COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Elder Argued at Richmond, Virginia
CLARENCE WILLIAMS, JR. MEMORANDUM OPINION * BY v. Record No. 2423-96-2 JUDGE LARRY G. ELDER OCTOBER 28, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge
D. Gregory Carr (Cary B. Bowen; Bowen, Bryant, Champlin & Carr, on briefs), for appellant. John K. Byrum, Jr., Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
Clarence Williams, Jr. (appellant) appeals his convictions
of capital murder, in violation of Code § 18.2-31(7), and of
using a firearm during the commission of capital murder, in
violation of Code § 18.2-53.1. He makes five assignments of
error. He contends that the trial court erred when it (1) denied
his motion for a continuance; (2) admitted out-of-court
statements made by one of the murder victims; (3) denied his
motion for a mistrial after a witness for the Commonwealth
testified that appellant's former counsel informed the
Commonwealth's attorney about appellant's jailhouse confession to
the witness; (4) denied his motion for a mistrial after the
Commonwealth's attorney made references to the nature of his * Pursuant to Code § 17-116.010 this opinion is not designated for publication. prior convictions; and (5) overruled his motions to exclude a
jury instruction on "concert of action" and include an
instruction on second degree murder. For the reasons that
follow, we affirm.
I.
BACKGROUND
On April 19, 1996, at approximately 8:30 a.m., Vicki Hodge,
Travis Hill, and Lori Johnson were murdered in Hodge's apartment
at 615 East 16th Street in the City of Richmond. All three died
from gunshot wounds to the head fired at close range from a 9mm
pistol. On July 8, 1996, a Richmond grand jury charged appellant
with the capital murder of Hodge, Hill, and Johnson "as part of
the same act or transaction," and of using a firearm during the
commission of capital murder. Appellant was tried by a jury on
September 26 and 27 and convicted of these crimes. On appeal,
appellant does not argue that the evidence was insufficient to
support his conviction. Instead, he raises five procedural
errors that he contends occurred during his trial.
II.
MOTION FOR A CONTINUANCE
Appellant contends that the trial court erred when it denied
his motion to secure the presence of three missing witnesses:
Linda Connor, Yahya Murrell, and Corey Brown. We disagree.
"'[A] motion for a continuance in order to obtain the
-2- presence of a missing witness is addressed to the sound
discretion of the trial court . . . .'" Cherricks v.
Commonwealth, 11 Va. App. 96, 99, 396 S.E.2d 397, 399 (1990)
(quoting Shifflett v. Commonwealth, 218 Va. 25, 30, 235 S.E.2d
316, 319 (1977)). The trial court's discretion "'must be
exercised with due regard to the constitutional guaranty of a
fair and impartial trial to one accused of crime, and the right
to call for evidence in his favor.'" Id. (quoting Lacks v. Commonwealth, 182 Va. 318, 323, 28 S.E.2d 713, 715 (1944)). The
trial court's decision whether to grant or deny a continuance
will not be reversed on appeal unless the record affirmatively
shows both an abuse of discretion and prejudice to the moving
party. See Cardwell v. Commonwealth, 248 Va. 501, 508, 450
S.E.2d 146, 151 (1994); Venable v. Venable, 2 Va. App. 178, 181,
342 S.E.2d 646, 648 (1986).
It is well established that a litigant's request for a
continuance cannot be based on speculation. See Cardwell, 248
Va. at 508, 450 S.E.2d at 151; Stewart v. Commonwealth, 10 Va. App. 563, 569, 394 S.E.2d 509, 513 (1990); Lowery v.
Commonwealth, 9 Va. App. 304, 307, 387 S.E.2d 508, 510 (1990).
The party moving for a continuance has the burden to show
(1) that the missing witness is "material," see Gray v.
