COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

TROY ALAN SIMMONS 

 MEMORANDUM OPINION*

v. Record No. 0152-97-2 BY JUDGE MARVIN F. COLE 

 APRIL 7, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Timothy J. Hauler, Judge 

 Cary B. Bowen (Amy M. Curtis; Bowen, Bryant, 

Champlin & Carr, on brief), for appellant. 

 Richard B. Smith, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Appellant, Troy Alan Simmons, was convicted of second degree 

murder and burglary while armed. On appeal, he contends that the 

trial court committed error when it (1) failed to declare a 

mistrial when evidence of prior bad acts was admitted in evidence 

in violation of an agreement between defense counsel and the 

prosecutor that such evidence would be excluded; (2) introduced 

in evidence a statement of the appellant made at the hospital, 

which the trial court found to be unreliable; and (3) denied 

appellant a fair trial because of cumulative prejudice. We 

affirm. 

 On appeal, we view the evidence in the light most favorable 

to the Commonwealth, granting to it all reasonable inferences 

 

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

designated for publication. 
 2 

fairly deducible therefrom. See Martin v. Commonwealth, 4 Va. 

App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 I. Mistrial

 Before trial, appellant and the prosecutor made a joint 

motion in limine, advising the court that they had agreed not to 

go into evidence of other offenses and not to explore areas of 

other ancillary offenses. The prosecutor stated, and defense 

counsel concurred, that they did not want to dwell on specific 

bad acts in front of the jury; this would apply to the 

Commonwealth on direct examination of witnesses but that it might 

not apply during cross-examination of witnesses. The court 

granted the joint motion. 

 During the direct testimony of Melissa Schaack, daughter of 

the victim and girlfriend of appellant, the following questioning 

occurred: 

 Q. Now, let me ask you, had there been any 

 problems or had you seen any problems 

 between Mr. Simmons and your mother? 

 A. Yes. There was. 

 Q. Of what nature? 

 A. Troy and my mother never did get along. 

 . . . [N]either one of them liked each 

 other. 

 Q. Other than the fact that they didn't get 

 along, had there been any serious 

 problems? 

 A. There was a problem right after 

 Thanksgiving. He assaulted my brother 

 and sister's babysitter and we had out a 

 trespassing warrant. 

 Q. I'm talking about your mother and Mr. 

 Simmons. You had seen no trouble 

 between your mother and Mr. Simmons at 

 all? 

 Mr. Bowen: Judge, I'm going to reserve an 
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objection to that comment to argue at the 

proper time. 

 Later, while the jury was excused, defense counsel made a 

motion for a mistrial based upon Schaack's testimony which 

counsel claimed violated the agreement between the parties and 

the in limine ruling of the trial court. The trial judge denied 

the mistrial motion, but offered to give a curative instruction. 

 Defense counsel asked the judge not to give the curative 

instruction. 

 The testimony of Melissa Schaack indicated that appellant 

and her mother (the victim) did not get along. Although there 

was no violence between them, there were arguments. Appellant 

testified that when he phoned, the victim would refuse to let him 

speak to Melissa and would hang up on him. Other evidence 

indicated that the victim had instructed appellant not to call 

her home. 

 In Martin v. Commonwealth, 11 Va. App. 397, 409, 399 S.E.2d 

623, 629 (1990), we stated: "The defendant refused the 

cautionary instruction. When a defendant not only does not 

request an instruction, but denies the court's offer to give one, 

any error which may have been committed otherwise is waived." By 

refusing the trial judge's offer to give a curative instruction, 

the defendant waived his objection to the alleged error. 

Furthermore, even if defense counsel had not waived his 

objection, the trial court did not err by denying the motion for 

a mistrial. Although the parties agreed to exclude the evidence 
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and the trial judge concurred in the agreement, the evidence was 

otherwise admissible and the trial court did not err by admitting 

relevant and material evidence. 

 Evidence of prior crimes or bad acts of a defendant are 

inadmissible when offered only to prove a criminal predisposition 

to commit the crime for which the defendant is charged. 

