PRESENT: All the Justices

JAMES EDWARD LOWE 

v. Record No. 032707 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 September 17, 2004 

BARBARA E. CUNNINGHAM 

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

J. Leyburn Mosby, Jr., Judge 

In this appeal of a judgment in a personal injury action, 

we consider whether the circuit court erred in denying the 

plaintiff's motion for a mistrial. 

The following facts are relevant to this appeal. In August 

1998, James E. Lowe was operating a motor vehicle in the City of 

Lynchburg. After Lowe stopped his vehicle at a "red light" at 

an intersection, his vehicle was struck from behind by another 

vehicle operated by Barbara E. Cunningham. 

Lowe filed a motion for judgment against Cunningham 

alleging that he was injured as a result of Cunningham's 

negligence. At trial, Lowe presented evidence that he sustained 

injuries to his back, right knee, and a wrist as a result of the 

accident. The evidence also showed that Lowe suffered from 

certain pre-existing conditions, including scoliosis of the 

spine and degenerative arthritis in his back and right knee. 

Lowe presented evidence of medical expenses allegedly related to 

the accident in the total amount of $11,314.75. 
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During cross-examination of Lowe, the following colloquy 

occurred between Lowe and Cunningham's counsel: 

Q. At the time of this accident, you were living with 

Laquesta Andrews, who is the mother of one of your 

children; is that right? 

A. Right. 

Q. In fact, that's where you went after the accident 

. . . to her home? 

A. Yes. 

Q. Is that right? And you continued to live with 

her until you got into a little trouble with the 

law about not paying child support? 

 Lowe did not answer this final question from Cunningham's 

counsel. Lowe's counsel immediately objected to the question 

and asked the court for permission to make a motion outside the 

presence of the jury. After the jury retired to the jury room, 

Lowe's counsel moved for a mistrial on the ground that 

Cunningham's counsel introduced "elements of [Lowe's] criminal 

record into a case when it's not relevant evidence." 

Cunningham's counsel responded that Lowe stated in his pretrial deposition that he had spent 90 days in jail for his 

failure to pay child support, and that Lowe had also complained 

that he suffered from injuries to his knee during that same time 

period. Cunningham's counsel argued that his question was 

relevant to show the nature of Lowe's activities and limitations 

during the time he claimed to be suffering from his injuries. 
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The circuit court sustained Lowe's "objection to the child 

support issue" on the ground that "the prejudicial value of that 

outweighs any probative value." The court denied Lowe's motion 

for a mistrial and instructed the jury to "disregard any 

information about child support or failure to pay." 

Throughout the trial, Cunningham contested the cause of 

Lowe's injuries. She argued to the jury that his knee and back 

injuries resulted from his pre-existing conditions, rather than 

from the motor vehicle collision. 

After the jury returned a verdict in favor of Lowe and 

fixed his damages at $575, Lowe renewed his motion for a 

mistrial. The court denied the motion and entered judgment in 

accordance with the jury verdict. Lowe appeals. 

 Lowe argues that the circuit court abused its discretion in 

denying his motion for a mistrial. He observes that his record 

for failing to pay child support was not competent impeachment 

evidence because he was not convicted of a felony or a 

misdemeanor involving moral turpitude. Lowe also asserts that 

his failure to pay child support was irrelevant to his personal 

injury claim, and that the deliberate injection of this issue 

into the case resulted in prejudice that could not be cured by a 

cautionary instruction. 

 In response, Cunningham argues that the circuit court did 

not abuse its discretion in denying Lowe's mistrial motion. She 
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notes that Lowe did not answer her counsel's question, which 

Cunningham asserts was intended to refute Lowe's claim 

concerning the extent of his damages. Cunningham further 

observes that under this Court's jurisprudence, the jury is 

presumed to have followed the trial court's cautionary 

instruction. Alternatively, Cunningham contends that any error 

caused by the denial of the mistrial motion was harmless, and 

that the record supports the jury verdict because there was 

"ample evidence" from which the jury could have concluded that 

Lowe's injuries resulted from his pre-existing conditions. 

 We review a challenge to a trial court's denial of a 

mistrial motion in accordance with established principles. The 

decision whether to grant a motion for a mistrial is a matter 

submitted to the trial court's sound discretion. Clark v. 

