COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Elder 

Argued at Richmond, Virginia 

MAYS TATE, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 1774-95-2 JUDGE LARRY G. ELDER 

 JUNE 25, 1996 

COMMONWEALTH OF VIRGINIA 

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. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 

 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 

committed. We therefore reverse appellant's convictions and 

remand for further proceedings if the Commonwealth be so advised. 
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 I. 

 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 

residence. 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 

of it. 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 

for him. 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 

Stinson house. 

 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 
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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, 

1992. Carter stated that he was looking for appellant in 

connection with these crimes but that appellant "had fled" the 

jurisdiction. 

 The trial court cautioned the jury that it could not 

consider the officers' testimony as evidence of appellant's 

guilt. 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. 

 II. 

 Appellant asserts that the Commonwealth's other crimes 

evidence was not probative in proving his motive. Appellant also 

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. See
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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 

(1984)(emphasis added). 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 

(1957). Thus, unless evidence of other crimes is relevant to 

prove a material fact, and its relevance outweighs its 

prejudicial effect, the evidence is inadmissible. "The 

responsibility for balancing these competing considerations is 

largely within the sound discretion of the trial judge." Coe v. 

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. See Henderson 

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 
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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). However, 

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 

(1991). 

 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. We 

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 
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rendered harmless." 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.