Day 7: What the jury won't hear

Following early morning testimony from a handwriting expert who concluded that Eric Abshire forged his then-fiancée's signature on a million-dollar vehicle insurance policy, day seven of the first-degree murder trial was more about testimony the jury won't be allowed to hear.

"Did you ever have sexual relations with Mr. Abshire?" Orange County Commonwealth's Attorney Diana Wheeler asked witness Amanda Morris. The query prompted Abshire's attorney, Charles Weber, to immediately object, and, without delay, Judge Daniel Bouton sent jurors from the courtroom. Then he allowed prosecutors to elicit Morris' testimony, which included her account of having sex with the 36-year-old  dump truck driver in the month before his May 28, 2006, wedding and again just three days after Justine Swartz Abshire's mysterious death, even before her funeral.

"He called and came over," explained Morris of the pre-funeral sexual encounter. A tall brunette, she once worked at Wet Seal, a boutique offering "cute teen clothing" in Fashion Square Mall and was then known as Amanda Leathers. She testified she was dating Abshire's close friend and dump-truck business partner, and that the tryst with Abshire was a factor in the end of her relationship.

"He was a little upset," Morris said of Abshire, testifying that while she could tell he had been drinking when he arrived at her house, "he wasn't drunk." Morris also recalled being present when Abshire revealed on the day of Justine's death that he possessed naked photos of a female acquaintance. She testified that he ripped up the photos "so people wouldn't find out and make it look bad on him."

Prosecutors hoped to use Morris' account to portray Abshire as something other than the loving and grieving husband he has professed to be.

"It shows he wasn't too distraught," argued Wheeler of the pre-funeral fling, pointing to the contrast between Abshire's "hysterical" crying at the scene of his wife's death and the sexual encounter so soon thereafter.

"It goes to the heart," Wheeler said, "of whether a husband could kill his wife."

Judge Bouton, however, rejected the prosecution's argument and ruled Morris' testimony inadmissible, citing case law that requires that such behavior would have had to occur during Abshire's marriage to Justine in order to be introduced to the jury.

That ruling was not the only blow Judge Bouton dealt the prosecution. Earlier in the trial, Wheeler and Assistant Commonwealth's Attorney Rick Moore introduced evidence of Abshire's connection to a Ford Expedition stolen from a nearby dealership a few days before Justine's November 3, 2006, death.

Abshire, several witnesses revealed, had visited the lot at least twice to look at that vehicle, and during one of those visits, the key went missing. Over the night of October 28-29, 2006, the SUV was stolen, only to turn up two weeks later on November 11 in a storage unit a mile and a half from Taylorsville Road, where Abshire reported finding Justine's body in what initially appeared to be a hit and run.

When it was recovered, the Expedition was missing its back seat, floor mats, and running boards. Fewer than 50 miles had been added to the odometer, and the ignition showed no signs of tampering, a scenario, prosecutors said, that suggested that whoever took it used the missing key and didn't go far.

The prosecution returned to the Expedition topic today, introducing new testimony from Virginia State Police Special Agent Mike Jones, who revealed that Abshire admitted during an interview to visiting that same storage facility on Toms Road sometime in the fall of 2006 before Justine's death.

"Nothing that I've heard has changed my view whatsoever," Bouton said of his ruling at the conclusion of the Commonwealth's late-afternoon motion, adding that "the only plausible way to make this argument is to imply that the defendant was involved in stealing."

The lack of any physical evidence tying Justine to the vehicle, the judge explained, renders the evidence inadmissible.

After six days of testimony, the Commonwealth rested at 4:50pm before making these motions. Bouton also denied a defense motion to dismiss the case, reeling off a litany of evidence in support of his decision, including evidence that Abshire was the last one to see Justine alive and the first one to see her dead, the couple's reported financial woes, the potential financial gain for Abshire, his conflicting accounts of events of the night in question, and the fact that there is no evidence to support the notion of a hit-and-run or stranger abduction.

The defense presents its case starting Friday, October 21.