"I was scared and afraid,'' said Jackson, who is on
trial for the July 1996 strangulation death of Andrew D. "Andre'' Smith.
"I'm black. I'm gay. (Andre) and I had a nice time that weekend, and
then he turns up dead.''
Smith's death is believed to be the last in 12
slayings attributed to a serial killer who has stalked Hampton Roads for
Circuit Judge James A. Cales Jr. followed the
sentencing recommendation of a jury, which in August convicted Jackson
of killing Smith during a sexual encounter.
Evidence presented during the trial showed that
Jackson then kept Smith's body for eight or more hours, before dumping
him on a back road in Chesapeake. Smith's naked body was found the
morning of July 22, 1996.
Lust strangler of gay men
Life term on one count, 1998.
COURT OF APPEALS OF VIRGINIA
Record No. 2587-98-1
ELTON MANNING JACKSON
COMMONWEALTH OF VIRGINIA
September 5, 2000
From the Circuit Court of the City of Portsmouth
James A. Cales, Jr., Judge
Present: Judges Willis, Lemons? and Frank
Argued at Chesapeake, Virginia
By Judge Robert P. Frank
Elton Manning Jackson (appellant) appeals his
conviction, by a jury, of first degree murder. On appeal, he
contends the trial court erred in: 1) allowing three witnesses to
testify regarding their sexual encounters with him; 2) overruling his
motion to exclude a portion of the statement he made to police regarding
his sexual encounter with Kevin Benton; and 3) allowing a witness to
testify about the statement Andre Smith made to the witness. We
disagree and, therefore, affirm the trial court's judgment.
On July 22, 1996, the body of Andre Smith was found at approximately
8:35 a.m. The medical examiner testified the victim had been dead
at least 18 to 24 hours, but no longer than 48 hours. The cause of
death was ligature strangulation.
Arnold Smith, a friend of the victim, testified, over
appellant's objection, that between 2:30 a.m. and 3:00 a.m. on July 21,
1996, the victim said he was going to go "past" appellant's house to get
some money. Kim Nurney also testified, without objection, that at
around 2:30 a.m. on July 21, 1996, the victim told her he was leaving to
go get some money and would be back in fifteen minutes. Nurney
waited for the victim, but he never returned.
On July 23, 1996, during a canvas of the victim's
neighborhood, police officers came in contact with appellant.
Appellant told the police he did not know the victim, but recognized his
picture from television reports. Detective Ronald Young testified
appellant appeared jittery and would not make good eye contact with the
Appellant was arrested on May 6, 1997, and gave a
videotaped statement to Detective Whitehurst of the Chesapeake Police
Department. During this videotaped statement, he stated the victim
had visited his home some time in the evening on July 20, 1996, and the
two of them "had a good time." Whitehurst also questioned
appellant about a sexual encounter he had with Kevin Benton.
Specifically, Whitehurst asked appellant if he played a game with Benton
where he tied up Benton.
At trial, appellant testified he engaged in anal sex
with the victim on July 20, 1996. Appellant said he gave the
victim twenty dollars, and the victim left around 10:00 p.m.
Kevin Benton testified about a sexual encounter he
had with appellant in the early morning hours of December 11, 1996.
Appellant picked Benton up in the Ocean View area of Norfolk, and Benton
testified they went to appellant's house. Once they arrived at
appellant's house, Benton, who was high on crack cocaine, went into the
bedroom with appellant.
Appellant promised to give Benton seventy-five
dollars if he would allow appellant to tie his hands behind his back and
massage him. Benton stripped to his boxer shorts and lay on his
stomach on the bed while appellant tied his hands behind his back with a
necktie. After a few moments, during which appellant was out of
Benton's sight, Benton noticed appellant approaching from behind.
Appellant tried to lift a leather strap over Benton's head. Benton
turned away, kicked appellant, and untied the necktie around his hands.
Later that morning, appellant paid Benton nineteen dollars and some
change. Appellant then drove Benton to a meeting with Benton's
probation officer. Appellant testified he engaged in consensual
sex with Benton, but denied any acts of violence.
Tommy Anderson testified he and appellant agreed to
exchange sex for money in May 1995. Anderson testified he went to
appellant's house, took off his clothes, and lay on the bed.
Anderson agreed to let appellant rub lotion between his closed legs.
At this point, appellant became rough and held Anderson down by placing
his forearm in the back of Anderson's neck, but he stopped when Anderson
threatened to scream. Then, appellant agreed to drive Anderson to
his next destination, but, while in the car, he hit Anderson in the face.
Appellant threatened to kill Anderson if he tried to escape.
Appellant drove Anderson to the approximate area where the victim's body
was found. He ordered Anderson to get out and place his hands on
the vehicle. With his hands on the vehicle, Anderson turned and
saw appellant approaching him from behind with a strap in his hand.
