Melvin Irvin Shifflett, s/k/a etc. v Commonwealth

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Senior Judge Hodges Argued at Alexandria, Virginia
MELVIN IRVIN SHIFFLETT, S/K/A MELVIN IRVING SHIFFLETT
V. Record No. 2481-97-4
OPINION BY JUDGE ROSEMARIE ANNUNZIATA APRIL 20, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY James H. Chamblin, Judge
Carla Blake Hook (E. William Chapman; Hazel & Thomas, on briefs), for appellant.
Richard B. Campbell, Assistant Attorney General (Mark L. Earley, Attorney General, on brief) , for appellee.
Melvin I. Shifflett ("appellant") was convicted by jury trial of the first degree murder of Patricia E. Smith and sentenced to life imprisonment. £ In this appeal, appellant contends the trial court erred by: (1) admitting the testimony of Diane Kruger concerning appellant's commission of a prior crime; and (2) admitting irrelevant testimony of John Howard. We disagree and affirm appellant's conviction.
I.
FACTUAL BACKGROUND
The facts stated in the light most favorable to the Commonwealth, the prevailing party, establish that on the night of October 29, 1978, Smith met a group of friends at a

restaurant. 	Appellant joined the group later that evening. 	In
the early morning of October 30, the group decided to relocate
to a local hotel to listen to a band. 	Appellant gave Smith a
ride in his car. 	Before leaving for the hotel, Emilio Hernandez
pulled his car up to appellant’s car to confirm Smith’s plans.
Smith told Hernandez that she would see him at the hotel and
asked him to order drinks for appellant and her. 	Neither
appellant nor Smith arrived at the hotel that night. 	On October
31, 1978, appellant told Hernandez that he parted company with
Smith when she drove off with a man in a gray Cadillac.
On November 20, 1978, Smith’s body was found lying face
down on the ground in Loudoun County, Virginia. 	With the
exception of socks on her feet, Smith’s body was nude from the
waist down with a blue jean jacket tied around her neck. 	The
cause of Smith’s death was determined to be “strangulation by
ligature.” 	No evidence of sexual assault was found on Smith’s
body. 	David R. Simpson, an evidence technician for the Loudoun
County Sheriff’s Department at that time, noticed lividity marks
on Smith’s back, which indicated to him that she had died while
lying on her back and had subsequently been flipped over.
Simpson also noticed animal markings on the decomposing body.
On October 15, 1996, a grand jury charged appellant with
the murder of Smith. 	On March 6, 1997, the Commonwealth filed a
“Notice of Intention to Offer Evidence of Other Crimes.” 	The
- 2 -

notice indicated the Commonwealth’s intent to introduce evidence
of appellant’s assault on Diane Kruger as evidence of his guilt
in the current prosecution. 	By order of August 4, 1997, the
court ruled that evidence regarding crimes committed by
appellant against Kruger “may be admitted to show malice,
premeditation, intent, motive, conduct or feelings” of appellant
towards Smith, but not to show identity. 	The court noted
appellant’s objection in its order and his renewed objection
made immediately before Kruger’s testimony at trial.
A. 	BREW’S TESTIMONY
At trial, Donald Brew testified about the content of
multiple conversations he had with appellant while the two men
were confined within the Prince William County Adult Detention
Center. 	Appellant told Brew that in August 1978 he met Kruger
in a bar and offered to help her repair a problem with her
vehicle. 	After appellant and Kruger left the bar and took the
vehicle for a test-drive, appellant attacked her with a knife.
Appellant stuffed a roll of toilet paper in Kruger’s mouth and
blocked her nose, intending not to kill her immediately.
Appellant stated he “just wanted her to get the feeling of
death.” 	Appellant repeatedly blocked Kruger’s airways and then
relented, stating that he enjoyed the power he exercised over
Kruger by bringing her close to death. 	During the attack,
appellant forced Kruger to perform oral sex on him but could not
- 3 -

sustain an erection long enough to rape her. 	Appellant told
Brew he became fully aroused only when he had blocked Kruger’s
air passages with the toilet paper. 	Appellant acknowledged
stabbing Kruger numerous times before she was able to escape by
striking appellant’s head with a bottle and fleeing the car.
Brew also testified that appellant admitted killing Smith
in 1978 while he was free on bond for the charge of attacking
Kruger. 	According to Brew, appellant met Smith around Halloween
when she came to the service station where he worked. 	One
evening, appellant met Smith again at a bar and arranged to give
her a ride home. 	While sitting in appellant’s car, Smith saw a
Cadillac salesman she knew, went over to his vehicle for several
minutes, and returned to appellant’s vehicle. 	According to
Brew, appellant drove Smith to a location near Leesburg, knowing
even before he left the bar’s parking lot that he was going to
kill her. 	After parking beside a road, appellant forced Smith
to perform oral sex on him and strangled her to death by
wrapping her jacket around her neck. 	Appellant told Brew that,
while he was forcing Smith to perform oral sex on him, he could
only become fully aroused “when he was strangling her with the
fatigue jacket.”
Appellant put Smith’s body in his trunk and drove to a site
where he had previously delivered heavy equipment with his
- 4 -

