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COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judges Benton, Coleman, Elder,    Bray, Annunziata, Bumgardner and Senior Judge Overton
Argued at Richmond, Virginia


ROBERT LEWIS CLAY
   OPINION BY
v. Record No. 1893-97-2 JUDGE ROSEMARIE ANNUNZIATA
            AUGUST 1, 2000
COMMONWEALTH OF VIRGINIA


UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Charles L. McCormick, III, Judge

  J. William Watson, Jr. (Watson & Nelson, P.C., on brief), for appellant.

  Leah A. Darron, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.



On October 5, 1999, a panel of this Court affirmed the convictions of Robert Lewis Clay for second degree murder and use of a firearm in the commission of murder.  We granted Clay's petition for rehearing en banc to consider his contention that the trial court erred by (1) refusing to allow him to cross-examine witnesses Thelma Burns and Carlos Ragland during the voir dire conducted outside the jury's presence, (2) admitting hearsay evidence from these two witnesses, and (3) refusing to allow him to call Deputy David Martin as a witness.  We find no reversible error and, for the following reasons, we affirm the convictions.
FACTS
On August 25, 1996, Clay entered the Halifax County Sheriff's Office and asked to speak to Lieutenant Ernest Powell.  Appearing "shook-up" and "upset," Clay told Powell he had shot his wife, Joy Clay.  Powell told the dispatcher to call the rescue squad.  When the rescue squad arrived at Clay's home, they found Mrs. Clay's dead body on the den floor.  Mrs. Clay had died from two gunshot wounds.
At trial, Thelma Burns testified outside the presence of the jury, and later before the jury, that she spoke with Mrs. Clay every other day.  In the months prior to her death, Mrs. Clay asked Burns whether she could move boxes to Burns' home, as she planned to move because she "was very scared of what her husband might do to her."  During one telephone conversation, Burns overheard Clay say to Mrs. Clay, who had just attended a funeral, "I'm going to kill you bitch, you can't never go with me to any of my family's funerals and I'm tired of you, I'm going to kill you, bitch."  During a telephone conversation only days before Mrs. Clay was killed, Burns overheard Clay say to Mrs. Clay, "[Y]ou might have got that school bus, but you won't drive that school bus."1
1 Although not entirely clear from the record, we deduce that Mrs. Clay had recently obtained a job as a school bus driver.
2 Clay does not challenge the admissibility of the statements made by Clay to Joy Clay, and overheard by Burns and Ragland in telephone conversations, to the effect that he was going to kill her.  These statements are considered herein under another exception to the hearsay rule.
3 In Brown, the United States Court of Appeals observed as follows:

While there are undoubtedly a number of possible situations in which such statements may be relevant, the courts have developed three rather well defined categories in which the need for such statements overcomes almost any possible prejudice.  The most common of these involves defendant's claim of self-defense as justification for the killing. . . . Second, where the defendant seeks to defend on the ground that the deceased committed suicide . . . . A third situation involves a claim of accidental death . . . . In [cases where the defense is "accidental death"] the deceased's statements of fear as to guns or of defendant himself . . . are relevant in that they tend to rebut this defense.

Brown, 490 F.2d at 766-67.

4 The admissibility of declarations under the state of mind exception is also conditional on three prerequisites:  1.  The statement must refer to a presently existing state of mind.  Although the mental state of emotion must exist at the time of the declaration, it may relate to matters occurring in the past or in the future; 2.  There must be no obvious indication of falsification or contrivance; 3.  The mental condition must be relevant to the case.  See Charles E. Friend, The Law of Evidence in Virginia

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