Andre Tyree Battle v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Elder and Senior Judge Cole
Argued at Richmond, Virginia
ANDRE TYREE BATTLE OPINION BY
v. 	Record No. 0597-96-2 	JUDGE JAMES W. BENTON, JR.
MARCH 25, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
D. Gregory Carr (Cary B. Bowen; Bowen &
Bowen, P.C., on brief), for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
A jury convicted Andre Tyree Battle of second degree murder
but acquitted him of use of a firearm in the commission of a
felony. 	Battle contends that the conviction should be reversed
because the trial judge erroneously admitted evidence of a
shooting incident that involved Battle and the victim two nights
before the killing. 	We affirm the conviction.
I.
Battle was indicted on charges of first degree murder of
Otis Patillo and use of a firearm in the commission of murder.
Before trial, the Commonwealth filed a motion in limine seeking
the judge's ruling on the admissibility of evidence regarding
events that occurred two days before the killing. 	At a pretrial
hearing on the motion, Patillo's niece testified that at 3:00
a.m. on April 27, 1995, while she was watching television with

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Patillo at his residence on Raven Street, someone knocked on the
door. 	When Patillo went to the door and asked who was there, the
person said, in what she believed to be a disguised voice, "it's
Fonz." 	The niece thought the voice did not sound like Fonz. 	She
asked Patillo not to open the door but he did so. 	The niece
observed Battle and Jason Black standing outside the unopened
screen door. 	The niece also testified that a brief conversation
occurred in which Battle and Black told Patillo to let them in.
She saw their faces and recognized their voices before Patillo
slammed shut the inner door. 	She testified that as soon as
Patillo shut the door, "they started shooting" and bullets came
into the house. 	She and Patillo immediately contacted the police
and gave the investigating officer the names of Battle and Black.
At the conclusion of the proffered testimony, the trial
judge ruled that he would allow the evidence if the Commonwealth
established a proper purpose for the evidence when it was offered
at trial. 	The trial judge also indicated that he would give the
jury a cautionary instruction and alerted Battle's attorney to be
prepared to offer such an instruction. 	The Commonwealth's
attorney indicated that he would offer the evidence to prove
Battle's premeditation and intent to kill.
At the ensuing jury trial, Sonia Annatte Anderson testified
that on April 29 in the early morning, she was standing on Raven
Street with a friend when she saw Shawn Spires sitting with
Patillo on a porch. 	She also saw two other men standing on the

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street close to the front of the porch. 	Both of the men had
guns. 	Anderson testified that she heard six or more gunshots and
that she saw fire coming from both guns.
Anderson testified that the two men with guns ran toward her
and came within six to eight feet of her. 	She testified that she
was standing near a streetlight and identified the men as Battle
and Black as they approached. 	She also testified that she knew
both men and was certain that one of the men was Battle.
Anderson further testified that she had attended a party
earlier that same night and had consumed one alcoholic beverage.
She saw Battle and Black at the party. 	Anderson testified that
"[y]ou hardly ever s[aw] one without the other." 	At the party,
Battle was wearing light colored clothes, but, when he passed her
after the shooting, he was wearing dark colored clothes.
Anderson testified that Battle might have been wearing a hood or
a hat at the time of the shooting. 	She testified, however, that
his face was not covered.
Anderson further testified that after Battle and Black ran
by her on Raven Street, they drove away in a gold-colored car.
After the car left, Anderson went to the porch where the shots
had been fired. 	She saw Patillo on the ground.
At approximately 12:50 a.m., police officers responded to
Raven Street and found Patillo dead on the street. 	He had been
shot seven times. 	An officer found four cartridge casings that
had been ejected from a gun. 	Battle's attorney stipulated that

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the casings the police found at the scene came from the gun that
Black had in his possession several days later. 	The gun was
capable of holding fifteen cartridges and contained only three
cartridges when it was taken from Black.
Patillo's niece testified for the Commonwealth about the
events that occurred at Patillo's residence two days before the
murder. 	Her testimony at trial was materially the same as her
testimony at the pretrial hearing.
At the end of the Commonwealth's case, the judge denied
Battle's motion to strike. 	Battle offered no additional
evidence. 	Before closing arguments, the judge instructed the
jury, in relevant part, as follows:
Evidence that shows or tends to show that
a defendant committed . . . another offense
is not admissible to show that the defendant
committed the crime charged. 	However, you
may consider such evidence as evidence of one
the defendant's intent, the defendant's
identity, the defendant's malice or the
defendant's premeditation.
The jury convicted Battle of second degree murder but acquitted
him of use of a firearm in the commission of murder.
II.
Battle argues that the trial judge erred in admitting the
niece's testimony regarding the shooting that occurred two days
before the murder. 	The Commonwealth contends that the trial
judge properly admitted the evidence to show Battle's intent,
identity, malice, and premeditation.
"To be admissible, evidence must relate and be confined to

