Jerome A Beale v. Commonwealth ( 2003 )


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  •                      COURT OF APPEALS OF VIRGINIA
    Present: Judges Bumgardner, Felton and Senior Judge Overton
    Argued at Chesapeake, Virginia
    JEROME A. BEALE
    MEMORANDUM OPINION * BY
    v.   Record No. 1252-02-1               JUDGE WALTER S. FELTON JR.
    APRIL 29, 2003
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
    D. Arthur Kelsey, Judge
    Felipita Athanas, Appellate Counsel
    (S. Jane Chittom, Appellate Defender;
    Public Defender Commission, on briefs), for
    appellant.
    Amy L. Marshall, Assistant Attorney General
    (Jerry W. Kilgore, Attorney General, on
    brief), for appellee.
    Jerome A. Beale was convicted by a jury of marital rape, in
    violation of Code § 18.2-61(B)(i). 1   On appeal, Beale contends
    the trial court erred in (1) holding that the Commonwealth's
    peremptory strikes of potential jurors did not violate his
    constitutional rights under Batson v. Kentucky, 
    476 U.S. 79
    * Pursuant to Code § 17.1-413, this opinion is not
    designated for publication.
    1
    In 2002, subsequent to Beale's conviction, Code
    § 18.2-61(B) was amended. The General Assembly deleted the
    second paragraph, which read: "However, no person shall be
    found guilty under this subsection unless, at the time of the
    alleged offense, (i) the spouses were living separate and apart,
    or (ii) the defendant caused bodily injury to the spouse by the
    use of force or violence."
    (1986), and (2) admitting evidence of his prior conduct arising
    out of an offense of which he had been previously acquitted.
    Finding no error, we affirm the judgment of the trial court.
    I.     BACKGROUND
    A.    OFFENSE
    Jerome Beale and Alicia Smith Beale, husband and wife,
    separated in May 2001.    On September 1, 2001, an enraged Beale
    unexpectedly appeared at Mrs. Beale's residence as she prepared
    to leave with her children.      When he arrived, his eyes were
    bulging, he was cursing, and he demanded to know why she was
    ignoring his phone calls.    Mrs. Beale became frightened and
    drove away.    Later that day, at Beale's request, Mrs. Beale
    dropped their children off at the barracks where he was living.
    She then visited her cousin until 3:00 a.m.
    Upon returning to her residence, Mrs. Beale was met by
    Beale.    He yelled and cursed at her, calling her a "bitch," a
    "slut" and a "whore."    He insisted on knowing where she was
    earlier that evening and instructed her to get out of the car.
    Beale eventually calmed down, and Mrs. Beale got out of the car.
    As they entered the house, Beale "snapped."     He grabbed Mrs.
    Beale's arm, and led her into the master bedroom.     Beale punched
    and choked Mrs. Beale for twenty to thirty minutes while
    repeatedly calling her vulgar names.
    Beale then dragged Mrs. Beale by her hair into her son's
    room.    He instructed her to sit in the corner and struck her
    - 2 -
    every time she attempted to move.    At one point Beale left the
    bedroom and went into the den.    He found Mrs. Beale's purse and
    rifled through it.   While Beale rifled through her purse, Mrs.
    Beale stood up and attempted an escape.   Beale saw her, picked
    up a stereo speaker, and threatened to "bash [her] face in" if
    she moved again.
    Shortly thereafter, Beale insisted that Mrs. Beale leave
    with him in the car.   She testified that she did not want to go
    but believed he would beat her if she refused.   He grabbed her
    arm, led her out of the house, and put her into the rear
    passenger seat of the car.   Mrs. Beale asked Beale to pick up
    their children, but he refused.    He instead drove to a back area
    of the Tidewater Community College campus.   He told Mrs. Beale
    to get into the front seat and threatened to beat her if she did
    not obey.   Beale then ordered her to remove her clothes.   She
    initially refused, but eventually complied to avoid further
    physical harm.    Mrs. Beale did not fight when Beale removed her
    pants and underwear.   Beale proceeded to have sexual intercourse
    with Mrs. Beale without her consent.
    After having sexual intercourse with her, Beale eventually
    brought Mrs. Beale back to her residence.    Upon arriving at the
    house, Beale repeatedly asked her if she intended to call the
    police.   He followed Mrs. Beale inside the residence and removed
    the two phones.    As soon as Beale left, Mrs. Beale ran next door
    and contacted the police.