brother-in-law.1 Appellant abandoned his plan to bury the body
there when he saw lights that he had not previously noticed
during his earlier daytime visit. 	Brew also described
appellant’s efforts to conceal his involvement in Smith’s
murder, indicating that he cleaned his car twice and attempted
to divert police attention to the Cadillac salesman who Smith
encountered on the night of her death.
Brew also testified that “a couple of weeks later”
appellant returned to the site where he had left the body to
ensure that the body was still covered. 	At that time, appellant
noticed that “animals had been at the body.” 	Brew recalled
appellant referring to both Kruger and Smith as “bitch[es],”
“slut[s],” and “whore[s].”
B. 	KRUGER’S TESTIMONY
The Commonwealth subsequently called Diane Kruger as a
witness. 	Kruger testified that appellant approached her in a
bar on August 1, 1978 and offered to help fix some problems she
had with her car and which she had discussed with him at their
first meeting several days earlier. 	Appellant convinced Kruger
to permit him to take the car for a test-drive. 	Entering the
passenger side of Kruger’s vehicle, appellant instructed Kruger
to follow a car which he claimed contained some friends on their
1Appellant's brother-in-law worked for a company that moved
construction equipment between job sites.
- 5 -

way to a party. 	Appellant told Kruger to pull off the road and
turn off the car while they waited to meet some of his friends.
When Kruger reached to start her car again, appellant produced a
knife and threatened Kruger with it. 	After forcing her to
perform oral sex on him, appellant tied Kruger’s hands and began
stuffing toilet paper in her mouth. 	Kruger recalled that
appellant repeatedly stuffed the paper into her mouth, nearly
blocking her air passage, and then released the pressure.
Kruger also testified that appellant was unable to maintain an
erection during this two-hour assault. 	Once she covertly freed
her hands, Kruger escaped from the car by striking appellant in
the head with a bottle. 	While in the process of fleeing, Kruger
sustained multiple stab wounds in her abdomen and in the area of
her heart, lung, and side. 	Appellant’s objection to Kruger’s
testimony was overruled.
C. 	HOWARD’S TESTIMONY
John Howard testified that he was at his parents’ house in
early November 1978. 	The Howards’ residence is approximately
two-tenths of a mile from the spot where Smith’s body was found.
Howard recalled a round-faced white man in his mid-to-late
twenties with reddish brown hair, large ears, and freckles
coming to the door. 	Howard described the man as resembling
“Alfred E. Newman,” a character of MAD magazine. 	The man asked
Howard “what [he] thought of the body down at the bottom of the
- 6 -

hill . . . down near the culvert . . . right off the road in
plain view for everyone to see.” 	When Howard replied that he
knew nothing about the body, the visitor told Howard that it was
laying face down and that it was only a mannequin with a blond
wig that local children had placed there as a Halloween prank.
The man told Howard one could not “tell that it wasn’t a woman
until you rolled the body over.” 	The visitor continued, saying
that people had already reported seeing the body to the police
and that “the police didn’t even respond anymore.”
Approximately two weeks later, Smith’s body was found in the
vicinity of the Howard residence. 	Appellant objected to this
evidence after Howard testified. 	The court overruled the
objection.
II.
ADMISSION OF KRUGER’S TESTIMONY
Under settled Virginia law, evidence of other crimes or bad
acts is inadmissible to prove the accused is guilty of the crime
charged. 	See Guill v. Commonwealth, 255 Va. 134, 138, 495
S.E.2d 489, 491 (1998). 	“Such evidence implicating an accused
in other crimes unrelated to the charged offense is inadmissible
because it may confuse the issues being tried and cause undue
prejudice to the defendant.” 	Id.
As an exception to the general rule of exclusion, however,
evidence of other crimes or bad acts is admissible “if relevant
- 7 -