Chapman, 238 Va. 655, 661, 385 S.E.2d 885, 888 (1989); State 

Farm Mut. Auto. Ins. Co. v. Futrell, 209 Va. 266, 274, 163 

S.E.2d 181, 187 (1968); see Rose v. Jaques, 268 Va. 137, 157, 

597 S.E.2d 64, 76 (2004); Robertson v. Metro. Wash. Airport 

Auth., 249 Va. 72, 77, 452 S.E.2d 845, 847 (1995). This broad 

discretionary power reflects in part the principle that a jury 

is presumed to have followed a timely and explicit cautionary 

instruction directing it to disregard an improper remark or 

question by counsel. See Stump v. Doe, 250 Va. 57, 62, 458 

S.E.2d 279, 282 (1995); Hamer v. School Bd. of the City of 
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Chesapeake, 240 Va. 66, 75, 393 S.E.2d 623, 628-29 (1990); Maxey 

v. Hubble, 238 Va. 607, 615-16, 385 S.E.2d 593, 597 (1989). 

The general rule in this Commonwealth is that absent a 

manifest probability of prejudice to an adverse party, a new 

trial is not required when a court sustains an objection to an 

improper remark or question by counsel and thereafter instructs 

the jury to disregard the remark or question. Kitze v. 

Commonwealth, 246 Va. 283, 288, 435 S.E.2d 583, 585 (1993); 

Clark, 238 Va. at 661, 385 S.E.2d at 888; Carter v. Shoemaker, 

214 Va. 16, 17, 197 S.E.2d 181, 182 (1973); Norfolk S. Ry. Co. 

v. Harris, 190 Va. 966, 975, 59 S.E.2d 110, 114 (1950). A 

different standard would place an undue burden on the trial 

courts that would impede the efficient administration of 

justice. Kitze, 246 Va. at 288, 435 S.E.2d at 585; Saunders v. 

Commonwealth, 218 Va. 294, 303, 237 S.E.2d 150, 156 (1977); 

Washington & Old Dominion Ry. v. Ward, 119 Va. 334, 339, 89 S.E. 

140, 142 (1916). 

"Conversely, as an exception to the [general] rule, if the 

prejudicial effect of the impropriety cannot be removed by the 

instructions of the trial court, the [adverse party] is entitled 

to a new trial." Kitze, 246 Va. at 288, 435 S.E.2d at 585 

(quoting Saunders, 218 Va. at 303, 237 S.E.2d at 156); see

Harris, 190 Va. at 975, 59 S.E.2d at 114. Thus, a court is 

required to grant a new trial, if requested, when the 
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prejudicial effect of an improper remark or question is 

overwhelming, such that it cannot be cured by a cautionary 

instruction. Hamer, 240 Va. at 75, 393 S.E.2d at 629; Maxey, 

238 Va. at 616, 385 S.E.2d at 597. 

The trial court's determination whether a statement or 

question of counsel is so inherently prejudicial that the 

prejudice cannot be cured by a cautionary instruction must be 

guided by a consideration of several factors. These factors 

include the relevance and content of the improper reference, and 

whether the reference was deliberate or inadvertent in nature. 

The court also must consider the probable effect of the improper 

reference by counsel. All these factors must be considered 

because not every irrelevant statement or question will result 

in prejudice to an opposing party. See Virginia-Lincoln 

Furniture Corp. v. Southern Factories & Stores Corp., 162 Va. 

767, 781, 174 S.E. 848, 854 (1934). To justify a new trial, the 

nature of counsel's improper reference must be "likely to 

inflame the passion or instill a prejudice in the minds of the 

jury." Id.; see also Kitze, 246 Va. at 288, 435 S.E.2d at 585; 

Meade v. Belcher, 212 Va. 796, 799, 188 S.E.2d 211, 213 (1972). 

In the present case, counsel's question addressed matters 

that were irrelevant to the issue of Lowe's damages. Lowe was 

not seeking damages for lost wages during the time that he was 

incarcerated after the accident. In addition, Lowe's failure to 
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pay child support did not result in either a felony conviction 

or a misdemeanor involving moral turpitude and, therefore, could 

not be used to impeach his credibility. See Godbolt v. Brawley, 

250 Va. 467, 472, 463 S.E.2d 657, 660 (1995); Great Coastal 

Express, Inc. v. Ellington, 230 Va. 142, 147, 334 S.E.2d 846, 

850 (1985); Lincoln v. Commonwealth, 217 Va. 370, 374, 228 

S.E.2d 688, 691 (1976); Land v. Commonwealth, 211 Va. 223, 226, 

176 S.E.2d 586, 588 (1970). Thus, in the absence of any 

demonstrated probative value or proper purpose, the content of 

defense counsel's question served only to imply that Lowe had 

been in "trouble with the law" for failing to pay child support, 

and that he may have been incarcerated for that reason. 