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    B.     PRETRIAL MOTION
    Prior to the trial, Beale sought through a motion in limine
    to exclude evidence on related offenses arising out of the same
    course of conduct. 2   The court denied the motion and found that
    the conduct within the twenty-four-hour period immediately
    before the alleged marital rape was relevant to (1) the state of
    mind of the victim at the time the intercourse took place, (2)
    the degree of force to be demonstrated in the Commonwealth's
    case, and (3) Beale's assertion that the intercourse was
    consensual.
    C.        JURY SELECTION
    During jury selection, the Commonwealth used its peremptory
    challenges to strike four African-American women from the
    venire, Ms. Bailey, Ms. Twine, Mrs. Bowden, and Ms. Morgan.
    Beale objected that the strikes violated Batson v. Kentucky, 
    476 U.S. 79
     (1986).   Pursuant to Batson, the court requested that
    the Commonwealth state the reasons for each of its strikes.
    The Commonwealth stated that Ms. Bailey was struck from the
    venire because "she was looking up and did not seem to be
    fixated on the [j]udge."      Beale's attorney responded that
    inattentiveness "could be said . . . about just about every
    2
    Beale was previously convicted by a jury of assault and
    battery for striking Mrs. Beale while in her residence that
    night. He was acquitted by the same jury of the charge of
    abduction with intent to defile, which also stemmed from his
    conduct during the early hours of September 2, 2001.
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    juror."   The Commonwealth reiterated its desire for attentive
    jurors.   The trial court concluded that inattentiveness is a
    satisfactory explanation under Batson and that Beale had not
    rebutted the proffered reason as pretextual.    The trial court
    ruled that striking Ms. Bailey from the venire did not violate
    Batson.
    As to the reason Ms. Twine was struck from the venire, the
    Commonwealth stated:
    Ms. Twine looked down several times,
    especially when [the court] [was] asking a
    question as to whether any juror has any
    predisposition towards the guilt or
    innocence of the defendant. She looked
    around, she was not fixated on [the court's]
    questions and on [the court's] recitation.
    It started there and it seemed to go through
    the recitation at various intervals.
    Beale's attorney argued that he did not notice the alleged
    inattentiveness.    In addition, he requested that the jurors be
    brought back before the court and questioned to determine
    whether they were paying attention.     The court denied the
    request and held that "there is no due process right to an
    individual voir dire examination post-Batson request when the
    proffered reason for the strike is demeanor and
    inattentiveness."
    Regarding the reason Mrs. Bowden was struck from the
    venire, the Commonwealth explained:
    Throughout the proceedings she was the least
    attentive juror. At various times she had
    her eyes closed through many of the
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    questions. When I asked questions, when Mr.
    Parnell asked questions, and when the
    [c]ourt was going through the directions.
    In addition, she sighed when [the court]
    [was] specifically asking about any
    knowledge about the case from the press.
    Her lack of attentiveness went way beyond
    the first two. But it was enough that I
    noted three or four places when her eyes
    were simply closed during the time that
    anyone was talking.
    Beale's attorney noted that Mrs. Bowden was the third
    African-American female that the Commonwealth was claiming to be
    inattentive.      He again stated that he failed to notice any
    inattentiveness.      The trial judge noted that he too "did not
    notice attentive [sic] or lack of attentiveness," but that he
    "wasn't looking for it the way [the parties] were looking for
    it."       The court denied the motion as to Mrs. Bowden and found
    that the Commonwealth's explanation for striking her was proper
    under Batson.
    The Commonwealth's fourth peremptory strike, Ms. Morgan, is
    not a subject of this appeal. 3
    II.   BATSON CHALLENGE
    We first consider whether the trial court erred in holding
    that the Commonwealth's peremptory strikes of potential jurors
    3
    The Commonwealth struck Ms. Morgan based on a 1976 charge
    of larceny. The Commonwealth planned to impeach one of Beale's
    witnesses based on a larceny conviction from the same time
    period. The Commonwealth felt that if it impeached or attacked
    the witness on the larceny conviction that Ms. Morgan might be
    biased.
    - 6 -
    did not violate Beale's constitutional rights under Batson.