to a material issue or element of consequence in the case.”
Foster v. Commonwealth, 5 Va. App. 316, 319, 362 S.E.2d 745, 747
(1987). 	Among the permissible uses of “other crimes” evidence,
such evidence may be admitted: 	(1) to prove any element of the
offense charged, (2) to show the motive, intent, or knowledge of
the accused, (3) to show the conduct and feeling of the accused
toward his or her victim, or (4) to show premeditation or
malice. 	See Satcher v. Commonwealth, 244 Va. 220, 230, 421
S.E.2d 821, 828 (1992); Cheng v. Commonwealth, 240 Va. 26, 34,
393 S.E.2d 599, 603 (1990). 	Such evidence is also admissible to
establish the perpetrator’s identity when “some aspects of the
prior crime are so distinctive or idiosyncratic that the fact
finder reasonably could infer that the same person committed
both crimes.” 	Guill, 255 Va. at 138-39, 495 S.E.2d at 491.
Before “other crimes” evidence will be admitted, however,
the prior crime or bad act must be shown to have a causal
relation or logical and natural connection with the crime
charged or, alternately, the two acts must form parts of the
same transaction. 	See id. at 140, 495 S.E.2d at 492-93.
Furthermore, evidence whose prejudicial impact outweighs its
probative value will not be admitted. 	See Woodfin v.
Commonwealth, 236 Va. 89, 95, 372 S.E.2d 377, 381 (1988). 	The
trial court is charged with balancing prejudicial impact and
probative value and the court’s decision is subject to reversal
- 8 -

only for an abuse of discretion. 	See Pavlick v. Commonwealth,
27 Va. App. 219, 226, 497 S.E.2d 920, 923-24 (1998) (en banc).
Appellant contends Kruger’s testimony had no causal
relationship to or logical connection with the crime charged and
was, therefore, not admissible under any exception to the
general rule against admitting “other crimes” evidence. 	We
disagree. 	The logical connection which exists between the two
incidents is provided by the idiosyncratic characteristics they
manifest.
Generally referred to as evidence of modus operandi, under
the holding of Spencer v. Commonwealth, the test for the
admission of such evidence is satisfied “where the other
incidents are ‘sufficiently idiosyncratic to permit an inference
of pattern for purposes of proof.’” 	240 Va. 78, 90, 393 S.E.2d
609, 616 (1990) (quoting United States v. Hudson, 884 F.2d 1016,
1021 (7th Cir. 1989) (citation omitted)). 	The crimes need not
be so similar as to constitute a signature or carbon copy of the
case on trial. 	See Spencer, 240 Va. at 89-90, 393 S.E.2d at
616. 	“Rather, it is sufficient if the [evidence of] other
crimes bear ‘a singular strong resemblance to the pattern of the
offense charged.’” 	Id. at 90, 393 S.E.2d at 616 (quoting
Hudson, 884 F.2d at 1021).
Although the admissibility of evidence showing modus
operandi has generally been viewed as a means of proving the
- 9 -

identity of a crime’s perpetrator, see Chichester v.
Commonwealth, 248 Va. 311, 326-28, 448 S.E.2d 638, 648-49
(1994); Foster, 5 Va. App. at 320, 362 S.E.2d at 747, the
evidence challenged in this case was not admitted to establish
identity, and the jury was instructed that they could not
consider the evidence on that issue.2 We see no reason, however,
to limit the admissibility of evidence showing modus operandi to
the purpose of proving identity. 	When evidence of idiosyncratic
similarities in an accused’s mode of attack exists and
constitutes a logical connection with the crime charged, such
evidence may be admitted for the purpose of establishing, by
inference, the accused’s intent, motive, malice, premeditation,
or the accused’s feelings toward the victim, as well as the
perpetrator’s identity. 	See Lafon v. Commonwealth, 17 Va. App.
411, 418-19, 438 S.E.2d 279, 284 (1993) (affirming the trial
court’s admission of modus operandi evidence, which consisted of
prior bad acts and planning, for the purpose of proving the
accused’s intent and premeditation during the crime charged);
Witt v. Commonwealth, 15 Va. App. 215, 219, 422 S.E.2d 465, 468
(1992) (affirming the admission of evidence that an accused
2The trial court instructed the jury that it could “consider
evidence that the defendant committed offenses other than the
offense for which he is on trial only to show malice,
premeditation, intent, motive, or conduct and feeling of the
defendant towards the victim in connection with the offense for
which he’s on trial and for no other purpose.” 	The jury is
presumed to have followed the court’s instruction of law.
- 10 -