Commonwealth, 16 Va. App. 513, 518, 431 S.E.2d 86, 89 (1993)
(citing Shifflett, 218 Va. at 30, 235 S.E.2d at 319-20); (2) that
the party exercised diligence to procure the witness' presence,
-3- see Shifflett, 218 Va. at 30, 235 S.E.2d at 319-20 (citing
Atkinson v. Neblett, 144 Va. 220, 226-27, 132 S.E. 326, 328
(1926)); and (3) "that it is likely that the witness would be
present at a later date," Chichester v. Commonwealth, 248 Va.
311, 322, 448 S.E.2d 638, 646 (1994). Specifically, the content
of a witness' expected testimony must be set forth in the trial
record by either "(1) a unilateral avowal of counsel, if
unchallenged; (2) a mutual stipulation of the parties; or (3) the
taking of testimony of the witness outside the presence of the
jury." Lowery, 9 Va. App. at 307, 387 S.E.2d at 510.
We hold that appellant has not presented a sufficient record
for us to properly review the denial of a continuance based on
the absence of Linda Connor and Yahya Murrell. Specifically,
appellant failed to set forth in the trial record the expected
content of either witness' testimony. Regarding Linda Connor,
appellant's counsel asserted to the trial court that she was an
"alibi witness," but never proffered the alibi to which she would
testify. Like the bare assertion that a missing witness is
"material," the unsubstantiated avowal that a witness will
provide an "alibi" without some indication of the content of her
testimony does not enable this Court to determine whether the
witness' absence at trial caused prejudice to the party who
sought the continuance. Compare Lowery, 9 Va. App. at 305-08,
387 S.E.2d at 509-10, with Lacks, 182 Va. at 321-22, 324, 28
S.E.2d at 714-15, 715. Likewise, appellant's counsel did not
-4- indicate that Murrell would provide favorable or exculpatory
evidence on appellant's behalf. Because the record does not
affirmatively indicate that either Connor or Murrell was material
to appellant's case, we cannot say without speculating that their
absence prejudiced appellant's defense. See Stewart, 10 Va. App.
at 569, 394 S.E.2d at 513.
We also hold that the trial court did not err when it
refused to grant appellant a continuance to secure the presence
of Corey Brown because appellant did not establish the likelihood
that Brown would be available at a later date. Appellant's
counsel proffered that "Brown had confessed to [a third party]
about the killing in some detail." He stated that he had
unsuccessfully "attempted to locate [Brown] through the
investigator" and that he "[had] not been able to even make
contact with [Brown]." In light of Brown's constitutional
privilege against self-incrimination and the fact that appellant
provided no basis for the trial court to believe that Brown would
waive this right and claim responsibility for the triple murder
if called at trial, we cannot say that the trial court abused its
discretion when it denied appellant a continuance to secure
Brown's presence. II.
VICTIM'S OUT-OF-COURT STATEMENTS
Appellant contends that the trial court erred when it
admitted Officer Lewis' testimony regarding the out-of-court
-5- statements of Vicki Hodge, one of the murder victims, that
appellant damaged her property and threatened to kill her a few
days before she was murdered. He argues that Hodge's statements
were hearsay not within an exception. The Commonwealth argues
that appellant failed to preserve this issue for appeal because
he did not object to Officer Lewis' testimony. We agree with the
Commonwealth.
It is a well established component of this Court's procedure
that the only issues we may consider as a basis for reversal are
those that have been "preserved" in accordance with Rule 5A:18 or
that fall within one of Rule 5A:18's exceptions. Rule 5A:18
states in relevant part: No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable [this Court] to attain the ends of justice.
(Emphasis added). The purpose of Rule 5A:18 is to avoid
unnecessary appeals, reversals, and mistrials by requiring
litigants to inform the trial judge of the action complained of
so that the judge has the opportunity to consider the issue
intelligently and take timely corrective action. See Robinson v.
Commonwealth, 13 Va. App. 574, 576, 413 S.E.2d 885, 886 (1992).