    Beale contends that the trial court failed to make a finding
    that the reasons offered by the Commonwealth for its peremptory
    strikes were race-neutral.   We find no error in the trial
    court's determination that the strikes were race-neutral and
    that there was no discriminatory intent in the Commonwealth's
    peremptory strikes.
    A.   STANDARD OF REVIEW
    The Equal Protection Clause precludes a prosecutor from
    excluding otherwise qualified and unbiased potential jurors
    solely on the basis of their race.     Batson, 
    476 U.S. at 84
    .
    Under Batson,
    [t]he defendant must make a prima facie
    showing that the prosecutor has exercised
    peremptory strikes on the basis of race.
    Powers v. Ohio, 
    499 U.S. 400
    , 409, 
    111 S. Ct. 1364
    , 1370, 
    113 L.Ed.2d 411
     (1991).
    If this showing is made, the burden shifts
    to the prosecutor to articulate a racially
    neutral explanation for striking the jurors
    in question. Batson, 
    476 U.S. at 96-97
    , 
    106 S. Ct. at 1722-23
    . If the court determines
    that the proffered reasons are race-neutral,
    the defendant should be afforded an
    opportunity to show why the reasons, even
    though facially race-neutral, are merely
    pretextual and that the challenged strikes
    were based on race. United States v. Joe,
    
    928 F.2d 99
    , 103 (4th Cir. 1991). But,
    ultimately, the trial court must determine
    whether the defendant has carried his burden
    of proving purposeful discrimination.
    Batson, 
    476 U.S. at 98
    , 
    106 S. Ct. at 1724
    .
    James v. Commonwealth, 
    247 Va. 459
    , 461-62, 
    442 S.E.2d 396
    , 398
    (1994).   A trial court's decision on the ultimate question of
    - 7 -
    discriminatory intent represents a finding of fact that is
    accorded great deference on appeal and will not be disturbed
    unless clearly erroneous.       Barksdale v. Commonwealth, 
    17 Va. App. 456
    , 460, 
    438 S.E.2d 761
    , 763 (1993) (citing Hernandez
    v. New York, 
    500 U.S. 352
    , 364, 368 (1991)).
    B.    PRIMA FACIE EVIDENCE OF DISCRIMINATION
    In the present case, the Commonwealth exercised its
    peremptory strikes to remove four African-American females from
    the venire.     Beale objected to and challenged the strikes,
    contending the women were purposefully removed on the grounds of
    their race. 4      Pursuant to Batson, Beale was required to make a
    prima facie showing that the Commonwealth made the peremptory
    strikes on the basis of race.       However, that showing did not
    occur.   Immediately upon Beale's objection, the trial judge
    requested the Commonwealth to articulate the reasons for the
    strikes.
    Although the trial court did not explicitly make a finding
    that the prima facie case had been established, "often the
    actual sequence of events at trial merges the separate
    procedural steps" incidental to a Batson challenge and analysis.
    James, 247 Va. at 462, 
    442 S.E.2d at 398
    .       This "[c]onsolidation
    of various steps does not invalidate the process as long as the
    4
    Beale did not pursue the issue of gender as grounds for
    attacking the Commonwealth's peremptory strikes of the four
    African-American women. Therefore we will not address that
    issue on appeal.
    - 8 -
    consolidation does not adversely impact the rights of any
    party."     
    Id.
       Both Beale and the Commonwealth were afforded the
    opportunity to explain their respective positions and address
    arguments forwarded by the opposing party.      Neither party's
    rights were adversely affected by the trial judge's decision to
    combine separate steps of the Batson process.
    C.   RACIALLY NEUTRAL EXPLANATION
    "'In evaluating the race-neutrality of an attorney's
    explanation, a court must determine whether, assuming the
    proffered reasons for the peremptory challenges are true, the
    challenges violate the Equal Protection Clause as a matter of
    law.'"     Barksdale, 17 Va. App. at 459, 
    438 S.E.2d at 763
    (quoting Hernandez, 
    500 U.S. at 359
    ).      "If the explanation is
    constitutionally acceptable, the 'decisive question' before the
    trial judge then becomes 'whether counsel's . . . explanation
    . . . should be believed.'"      Robertson v. Commonwealth, 
    18 Va. App. 635
    , 639, 
    445 S.E.2d 713
    , 715 (1994) (quoting
    Hernandez, 
    500 U.S. at 365
    ).      Once that has been settled, there
    seems nothing left to review.      
