MONTGOMERY v. COMMONWEALTH
200 S.E.2d 577 (1973)
214 Va. 343
David Fleming MONTGOMERY v. COMMONWEALTH of Virginia.
Supreme Court of Virginia.
November 26, 1973.
Max Jenkins, Radford (John M. Goldsmith, Goldsmith & Jenkins, Radford, on brief), for plaintiff in error.
Linwood T. Wells, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.
Before SNEAD, C. J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.
SNEAD, Chief Justice.
David Fleming Montgomery, defendant, was found guilty of first degree murder and was sentenced to life imprisonment in accord with a jury verdict. We granted him a writ of error.
Defendant's main contentions are that the trial court erred in refusing to grant his motions for mistrial based upon the admission of certain prejudicial testimony and the making of a prejudicial statement by the Commonwealth's Attorney in his summation to the jury.
The sufficiency of the evidence to prove first degree murder is not in issue. The evidence shows that on July 20, 1972, at about 2:30 a. m. defendant, without provocation, shot and killed James Everette "Buck" Fields at Big Stoney Creek in Giles County. Death was caused by two shots in the head from a .357 magnum pistol. Montgomery did not testify.
Jennelle then testified, "All right, he made that statement, and then we got to talking about Buck, and at the time Dave told about the time he killed a man in prison with a bar bell weight in the back." Counsel for defendant objected to this testimony on the ground that it was highly prejudicial because defendant was not on trial for killing a man in prison. Counsel also moved for a mistrial. The trial court sustained the objection, instructed the jury to disregard the statement, but did not grant a mistrial.
Later, David Havens, a witness for the Commonwealth, was asked on direct examination how long he had known David Montgomery. He responded, "Since last time he got out of the penitentiary." Counsel for defendant objected to this testimony and again asked for a mistrial. The court overruled the motion for a mistrial, but directed the jury not to consider the statement.
Upon further direct examination, Havens testified that while he was riding in Montgomery's car during the early morning of July 20, he heard Montgomery and Fields discuss "getting" dynamite at a lime plant in the Big Stoney Creek area of Giles County. When asked why Montgomery wanted dynamite, Havens responded, "They was talking about blowing up the jail in Pearisburg the next night." Counsel for defendant objected to this statement, moved that it be stricken, and renewed his motion for a mistrial. The objection was overruled.
In Kirkpatrick v. Commonwealth, 211 Va. 269, 272,
Although the trial court instructed the jury to disregard the first two statements mentioned above, we find that the "illegal evidence was so impressive that it probably remained on the minds of the jury and influenced their verdict." Asbury v. Commonwealth,
In his closing argument to the jury, the Commonwealth's Attorney made the statement that "this killing that went on on Big Stoney Creek, is a gang-land type killing." Counsel for defendant made a timely objection and again moved for a mistrial because there had been no evidence that this was a "gang-land killing." The motion was overruled.
While we do not give approval to the statement made by the Commonwealth's Attorney that this was a "gang-land type killing," it was no more than a description of the cold brutality of the murder and did not constitute reversible error.
We have considered the other questions to which defendant's writ of error was limited and find that they are without merit.
For the reasons stated, the judgment appealed from will be reversed and the case remanded for a new trial, if the Commonwealth be so advised.
Reversed and remanded.
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