We hold that Rule 5A:18 bars our consideration of the
admissibility of Officer Lewis' testimony regarding Hodge's
out-of-court statements because there is no "ruling" on this
issue by the trial court for us to reverse or affirm. Although
-6- we agree with appellant that references were made to the
admissibility of Hodge's statements during the oral argument on
his motion in limine, the only ruling actually made by the court
pertained to the admissibility of the warrants which were never
introduced by the Commonwealth at trial.
The record indicates that, despite appellant's references to
Hodge's statements, the trial court never ruled on their
admissibility prior to Officer Lewis' testimony, making it
incumbent upon appellant to object at that time. During the
initial round of argument on appellant's motion in limine to exclude the warrants, appellant's counsel referred to the
out-of-court statements made by Hodge to both the police and the
magistrate. Appellant's counsel and the trial court had the
following exchange: APPELLANT'S COUNSEL: Well, it's our understanding that [the Commonwealth's attorney] would argue that [a warrant] is a Court document. We would disagree with all respect. We have submitted a memorandum in support of that, and it would be our position that what she told the officer or what she told the magistrate is beyond --
TRIAL COURT: What she told the magistrate would not be admissible unless she comes in and testifies herself.
APPELLANT'S COUNSEL: She is deceased, Judge.
TRIAL COURT: Well, she won't be here, then.
APPELLANT'S COUNSEL: Yes, sir.
-7- TRIAL COURT: But, I think it's possible for the Commonwealth to show the deceased took out a warrant against [appellant] and that would be a motive for her death.
The trial court's response to appellant's counsel's comments
indicated that it did not think that Hodge's out-of-court
statements would be admissible if offered by the Commonwealth.
However, the trial court's statements also indicate that the only
issue it believed was before it was the admissibility of the warrants, not Hodge's out-of-court statements. In either case,
the trial court declined to rule on appellant's motion in limine
at this time and instead stated that it was taking the matter
under advisement "until [it] hear[d] the evidence."
The record indicates that the trial court never reconsidered
the admissibility of Hodge's out-of-court statements prior to
Officer Lewis' testimony. When the trial court revisited
appellant's motion in limine, the context and wording of its
ruling indicate that it made only one ruling -- that the warrants
were admissible. The Commonwealth's first witness was Officer
Lewis, who testified about Hodge's out-of-court statements
without objection by appellant.
III.
MOTION FOR MISTRIAL REGARDING ANDERSON'S TESTIMONY
Appellant contends that the trial court abused its
discretion when it denied his motion for a mistrial based upon
the testimony of Larry Anderson. He argues that Anderson
-8- unfairly bolstered the credibility of his testimony by testifying
that appellant's former counsel conveyed his statement about
appellant's jailhouse confession to the Commonwealth's attorney.
We disagree.
Whether to grant a mistrial rests within the sound
discretion of the trial judge, and "absent a showing of abuse of
discretion, the court's ruling will not be disturbed on appeal."
Cheng v. Commonwealth, 240 Va. 26, 40, 393 S.E.2d 599, 607
(1990). "When a motion for a mistrial is made, based upon an
allegedly prejudicial event, the trial court must make an initial
factual determination, in the light of all the circumstances of
the case, whether the defendant's rights are so 'indelibly
prejudiced' as to necessitate a new trial." Spencer v.
Commonwealth, 240 Va. 78, 95, 393 S.E.2d 609, 619 (1990).
"Whether improper evidence is so prejudicial as to require a
mistrial is a question of fact to be resolved by the trial court
in each particular case." Beavers v. Commonwealth, 245 Va. 268,
280, 427 S.E.2d 411, 420 (1993). "A trial court's ruling will be
permitted to stand unless it is made to appear probable that the
party complaining has been substantially prejudiced by the
objectionable remarks or arguments." Martinez v. Commonwealth,
10 Va. App. 664, 669, 395 S.E.2d 467, 470 (1990), aff'd as
modified, 241 Va. 557, 403 S.E.2d 358 (1991); see also Beavers,
245 Va. at 280, 427 S.E.2d at 420 (stating that denial of
mistrial will be reversed on appeal "[w]hen the evidence is so
-9- prejudicial that it 'probably remained on the minds of the jury
and influenced their verdict'").
