COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Annunziata and 

 Senior Judge Hodges 

Argued at Richmond, Virginia 

CLARENCE E. JONES 

v. Record No. 1071-94-2 MEMORANDUM OPINION* BY JUDGE ROSEMARIE P. ANNUNZIATA 

COMMONWEALTH OF VIRGINIA AUGUST 1, 1995 

FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY 

Robert G. O'Hara, Jr., Judge 

 John F. McGarvey for appellant. 

 Katherine P. Baldwin, Assistant Attorney General (James S. 

Gilmore, III, Attorney General, on brief), for appellee. 

 Clarence E. Jones (appellant) was tried by a jury and found 

guilty of murder, attempted murder, and two counts of the use of 

a firearm in the commission of a felony. On appeal, he argues 

that the trial court erred in (1) permitting Calvin Maryland 

(Maryland) to testify that he saw appellant and the murder victim 

together in the nude at Maryland's house several months before 

the murder; (2) refusing to allow him to impeach a witness with 

inconsistent statements contained in a transcript of the witness' 

preliminary hearing testimony; (3) refusing to admit evidence 

about a conversation overheard between the decedent and an 

unknown man; and (4) admitting into evidence bullets found in his 

vehicle and the certificate of analysis of the bullet fragment 

taken from the decedent. We find no reversible error and affirm 

 

 * Pursuant to Code § 17.116.010 this opinion is not 

designated for publication. 
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the convictions. 

 "On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Martin v. Commonwealth, 

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

 On March 3, 1991, Patty Maryland (Patty) and Albert Garrett 

(Garrett), sitting together in a parked vehicle, were approached 

by a vehicle driven by appellant. Appellant got out of his 

vehicle, walked towards Patty and Garrett, and threatened to kill 

them. Appellant pulled out a handgun and began firing. Garrett 

fled into the woods where he got lost and remained for several 

hours. Patty's body was found in her vehicle. She had died from 

a gunshot wound to her head. 

 The police went to appellant's home at 4:00 a.m. on March 4 

and received appellant's consent to search his home. Appellant 

further consented to the search of the vehicles outside his home, 

and supplied the keys to these vehicles. Inside one of the 

vehicles, which appellant identified as his, police located a box 

of bullets. 

 Several months prior to her death, Patty had had an affair 

with appellant. However, at the time of her death she was having 

an affair with Garrett, a fact known to the appellant. One week 

prior to the murder, Garrett called Patty at her house. During 

their conversation, appellant picked up the phone and joined the 

conversation. Later that same day, appellant called Garrett from 
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Patty's home and advised him to end his affair with Patty. 
 4 

 I.

 Maryland, the victim's husband, testified that, five months 

before his wife was killed, he observed her and appellant 

together in the nude at his home. Appellant argues that this 

testimony was not relevant and was prejudicial. 

 "Every fact, however remote or insignificant, that tends to 

establish the probability of a fact in issue, is relevant, and if 

otherwise admissible, should be admitted." Harrell v. Woodson, 

233 Va. 117, 122, 353 S.E.2d 770, 773 (1987). To establish 

appellant's guilt of first degree murder, the Commonwealth was 

required to prove that the killing was intentional, premeditated 

and deliberate. "[A]lthough motive is not a necessary element of 

the crime of first degree murder, `it is relevant and often most 

persuasive upon the question of the actor's intent.'" Archie v. 

Commonwealth, 14 Va. App. 684, 690, 420 S.E.2d 718, 722 (1992) 

(quoting Epperly v. Commonwealth, 224 Va. 214, 232, 294 S.E.2d 

882, 892-93 (1982)). 

 Maryland's testimony showed that Patty and appellant had an 

intimate relationship five months prior to the killing and just 

three and one-half months prior to her involvement with Garrett. 

 In light of the evidence of appellant's attempts to end Patty's 

affair with Garrett, Maryland's testimony tended to establish 

that appellant followed Patty and killed her out of jealousy or 

retribution. The testimony was thus relevant to the issue of 

whether the killing was intentional and premeditated. 
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 Although relevant, evidence may be excluded if its 

prejudicial effect is greater than its probative value. It is 

the responsibility of the trial court to make the determination, 

based on the court's sound discretion, and the ruling will not be 

disturbed on appeal absent a clear abuse of discretion. Wise v. 

Commonwealth, 6 Va. App. 178, 188, 367 S.E.2d 197, 203 (1988). 

