Avarette M. Everwien, etc. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: November 14, 1995
• Docket: 0671932
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judge Benton, Senior Judge Cole and Retired Judge Trabue * Argued at Richmond, Virginia

AVARETTE M. EBERWIEN, S/K/A AVERETTE M. EBERWIEN MEMORANDUM OPINION** BY v. Record No. 0671-93-2 JUDGE KENNETH E. TRABUE NOVEMBER 14, 1995 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HANOVER COUNTY Richard H.C. Taylor, Judge

Denis C. Englisby (Englisby & Englisby, on brief), for appellant. Richard B. Smith, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Averette M. Eberwien (Eberwien) appeals his convictions for

first degree murder and use of a firearm in the commission of a

felony. Eberwien contends that the trial court erred (1) in

granting the Commonwealth's pretrial motion to exclude testimony

and physical evidence which Eberwien contends the admission of

which would have shown that another person committed the murder;

(2) in denying Eberwien's motion for a continuance when the

prosecution presented new demonstrative evidence; (3) in refusing

appellant's jury instruction regarding circumstantial evidence;

and (4) evidence presented at trial was insufficient to sustain

Eberwien's murder conviction. For the reasons stated below, we

* Retired Judge Kenneth E. Trabue took part in the consideration of this case by designation pursuant to Code § 17-116.01. ** Pursuant to Code § 17-116.010 this opinion is not designated for publication. affirm. I. Factual Background

On January 5, 1992 Eberwien told his wife's sister and her

sister's boyfriend that it would be inexpensive to hire a

"hitman." Three days later, in the presence of Eberwien's

stepson, Eberwien and his wife discussed the possibility of

divorce and the division of marital property, although neither

had filed for divorce at that time. During this meeting Eberwien

told his wife that he could have her murdered the next day, but

that in order to do so he would have to make it appear as though

it was a burglary. The wife responded to this by saying that she

had made arrangements to have any demise investigated. On January 15, 1992, the Hanover County police received a

call from Eberwien that an intruder wearing a black ski mask shot

his wife in their home in the Rockville area of Hanover County.

Eberwien told the police that the intruder killed his wife, then

beat him across the back and fled. When the police arrived at

Eberwien's home, they found his wife lying dead on the floor with

a gunshot wound to the head.

When the police questioned Eberwien, he told them that he

met an intruder in the hall, and that the intruder made him and

his wife crawl on their hands and knees throughout the house to

check each room. Eberwien had told the police dispatcher he

spoke with earlier that he was walking through the hall when the

intruder emerged from the den holding Mrs. Eberwien. Eberwien

-2- spoke with other officers at the scene as well, and gave several

different versions of events. At trial, officers testified that

when they arrived at the murder scene, Eberwien's pants were not

scuffed or dirty, nor did he show any signs of physical injury

except a slight scratch on his hand. When Eberwien was taken to

the hospital for examination, the hospital reported that there

were no visible signs of injury.

Eberwien also told police that the intruder made him and his

wife lie down on the floor next to one another and that the

intruder then shot his wife. However, the gunshot wound to the

victim's head caused a large spray of blood and body tissue

across the floor where Eberwien claimed to have been lying. A

blood spatter pattern analysis expert testified that someone

lying where Eberwien claimed to have been lying would have been

covered in the victim's blood and brain matter. Police testified

that Eberwien's clothing did not appear to have any blood stains

with the exception of some blood stains on his sleeve, which an

expert in forensic serology and fabric separation testified is

consistent with the backspray of blood resulting from firing upon

a body at close range. The day following the murder, a state police officer and a

trained dog made a thorough search of the area surrounding the

murder scene and were unable to find any evidence pertaining to

the murder. However, the following day the victim's brother and

a friend searched the same area and discovered a black ski mask

lying in plain view near the road leading to the house. Forensic

-3- experts testified at trial that there was no interchange of

fibers between the ski mask and the house, victim or Eberwien.

II. Pretrial Motion To Exclude

Eberwien contends that the trial court erred in granting the

Commonwealth's pretrial motion to exclude evidence which he

alleged tended to show that the murder may have been committed by

Chris Sprenkle. The Commonwealth made a motion in limine to

exclude all evidence pertaining to Sprenkle, which the trial

court granted. The defense had intended to present evidence that

Sprenkle, who had subsequently died, was a known burglar and

murderer and that he was in the area prior to the murder. In

addition, Eberwien wanted to present evidence that Sprenkle owned

sawed-off shotguns and that around the time of the murder,

Sprenkle was driving a red pickup truck and wore facial hair.