We hold that the trial court did not abuse its discretion
when it denied appellant's motion for a mistrial based upon
Anderson's testimony about his interaction with appellant's
former counsel. The trial court found that Anderson's testimony
on this subject was not likely to influence the jury's
credibility determination in a manner prejudicial to appellant,
and we cannot say that this conclusion was wrong as a matter of
law. Anderson's testimony about appellant's former counsel was
elicited near the end of a long line of questioning during his
direct examination that told the chronological "story" of how
Anderson came to learn of appellant's confession. His allegedly
prejudicial comment was in response to a question about the
timing of his decision to disclose appellant's confession to this
attorney, who was also his counsel. The question was not worded
in a way that either asked for or drew attention to the
subsequent actions of appellant's former counsel. Moreover,
Anderson's testimony on this topic was immediately followed by
testimony that damaged his credibility: Anderson admitted that
the Commonwealth had dropped all pending charges against him and
had paid his bills and moving expenses. When considered in
context, it is unlikely that Anderson's testimony about
appellant's former counsel lingered prejudicially on the minds of
the jury.
-10- IV. MOTION FOR MISTRIAL REGARDING QUESTIONS AND COMMENTS ABOUT APPELLANT'S PRIOR CONVICTIONS
We also disagree with appellant that the trial court abused
its discretion when it denied his motion for a mistrial after the
Commonwealth's attorney made references to the nature of
appellant's prior convictions.
During his cross-examination of appellant, the
Commonwealth's attorney stated the names of the crimes of which
appellant had been previously convicted and made comments
insinuating that appellant was lying about his criminal record.
Appellant objected to these questions and comments, and the trial
court instructed the jury to disregard them. Later in the trial,
appellant's counsel moved for a mistrial based on this exchange.
The trial court denied appellant's motion, reasoning that it had
"full faith in the jury that they will follow the [instruction]
of the Court." We hold that the trial court did not abuse its discretion
when it denied appellant's motion for a mistrial following the
questions and comments of the Commonwealth's attorney about the
nature of appellant's prior convictions. Assuming that the
Commonwealth's attorney's references to appellant's prior
convictions were improper, the trial court immediately instructed
the jury to disregard them. Generally, a trial court may cure
errors arising from inadmissible evidence or improper argument by
promptly instructing the jury to disregard what they just heard.
-11- See LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644,
657 (1983); Lewis v. Commonwealth, 211 Va. 80, 83, 175 S.E.2d
236, 238 (1970). "'Unless the record shows to the contrary, it
is presumed that the jury followed an explicit cautionary
instruction promptly given.'" Albert v. Commonwealth, 2 Va. App.
734, 741, 347 S.E.2d 534, 538 (1986) (quoting LeVasseur, 225 Va.
at 589, 304 S.E.2d at 657). Nothing in the record indicates that
the jury failed to abide by the trial court's instruction. See Beavers, 245 Va. at 280, 427 S.E.2d at 420 (stating that "a
judgment will not be reversed for the improper admission of
evidence that a court subsequently directs a jury to disregard").
V.
JURY INSTRUCTIONS
overruled his objection to the jury instruction regarding
"concert of action" and when it refused his request for an
instruction on second degree murder. We disagree.
"A reviewing court's responsibility in reviewing jury
instructions is 'to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370
S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499,
503, 290 S.E.2d 856, 858 (1982)). "'Both the Commonwealth and
the defendant are entitled to appropriate instructions to the
jury of the law applicable to each version of the case, provided
-12- such instructions are based upon the evidence adduced.'"
Stewart, 10 Va. App. at 570, 394 S.E.2d at 514 (quoting Simms v.
Commonwealth, 2 Va. App. 614, 616, 346 S.E.2d 734, 735 (1986)).