committed prior burglaries in a manner similar to the crime
charged for the purpose of proving, inter alia, the accused’s
knowledge and intent). 	See also Guill, 255 Va. at 141, 495
S.E.2d at 493 (assuming without deciding that the test of
Spencer, which permits the admission of “other crimes” evidence
on the issue of identity when the prior crimes manifest
idiosyncratic similarities with the crime charged, may support
the admission of “other crimes” evidence even when the identity
of the perpetrator of the crime charged is known).
Assuming without deciding that modus operandi evidence must
meet the test of admissibility established in Spencer
irrespective of the purpose for which it is admitted, we find
that the similarities between appellant’s assault on Kruger and
the instant offense are sufficiently idiosyncratic to justify
admission of the challenged “other crimes” evidence. 	The
similarities include the following: 	1) each victim was a white
woman in her twenties; 2) each victim encountered appellant in a
bar and had been drinking; 3) each victim left with appellant in
a car; 4) appellant exploited the car problems experienced by
each victim; 5) appellant referred to each victim as a “slut,” a
“bitch,” and a “whore”; 6) Kruger was almost asphyxiated with
toilet paper crammed in her mouth, while Smith was murdered by
strangulation; 7) appellant forced each victim to perform oral
LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657
- 11 -

(1983) .
- 12 -

sex; and 8) in each case appellant said he could not reach full
sexual arousal until he prevented his victim from breathing. 	We
also note that the offenses occurred within ninety days of each
other, a time interval of sufficient duration to withstand
appellant’s challenge on the ground of remoteness. 	See Moore v.
Commonwealth 222 Va. 72, 77, 278 S.E.2d 822, 825 (1981); Lafon,
17 Va. App. at 419-20, 438 S.E.2d at 284-85.
Given the striking similarities between appellant’s attack
on Kruger and the evidence inculpating appellant in the instant
offense, we find that Kruger’s testimony bears a logical
connection to the crime charged, as required in Guill, and
provides a sound basis from which the trier of fact could infer
motive, criminal intent, premeditation, malice, and the feelings
of appellant toward the victim, which were at issue in the
prosecution of the crime charged. 	As such, the evidence was
relevant and properly admitted.
We further believe that the probative value of Kruger’s
testimony was not outweighed by its incidental prejudicial
impact on the accused. 	See Woodfin, 236 Va. at 95, 372 S.E.2d
at 381. 	The probative value of this evidence tends to establish
not only appellant’s intent to sexually assault and then maim or
murder Smith but also his commission of Smith’s murder with
premeditation and malice, as evidenced by the methods of attack
- 13 -

and control appellant used to overcome the victim. 	Further,
Kruger’s testimony establishes the animus appellant felt toward
his victim in the present case.
In short, we hold the trial court did not abuse its
discretion in balancing the probative value of Kruger’s
testimony relative to any prejudicial impact on appellant and
will not disturb its admission of this “other crimes” evidence.
III.
ADMISSION OF HOWARD’S TESTIMONY
Appellant next contends that the testimony provided by John
Howard was irrelevant and thus improperly admitted. 	He argues
that because Howard could not identify appellant as the man who
appeared at his door a few weeks after the murder, his testimony
was collateral to the issues being tried. 	We disagree.
“Evidence is admissible if it is both relevant and
material.” 	Evans-Smith v. Commonwealth, 5 Va. App. 188, 196,
361 S.E.2d 436, 441 (1987). 	“‘Evidence is relevant if it has
any logical tendency, however slight, to establish a fact at
issue in the case.’” 	Braxton v. Commonwealth, 26 Va. App. 176,
186, 493 S.E.2d 688, 692 (1997) (quoting Ragland v.
Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993)).
In this case, the identity of Smith’s murderer was a fact
at issue. 	Evidence tending to show appellant’s presence near
Smith’s body in November 1978 was probative on the issue of the
- 14 -

perpetrator’s identity and corroborated the testimony of Brew,
who testified that appellant murdered Smith, dumped her body
near Howard’s house, and later returned to the site to cover up
the body. 	At trial, Howard gave a detailed description of the
man who appeared at his door in November 1978 but could not
identify appellant as that individual. 	As the trier of fact,
the jury was entitled to weigh Howard’s testimony in light of
its own observations of the physical characteristics of
appellant, taking into consideration Howard’s inability to
identify the appellant, and to draw reasonable inferences
regarding the identity of the man who came to Howard’s door to
inquire about a woman’s body that was lying in a nearby culvert.
See Peterson v. Commonwealth, 225 Va. 289, 295, 302 S.E.2d 520,
524 (1983) (stating that the credibility of witnesses and the
weight to be given identification testimony is a matter for the
jury). 	See also McDonnough v. Commonwealth, 25 Va. App. 120,
132, 486 S.E.2d 570, 576 (1997) (finding that a witness’
description of the perpetrator of the crime charged was
probative identification evidence).
For the reasons set forth in this opinion, we affirm
appellant’s conviction.
Affirmed.
- 15 -