    Id.
     (citing Hernandez, 
    500 U.S. at 367
    ).
    In the instant case, the Commonwealth presented the trial
    court with ample evidence for it to make a finding that each of
    the peremptory strikes exercised by the Commonwealth against the
    three African-American potential jurors was race-neutral.        The
    Commonwealth identified varied and specific behavior on the part
    - 9 -
    of each stricken juror that was indicative of inattentiveness.
    In Robertson, we held that "[m]anifestly, disinterested jurors
    should be identified and removed whenever possible, irrespective
    of race or gender."   Id. at 640, 
    445 S.E.2d at 716
    .
    Inattentiveness is a valid race-neutral reason for a peremptory
    strike.
    In explaining its reasons for striking each of the three
    women, the Commonwealth explained first that Ms. Bailey "was
    looking up and did not seem to be fixated on the [j]udge."
    Ms. Twine, on the other hand, "looked down several times" and
    was looking around during the court's questions and recitation.
    Finally, the Commonwealth explained that Mrs. Bowden had her
    eyes closed through many of the court's questions and "she
    sighed when [the court] [was] specifically asking about any
    knowledge about the case from the press."
    For each of the stricken jurors, the trial court made a
    sufficient finding that the Commonwealth's reason for striking
    the juror was race-neutral.   In addressing the peremptory strike
    of Ms. Bailey, the trial court made the finding that
    assertions of inattentive demeanor and other
    demeanor observations which reflect that a
    potential juror is not concentrating or
    paying attention are satisfactory
    explanations under Batson unless there is
    some way to rebut the proffered reason is
    pretextual, so I'd deny the motion, and
    finding none, I will deny the motion with
    respect to Ms. Bailey.
    (Emphasis added).
    - 10 -
    Regarding Ms. Twine, the trial court found that "[it]
    should assume in the absence of any rebutting evidence that it
    was an appropriate strike, so I'll deny the Batson."
    (Emphasis added).
    Finally, with regards to Mrs. Bowden, the trial court found
    that "the explanation given is a proper proffered explanation
    under the Batson precedent, and the response is not sufficient
    to render it . . . a pretextual reason."   (Emphasis added).
    Based on varied descriptions of inattentiveness articulated
    to the trial court, and the insufficient response by Beale to
    render the explanations pretextual, the trial court properly
    determined the explanations to be race-neutral.
    D.   PIERCING THE RACE-NEUTRAL REASON
    Beale attempted to pierce the Commonwealth's racially
    neutral reason for the peremptory strikes by stating that he had
    not observed any inattentiveness from the three jurors.   He also
    argued that if they had exhibited any signs that they were not
    paying attention, it is likely that white members of the venire
    had appeared equally inattentive.   However, Beale did not
    present any evidence of inattentiveness of other potential
    jurors.   Beale requested that the court allow questioning of the
    venire to determine whether the challenged jurors were paying
    attention.   However, the trial judge denied the request, and
    Beale has conceded that additional voir dire would be
    procedurally incorrect.
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    The trial court is uniquely able to assess the genuineness
    of prosecutors' justifications of their peremptory strikes and
    to determine whether an underlying discriminatory motivation
    exists.   Finding no clear error in the record before us, we will
    affirm the judgment of the trial court.     Winfield v.
    Commonwealth, 
    12 Va. App. 446
    , 453, 
    404 S.E.2d 398
    , 402 (1991),
    aff'd en banc, 
    14 Va. App. 1049
    , 
    421 S.E.2d 468
     (1992).
    III.   COLLATERAL ESTOPPEL AND PRIOR BAD ACTS
    We next consider whether the trial court erred in admitting
    evidence of Beale's conduct prior to the marital rape, evidence
    previously admitted in the trial of an offense of which he was
    acquitted by a jury.   Beale contends that the Commonwealth is
    precluded from introducing evidence of his acts prior to the
    marital rape on the grounds of collateral estoppel.       We find no
    error.
    A.   COLLATERAL ESTOPPEL
    Beale asserts that the trial court erred in admitting
    evidence used in the prior trial because the jury acquitted him
    of abduction with the intent to defile.    We disagree.
