Lt. Lovelace also was investigating
appellant. Lt. Lovelace ultimately recovered a safe and a gun from a Kenneth Edmunds, who
made a statement to Lt. Lovelace. On March 28, 2002, Jackson denied Lovelace?s assertions
that she was selling marijuana and that a safe and firearm had been taken in the burglary, but she
gave consent for a search of her apartment, which yielded marijuana.
On March 29, 2002, police executed a search warrant for appellant?s residence. During
that search, police found half a box of 9 millimeter ammunition in appellant?s house under the
bed in the master bedroom.
On April 17, 2002, Lt. Lovelace advised Jackson that he had enough evidence, including
the statement from Edmunds, to charge her even without her own admission. Jackson then made
a written statement1 in which she said she had been selling marijuana for appellant and that he
had supplied her with a safe and a gun to keep in her apartment.
Lt. Lovelace then obtained warrants charging Jackson with distributing marijuana and
charging appellant with conspiracy to distribute marijuana. On April 18, 2002, appellant was

1 Appellant filed a motion in limine to exclude Jackson?s written confession. See
discussion, infra, Section II.A.4.
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arrested on that warrant and released. One of the conditions of his bond was that he have no
contact with Jackson.
Sometime before appellant?s June 24, 2002 preliminary hearing on the drug conspiracy
charge, Lt. Lovelace talked to Jackson about ?turning state?s evidence? against appellant. The
day prior to the preliminary hearing, either appellant or his wife, Shanetta, ?called [Jackson] and
said they needed to meet.? Jackson?s cousin, Shelly Jones, accompanied Jackson to Cody?s
Store, where Jackson said ?she was going to meet [appellant] to talk to him about court.?2 When
Jackson and Jones arrived at Cody?s Store, Jones waited in the car while Jackson climbed into
appellant?s truck and spoke to his wife. Appellant was not in the truck, but before Jackson
completed her conversation with Shanetta, Jones saw appellant pacing back and forth on a
nearby sidewalk. Also on June 23, 2002, Jackson apparently signed a statement, written in
someone else?s handwriting, saying she implicated appellant in her earlier confession because
the police pressured her into doing so and that what she said about appellant was not true.
On June 24, 2002, Jackson appeared at appellant?s preliminary hearing with her attorney,
Tracy Quackenbush, but chose not to testify. As a result, some of the charges against appellant
were dismissed. However, after Jackson?s preliminary hearing, Lt. Lovelace thought Jackson
might change her mind about testifying against appellant. Lt. Lovelace said that, as a result, the
Commonwealth planned to indict appellant at the September 2002 term of the grand jury.
Prior to any indictment, Attorney Quackenbush received a copy of the statement Jackson
had made to Lt. Lovelace on April 17, 2002. Quackenbush also received a call from the
Commonwealth?s Attorney?s office indicating that ?if [Jackson] did not cooperate[,] . . . the
Commonwealth would be seeking a jury trial and would plan to bring on conspiracy charges and

2 Appellant objected to the introduction of a portion of this testimony at trial. See
discussion, infra, Section II.A.3.

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possibly another charge.? On Friday, August 30, 2002, Quackenbush advised Jackson of the
risks of not testifying about the contents of her confession and said ?she should seriously
consider cooperating.? Quackenbush reported the conversation to the Commonwealth?s
Attorney, but she never received a final answer from Jackson about what Jackson intended to do.
That evening, Jackson?s brother answered the phone at Jackson?s mother?s house.
Appellant?s wife was on the phone and wanted to speak to Jackson, but Jackson was not there.
On Saturday, August 31, 2002, Jackson told her cousin, Missy Jones, she ?was going to?
testify at appellant?s trial and ?that she didn?t really want to testify, but she had to.?3
At 11:00 a.m. on Sunday, September 1, 2002, appellant used his cell phone to call
Jackson at the residence she shared with her sister, Angela Jackson. Immediately thereafter,
Jackson dressed herself and her two-year-old daughter, and they drove away from the residence
in Jackson?s car at ?close to eleven-thirty.? That same morning, Jackson telephoned her friend,
Farah Canada, and asked Canada to watch her daughter, as Canada often did. At around 12:00
noon, Jackson dropped her daughter off at Canada?s and said she was going to meet appellant
?down the dirt road past [appellant?s] house.?4 Jackson said ?she would be right back? and
drove off in her car. Jackson never returned.
Later that same day, police in Reidsville, North Carolina, located Jackson?s car at a
Ramada Inn. On Monday, September 3, 2002, ?it was still positioned in the same place.? The
location where the car was found was about 58 miles from where Jackson?s body later was found
and took about one hour seven minutes to reach by car.

3 Appellant objected to the introduction of this testimony at trial. See discussion, infra,
Section II.A.3.

4 Appellant filed a motion in limine to exclude this testimony at trial. See discussion,
infra, Section II.A.3.
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On the evening of Monday, September 2, 2002, Angela Jackson reported her sister?s
disappearance to the police. The investigator who took Angela Jackson?s statement retrieved a
particular telephone number from the home?s caller i.d. device. When the investigator dialed the
number, she reached appellant on his cellular telephone. Appellant told the investigator ?he kept
that phone with him all the time? ?unless it?s on the charger inside the home.?
On Wednesday, September 4, 2002, the police looked for Shelly Jackson?s body on a
piece of land owned by appellant?s parents on which appellant lived. As they walked down a
path in that area, they saw lying on the ground ?a white plastic piece that a lady would use in her
hair.? In the same ?little area,? they found a pocketknife, a dark stain later identified as blood,
and an earring later identified as one Jackson had been wearing when she left her residence on
Sunday, September 1, 2002. Nearby, they located Jackson?s body. On the ground within a
six-to-eight-foot radius of Jackson?s body, the police found three Winchester 9 millimeter caliber
shell casings. It was later determined that Jackson died of gunshot wounds to her head and right
thigh. The medical examiner was unable to determine what type of gun caused Jackson?s
injuries. The precise date and time of Jackson?s death also were not determinable.
At the time of Jackson?s death, she was pregnant. The father of her unborn child was a
man named Roger Owen. Owen was ?staying back and forth with his father in North Carolina
and his mother . . . in South Boston[, Virginia].? Police interviewed Owen on at least two
occasions after Jackson?s death, but Investigator Sheldon Jennings, who spoke to him on one of
those occasions, testified, ?I don?t think he was a suspect.?
After Jackson?s body was found on Wednesday, September 4, 2002, Halifax investigators
traveled to the Ramada Inn in Reidsville, North Carolina, where Jackson?s car had been found.
Adjacent to the Ramada Inn was a Chevron gas station and convenience store. The investigators
spoke to cashier Mohammed Al-Rammal, who selected appellant?s photograph from a photo
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array and said appellant had come into the store on Sunday, September 1, 2002, between about
2:00 and 4:00 p.m.5 At trial, Al-Rammal again identified appellant as a person who had come
into the store on the afternoon of Sunday, September 1, 2002. Appellant attempted to impeach
Al-Rammal?s testimony with a video surveillance tape from the convenience store, but the time
and date stamps on that tape indicated the tape for September 1, 2002, ?start[ed] at five? p.m.
and did not show what happened in the store between noon and 4:00 p.m.
DNA analysis of blood found on the ground at the murder scene indicated that Jackson
could not be eliminated as having been a contributor to the DNA. The hair pick bore evidence of
Jackson?s DNA and the DNA of a third party other than appellant. DNA found on the gear shift
of Jackson?s car, determined not to belong to Jackson, also did not belong to appellant. DNA
found under Jackson?s fingernails did not belong to appellant. Examination of the knife yielded
no visible blood, but swabs of the rubber grip area of the knife yielded a ?mixture? of DNA,
indicating more than one individual contributed to the DNA on the knife. Forensic analysis
eliminated Jackson as a possible contributor of the DNA on the knife. However, the
Commonwealth?s evidence was that appellant could not be eliminated as a contributor, and
statistical analysis indicated it was ?[b]illions of times more likely? that appellant was one of the
contributors to the DNA on the knife grip as opposed to some unknown individual. Appellant
presented a contrary opinion from an expert who testified that the DNA evidence excluded
appellant as a contributor to the DNA on the knife.
On September 10, 2002, about 150 feet from where Jackson?s body had been found,
investigators located a large hole, which one of the investigators referred to as ?a make-shift