Anderson kicked appellant and fled the area. During his testimony,
appellant denied ever having a sexual encounter with Anderson.
Willie C. Swimpson, Jr., lived with appellant during
the summer of 1995. Swimpson testified he engaged in sexual
relations with appellant for money during that time. On one
occasion, appellant took Swimpson to a secluded area and Swimpson agreed
to allow appellant to put lotion between his legs while having sex with
him. Swimpson glanced around while he waited for appellant to
retrieve the lotion and noticed appellant approaching him from behind
with a strap in his hand. Swimpson thought appellant was going to
put the strap around his head and twist it. Swimpson escaped
through the woods on foot. Appellant testified Swimpson fabricated
this story because their consensual sexual relationship had ended on bad
terms after he caught Swimpson stealing from him.
A bloodstain found on appellant's mattress matched
the DNA of the victim. Appellant's DNA matched the DNA in semen
that was swabbed from the victim's anus.
Appellant was convicted on August 21, 1998 of murder
in the first degree. He was sentenced to life imprisonment on
October 27, 1998.
Appellant contends the trial court erred in allowing
Benton, Anderson, and Swimpson to testify about their sexual encounters
with him, during which each said appellant tried to strangle him.
Generally, evidence of other offenses should be
excluded if offered merely to show that the accused is a person likely
to commit the crime charged. But there are important exceptions to
that rule. Evidence of other crimes is admissible if it tends to
prove any fact in issue, even though it also tends to show the defendant
guilty of another crime.
Spencer v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d
609, 616 (1990) (citations omitted).
"[O]ne of the issues upon which 'other crimes'
evidence may be admitted is that of the perpetrator's identity, or
criminal agency, where that has been disputed. Proof of modus
operandi is competent evidence where there is a disputed issue of
identity." Id. (citations omitted).
In Spencer, the Supreme Court explained the standard
of proof for the modus operandi exception: [E]vidence of other crimes,
to qualify for admission as proof of modus operandi, need not bear such
an exact resemblance to the crime on trial as to constitute a "signature."
Rather, it is sufficient if the other crimes bear "a singular strong
resemblance to the pattern of the offense charged." That test is
met where the other incidents are "sufficiently idiosyncratic to permit
an inference of pattern for purposes of proof," thus tending to
establish the probability of a common perpetrator.
Ultimately, the question whether to admit evidence of
other crimes involves the same considerations as any other
circumstantial evidence. "Every fact, however remote or
insignificant, that tends to establish the probability or improbability
of a fact in issue, is relevant, and if otherwise admissible, should be
admitted." "Other crimes" evidence bearing sufficient marks of
similarity to the case on trial to establish the probability of a common
perpetrator is, therefore, usually relevant.
The question remains, however, whether it is "otherwise
admissible." That question requires the trial court to weigh its
probative value against its prejudicial effect. "Whenever the
legitimate probative value outweighs the incidental prejudice to the
accused, evidence of prior offenses, if otherwise competent, is
The responsibility for balancing the competing
considerations of probative value and prejudice rests in the sound
discretion of the trial court. The exercise of that discretion
will not be disturbed on appeal in the absence of a clear abuse.
Id. at 90, 393 S.E.2d at 616-17 (citations omitted).
Appellant contends the differences between his
encounters with Benton, Anderson, and Swimpson and his encounter with
the victim were not sufficient to show a modus operandi. He argues
Benton, Anderson, and Swimpson agreed to have sex with him for money,
but there was no evidence he paid the victim to have sex with him.
He argues Benton and Anderson testified, that before taking them back to
his house, he picked them up in his car while cruising the streets.
He contends there was no evidence that he picked up
the victim while driving in his car. He argues that Swimpson
testified appellant attempted to strangle Swimpson in his car, not in
his bed, where the Commonwealth contends appellant strangled the victim.
Benton testified he allowed appellant to tie him up prior to the
attempted strangulation, but the medical examiner testified there was no
evidence of tie marks or ligature marks on the victim's wrists or ankles.
Appellant also argues there was no evidence he
engaged in anal intercourse with Benton, Anderson, or Swimpson.
However, the autopsy of the victim indicated appellant penetrated the
victim's anus. Anderson and Swimpson both testified appellant
wanted to use lotion on their legs, and the medical examiner testified
there was no evidence of lotion on the victim's body. Benton,
Anderson, and Swimpson each testified he physically resisted appellant
when appellant attempted to strangle him. Anderson testified
appellant punched him in the face. Appellant notes there were no
signs of resistance or defensive wounds found on the victim's body.
Benton, Anderson, and Swimpson each testified appellant used a thick,
leathery strap. According to the medical examiner, the victim was
strangled with a thin cord.
Despite the differences discussed by appellant, we
find there are significant similarities between appellant's encounters
with Benton, Anderson, and Swimpson and his encounter with the victim.