"The evidence to support an instruction 'must be more than a
scintilla.'" Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d
267, 280 (1986). When determining whether sufficient evidence
warranted a particular instruction, we view the evidence in the
light most favorable to the party offering the instruction. See Foster v. Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200
(1991).
A.
CONCERT OF ACTION
We hold that the trial court did not err when it instructed
the jury on "concert of action." "Concerted action is defined as
'[a]ction that has been planned, arranged, adjusted, agreed on
and settled between parties acting together pursuant to some
design or scheme.'" Rollston v. Commonwealth, 11 Va. App. 535,
542, 399 S.E.2d 823, 827 (1991). "All participants in such
planned enterprises may be held accountable for incidental crimes
committed by another participant during the enterprise even
though not originally or specifically designed." Berkeley v.
Commonwealth, 19 Va. App. 279, 283, 451 S.E.2d 41, 43 (1994). In
this case, more than a scintilla of credible evidence supported
the Commonwealth's theory that appellant was responsible for the
murders under a concert of action theory. At trial, a witness
-13- who lived in the apartment adjacent to the one in which the
murders were committed, testified that he heard five or six shots
in rapid succession coming from the apartment around 8:30 a.m. on
April 19. He testified that thirty seconds later he heard two
separate pairs of footsteps descending from the apartment. He
then looked through the peephole in his front door and saw
appellant followed by his brother "running real fast" around the
corner of the apartment building. Based on this evidence, the
jury could conclude that appellant's brother was the triggerman
and that appellant was guilty of capital murder and of using a
firearm during the commission of capital murder due to their
concerted action. B.
SECOND DEGREE MURDER
We also hold that the trial court properly refused to grant
appellant an instruction on second degree murder. First, it is
well established that a defendant accused of capital or first
degree murder is not entitled to an instruction on second degree
murder based on the legal presumption that all homicides are
second degree murder. See Buchanan v. Commonwealth, 238 Va. 389,
409, 384 S.E.2d 757, 769 (1989). Instead, "[a] second degree
murder instruction is only appropriate where it is supported by
the evidence." Id. (citation omitted).
In addition, the evidence, even when viewed in the light
most favorable to appellant, does not warrant a second degree
-14- murder instruction. The element of premeditation is an essential
element of capital murder and is what distinguishes first degree
murder from second degree murder. See Code §§ 18.2-31, 18.2-32;
Smith v. Commonwealth, 220 Va. 696, 700, 261 S.E.2d 550, 553
(1980). "To premeditate means to adopt a specific intent to
kill." Smith, 220 Va. at 700, 261 S.E.2d at 553. The specific
intent to kill "may be formed only a moment before the final act
is committed provided the accused had time to think and did
intend to kill." Giarratano v. Commonwealth, 220 Va. 1064, 1074,
266 S.E.2d 94, 100 (1980). "It is the will and purpose to kill,
not necessarily the interval of time, which determine the grade
of the offense." Akers v. Commonwealth, 216 Va. 40, 48, 216
S.E.2d 28, 33 (1975).
In this case, no evidence in the record supports the theory
that the person who committed the murders did so without
premeditation. The manner in which the victims were murdered
-- all were shot in the head at close range within a span of ten
seconds -- is strong circumstantial evidence that the murderer
had a pre-formed, specific intent to kill. No evidence in the
record suggests that the victims and the murderer argued or
struggled prior to the shootings. In his case-in-chief,
appellant offered evidence that he was sleeping at his
grandmother's at the time of the killings and that another
person, Corey Brown, confessed to the killings. However,
appellant's alibi has no tendency to prove that the murders were
-15- committed with malice rather than premeditation. In addition,
even the testimony about Brown's confession indicated that, if
Brown committed the murders, he did so with premeditation.
Because none of the evidence suggests that the murders themselves
were committed with mere malice, the trial court did not err when
it refused appellant's request for an instruction on second
degree murder.
For the foregoing reasons, we affirm the convictions of
capital murder and use of a firearm during the commission of
capital murder.
Affirmed.
-16-