WRITING - MEMORANDUM ASSIGNMENT

Our client, the defendant, was convicted of the murder of his wife. He testified at trial that he pointed his pistol at her in an effort to frighten her, but that she grabbed the gun and he fell forward, causing it to accidentally discharge.

In rebuttal, the prosecution introduced testimony from his former wife that, on two prior occasions, she experienced similar conduct by him. Both occurred when they were separated. On one occasion, he followed her home from a bar, held a pistol to her head and threatened to kill her. The second time, he followed her home from a date, assaulted her, held a pistol to her head and threatened to kill her.

The attorney for whom you work wants a memorandum of law as to the admissibility of this evidence as a possible issue on appeal. Your research has produced the following cases:

1) Smarr v. Commonwealth, 219 Va. 168 (1978): It was error to admit evidence of prior injuries to a child in a malicious wounding case when there was a showing only that the injuries occurred, without evidence that the defendant caused them or contributed or that she alone had access to the child at the time of the injuries. This is true even though the defendant had admitted to having been a child abuser in the past.

2) Foster v. Commonwealth, 5 Va. App. 116 (1987): In a rape case, a second rape victim was allowed to testify that the defendant had also raped her some ten days prior to the incident for which he was on trial. This was admitted by the trial court to establish lack of consent by the victim.

This was error as it did not in fact tend to show lack of consent. It merely showed that the defendant had a propensity to commit this type of crime. This is precisely what the government is not permitted to show in a criminal case.

3) Satterfield v. Commonwealth, 12 Va. App. 24 (1991): Evidence that a person charged with drug dealing had been involved in drug deals on earlier occasions was found inadmissible as evidence of guilt. They do not tend to show motive, intent or any other valid element of a crime.

4) Hagy v. Commonwealth, 222 Va. 599 (1981): Defendant was a babysitter charged with manslaughter in the death of a 22-month old child in her care. Evidence was admitted that she had twisted the arm and feet of a 5-year old child on an earlier occasion and that the child had developed a swollen leg and redness under one eye as a result.

This was error. The evidence did not tend to show the conduct and feeling of the defendant toward the victim. It did not show motive, intent, knowledge, plan or scheme leading to the homicide. Injuries to another child were unrelated to the injury which caused the death of the victim in this case. The evidence merely showed that she is the type of person who abuses children. It has no relevance to this particular case.

NOTE: You need not use all these cases. Use only the ones that fit logically in your memorandum.

NOTE: Do not look up these cases. Use only the descriptions that are found in this handout.