5 Appellant moved prior to trial to suppress the out-of-court identification and also sought
to prevent any in-court identification. See discussion, infra, Section II.B.

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grave.?6 The hole itself was eleven inches deep and contained ?a small amount? of ?standing
water.? Rainfall records admitted at trial established that the area experienced a rainfall of 2.01
inches between 7:00 a.m. on Saturday, August 31, and 7:00 a.m. on Sunday, September 1, 2002.
Between 7:00 a.m. on Sunday, September 1, and 7:00 a.m. on September 11, the day after the
investigators found the hole, the area had only 0.04 inch of rain.
Evidence regarding appellant?s and his wife?s cellular telephone records for the afternoon
of Sunday, September 1, 2002, showed four calls from appellant?s cell phone to his home
between 12:40 and 1:00 p.m. Beginning shortly after 1:00 p.m., numerous calls were placed
between appellant?s and his wife?s cell phone. Those calls were carried by cellular telephone
?switches? beginning in the South Boston area; passing through the Danville ?switch? area at
1:29 p.m. and the Henderson, North Carolina, ?switch? area at 1:38 p.m.; and ending in the
Reidsville, North Carolina, ?switch? area, where several calls were made between 1:57 p.m. and
2:14 p.m. Those calls showed appellant?s cell phone accessed switches in North Carolina before
his wife?s did.
The jury convicted appellant of the charged offenses, and he noted this appeal.
II.
ANALYSIS
A.
THE CONFRONTATION CLAUSE AND STATE HEARSAY RULES
1. Confrontation Clause
The Sixth Amendment?s Confrontation Clause provides that, ?[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against

6 Appellant objected immediately after that testimony, but he did not specify the basis for
his objection and did not request that the testimony be stricken.

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him.? U.S. Const. Amend. VI. The Supreme Court ?has held that this bedrock procedural
guarantee applies to both federal and state prosecutions.? Crawford v. Washington, 541 U.S. 36,
42, 124 S. Ct. 1354, 1359, 158 L. Ed. 2d 177, 187 (2004). The Supreme Court?s recent decision
in Crawford ?changed the legal landscape for determining whether the admission of hearsay
statements violates the accused?s right[s] under the Confrontation Clause.? Horton v. Allen, 370
F.3d 75, 83 (1st Cir. 2004), quoted with approval in United States v. Hendricks, 395 F.3d 173,
177 (3d Cir. 2005). As set out in Crawford, if a statement is testimonial in nature, ?the Sixth
Amendment demands what the common law required: unavailability and a prior opportunity for
cross-examination.? Crawford, 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203
(rejecting other, more ?amorphous? methods for determining reliability of testimonial
statements).
Although the Court has not ?spell[ed] out a comprehensive definition of ?testimonial,?? it
has held ?the term . . . applies at a minimum to prior testimony at a preliminary hearing, before a
grand jury, or at a formal trial; and to police interrogations.? Id. (emphasis added). ?An accuser
who makes a formal statement to government officers bears testimony in a sense that a person
who makes a casual remark to an acquaintance does not.? Id. at 51, 124 S. Ct. at 1364, 158
L. Ed. 2d at 192.
?[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause
places no constraints at all on the use of his prior testimonial statements.? Id. at 59 n.9, 124
S. Ct. at 1369 n.9, 158 L. Ed. 2d at 197 n.9. ?The [Confrontation] Clause . . . [also] does not bar
the use of testimonial statements for purposes other than establishing the truth of the matter
asserted.? Id. (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S. Ct. 2078, 2081-82, 85
L. Ed. 2d 425, 431 (1985)); see also, e.g., People v. McPherson, 687 N.W.2d 370, 376-77 (Mich.
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Ct. App. 2004); State v. Clark, 598 S.E.2d 213, 220 (N.C. Ct. App. 2004); State v. Mack, 101
P.3d 349, 352 (Or. 2004).
Whether the admission of non-testimonial hearsay implicates the Confrontation Clause is
unclear in the wake of Crawford. 541 U.S. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199
(holding that ?we need not definitively resolve [this question] today, because [the statement to
police at issue] is testimonial under any definition? and that the Confrontation Clause requires of
non-testimonial hearsay, at most, that it meet the test of Ohio v. Roberts, 448 U.S. 56, 100 S. Ct.
2531, 65 L. Ed. 2d 597 (1980)). The Confrontation Clause requires of non-testimonial hearsay,
at most, that ?an unavailable witness?s out-of-court statement . . . has adequate indicia of
reliability–i.e., falls within a ?firmly rooted hearsay exception? or bears [other] ?particularized
guarantees of trustworthiness.?? Id. at 42, 124 S. Ct. at 1359, 158 L. Ed. 2d at 187; see, e.g.,
Hendricks, 395 F.3d at 179 (holding that ?unless a hearsay statement qualifies as ?testimonial,?
Crawford is inapplicable and Roberts still controls?); Riner v. Commonwealth, 268 Va. 296,
322-23, 601 S.E.2d 555, 569-70 (2004) (holding decision in Crawford ?has no bearing on?
admissibility of non-testimonial hearsay).
2. State Hearsay Rules
Hearsay is ?[a] statement other than one made by the declarant while testifying at trial–
offered in evidence to prove the truth of the matter asserted.? Black?s Law Dictionary 649 (5th
ed. 1979).
?Whether an extrajudicial statement is hearsay depends upon the
purpose for which it is offered and received into evidence. If the
statement is received to prove the truth [or falsity] of its content,
then it is hearsay and, in order to be admissible, must come within
one of the many established exceptions to the general prohibition
against admitting hearsay.?