Eberwien contends that these facts were relevant because a

witness saw a red and white pickup truck near the murder scene on

the day of the murder and because the ski mask found near

Eberwien's house contained facial hair that could not be matched

with Eberwien. In support of its motion, the Commonwealth presented

evidence that Sprenkle had left Virginia several days prior to

the murder. An expert for the Commonwealth testified as to

Sprenkle's modus operandi in previous burglaries and murders and

stated that he could find no connection between Sprenkle's known

crimes and the Eberwien killing. In addition, the Commonwealth -4- presented evidence that the hair samples taken from Sprenkle were

not consistent with any hair found on the ski mask, and defense

counsel agreed with this assertion. Also, evidence at the

hearing indicated that Sprenkle's sawed-off shotgun was not the

weapon that fired the shell used in murdering Alice Eberwien.

In Virginia, evidence that a crime was committed by someone

other than the person accused of that crime is admissible for

purposes of generating a reasonable doubt regarding the guilt of

the accused. Weller v. Commonwealth, 16 Va. App. 886, 890, 434

S.E.2d 330, 333 (1993). However, the evidence introduced must

point directly to the guilt of the third party, and the

admissibility of circumstantial evidence tending to prove the

guilt of the third person is left to the discretion of the trial

court. Id. Here, Eberwien did not offer any evidence whatsoever

linking Sprenkle to the murder. In fact, all of the evidence

presented at the pretrial hearing indicated that it was not

Sprenkle who committed the murder. Thus, the trial court did not

abuse its discretion in refusing to admit testimony concerning

Sprenkle.

III. Denial of Continuance

Eberwien contends that it was reversible error for the trial

court to refuse his motion for a continuance when, the day before

trial, the prosecution provided the defense with a blood spatter

diagram that differed from the diagram provided to the defense

during discovery. After the murder, the Commonwealth's expert -5- prepared a blood spatter diagram showing a two hundred degree arc

of blood spray from the victim. Later, this expert revised the

diagram to indicate a two hundred and seventy degree arc of blood

spray. When the Commonwealth attempted to introduce this latter

diagram into evidence, Eberwien asked the court that either the

new chart not be allowed into evidence or that the court grant a

continuance so that his expert could evaluate the new diagram.

The court denied the request for a continuance and allowed the

more recent diagram to be admitted. Whether a continuance should be granted or denied is a

matter within the sound discretion of the trial court, and a

decision one way or the other will not be disturbed on appeal in

the absence of a showing that discretion has been abused. Thomas

v. Commonwealth, 244 Va. 1, 13, 419 S.E.2d 606, 612, cert.

denied, ___ U.S. ___, 113 S. Ct. 421 (1992). Admission of items

of demonstrative evidence to illustrate testimonial evidence is

also a matter within the sound discretion of a trial court. Mackall v. Commonwealth, 236 Va. 240, 254, 372 S.E.2d 759, 768

(1988), cert. denied, 492 U.S. 925 (1989). Furthermore, we

cannot find an abuse of discretion unless Eberwien's case was

prejudiced in that he was denied the opportunity to present

material evidence. "The evidence is material only if there is a

reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been

different. Robinson v. Commonwealth, 231 Va. 142, 151, 341

S.E.2d 159, 164 (1986) (citation omitted).

-6- Eberwien has failed to establish that he was prejudiced by

the admission of the second diagram. The evidence was introduced

for demonstrative purposes only, and the real evidence did not

change. While Eberwien proffered that his expert witness wanted

additional time to review the second overlay, there is no

evidence in the record showing that Eberwien's expert could

present evidence rebutting that of the Commonwealth's expert

based on the first diagram. Furthermore, Eberwien was able to

present the first diagram showing the two hundred degree arc of

blood spray in order to impeach the accuracy of the

Commonwealth's second diagram. "An appellant must demonstrate

that the excluded evidence is relevant and material and that the

party was entitled to have it introduced in order to establish on

appeal that the trial court erred by excluding it." Toro v. City

of Norfolk, 14 Va. App. 244, 254, 416 S.E.2d 29, 35 (1992). Thus

we find that the trial court did not abuse its discretion in

denying Eberwien's motion for a continuance.