We also observe that defense counsel's reference to these 

matters was deliberate, rather than inadvertent. When counsel 

deliberately places irrelevant issues before a jury for an 

improper purpose, the likely necessity of granting a mistrial 

increases. See Forsberg v. Harris, 238 Va. 442, 445, 384 S.E.2d 

90, 91 (1989); Davis v. Maynard, 215 Va. 407, 408, 211 S.E.2d 

32, 32-33 (1975). 

We conclude that defense counsel's deliberate and improper 

reference to Lowe's child support delinquency and "trouble with 

the law" was so inherently prejudicial to the jury's perception 

of his character and credibility that the effect of the 

impropriety could not be removed by the trial court's 
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instruction. This holding is necessarily specific to the facts 

of this case and does not signal a departure from the general 

principle that a jury is presumed to have followed a court's 

timely and explicit cautionary instruction. Rather, our 

decision is required by the opprobrium that rightly attaches to 

the actions of parents who shirk their child support 

obligations. The probable effect of deliberately placing Lowe's 

child support delinquency before the jury was to suggest that 

because he had failed to honor this most basic social and legal 

obligation, he should not be "rewarded" with a significant 

damage award. 

Our conclusion is not altered by the fact that the trial 

court did not require Lowe to answer the improper question, or 

by the fact that counsel did not persist in attempting to place 

that information into evidence before the jury. While the 

presence of these factors could have caused Lowe greater 

prejudice, their absence does not negate the inherently 

prejudicial impact of defense counsel's question. 

Because we hold that defense counsel's question was 

inherently prejudicial, we do not reach the issue whether the 

jury could have arrived at the same verdict based on the 

disputed evidence concerning the cause of Lowe's injuries. 

Accordingly, we conclude that the trial court abused its 

discretion in denying Lowe's motion for a mistrial. 
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For these reasons, we will reverse the trial court's 

judgment and remand the case for a new trial limited to the 

issue of damages. 

Reversed and remanded.

JUSTICE AGEE, with whom JUSTICE LACY and JUSTICE KINSER join, 

dissenting. 

The majority concludes that the “deliberate and improper 

reference to Lowe’s child support delinquency . . . was so 

inherently prejudicial to the jury’s perception of his character 

and credibility that the effect of the impropriety could not be 

removed by the trial court’s instruction.” I disagree. In my 

view, the trial court’s denial of Lowe’s request for a mistrial 

was properly within its sound discretion and in accord with our 

prior precedent. The circumstances surrounding the improper 

question, combined with the trial court’s cautionary instruction, 

sufficiently negated any deemed prejudice. Furthermore, counsel’s 

conduct in this case did not rise to the level of impropriety that 

we found objectionable in the cases cited by Lowe and the 

majority. 

Where counsel makes an improper statement and 

the court takes prompt action to remove it by 

appropriate instruction to the jury, it will 

ordinarily be presumed that the jury heeded the 

instruction and that no lasting harm was done. But 

where the prejudicial effect is so overwhelming 

that it cannot be removed by the court's 

instruction, the injured party, if he requests it, 

is entitled to a new trial. The injured party's 

right to a new trial is especially strong where his 
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opponent has persisted in an objectionable course 

of conduct after the trial judge has expressed 

disapproval of it, sustained an objection to it, or 

instructed the jury to disregard it. In that 

situation, an appellate court will presume that the 

prejudicial effect of the improper conduct was too 

strong to be removed by further admonitions or jury 

instructions. 

Maxey v. Hubble, 238 Va. 607, 615-16, 385 S.E.2d 593, 597 (1989) 

(emphasis added) (citation omitted). 

Although not cited by the majority, Lowe relied extensively 

on this Court’s opinion in Payne v. Carroll, 250 Va. 336, 461 

S.E.2d 837 (1995). In Payne, defense counsel asked the following 

question during cross-examination of the plaintiff: “Now, you, 

ma’am, have been convicted of a felony involving fraud, haven’t 

you?” 250 Va. at 338, 461 S.E.2d at 838. The plaintiff responded 

affirmatively and her counsel objected on the basis “that the 

defense had no right to disclose the nature of the felony.” Id.

(internal quotation marks omitted). The trial court denied the 

plaintiff’s motion to set aside the verdict and refused to grant a 

new trial. We reversed the trial court and held that, “for 

purposes of impeachment, the fact of a prior conviction of a 

felony may be shown against a party-witness in a civil case, but 

that the name of the felony, other than perjury, and the details 

thereof may not be shown.” Id. at 340, 461 S.E.2d at 839. 