Brown v. Commonwealth, 25 Va. App. 171, 177, 487 S.E.2d 248, 251 (1997) (en banc) (citation
omitted).

The ?state-of-mind? exception is one of these established hearsay exceptions. Clay v.
Commonwealth, 33 Va. App. 96, 105-06, 531 S.E.2d 623, 627 (2000) (en banc), aff?d, 262 Va.
253, 546 S.E.2d 728 (2001). If the declarant?s state of mind is relevant to the case, then the
declarations are admissible under this exception if they meet two additional conditions:
1. The statement must refer to a presently existing state of mind.
Although the mental state o[r] emotion must exist at the time of the
declaration, it may relate to matters occurring in the past or in the
future;

2. There must be no obvious indication of falsification or
contrivance[.]

Id. at 105 n.4, 531 S.E.2d at 627 n.4; see also Charles E. Friend, The Law of Evidence in
Virginia ? 18-18, at 789 (6th ed. 2003).
Despite the apparent inconsistencies in earlier Virginia decisions on the subject,
controlling precedent holds that any state of mind of a homicide victim is admissible as long as it
is ?relevant and probative of some material issue in the case?; its relevance is not limited to
rebutting claims of suicide, accident or self-defense. Clay, 262 Va. at 257, 546 S.E.2d at 730.
Further, evidence of the communication of the victim?s state of mind to the accused is required
only when such communication is necessary to establish the relevance of the state of mind. See
Clay, 33 Va. App. at 106 n.5, 531 S.E.2d at 627 n.5 (holding communication of victim?s state of
mind to accused is necessary where evidence is offered to rebut defendant?s claim of self-defense
but not to rebut defense of accident); see also Hanson v. Commonwealth, 14 Va. App. 173,
188-89, 416 S.E.2d 14, 23 (1987) (?For the state of mind of the victim to be relevant to prove the
state of mind of the accused, some nexus must exist which inferentially implicates the accused
. . . .? (emphasis added)). For example, ?a statement made by a declarant is admissible for the
purpose of showing the probable state of mind thereby induced in the hearer,? such as proving
the hearer had ?notice . . . or motive, . . . when relevant and material.? Johnson v.

Commonwealth, 2 Va. App. 598, 602, 347 S.E.2d 163, 165 (1986) (citing E. Cleary, McCormick
on Evidence ? 249 (3d ed. 1984)). Such ?statements are not hearsay at all? if ?introduced [only] to show the effect that they had on another person, and not to prove that what was said was true.?
Friend, supra, ? 18-18, at 792. However, if such a statement meets the requirements of the
state-of-mind exception, it may be admitted and considered for its truth, as well.
?One of the most common uses of [the state-of-mind] exception is to prove the intention
of a person concerning some future act.? Id. at 790-91. Criminal intent, testamentary intent, and
domiciliary intent may be proved with such evidence. Id. at 791. A related state-of-mind
exception involves evidence of the ?declarations of a person of intent to do a future act, as
evidence that this act was in fact later done.? Id.; see id. at 791 (opining that in ??both civil and
criminal [cases], evidence of . . . declarations of intention or design should always be received
unless too vague or remote to be of substantial probative value?? (quoting The Law of Evidence
in Virginia and West Virginia ? 281 (Nash ed. 1954))).
In Karnes v. Commonwealth, 125 Va. 758, 764, 99 S.E. 562, 564 (1919), a murder case,
the Virginia Supreme Court adopted the United States Supreme Court?s application of the
state-of-mind exception in Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 12 S. Ct. 909,
36 L. Ed. 706 (1892). Hillmon involved the admissibility of letters written by a companion of
Hillmon?s indicating Hillmon and the companion ?had the intention of leaving? a particular city
on a specific date. 145 U.S. at 294-96, 12 S. Ct. at 912-13, 36 L. Ed. at 710-11. The Court held
as follows in Hillmon:
The letters in question were competent, not as narratives of
facts communicated to the writer by others, nor yet as proof that he
actually went away from Wichita, but as evidence that, shortly
before the time when other evidence tended to show he went away,
he had the intention of going, and of going with Hillmon, which
made it more probable both that he did go and that he went with
Hillmon, than if there had been no proof of such intention. . . .

. . . ?Such declarations are regarded as verbal acts, and are
as competent as any other testimony, when relevant to the issue.
Their truth or falsity is an inquiry for the jury.?

Id. at 295-96, 12 S. Ct. at 912-13, 36 L. Ed. at 710 (quoting Ins. Co. v. Mosley, 75 U.S. (8 Wall.)
397, 405, 19 L. Ed. 437, 440 (1869)); see also Friend, supra, ? 18-18, at 791 (citing Hillmon as
?the leading United States case? on use of state-of-mind hearsay exception ?to prove the
intention of a person concerning some future act?).
Citing its earlier decision in Karnes, the Virginia Supreme Court recently reaffirmed the
principle that ?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.? Clay, 262 Va. at 257, 546 S.E.2d at 730. Further, we noted
in Clay that evidence a homicide victim feared the defendant is generally not admitted under the
state-of-mind exception but that ??there are undoubtedly a number of possible situations in which
such statements may be relevant?? and that ??the courts have developed three rather well defined
categories in which the need for such statements overcomes almost any possible
prejudice??–when a defendant ??claim[s] . . . self-defense as justification for the killing??;
contends that the deceased committed suicide; or argues the death was accidental. Clay, 33
Va. App. at 105 & n.3, 531 S.E.2d at 627 & n.3 (quoting United States v. Brown, 490 F.2d 758,
766-67 (D.C. Cir. 1973)); see Clay, 262 Va. at 257-58, 546 S.E.2d at 730 (recognizing that
?victim?s statements regarding fear of the accused are admissible to rebut clams by the defense
of self-defense, suicide or accidental death? and not attempting to limit other circumstances
under which evidence of victim?s fear or any other state of mind will be admissible if relevant
and material (emphasis added)); see also Karnes, 125 Va. at 763-67, 99 S.E. at 564-65 (holding
evidence of victim?s fear of third party was admissible to show someone other than accused may
have had motive to kill victim).