IV. Jury Instruction

Eberwien further contends that the trial court erred in

refusing his jury instruction regarding circumstantial evidence.

Eberwien requested the following instruction: "There is no

stronger presumption afforded than that an accused is presumed

innocent, which cannot be overthrown except by proof of his guilt

beyond a reasonable doubt. Where inferences are relied upon to

establish guilt, they must point to the guilt so clearly that -7- other conclusions would be inconsistent therewith." Eberwien

took this language from Moran v. Commonwealth, 4 Va. App. 310,

314, 357 S.E.2d 551, 553 (1987), and we have more recently used

the same language in McQuinn v. Commonwealth, 19 Va. App. 418,

427, 451 S.E.2d 704, 709 (1994) (Judge Benton, dissenting), aff'd

on reh'g en banc, 20 Va. App. 753, 460 S.E.2d 624 (1995), and

Person v. Commonwealth, 10 Va. App. 36, 38, 389 S.E.2d 907, 909

(1990). However, in each of these cases the court was expounding

a principle of law, not instructing a jury. Though this language explains the relevance of

circumstantial evidence, Eberwien was not entitled to have it

presented as a jury instruction. Parties are entitled to

appropriate instructions on the law relevant to their case.

Banner v. Commonwealth, 204 Va. 640, 133 S.E.2d 305 (1963).

However, "when one instruction correctly states the law, multiple

instructions upon the same legal principle are undesirable."

Tuggle v. Commonwealth, 228 Va. 493, 508, 323 S.E.2d 539, 548

(1984), cert. granted and vacated on other grounds, 471 U.S. 1096 (1985). In this case, the court already chose to grant the

Commonwealth's instruction from the Virginia Model Jury

Instructions: "When the Commonwealth relies upon circumstantial

evidence, the circumstances proved must be consistent with guilt

and inconsistent with innocence. It is not sufficient that the

circumstances proved create a suspicion of guilt, however strong,

or even a probability of guilt. The evidence as a whole must

exclude every reasonable theory of innocence." This instruction

-8- fully elucidated the legal principle involved, and there was no

need to substitute Eberwien's suggestion. The court's refusal to

grant instructions on a legal principle already fully covered by

other instructions is not an abuse of discretion. Eaton v.

Commonwealth, 240 Va. 236, 397 S.E.2d 385 (1990), cert. denied,

502 U.S. 824 (1991); Stockton v. Commonwealth, 227 Va. 124, 314

S.E.2d 371, cert. denied, 469 U.S. 873 (1984); Willis v.

Commonwealth, 10 Va. App. 430, 393 S.E.2d 405 (1990). If the

jury is properly instructed on the relevant principles of law, it

is not error for the court to refuse additional instructions on

the same matters. Williams v. Commonwealth, 228 Va. 347, 323

S.E.2d 73 (1984). Thus, Eberwien did not have the right to have

his particular instruction given to the jury when the court's

instruction as tendered by the Commonwealth already covered this

principle, and his appeal therefore fails on this issue.

V. Sufficiency

Finally, Eberwien contends that the evidence at trial was

insufficient to sustain his convictions. We disagree. When the

sufficiency of the evidence is challenged on appeal, we must

construe the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349,

352, 218 S.E.2d 534, 537 (1975). Even though in the present case

the evidence was primarily circumstantial, the inferences drawn

from circumstantial evidence are within the province of the jury -9- and not the appellate court so long as the inferences are

reasonable and justified. O'Brien v. Commonwealth, 4 Va. App.

261, 263, 356 S.E.2d 449, 450 (1987).

Here, there was evidence that Eberwien mentioned the

possibility of murdering his wife to several people shortly

before her death, even stating that he could disguise his guilt

by making it appear as though the murder had been committed by a

burglar. When police arrived at the murder scene, Eberwien gave

numerous different accounts of the events leading up to his

wife's murder, and the evidence taken from the murder scene was

completely inconsistent with any of the versions provided by

Eberwien. In addition, there was expert testimony that the blood

stains on Eberwien's sleeve following the murder were typical of

the backspray caused by firing at a body at close range. Thus

taken in the light most favorable to the Commonwealth, there is

sufficient evidence to sustain Eberwien's conviction for both

charges. For these reasons, we sustain Eberwien's convictions. Affirmed.

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