First, all of the men, including the victim, engaged in consensual
homosexual sex with appellant. Benton, Anderson, and Swimpson all
stated they were using drugs at the time of their encounters with
appellant. The victim's post-mortem toxicology report indicated
cocaine was present in his body.
Despite appellant's assertion that he did not pay the
victim to have sex with him, the victim told Arnold Smith and Nurney he
needed money, then he had sex with appellant, and appellant gave him
twenty dollars. Finally, appellant engaged in rough sex with
Benton, Anderson, and Swimpson. Benton stated he was face down on
the bed with his hands tied behind his back when appellant put a strap
over his head from behind.
Anderson said appellant started getting rough during
their encounter and appellant pinned him down on the bed by the back of
the neck. Later, appellant came at Anderson with a strap or rope.
Swimpson stated that during a sexual encounter with appellant, appellant
tried to put a leather strap around his neck. The victim clearly
had engaged in sexual intercourse with appellant and was strangled from
behind with a thin cord.
We find appellant's encounters with Benton, Anderson,
and Swimpson and the circumstances surrounding the victim's death to be
"sufficiently idiosyncratic and similar to each other to support an
inference of a pattern of operation and the probability of [a] common [perpetrator]."
Chichester v. Commonwealth, 248 Va. 311, 328, 448 S.E.2d 638, 649
(1994). Furthermore, we find the trial court did not abuse its
discretion in concluding the prejudicial effect of Benton's, Anderson's,
and Swimpson's testimony was outweighed by the probative value of the
Appellant next contends the trial court erred in
admitting the portion of his May 6, 1997 statement to police that
related to his sexual encounter with Benton.
The Commonwealth argues appellant is procedurally
barred from raising this issue on appeal because, pursuant to Rule
5A:18, he did not state a specific basis for his objection. We
disagree and address the issue on the merits.
In his brief, appellant only argues that the portion
of his statement to the police regarding his relationship with Benton is
inadmissible for the "same reasons [as] all of Benton's testimony."
As discussed above, Benton's testimony was admissible to prove modus
"The admission of evidence is left to the sound
discretion of the trial court and will be disturbed on appeal only upon
a showing of abuse of discretion." Langhorne v. Commonwealth, 13
Va. App. 97, 106, 409 S.E.2d 476, 482 (1991) (citing Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988) (citation
"Evidence is relevant if it has any logical tendency
to prove an issue in a case." Goins v. Commonwealth, 251 Va. 442,
461, 470 S.E.2d 114, 127 (1996) (citing Coe v. Commonwealth, 231 Va. 83,
87, 340 S.E.2d 820, 823 (1986)).
In this case, appellant's statement to the police
regarding his relationship with Benton was relevant because it
corroborated Benton's admissible testimony. Therefore, we find the
trial court did not abuse its discretion in admitting appellant's
statement into evidence.
Finally, appellant contends the trial court erred in
allowing Arnold Smith to testify about the victim's statement that he
was going to appellant's house.
The trial court ruled Smith's testimony was hearsay,
but ruled it was admissible, over appellant's objection, to show the
victim's state of mind. The Commonwealth argued the victim's state
of mind was relevant because it corroborated the Commonwealth's
contention that he went to appellant's house.
Assuming, without deciding, the statement was hearsay,
it was harmless error for the trial court to admit the statement.
A nonconstitutional error is harmless if "it plainly
appears from the record and the evidence given at trial that the error
did not affect the verdict." "An error does not affect a verdict
if a reviewing court can conclude, without usurping the jury's fact
finding function, that had the error not occurred, the verdict would
have been the same."
Scott v. Commonwealth, 18 Va. App. 692, 695, 446 S.E.2d
619, 620 (1994) (quoting Lavinder v. Commonwealth, 12 Va. App. 1003,
1005, 407 S.E.2d 910, 911 (1991) (en banc)).
From Smith's testimony, the trier of fact could
conclude the victim knew where appellant's house was located and the
victim planned to go "past" appellant's house to get money. Smith
did not testify as to the time the victim left because he left prior to
the victim's leaving. Nurney established the victim left at 2:30
a.m. and did not return. The victim told Nurney he was going to
get some money and would return in fifteen minutes. Nurney's
testimony did not indicate the victim knew appellant or was going to
Substantively, the inadmissible hearsay adds nothing
to the evidence already before the trier of fact. Appellant
admitted he and the victim had sex at his home on the evening of July
20, 1996. From appellant's testimony, the trier of fact could
infer the victim knew where appellant's home was located.
Therefore, we find, had the hearsay not been admitted, the verdict would
have been the same.
For these reasons, we affirm the judgment of the
? Justice Lemons participated in the hearing and
decision of this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
?? Pursuant to Code 17.1-413, recodifying Code
17-116.010, this opinion is not designated for publication.