Thus, per Clay and Karnes, any state of mind of a homicide victim is ?admissible? as
long as it is ?relevant and [more] probative [than prejudicial] of some material issue in the case,?
and its relevance is not limited to rebutting claims of suicide, accident or self-defense. Clay, 262
Va. at 257, 546 S.E.2d at 730 (emphasis added); see also Friend, supra, ? 18-18, at 793 (citing
Clay and Karnes for the principles that ?[s]tatements made by a crime victim that show the
victim?s state of mind are admissible under the state of mind exception if relevant and probative?
and that ?[a] victim?s statements regarding fear of the accused are admissible to rebut claims by
the defense of self-defense, suicide, or accidental death?). See generally Friend, supra, ? 18-18
(outlining the myriad situations in which state-of-mind evidence is relevant and admissible). As
the Court acknowledged in Clay, ?[e]vidence is relevant if it tends to prove or disprove, or is
pertinent to, matters in issue,? and ?much must be left to the trial court?s discretion.? Clay, 262
Va. at 257, 546 S.E.2d at 730.
To the extent our statements in Evans-Smith v. Commonwealth, 5 Va. App. 188,
198-203, 361 S.E.2d 436, 441-44 (1987), and Hanson, 14 Va. App. at 188, 416 S.E.2d at 23,
could be construed to suggest that the state of mind of a homicide victim is relevant and material
only in cases where the defense contends that the death was the result of suicide, accident, or
self-defense–a result contrary to the Court?s broad statements in Clay– we conclude these
statements were dicta.7 Cf. Clay, 33 Va. App. at 106 n.5, 531 S.E.2d at 627 n.5 (holding a
related part of the ruling in Hanson was dicta). Thus, Evans-Smith, 5 Va. App. at 198-203, 361
S.E.2d at 441-44, has been limited to hold only that evidence of the victim?s fear of the accused
was inadmissible because (1) the defense did not contend the victim?s death was the result of
suicide, accident or self-defense and (2) the victim?s fear was immaterial to the issues of the

7 To the extent any other panel decisions of this Court rely on the portions of
Evans-Smith or Hanson we construe as dicta, we conclude the broad statements of the Supreme
Court and this Court in Clay implicitly overruled those decisions.

defendant?s motive and intent under the facts of that case. Similarly, we limit Hanson to hold
that the victim?s state of mind was inadmissible to prove motive under the facts of that case
because the evidence failed to support an inference that the victim communicated his state of
mind to the defendant.8
Further, to the extent Hanson asserts any state of mind of a homicide victim must have
been communicated to the accused to be admissible, we concluded in Clay that this assertion was
dicta. 33 Va. App. at 106 n.5, 531 S.E.2d at 627 n.5. We explained in Clay that where the state
of mind is the victim?s fear of the accused, that state of mind must have been communicated to
the accused when offered to rebut a claim by the accused that he acted in self-defense but that
?the [state-of-mind] exception [for evidence of fear] is not otherwise predicated on proof of such
communication.? Id. In affirming Clay on appeal, the Supreme Court recited no evidence

8 Hanson held the homicide victim?s state of mind was not relevant to prove the
defendant?s motive because the evidence neither showed the victim communicated his state of
mind to the defendant ?nor . . . permi[tted] [the] infer[ence] that he had done so.? 14 Va. App. at
188, 416 S.E.2d at 23. The opinion in Hanson also stated as follows:

The state of mind of a homicide victim is relevant and
material only in cases where the defense contends that the death
was the result of suicide, accident, or self-defense. Evans-Smith
[v. Commonwealth], 5 Va. App. [188,] 198, 361 S.E.2d [436,] 442
[(1987).] In those instances, the state of mind must have been
communicated to the accused. When those defenses are not in
issue, and when the accused has not been made aware of the
victim?s state of mind, the statement would become relevant only
through ?a circuitous series of inferences.? United States v.
Brown, 490 F.2d 758, 771 (D.C. Cir. 1973).

Id. (citation and footnote omitted).
However, the decision in Hanson subsequently said the victim?s ?state of mind would
have had significance . . . if the fact finder inferred that [the victim] acted upon his state of mind
by communicating [it] to [the defendant] and that [the defendant] responded by killing [the
victim].? Id. (emphasis added). In so holding, the decision in Hanson contradicted its earlier
assertion that a homicide victim?s state of mind is relevant only where the death was the result of
suicide, accident, or self-defense because the defendant in Hanson made no such claim. Id. at
179-80, 416 S.E.2d at 17-19 (reciting Hanson?s testimony implicating another).

establishing that the victim?s fear of the accused had been communicated to the accused.
Although the accused had threatened the victim in the presence of others, no evidence
established that the accused was aware the victim had told others that she was afraid of him. 262
Va. at 255-58, 546 S.E.2d at 729-30. In deciding Clay, the Court recognized ?it is difficult to
reconcile the conflicting cases as to when a victim?s statements are relevant? but concluded
without further qualification that the victim?s statements that she feared the accused were
admissible to rebut the defendant?s claim of accidental death. Id. at 267-68, 546 S.E.2d at 730;
see Karnes, 125 Va. at 766-67, 99 S.E. at 565 (citing Virginia cases in which ?declarations of the
deceased, not made in the presence of the accused,? were ?admitted as tending to show his guilt?
and holding that statements of deceased regarding fear of third party, Agee, not made in Agee?s
presence, ?would have been clearly admissible on behalf of the Commonwealth in the
prosecution of Agee for the crime?). The Supreme Court?s affirmance constitutes an adoption of
this Court?s reasoning in Clay.
Thus, despite the apparent inconsistencies in earlier Virginia decisions on the subject, we
conclude that any state of mind of a homicide victim is admissible as long as it is both ?relevant
and [more] probative [than prejudicial] of some material issue in the case.? Clay, 262 Va. at
257, 546 S.E.2d at 730. Evidence of communication of the victim?s state of mind to the accused
is required only when such communication is necessary to establish the relevance of the state of
mind. See Clay, 33 Va. App. at 106 n.5, 531 S.E.2d at 627 n.5; Johnson, 2 Va. App. at 602, 347
S.E.2d at 165 (citing E. Cleary, supra, ? 249). Evidence of a victim?s statements, when offered
only to show the effect they had on the accused or some other person, are not hearsay at all.
However, if such statements meet the requirements of the state-of-mind exception, they may be
considered for their truth, as well.