 Multiple factors distinguish the case at bar from Payne and 

argue against classifying counsel’s statement in the present case 
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as so “overwhelming” that a finding that the trial court abused 

its discretion is warranted. Among them: (1) the trial court 

sustained Lowe’s objection to defense counsel’s question, (2) Lowe 

did not answer the improper question, (3) the trial court promptly 

gave a cautionary instruction, (4) the improper question did not 

establish a conviction or that the subject matter related to a 

crime, and (5) there was no continuing course of conduct by 

defense counsel. In my view, the ameliorative effect of these 

cumulative circumstances mitigated any prejudicial effect such 

that Lowe was not entitled to a mistrial. 

 The cases cited by the majority can be readily distinguished 

from the case at bar, both factually and by the scope of the 

prejudicial statement at issue. In Kitze v. Commonwealth, 246 Va. 

283, 435 S.E.2d 583 (1993), we set aside a criminal conviction 

because the prosecutor, during his closing argument, improperly 

argued that a finding of insanity would result in the defendant 

going free. 246 Va. at 287-88, 435 S.E.2d at 584-85. Unlike the 

present case, the trial court in Kitze overruled the defendant’s 

objection and did not give an immediate or directly related 

cautionary instruction. Id. at 288, 435 S.E.2d at 585. 

 In Hamer v. School Bd. of the City of Chesapeake, 240 Va. 66, 

393 S.E.2d 623 (1990), we reversed a trial court’s denial of a 

mistrial because “[c]ounsel’s persistence in a course of conduct 

which the court had disapproved and instructed the commissioners 
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to exclude from their considerations . . . raised a presumption 

that ‘the prejudicial effect of the improper conduct was too 

strong to be removed by further admonitions.’ ” Id. at 76, 393 

S.E.2d at 629. Moreover, the trial court overruled objections to 

some of trial counsel’s prejudicial remarks. By contrast, the 

inappropriate but unanswered question posed to Lowe did not 

reflect a continuing course of conduct and a prompt cautionary 

instruction was given. 

Likewise, in Maxey, it was also the attorney’s pernicious and 

persistent conduct, despite repeated admonition by the trial 

court, which required reversal of that court’s decision not to 

grant a mistrial. We based that decision “upon the cumulative 

effect of plaintiff’s counsel’s repeated statements, [which] 

persisted . . . notwithstanding the trial court’s rulings.” 

Maxey, 238 Va. at 616, 385 S.E.2d at 597; see also Rinehart & 

Dennis Co. v. Brown, 137 Va. 670, 675-76, 120 S.E. 269, 271 (1923) 

(plaintiff’s counsel persisted in alluding to insurance in a tort 

case). 

According to the majority, the improper question posed by 

defense counsel in this case constituted an attempt to take 

advantage of the “opprobrium that rightly attaches to the actions 

of parents who shirk their child support obligations” by 

suggesting to the jury that such a miscreant ought not to be 

rewarded. However, child support often involves a civil, not 
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criminal, matter and a question about “a little trouble with the 

law about not paying child support,” left unanswered, does not 

establish that Lowe was ever convicted of a crime. Neither does 

it establish Lowe was ever, in fact, deficient in any child 

support due from him. 

There is one additional distinguishing characteristic of the 

case at bar; the plaintiff received a verdict in his favor. Lowe 

argues that “[e]ven though the jury found for [him] on the issue 

of liability, the damage award did not even cover [his] emergency 

room visit and attendant bills.” However, there was evidence 

before the jury that many of Lowe’s injuries resulted from 

preexisting conditions and Lowe has not shown how the unanswered 

question at issue in this case prejudiced the jury to such a 

degree that it did not make a fair award. As the trial court 

stated in entering an order on the jury’s verdict, “[the award is] 

certainly within the evidence that the Court’s heard.” 

In my view, the mitigating factors discussed above placed the 

inappropriate conduct squarely within the presumption “that the 

jury heeded the [trial court’s] instruction and that no lasting 

harm was done.” Maxey, 238 Va. at 615, 385 S.E.2d at 597. This 

is particularly true in this case because a verdict was returned 

for the plaintiff and there is evidence in the record supporting 

the amount of the verdict. For all these reasons, I do not find 
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the trial court abused its discretion in denying the mistrial 

motion and, therefore, I respectfully dissent.