                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges O’Brien, AtLee and Senior Judge Frank
UNPUBLISHED


              Argued at Norfolk, Virginia


              ROY LUJASON TURNER
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1866-15-1                                   JUDGE MARY GRACE O’BRIEN
                                                                                  MARCH 14, 2017
              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                             Everett A. Martin, III, Judge

                               Eric P. Korslund (Korslund & Korslund, P.C., on brief), for
                               appellant.

                               Victoria Johnson, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Roy Lujason Turner (“appellant”) was convicted by a jury of first-degree murder, in

              violation of Code § 18.2-32; robbery, in violation of Code § 18.2-58; and two counts of use of a

              firearm in the commission of a felony, in violation of Code § 18.2-53.1. On appeal, he asserts the

              following assignment of error: “the trial court abused its discretion when it admitted into evidence a

              mugshot of appellant broadcast by local media because it had no probative value and was highly

              prejudicial.” Finding no error, we affirm the convictions.

                                                      I. BACKGROUND1

                     Dajuan Glover was killed on a residential street in Norfolk during the early morning hours

              of July 16, 2015. After performing an autopsy, the medical examiner opined that Glover had been



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       Because this memorandum opinion carries no precedential value, we recite only those
              facts necessary to our holding.
shot between sixteen and twenty-three times. A ballistics expert analyzed casings recovered from

the crime scene and concluded that they came from three different weapons. She also examined the

bullets recovered from the victim’s body and determined that the suspects used three separate

handguns. Witnesses in the area identified appellant, Joshua Wood, and Kareem Turner as the men

who fired shots.

        As part of their investigation, police officers seized appellant and Joshua Wood’s cell

phones. A forensic analysis of the phones revealed phone calls and text messages between the men

and Kareem Turner following the homicide. At 6:22 a.m., the following message was sent to

Wood’s cell phone: “He gone, 13 news.” Wood’s phone was then used to access a news story from

ABC 13 News about the shooting at 6:32 a.m., which featured a photograph of appellant that Wood

saved to his phone.

        Appellant was tried jointly with his co-defendant, Wood. At trial, the Commonwealth

introduced a poster board that summarized the evidence recovered from Wood’s cell phone. The

poster board included the content of the text messages found on Wood’s phone as well as the

photograph of appellant from the news website that had been downloaded to the phone. Appellant

objected to the admission of the photograph on the grounds that its prejudicial effect outweighed

any probative value. The court overruled the objection but gave the following cautionary

instruction to the jury: “this particular photograph at the bottom center of this exhibit just above

ABC 13 News Now, that is only admissible against Mr. Wood. You are not to consider it against

Mr. Turner.”

                                            II. ANALYSIS

                                        A. Standard of Review

        “Generally, the admissibility of evidence is within the discretion of the trial court and we

will not reject the decision of the trial court unless we find an abuse of discretion.” Midkiff v.

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Commonwealth, 280 Va. 216, 219, 694 S.E.2d 576, 578 (2010). More specifically, “[t]he

admission of photographs is a matter resting within the sound discretion of a trial court.” Gray v.

Commonwealth, 233 Va. 313, 342, 356 S.E.2d 157, 173 (1987).

                                   B. Admissibility of Photograph

        Appellant asserts that the photograph from the poster board was a “mug shot,” and as such,

its prejudicial effect outweighed any probative value. He contends that the trial court abused its

discretion by admitting it into evidence. Due to the potential prejudice inherent in mug shots,

Virginia has adopted the test set forth by federal courts to determine their admissibility:

                (1) The Government must have a demonstrable need to introduce
                the photographs;

                (2) The photographs themselves, if shown to the jury, must not
                imply that the defendant has a prior criminal record; and

                (3) The manner of introduction at trial must be such that it does
                not draw particular attention to the source or implications of the
                photographs.

Johnson v. Commonwealth, 2 Va. App. 447, 454, 345 S.E.2d 303, 307 (1986) (quoting United

States v. Harrington, 490 F.2d 487, 494 (2d Cir. 1973)). The limitations on the use of mug shots are

designed to prevent the inference that the subject depicted in the photograph is a person of bad

moral character who has a prior criminal record. Id. at 451-54, 345 S.E.2d at 306-07.

        Initially, we must determine if the photograph in question is a mug shot. A “mug shot” is

defined as a “photograph of a person’s face taken after the person has been arrested and booked.”

Mug shot, Black’s Law Dictionary (9th ed. 2009). In previous cases, we have described mug shots

as “standard police photograph[s] . . . show[ing] [the defendant] in two poses, both of which contain

the following legend: Bureau of Police Hopewell, VA.” Irving v. Commonwealth, 13 Va. App.

414, 416, 412 S.E.2d 712, 713 (1991). We also have referred to mug shots as “black and white

[photographs] . . . taken from police records showing front and side views” of the defendant, with

                                                  -3-
the words “Bureau of Police, Richmond, Virginia” “written across the front of [the photographs] in

large letters.” Johnson, 2 Va. App. at 449-50, 345 S.E.2d at 304-05. Additionally, “[u]nder this

lettering there was a number followed by the date . . . an obvious reference to a prior crime.” Id. at

450, 345 S.E.2d at 305.

        Here, the photograph in question differs significantly from the mug shots described in Irving

and Johnson. There is nothing to indicate that the photograph was taken by a law enforcement

agency or was created pursuant to police procedure. It is a screenshot from a news website,

reflecting a single photographic image of appellant, displaying his head and shoulders. There is no

date on the photograph, no police department reference, and nothing in the photograph to imply that

appellant had a prior criminal record. Accordingly, the safeguards of the requirements set out in

Harrington, designed to protect a defendant from the prejudice of the jury knowing that he was

previously arrested for an unrelated offense, do not apply.

        Additionally, any prejudice that may have resulted from the admission of the photograph

was vitiated by the court’s cautionary instruction. The court clearly instructed the jury that the

photograph at issue was not admissible against appellant and could only be considered as evidence

of his co-defendant’s guilt.2 “Unless the record shows the contrary, it is to be presumed that the jury

followed an explicit cautionary instruction promptly given.” LeVasseur v. Commonwealth, 225 Va.

564, 589, 304 S.E.2d 644, 657 (1983). In this case, nothing in the record indicates that the jury did

not follow the court’s instruction. This Court has held that a conviction will not be reversed based

on the admission of evidence that the court subsequently directs the jury to disregard “unless there is

a manifest probability that the evidence . . . has been prejudicial to the adverse party.” Abunaaj v.


        2
         In fact, appellant conceded at trial that the photograph was admissible against his
co-defendant, Wood. In a joint trial, a defendant does not have the right to exclude relevant and
competent evidence despite “the impression that the co-defendants may be hostile to each other’s
position.” Goodson v. Commonwealth, 22 Va. App. 61, 71, 467 S.E.2d 848, 853 (1996).

                                                 -4-
Commonwealth, 28 Va. App. 47, 57, 502 S.E.2d 135, 140 (1998) (quoting Coffey v.

Commonwealth, 188 Va. 629, 636, 51 S.E.2d 215, 218 (1949)). Appellant has not shown that there

is a “manifest probability” that he was prejudiced by admission of the evidence.

       Accordingly, because the court did not abuse its discretion by admitting the photograph, and

because appellant has not demonstrated that the jury disregarded the cautionary instruction, we

affirm appellant’s convictions.

                                                                                          Affirmed.




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