3. Application to Hearsay Statements to Farah Canada, Shelly Jones, and Missy Jones
Appellant concedes on appeal that Jackson?s challenged statements to Farah Canada,
Shelly Jones and Missy Jones were non-testimonial. Thus, admission of those statements did not
violate the Confrontation Clause if those statements ?ha[d] adequate indicia of reliability–i.e.,
[fell] within a ?firmly rooted hearsay exception? or [bore other] ?particularized guarantees of
trustworthiness.??9 Crawford, 541 U.S. at 42, 124 S. Ct. at 1359, 158 L. Ed. 2d at 187. Thus, we
must first determine whether Jackson?s statements fall under a recognized exception to
Virginia?s hearsay rule and, if so, whether that exception is ?firmly rooted.?
a. Admissibility of Statements Under Virginia Law
(1) Jackson?s Statement to Canada on September 1, 2002
Here, just as in Hillmon, the statement victim Shelly Jackson made to Farah Canada the
day she disappeared–that Jackson was going to meet appellant and ?would be right back?–was
relevant to the issue of whether Jackson did, in fact, meet appellant that day. Evidence
establishing that appellant had the opportunity to kill Jackson to prevent her from testifying
against him was relevant to the issue of his guilt or innocence. Cf. Hall v. Commonwealth, 14
Va. App. 65, 69-73, 415 S.E.2d 439, 442-44 (1992) (reciting evidence of motive and opportunity
as part of circumstantial evidence supporting conviction). Here, as in Hillmon, evidence of
Jackson?s intent to meet appellant was not ?proof that [she] actually? met him, but proof of such
an intent ?made it more probable both? that she went to meet him and that she actually
succeeded in doing so. Hillmon, 145 U.S. at 295-96, 12 S. Ct. at 912-13, 36 L. Ed. at 710
(emphasis added). As the Supreme Court recognized in Karnes,

9 We do not decide what the Confrontation Clause requires with regard to non-testimonial
hearsay. We apply the Roberts test only because the Supreme Court said in Crawford that this is
the most the Confrontation Clause requires. Crawford, 541 U.S. at 60-61, 68, 124 S. Ct. at
1369-70, 1374, 158 L. Ed. 2d at 198-99, 203.

Much must be left to the discretion of the trial judge . . . . [W]hile
a single circumstance, standing alone, may appear to be entirely
immaterial and irrelevant, it frequently happens that the combined
force of many concurrent and related circumstances, each
insufficient in itself, may lead a reasonable mind irresistibly to a
conclusion. Where the inquiry is as to the state of one?s mind at a
particular time, his statements and declarations indicating his state
of mind are generally admissible.

125 Va. at 764, 99 S.E. at 564.
The trial court concluded the evidence established Jackson?s September 1, 2002
statement to Canada referred to a presently existing state of mind, provided no obvious
indication of fabrication or contrivance, and was relevant to the case. We hold the record
supports these conclusions.
(2) Statements to Canada Prior to September 2002
In contrast, we hold the court erred in admitting Canada?s testimony about identical
statements Jackson made when she dropped her daughter off at Canada?s house on numerous
occasions prior to September 1, 2002. These statements exhibited Jackson?s state of mind at the
time she made each previous statement, and no evidence indicated fabrication or contrivance on
these prior occasions. Thus, they met the requirements of the state-of-mind exception to the
hearsay rule. Nevertheless, controlling case law holds that evidence of where Jackson said she
was going on these prior occasions was not relevant to prove where she went on September 1,
2002.10 As the Supreme Court held in Ligon v. Southside Cardiology Associates, 258 Va. 306,
519 S.E.2d 361 (1999),
[E]vidence of a person?s general habits is not admissible for the
purpose of showing the nature of his conduct on a specific
occasion. Such evidence of habitual conduct is inadmissible
because it consists only of collateral facts, from which no fair

10 The Commonwealth offered these statements only to prove where the victim went on
September 1, 2002. Thus, we need not consider whether these statements might have been
admissible to prove some other fact in issue.

inferences can be drawn, and tends to mislead the jury and to
divert its attention from the issues before the court.

Id. at 311, 519 S.E.2d at 363 (citation omitted). The Court also emphasized that its prior
decisions did ?not draw a distinction between ?general? and ?specific? habit evidence? and
?[i]nstead . . . focus[ed on] . . . whether the proffered evidence is relevant to the issues at trial.?
Id. Although Ligon was a medical malpractice case in which the issue was the admissibility of
evidence that the defendant had acted in a habitually negligent manner, the Supreme Court?s
language was broad. Further, it interpreted very narrowly an early criminal case, Graham v.
Commonwealth, 127 Va. 808, 103 S.E. 565 (1920), in which it had upheld the admission of habit
evidence to prove the behavior of a murder victim immediately prior to his murder was in
conformity with his behavior on prior occasions. Ligon, 258 Va. at 312 n.1, 519 S.E.2d at 364
n.1. The Court in Ligon interpreted Graham as follows:
Graham, cited by the defendant, is inapposite to the present
case. There, we held that since the defendant on trial for murder
had asserted a self-defense claim, alleging that the deceased had
used violent, profane language and advanced toward him with a
gun, the Commonwealth was entitled to introduce rebuttal
evidence that the deceased did not have a habit of swearing. 127
Va. at 824, 103 S.E. at 570. We stated that this evidence was
admissible under the same principle that allows the admission of
character evidence. Id. Thus, our holding in Graham was limited
to the use of a narrow category of rebuttal testimony to a claim of
self-defense in a criminal prosecution, and is unrelated to the
present issue of the admissibility of habit evidence in a negligence
action.

Id. (citation omitted).
In 2000, the General Assembly enacted a statute to counteract the 1999 Ligon ruling and
permit the admissibility of habit evidence, but that statute expressly applies only to civil
proceedings. See Code ? 8.01-397.1. Thus, existing Supreme Court precedent authorizes the
use of habit evidence in criminal cases only in the narrow circumstances of Graham, as construed
in Ligon.

As a result, we conclude the trial court?s admission of Jackson?s statements to Canada
prior to September 1, 2002, about where she was going when she dropped her daughter off at
Canada?s house were improperly admitted. However, for the reasons discussed, infra, in Part
II.E., we hold the erroneous admission of those statements was harmless.
(3) Statement to Shelly Jones on June 23, 2002
The trial court?s admission of Jackson?s statement to Shelly Jones on June 23, 2002–that
Jackson ?said she was going to meet [appellant at a particular place] to talk to him about
court?–was not error. Although the statement was hearsay, it was admissible for the truth of the
matter asserted under the state-of-mind exception. Shelly Jones testified without objection to
certain background facts, including that either appellant or his wife, Shanetta, ?called [the
victim] and said they needed to meet.? Jones also testified that she accompanied Jackson to the
store and saw her meet with appellant?s wife inside a vehicle while appellant paced up and down
on a nearby sidewalk. The only aspect of Shelly Jones?s testimony to which appellant objected
was her indication that the person Jackson said she was going to meet was appellant and that the
subject of the intended meeting was ?court.?
Shelly Jones?s testimony about Jackson?s statements, like Canada?s testimony, referred to
Jackson?s then-existing state of mind, and the record contains no indication that Jackson had a
motive to fabricate. Jones actually accompanied Jackson to the location of the meeting and saw
Jackson meet with appellant?s wife while appellant waited nearby. Finally, the evidence
established that the meeting took place the day before appellant?s June 24, 2002 preliminary
hearing on the drug charge in which Jackson had implicated him, and appellant himself
subsequently introduced a statement purportedly signed by Jackson on June 23, 2002, in which
Jackson claimed to have falsely implicated appellant under pressure from police. Thus,
appellant?s evidence corroborated the fact that Jackson?s June 23, 2002 meeting, although with