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matters in issue, and it must tend to prove or disprove these
matters or be pertinent to them." 	Boggs v. Commonwealth, 199 Va.
478, 486, 100 S.E.2d 766, 772 (1957).
Evidence of other crimes or bad acts is
inadmissible if it is offered merely to show
that the defendant is likely to have
committed the crime charged. 	However, such
evidence is admissible if it tends to prove
any element of the offense charged, even
though it also tends to show that the
defendant is guilty of another crime.
Goins v. Commonwealth, 251 Va. 442, 462, 470 S.E.2d 114, 127
(citations omitted), cert. denied, ___ U.S. ___, 117 S. Ct. 222,
136 L. Ed. 2d 154 (1996). 	"Such evidence is permissible in cases
where the motive, intent or knowledge of the [defendant] is
involved." 	Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176
S.E.2d 802, 805 (1970).
At trial, Anderson testified that before Patillo was killed
Battle and Black were both armed and standing near the porch
where Patillo was sitting. 	She saw them shoot and kill Patillo.
Anderson did not hear or see anything that might have
precipitated the shooting. 	In this first degree murder
prosecution, the Commonwealth was required to prove both intent
and premeditation. 	Rhodes v. Commonwealth, 238 Va. 480, 485, 384
S.E.2d 95, 98 (1989). 	Those issues were contested.
The niece's testimony tended to prove that Battle and Black
harbored an animus against Patillo two days before the killing.
Her testimony established that Battle and Black tried to enter
Patillo's residence using a ruse and that shots were fired into

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Patillo's residence immediately after he slammed his door shut.
The trial judge correctly found that if the jury believed the
niece's testimony, the jury could infer from Battle's conduct on
that occasion that he harbored malice toward Patillo and had
formed the intent to kill Patillo at least two days before the
killing. 	We hold that the evidence was highly probative of
Battle's premeditation and intent in killing Patillo.
Battle also argues that because the niece's testimony did
not directly establish that Battle committed or assisted in the
prior crime, the evidence had little probative value. 	Battle
asserts that the trial judge erred by admitting the evidence
because its probative value was outweighed by its prejudicial
effect. 	We disagree.
"Ultimately, the question whether to admit evidence of other
crimes involves the same considerations as any other
circumstantial evidence." 	Spencer v. Commonwealth, 240 Va. 78,
90, 393 S.E.2d 609, 616 (1990). 	The trial judge's obligation was
to determine the admissibility of that evidence by weighing the
probative value of the evidence against its possible prejudicial
effect. 	See id. at 90, 393 S.E.2d at 617. 	"[W]hether the
probative value of the evidence of other crimes outweighs any
prejudice to the defendant is left largely within the sound
discretion of the trial judge." 	Berry v. Commonwealth, 22 Va.
App. 209, 213, 468 S.E.2d 685, 687 (1996).
The evidence proved that Battle and Black sought to enter

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Patillo's residence by a ruse and that when Patillo slammed his
door shut shots were fired into his residence. 	The evidence also
proved that, two days later, Battle and Black both had guns and
shot onto the porch when Patillo was killed. 	The two incidents
were closely related in time, both concerned gunfire directed at
Patillo, and both involved Battle and Black. 	The record
therefore establishes, contrary to Battle's argument, that the
probative value of the evidence of the shooting on April 27
outweighed its prejudicial effect.
Furthermore, the trial judge's cautionary instruction
informed the jury that the evidence of the earlier event could
not be used to establish a propensity to commit crime. 	In view
of the similarity of circumstances, the clear identification of
Battle in both instances, and the cautionary instruction, we
cannot say that the record establishes that the trial judge
abused his discretion in ruling that the probative value of the
evidence outweighed any prejudice to Battle.
Accordingly, we affirm the conviction.
Affirmed.