    It is "'usually impossible to determine with any precision
    upon what basis the [fact finder] reached a verdict in a
    criminal case,' leaving the defense of collateral estoppel
    available to an accused only in 'a rare situation.'"       Ramadan v.
    Commonwealth, 
    28 Va. App. 708
    , 714-15, 
    508 S.E.2d 357
    , 360
    - 12 -
    (1998) (quoting Jones v. Commonwealth, 
    217 Va. 231
    , 233, 
    228 S.E.2d 127
    , 128-29 (1976)).   "'The party seeking the protection
    of collateral estoppel carries the burden of showing that the
    verdict in the prior action necessarily decided the precise
    issue he now seeks to preclude.'"     Id. at 714, 508 S.E.2d at 360
    (quoting Rogers v. Commonwealth, 
    5 Va. App. 337
    , 341, 
    362 S.E.2d 752
    , 754 (1987)).
    Beale concedes that the jury in the previous trial could
    have reached an acquittal on either the element of force or of
    the intent to defile.   He cannot say with specificity which
    issue was decided.
    Where a previous judgment of acquittal was
    based upon a general verdict, as is usually
    the case, this [realistic and rational]
    approach requires a court to "examine the
    record of a prior proceeding, taking into
    account the pleadings, evidence, charge, and
    other relevant matter, and conclude whether
    a rational jury could have grounded its
    verdict upon an issue other than that which
    the defendant seeks to foreclose from
    consideration."
    Jones, 
    217 Va. at 233
    , 228 S.E.2d at 129 (quoting Ashe v.
    Swenson, 
    397 U.S. 436
    , 444 (1970)).
    The burden is on Beale to provide this Court with a record
    that supports his claim of error.     Kerr v. Commonwealth, 
    35 Va. App. 149
    , 151, 
    543 S.E.2d 612
    , 613 (2001).    Since Beale
    failed to prove that the prior proceeding necessarily decided
    the issue he seeks to foreclose, we find that collateral
    estoppel did not bar the admission of the evidence regarding
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    Beale's conduct during the period leading up to the marital
    rape.
    B.   PRIOR BAD ACTS
    The trial court did not abuse its discretion when it
    allowed the jury to hear evidence of Beale's conduct that
    occurred prior to the marital rape.       As a general rule, evidence
    that shows or tends to show crimes or other bad acts committed
    by the accused is inadmissible for the purpose of proving that
    the accused committed the particular crime charged.        Kirkpatrick
    v. Commonwealth, 
    211 Va. 269
    , 272, 
    176 S.E.2d 802
    , 805 (1970).
    "[Evidence of prior crimes] merely show[s] that [an accused] has
    the propensity to commit the crime [charged] and this inference
    has been held error because it reverses his presumption of
    innocence."     Spence v. Commonwealth, 
    12 Va. App. 1040
    , 1045, 
    407 S.E.2d 916
    , 918 (1991) (citing Lewis v. Commonwealth, 
    225 Va. 497
    , 502, 
    303 S.E.2d 890
    , 893 (1983)).      Its admissibility is
    error.
    "'There are, however, well-established exceptions to the
    general rule.'"     Mughrabi v. Commonwealth, 
    38 Va. App. 538
    , 545,
    
    567 S.E.2d 542
    , 545 (2002) (quoting Cheng v. Commonwealth, 
    240 Va. 26
    , 34, 
    393 S.E.2d 599
    , 603 (1990)).        "'If the evidence of
    other conduct is connected with the present offense, or tends to
    prove any element or fact in issue at trial, it should be
    admitted, whether or not it tends to show the defendant guilty
    of another crime.'"     Parnell v. Commonwealth, 
    15 Va. App. 342
    ,
    - 14 -
    348, 
    423 S.E.2d 834
    , 838 (1992) (quoting Scott v. Commonwealth,
    
    228 Va. 519
    , 527, 
    323 S.E.2d 572
    , 577 (1984)).
    Beale's prior conduct was clearly interwoven with the crime
    of marital rape.   During the time period leading up to the
    marital rape, Beale at all times asserted control over Mrs.
    Beale.   He repeatedly hit her when she tried to escape.    He
    grabbed her arm, pulled her to the car, and placed her in the
    back seat.   Beale drove Mrs. Beale to a place she did not wish
    to go and threatened physical violence to get her into the front
    seat, where the marital rape occurred.