appellant?s wife, was, in fact, ?about court.? It also was probative of appellant?s motive because
it showed his concern over whether the victim would testify against him at his preliminary
hearing and indicated a likelihood that the victim later communicated to him that she had
changed her mind and intended to testify before the grand jury or at a later trial.
(4) Statement to Missy Jones on August 31, 2002
Finally, Missy Jones?s testimony that Jackson said she intended to testify against
appellant at trial also was admissible for the truth of its contents under the state-of-mind
exception. Jones?s testimony established Jackson?s statement of future intent and provided no
indication that Jackson had a motive to fabricate. Further, the statement was relevant to the issue
of appellant?s motive for murder because the circumstantial evidence permitted an inference that
Jackson communicated this intent to appellant before her death. See Johnson, 2 Va. App. at 602,
347 S.E.2d at 165.
The evidence established that, the day before appellant?s preliminary hearing in June
2002, Jackson met with appellant?s wife, spoke to appellant?s wife about whether she would
testify against appellant, and signed a statement–written in someone else?s hand and introduced
by appellant at trial–in which Jackson claimed her prior incrimination of appellant was false.
Although appellant was not in Jackson?s immediate presence during this meeting, he was in full
view on a nearby sidewalk.
Other evidence established that in the two days (a) after Jackson?s attorney advised her
on August 30, 2002, that she should agree to testify against appellant and (b) before Jackson
disappeared on September 1, 2002, appellant and his wife tried at least twice to reach Jackson
and eventually succeeded in setting up a meeting that was to have occurred immediately before
Jackson disappeared and in the place where her body was later found. This evidence supported
the inference that sometime between when Jackson spoke to her lawyer on August 30, 2002, and

the time she died, she told appellant she had changed her mind and intended to testify against
him.
Thus, Jackson?s statement to Missy Jones of her intent to testify against
appellant–coupled with evidence that appellant and his wife may previously have succeeded in
talking appellant out of testifying against appellant, tried repeatedly to reach Jackson in the few
days before her death, and eventually succeeded in setting up a meeting between appellant and
Jackson that was to have occurred immediately before Jackson disappeared–was probative of
appellant?s possible motive for killing Jackson.
b. ?Firmly-Rooted? Nature of State-of-Mind Exception
If the state-of-mind exception to the hearsay rule is ?firmly rooted? in Virginia?s
jurisprudence, the admission of Jackson?s non-testimonial hearsay statements as related by Farah
Canada,11 Shelly Jones, and Missy Jones did not violate the Confrontation Clause.
?Whether an exception is ?firmly rooted? depends at least in part on how long the
exception has been recognized by the legislature or the courts.? Parker v. Commonwealth, 41
Va. App. 643, 653, 587 S.E.2d 749, 754 (2003), overruled in part on other grounds by Crawford,
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177. The exception permitting the admission of
relevant and material hearsay statements of a crime victim showing the victim?s state of mind
has been a part of Virginia jurisprudence since at least the Virginia Supreme Court?s decision in
Karnes, 125 Va. 758, 99 S.E. 562, cited with approval in Clay, 262 Va. at 257, 546 S.E.2d at
730. Although Karnes involved statements of the victim that a third party had threatened her and

11 As discussed, supra, in Section II.A.3.a.(2), Canada?s testimony about Jackson?s
statements prior to September 1, 2002, were not excluded on hearsay grounds. Although
hearsay, they met the requirements of the state-of-mind exception to Virginia?s hearsay rule.
The error in their admission was due to a lack of relevance. Thus, we examine whether their
admission violated the Confrontation Clause under the same test we apply to the other
challenged evidence.

that she was afraid of him, the Court relied on the United States Supreme Court?s decision in
Hillmon, which, as discussed above, involved facts very similar to those at issue in appellant?s
case–use of the state-of-mind exception to prove the victim?s intent to do a future act. Karnes,
125 Va. at 763-65, 99 S.E. at 564; see Hillmon, 145 U.S. at 294-96, 12 S. Ct. at 912-13, 36
L. Ed. at 710-11; see also United Constr. Workers v. Laburnum Constr. Corp., 194 Va. 872, 896,
75 S.E.2d 694, 709 (1953) (citing, inter alia, Karnes for proposition that ?[i]t is well established
that evidence of such utterances is admissible to show the state of mind of the declarants?). See
generally Hayes v. York, 311 F.3d 321, 325 (4th Cir. 2002) (?[T]he Supreme Court never has
questioned that a state-of-mind hearsay exception is one of the firmly-rooted hearsay exceptions.
The history of the . . . exception is long and distinguished, and the exception exists in every
jurisdiction in the country, whether by statute, court rule, or common law tradition.? (citations
omitted)).
Thus, since at least 1919, the Virginia Supreme Court has recognized a state-of-mind
exception permitting proof of a statement of intent to do a future act. Because Jackson?s
non-testimonial statements to Canada, Shelly Jones, and Missy Jones were admissible under a
?firmly-rooted? exception to Virginia?s hearsay rule, their admission did not violate the
Confrontation Clause.
4. Jackson?s Written Confession to Police
Jackson?s written confession to police implicating appellant was testimonial under the
Confrontation Clause and was made at a time when appellant had no opportunity for
cross-examination. Crawford, 541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. Thus, if
the statement was offered to prove the truth of any of its contents vis-?-vis appellant, appellant
was entitled, upon proper contemporaneous objection, to prevent admission of the offending
portion of the confession unless the declarant was available for cross-examination at trial. Id. at