"'Evidence of other offenses is [admissible] if it shows the 

conduct and feeling of the accused towards his victim, if it 

establishes their prior relations, or if it tends to prove any 

relevant element of the offense charged.'" Foster v. 

Commonwealth, 6 Va. App. 313, 323, 369 S.E.2d 688, 694 (1988) 

(quoting Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 

S.E.2d 802, 805 (1970)). Here, the evidence was admissible to 

prove the prior relationship between the defendant and the 

victim, and we will not reverse the trial court for refusing to 

declare a mistrial for not excluding admissible evidence. 

 II. Appellant's Hospital Statement

 The appellant testified on his own behalf. During 

cross-examination, the prosecutor asked if he recalled being 

interviewed by Detective Church at the hospital. Defense counsel 

objected to the admissibility of the appellant's statement to 

Church because Miranda warnings were not given and because 

appellant was in the recovery room after major surgery and was 

under sedation. Defense counsel claimed that a statement given 

under these circumstances was not reliable. The dispositive 
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question is whether there was manifest prejudice when a statement 

of the appellant, which the trial court later found to be 

unreliable, was introduced into evidence. 

 After considering argument of counsel, the trial judge 

stated: 

 I think you may ask Mr. Simmons if he had 

given a statement to Detective Church that 

differs significantly from the statement he 

has given the court today, and if he says he 

doesn't know, or if he doesn't remember, then 

we'll bring Detective Church in. If he says, 

"Yes, it was," then that's the end of it. 

 Defense counsel did not object to this procedure, but stated 

that the Church statement given to him by the prosecutor did not 

appear to be a complete interview. The trial judge stated that 

defense counsel was entitled to have full information. It was 

arranged for him to interview Church and to hear a tape of the 

conversation between Church and Simmons at the hospital. 

 After interviewing Church and listening to the tape, defense 

counsel advised the trial court: 

 I believe that what Mr. Simmons will say is 

that there are differences in what Mr. Church 

says and what he says today, and as well with 

the statement to [Officer] Crews. I'm not 

trying -- once Mr. Von Schuch asks him, we'll 

know. I mean I don't know of any way to 

handle it really. 

 At this point, the record indicates that every objection 

made by defense counsel had been resolved to his satisfaction by 

the trial judge. The prosecutor asked Simmons the questions 

proposed by the judge with no further objection: 

 Q. Do you recall talking to Detective 
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 Church of the Chesterfield County Police 

 Department after you came out of surgery 

 at the Medical College of Virginia? 

 A. Vaguely, sir. 

 Q. And isn't it true that the statement you 

 made to him at that time was different 

 from the statement you've just given 

 this jury as to how Ms. Veca was 

 stabbed? 

 A. Yes, sir, that's entirely possible. 

 Q. So both of the statements that you gave 

 the police officer at the scene and the 

 statement that you gave Detective Church 

 are different than what you've told the 

 jury here today? 

 A. Yes, sir. I believe that's possible. 

 In view of these admissions, the prosecutor did not inquire 

about the details or content of the appellant's statements to 

Church. Although the hospital statement was marked as an exhibit 

for identification purposes, the jury neither saw the hospital 

statement, nor was it introduced into evidence. 

 We find that the defendant was not prejudiced by the 

questioning about his hospital statement to Church because the 

record does not reflect that the hospital statement was 

introduced in evidence or shown to the jury. 

 III. Cumulative Prejudice

 The appellant contends that he was denied a fair trial 

because the two separate grounds for which he sought a mistrial 

also amounted to cumulative prejudice. This argument was not 

raised in the trial court and for this reason we will not 

consider it on appeal. See Jacques v. Commonwealth, 12 Va. App. 

591, 593, 405 S.E.2d 630, 631 (1991); Rule 5A:18. 
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 Accordingly, Rule 5A:18 bars our consideration of this 

question. Moreover, the record does not reflect any reason to 

invoke the good cause or ends of justice exception to Rule 5A:18. 

 Affirmed.