    In addition to this conduct being interwoven with the
    crime, the evidence of Beale's prior acts of repeated violence
    against Mrs. Beale, within the twenty-four hours leading up to
    the time of the marital rape, and his asportation of her against
    her will to a secluded area bears on Mrs. Beale's state of mind
    and the likelihood that sexual intercourse was not consensual.
    In Morse v. Commonwealth, 
    17 Va. App. 627
    , 
    440 S.E.2d 145
    (1994), Morse was charged with marital sexual assault.     Mrs.
    Morse testified at trial about eight to twelve incidents over an
    unspecified period of time when Morse acted violently towards
    her in demanding sexual intercourse.   He objected to the
    admission of the testimony, arguing that the testimony offered
    in that instance lacked specificity in detail and adequate
    proximity in time to the crime charged.   The trial court
    overruled his objection and allowed the testimony into evidence.
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    On appeal, this Court held that the accused's prior threats and
    violence towards his wife "tend[ed] to prove that the
    intercourse in question was accomplished by conduct that was
    tantamount to a present threat of force by [the accused] against
    [his wife]."   Id. at 632, 
    440 S.E.2d at 148
    .
    Beale's beating and forcible taking of Mrs. Beale against
    her will to a remote area is analogous to the conduct in Morse.
    However, in this case the temporal nexus between Beale's
    violence and the commission of the marital rape is closer.
    Here, the violence occurred within hours of the sexual
    intercourse, as opposed to weeks before.     See Collins v.
    Commonwealth, 
    226 Va. 223
    , 230, 
    307 S.E.2d 884
    , 888 (1983)
    (remoteness in time is a consideration for determining probative
    value of the other bad acts).    Beale's conduct leading up to the
    intercourse tended to prove that he used a present threat of
    force against his wife to consummate an act of non-consensual
    intercourse.
    Beale's prior bad acts were also important in establishing
    his state of mind toward Mrs. Beale.     In Sutphin v.
    Commonwealth, 
    1 Va. App. 241
    , 245, 
    337 S.E.2d 897
    , 899 (1985),
    we held that evidence of prior crimes or bad acts may be
    admissible "to show the conduct and feeling of the accused
    towards his victim, or to establish their prior
    relations . . . ."   In the case at bar, Beale's conduct just
    - 16 -
    hours before the sexual intercourse tends to prove his animus
    toward Mrs. Beale at the time of the marital rape.
    "'"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."'"
    Ricks v. Commonwealth, 
    39 Va. App. 330
    , 334, 
    573 S.E.2d 266
    , 268
    (2002) (quoting Summerlin v. Commonwealth, 
    37 Va. App. 288
    , 293,
    
    557 S.E.2d 731
    , 734 (2002) (quoting Blain v. Commonwealth, 
    7 Va. App. 10
    , 16, 
    371 S.E.2d 838
    , 842 (1988))).      The trial judge
    did not abuse his discretion when he allowed the jury to hear
    evidence of Beale's prior conduct leading up to the marital
    rape.       That evidence was closely related to the offense charged.
    Further, it tended to prove (1) the state of mind of the victim
    at the time the intercourse took place, (2) the degree of force
    to be demonstrated in the Commonwealth's case, (3) that it was
    less likely that the sexual intercourse was consensual, and (4)
    Beale's state of mind. 5     An accused is not entitled "to have the
    evidence 'sanitized' so as to deny the jury knowledge of all but
    the immediate crime for which he is on trial."       Jones v.
    5
    Although the trial judge stated he would give a cautionary
    instruction on this issue to the jury, Beale had the
    responsibility of submitting the jury instruction to the court.
    He failed to do so. "The court was not required to give such an
    instruction sua sponte." Manetta v. Commonwealth, 
    231 Va. 123
    ,
    127 n.2, 
    340 S.E.2d 828
    , 830 n.2 (1986) (though trial judge
    offered to give a limiting instruction, Manetta made no such
    request for tactical reasons).
    - 17 -
    Commonwealth, 
    32 Va. App. 30
    , 41, 
    526 S.E.2d 281
    , 286 (2000)
    (quoting Scott, 228 Va. at 526-27, 
    323 S.E.2d at 577
    ).
    Accordingly, we affirm the judgment of the trial court.
    Affirmed.
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