59 n.9, 68, 124 S. Ct. at 1369 n.9, 1374, 158 L. Ed. 2d at 197 n.9, 203. When appellant moved
prior to trial to exclude the statement, the trial court ruled Jackson?s written confession
implicating appellant was admissible to show appellant?s motive for wanting to kill Jackson but
was not admissible to show appellant distributed drugs or conspired with Jackson to do so, or for
the truth of any of the rest of its contents vis-?-vis appellant.
As set out above, ?[t]he [Confrontation] Clause . . . does not bar the use of testimonial
statements for purposes other than establishing the truth of the matter asserted.? Id. at 59 n.9,
124 S. Ct. at 1369 n.9, 158 L. Ed. 2d at 197 n.9 (citing Street, 471 U.S. at 414, 105 S. Ct. at
2081-82, 85 L. Ed. 2d at 431). Although the Commonwealth is not required to prove a
defendant?s motive for committing a crime, evidence of motive is relevant to proving one?s guilt
of a particular crime. See, e.g., Wilson v. Commonwealth, 16 Va. App. 213, 220, 429 S.E.2d
229, 234, aff?d, 17 Va. App. 248, 436 S.E.2d 193 (1993) (en banc). Here, the Commonwealth
offered evidence that Jackson had implicated appellant in a marijuana distribution conspiracy in
order to show he had a motive for killing her, not to show that he had in fact engaged in such a
conspiracy. See Dednam v. State, ___ S.W.2d ___, ___ (Ark. 2005) (upholding admission of
victim?s testimonial statement implicating one Baker in uncharged crime, robbery of victim, for
purpose of proving motive of defendant, Baker?s cousin, to commit charged crime, killing of
victim). Thus, the court?s pretrial ruling that Jackson?s statement was admissible to prove
motive was not erroneous.
Appellant now contends that admission of the entire statement was error because it
contained references to his possessing a gun and other things that were not directly relevant to
motive. Because appellant did not request that Jackson?s confession be redacted or summarized,
the trial court?s admission of the statement in its entirety was not erroneous. See Rule 5A:18; see
also Street, 471 U.S. at 416, 105 S. Ct. at 2082-83, 85 L. Ed. 2d at 432 (noting that although

prosecutor could have used summary of unindicted co-conspirator?s confession in rebuttal
without actually ?reading [the full] confession,? ?such a rebuttal presentation was not the only
option constitutionally open?). Further, ?[w]hen evidence that might otherwise be hearsay is
admitted for a limited, non-hearsay purpose [and] the trial court . . . instruct[s] the jury that they
are to consider the evidence for the specific limited purpose . . . , we presume that the jury
followed that instruction.? Hanson, 14 Va. App. at 187, 416 S.E.2d at 22 (citing LeVasseur v.
Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657 (1983)). Here, appellant raised the issue
of a limiting instruction prior to trial, and the court told appellant it would consider such an
instruction if appellant proffered it at trial. However, the record indicates appellant never
proffered such an instruction at trial. Thus, appellant waived his right to have the jury instructed
that it could consider the confession only as it related to appellant?s motive. See, e.g., Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998) (?Rule 5A:18 applies to bar
even constitutional claims.?).
The facts here are distinguishable from those in Donahue v. Commonwealth, 225 Va.
145, 300 S.E.2d 768 (1983), relied on by appellant. In Donahue, the defendant objected to the
admission of certain evidence, claiming it was hearsay, and the court accepted the
Commonwealth?s representation that it was not offering the evidence to prove the truth of its
contents. Id. at 151, 300 S.E.2d at 771. Thereafter, however, the Commonwealth relied heavily
on the truth of the statement?s contents. Id. at 151-52, 300 S.E.2d at 771-72. The Supreme
Court ruled that the defendant?s failure to register an additional hearsay objection to admission of
the evidence did not amount to a waiver of that objection and that the Commonwealth?s use of
the statement for its truth was reversible error because it did not fall under any hearsay exception
and its admission was not harmless. Id.

Here, based on the Supreme Court?s reasoning in Donahue, we conclude the prosecutor
remained bound by the court?s pretrial ruling that Jackson?s confession was admissible only to
prove appellant?s motive and not for the truth of Jackson?s statements that appellant conspired
with her to distribute marijuana, gave her a gun, and told her to lie to police about what was
taken in the burglary of her home. However, we hold no reversible error occurred under
Donahue because the prosecutor?s comments in closing argument did not violate the court?s
pretrial ruling. As discussed above, Jackson?s non-testimonial hearsay statements to Farah
Canada and Shelly and Missy Jones, properly admitted for the truth of their contents under a
firmly-rooted exception to Virginia?s hearsay rule, were ?statements made by the deceased? or
?from the grave? to which the prosecutor properly could refer in closing argument. Thus, these
comments did not compel the conclusion that the prosecution made impermissible references to
Jackson?s confession. Similarly, the prosecutor?s reference in closing argument to Jackson?s
confession to police as ?a very damning thing? may fairly be construed only as an argument that
it showed appellant had a strong motive for wanting to kill Jackson, a use of the statement
permitted under the Confrontation Clause and the Commonwealth?s hearsay rules. Further,
when the prosecutor spoke of Lt. Lovelace?s intentions regarding Jackson?s confession, the
prosecutor argued specifically that Lovelace ?wanted [Jackson] . . . to testify against [appellant] because she had identified him as her supplier.? (Emphasis added). The prosecutor expressly
did not argue that appellant was, in fact, Jackson?s supplier, only that Jackson had identified him
as her supplier. The fact of identification established a motive regardless of the truth or falsity of
the identification. See Street, 471 U.S. at 411, 414, 105 S. Ct. at 2080, 2081, 85 L. Ed. 2d at 429,
430 (holding that unindicted co-conspirator?s out-of-court confession would have been hearsay
only if ?jury had been asked to infer that [co-conspirator?s] confession proved that defendant
participated in the murder? and was admissible to rebut defendant?s claim that his own

confession resulted when sheriff ?read from [co-conspirator?s] statement and directed
[defendant] to say the same thing?). Finally, Lt. Lovelace had testified without objection that,
during the course of his investigation, before Jackson made the written confession, Lovelace was
?getting information in from other people? that Jackson was distributing marijuana and that
appellant was her supplier. Thus, other properly admitted evidence implied appellant was a drug
dealer and would have permitted the prosecutor to refer to that connection without relying on
Jackson?s confession.
For similar reasons, the admission of Jackson?s confession did not violate Virginia?s
hearsay rule. Excluded from the hearsay rule are statements not offered for the truth of their
content. See, e.g., Church v. Commonwealth, 230 Va. 208, 211, 335 S.E.2d 823, 825 (1985).
Part of the difficulty in ?not-for-truth? situations is due to the fact
that often such evidence will have a dual nature; the declaration
may indeed be relevant on some matter unrelated to the truth of the
content of the statement, and yet the content of the statement may
go to the issues of the case as well. See, e.g., Donahue v.
Commonwealth, [225 Va. 145, 300 S.E.2d 768 (1983)]. This is
perhaps the situation which creates the greatest dilemma for the
courts. In that regard, however, it should be remembered that it is
a time-honored principle of evidence law that, in general, if
evidence is admissible for any purpose, it is admissible.