 At trial, appellant himself testified that he had had an 

affair with Patty. Therefore, any prejudice that may have 

resulted from Maryland's testimony was outweighed by its 

probative value. The trial court did not abuse its discretion in 

admitting Maryland's testimony. 

 II. 

 The trial court declined to permit defendant to use an 

uncertified transcript to cross-examine Garrett about whether or 

not the killer wore gloves on the night of the murder. The 

transcript was based on a tape-recording of Garrett's preliminary 

hearing testimony. 

 It is unclear from the record whether defendant intended to 

use the transcript to refresh Garrett's recollection or to 

impeach him. However, based on his assumption that its use was 

for the latter purpose, the trial judge correctly stated that a 

transcript of a prior proceeding, introduced into evidence for 

purposes of impeachment by prior inconsistent statement, must be 

proven accurate by its proponent. See Hall v. Commonwealth, 233 

Va. 369, 374, 355 S.E.2d 591, 594 (1987); Edwards v. 
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Commonwealth, 19 Va. App. 568, 571, 454 S.E.2d 1, 2 (1995) 

(quoting 1 Charles E. Friend, The Law of Evidence in Virginia 

§ 4-3(a), at 119 (4th ed. 1993)). Defendant's acquiescence in 

the trial judge's statement of the law precludes reversal on the 

ground that an uncertified transcript could be used for the 

purpose of refreshing recollection. Rule 5A:18. 

 The court's ruling also prevented defendant's use of the 

audiotape to authenticate the transcript of the prior testimony, 

and the use of the audiotape itself for impeachment. Assuming 

the ruling was error, it was harmless because it plainly appears 

from the facts and circumstances of the case that the error did 

not affect the verdict. See Lavinder v. Commonwealth, 12 Va. 

App. 1003, 1005, 407 S.E.2d 910, 911 (1991). On three other 

occasions during his testimony, Garrett testified that he did not 

recall his earlier testimony about whether the killer wore gloves 

on the night of the murder. Garrett also admitted 

inconsistencies existed between his present and former testimony 

at the preliminary hearing. That the jury was not exposed to yet 

another inconsistency on a collateral issue had no significant 

effect upon Garrett's impact as a witness. Williams v. 

Commonwealth, 4 Va. App. 53, 78, 354 S.E.2d 79, 93 (1987). Thus, 

any error the trial judge may have committed was harmless. 

 III. 

 Appellant proffered Lawrence Riley's testimony that he 

overheard an unknown man threaten to kill Patty a few days before 
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her death. The man was not appellant, and Riley could not 

identify him. The trial court ruled the statement was hearsay 

and not admissible. 

 On appeal, appellant argues that, although hearsay, the 

statement falls under the "state-of-mind" exception to the 

hearsay rule. 

 The "state-of-mind" exception is one of . . . 

[the] recognized exceptions. If the 

declarant's state of mind is relevant to the 

case, then admissions of the declarant's 

mental state are admissible, providing they 

"refer to a presently existing state of mind" 

and there is "no obvious indication of 

falsification or contrivance." 

Evans-Smith v. Commonwealth, 5 Va. App. 188, 197, 361 S.E.2d 436, 

441 (1987) (citation omitted). 

 Here, the state of mind of the unidentified man was not 

relevant to any issue in the case. Furthermore, such statements 

may be admitted into evidence only when there is some "factual 

support in the record which would tend to substantiate or 

corroborate them." Id. at 199, 361 S.E.2d at 442. There was no 

inherent reliability in or corroboration of Riley's hearsay 

statement. See id. Thus, the trial judge did not err in 

excluding it. 

 IV.

 When the police went to appellant's home after the killing, 

appellant gave the officers the keys to the vehicles parked 

outside and permitted the police to search them. Inside a 

vehicle that appellant identified as his, the police found a box 
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containing .38 and .357 caliber bullets. The certificate of 

analysis regarding the bullet fragment taken from the victim 

stated that the bullet was fired from a .38 or a .357 caliber 

weapon. 

 "The admissibility of evidence is within the broad 

discretion of the trial court, and a ruling will not be disturbed 

on appeal in the absence of an abuse of discretion." Blain v. 

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). 

"Evidence which bears upon and is pertinent to matters in issue, 

and which tends to prove the offense, is relevant and should be 

admitted." Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 

823 (1986). 

 When considered in conjunction with the certificate of 

analysis, the bullets found in appellant's car were relevant to 

link him to the murder. We find no abuse of discretion in the 

trial court's decision to admit the bullets and the certificate 

of analysis. 

 The judgment of the trial court is affirmed. 

 Affirmed.