Brown, 25 Va. App. at 177-78, 487 S.E.2d at 251 (quoting 2 Charles E. Friend, The Law of
Evidence in Virginia ? 18-3, at 95-96 (4th ed. 1993) (footnote omitted)) (other citation omitted).
Here, the trial court ruled the statements were not offered for their truth; appellant never
proffered a limiting instruction; and the prosecutor did not expressly argue to the jury the
contents of Jackson?s confession vis-?-vis appellant as if they were true.
Further, the record supported a finding that the probative value of Jackson?s confession
and her implication of appellant was greater than any prejudice that might have resulted. As a
general rule, ?[e]vidence tending to show commission of other offenses is not admissible in a
criminal trial if its only relevance is to show the character of the accused or his disposition to

commit a similar offense.? Essex v. Commonwealth, 18 Va. App. 168, 171, 442 S.E.2d 707, 709
(1994). However, if ?evidence of another crime tends to prove ?any other relevant fact of the
offense charged, and is otherwise admissible, it will not be excluded merely because it also
shows [the defendant] to have been guilty of another crime.?? Id. (quoting Pugliese v.
Commonwealth, 16 Va. App. 82, 91, 428 S.E.2d 16, 23 (1993)); see Farmer v. Commonwealth,
10 Va. App. 175, 179, 390 S.E.2d 775, 776-77 (1990), aff?d en banc, 12 Va. App. 337, 404
S.E.2d 371 (1991). An accused is not entitled ?to have the evidence ?sanitized? so as to deny the
jury knowledge of all but the immediate crime for which he is on trial.? Scott v.
Commonwealth, 228 Va. 519, 526-27, 323 S.E.2d 572, 577 (1984). ?In addressing the
admissibility of other crimes evidence the court must balance the probative value of the evidence
of the other offenses and determine whether it exceeds the prejudice to the accused. The court?s
weighing of these factors is reviewable only for clear abuse of discretion.? Pavlick v.
Commonwealth, 27 Va. App. 219, 226, 497 S.E.2d 920, 924 (1998) (en banc) (citations omitted).
?When evidence that might otherwise be hearsay is admitted for a limited, non-hearsay
purpose [and] the trial court . . . instruct[s] the jury that they are to consider the evidence for the
specific limited purpose . . . , we presume that the jury followed that instruction.? Hanson, 14
Va. App. at 187, 416 S.E.2d at 22. Here, because appellant requested but failed to proffer a
limiting instruction–whether due to oversight or trial strategy–and because the Commonwealth
did not rely on the evidence for an improper purpose, appellant may not now complain about the
trial court?s failure to give a limiting instruction or the possibility that the jury may have
considered Jackson?s confession for the truth of its allegation that appellant was a drug dealer.
When hearsay evidence is admitted in a jury trial without a limiting instruction, the finder of fact
may consider it for any purpose. Cf. Stevens v. Mirakian, 177 Va. 123, 131, 12 S.E.2d 780, 783
(1941) (holding ?hearsay testimony admitted without objection may properly be considered and

given its natural probative effect? by the finder of fact), cited with approval in Baughan v.
Commonwealth, 206 Va. 28, 31, 141 S.E.2d 750, 753 (1965); Crawley v. Commonwealth, 29
Va. App. 372, 376, 512 S.E.2d 169, 171 (1999) (holding hearsay evidence admitted without
objection is part of record for purposes of appeal).
B.
OUT-OF-COURT AND IN-COURT IDENTIFICATIONS
A defendant seeking to suppress an out-of-court identification resulting from a
photographic lineup bears a weighty burden of establishing both (1) that the procedure was
impermissibly suggestive and (2) that this flaw created a substantial likelihood of irreparable
misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d
1247, 1253 (1968). Thus, an out-of-court identification resulting from an impermissibly
suggestive lineup does not violate due process and may nevertheless be admissible if it was ?not
so unreliable as to create a substantial likelihood of misidentification.? Neil v. Biggers, 409 U.S.
188, 197-98, 93 S. Ct. 375, 381-82, 34 L. Ed. 2d 401, 410-11 (1972). If the lineup was
impermissibly suggestive, the identification may nevertheless be reliable and admissible if
certain additional conditions are met. Id. at 199-200, 93 S. Ct. at 382-83, 34 L. Ed. 2d at 411;
see also Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L.Ed.2d 140, 154
(1977). Where the admission of identification evidence does not give rise to a very substantial
likelihood of irreparable misidentification, the evidence is admissible and the weight to be
attributed to it is for the jury to decide. Bryant v. Commonwealth, 10 Va. App. 421, 427, 393
S.E.2d 216, 220 (1990). Finally, even if an out-of-court identification cannot be admitted under
this test, an in-court identification may still be admissible ?if the origin of that identification is
independent of the inadmissible out-of-court identification procedure.? Hill v. Commonwealth,

2 Va. App. 683, 693, 347 S.E.2d 913, 918 (1986), quoted with approval in Charity v.
Commonwealth, 24 Va. App. 258, 261, 482 S.E.2d 59, 60 (1997) (en banc).
1. Out-of-Court Identification
In determining whether a photographic lineup was impermissibly suggestive under part
(1) of the above test, a court should look to both the photographs themselves and the manner in
which they were presented to the identifying witness. See State v. Boykins, 320 S.E.2d 134, 138
(W. Va. 1984). A valid lineup does not require that all the suspects or participants be alike in
appearance and have the same description as long as nothing singles the accused out from the
rest. Williamson v. Commonwealth, 211 Va. 57, 59, 175 S.E.2d 285, 287 (1970). Where police
indicate to the witness prior to the witness? viewing the photographs that they have evidence that
one of the people in the lineup committed the crime, the chance of misidentification is
heightened. Bryant, 10 Va. App. at 425-26, 393 S.E.2d at 219 (citing Simmons, 390 U.S. at 383,
88 S. Ct. at 971, 19 L. Ed. 2d at 1253).
In appellant?s case, the evidence supported the trial court?s ruling that the sequential
photographic lineup presented to Al-Rammal on Wednesday, September 4, 2002, was not unduly
suggestive. The array contained five very similar photographs. All were head shots of young
males of the same race with similar hairstyles. Although one of the photographs was a ?mug
shot? taken against a backdrop including a height scale, the remaining four photographs,
including the photograph of appellant, were taken against neutral backgrounds and gave no
indication of the individual?s height or custodial status.
The record supported a finding that the manner in which the lineup was presented to
Al-Rammal also was not unduly suggestive. The evidence, viewed in the light most favorable to
the Commonwealth, established that, prior to showing Al-Rammal the photographs, the
investigators said merely that they would like Al-Rammal to look at some photographs and tell

them whether he had seen any of the people in the photographs in the Chevron station?s
convenience store in the preceding two to four days.12 Investigator Clay testified that he did not
indicate to Al-Rammal that he wanted Al-Rammal to choose any particular photo. Further