Garnet Nelson Price v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: January 11, 1996
• Docket: 0868943
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Benton and Coleman Argued at Salem, Virginia

GARNET NELSON PRICE

v. Record No. 0868-94-3 MEMORANDUM OPINION * BY JUDGE SAM W. COLEMAN III COMMONWEALTH OF VIRGINIA JANUARY 11, 1996

FROM THE CIRCUIT COURT OF PULASKI COUNTY A. Dow Owens, Judge (Michael Morchower; Lauren A. Caudill; Morchower, Luxton and Whaley, on brief), for appellant.

Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Garnet Nelson Price was convicted in a jury trial for

unlawfully, feloniously, and maliciously murdering Lester Dale

Harris, and unlawfully and feloniously using a firearm while

committing murder. Price contends that the trial court erred by

admitting hearsay testimony and by refusing to grant a cautionary

instruction regarding accomplice testimony. We conclude that the

trial court did not err and affirm the defendant's convictions. I. Contested Statement Was Not Hearsay

At trial, Alfred Martin Albert testified that the defendant

had previously threatened that there were some people who would

"take care of Bobby [Johnston]," to which Lee Johnston responded,

"Bobby had better not get hurt." The defendant claims that

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. although his own statement was an admission, Johnston's response

constituted inadmissible hearsay. He asserts that the

Commonwealth offered the statement to prove the truth of the

matter asserted and that the statement did not fall under one of

the exceptions to the hearsay rule. See Hanson V. Commonwealth,

14 Va. App. 173, 187, 416 S.E.2d 14, 22 (1992). We disagree.

Johnston's statement was offered not to prove the truth of

its content, but to establish the context for the defendant's

threat and his attitude toward the victim and toward Bobby

Johnston. See Speller v. Commonwealth, 2 Va. App. 437, 446, 345

S.E.2d 542, 548 (1986); C. Friend, The Law of Evidence in

Virginia § 225 (3d ed. 1988) ("If the declaration is offered

solely to show that it was uttered, without regard to the truth

or falsity of its content, the declaration is not excluded by the

hearsay rule."). Therefore, the statement was not hearsay. II. Jury Instruction 11A

The defendant contends that the evidence, when viewed in the

light most favorable to him, proved that Albert was an accomplice

to Harris' murder. He asserts, therefore, that the trial court

erred by refusing to give Instruction 11A, which "warn[ed] the

jury of the danger in convicting the defendant upon [accomplice]

testimony." Brown v. Commonwealth, 8 Va. App. 474, 477, 382 S.E.

296, 298 (1989). The Commonwealth claims that because the

evidence did not show that Albert and the defendant acted

together voluntarily or with common intent, Albert was not an

-2- accomplice and the trial court correctly refused the instruction.

Zirkle v. Commonwealth, 189 Va. 862, 876, 55 S.E.2d 24, 32

(1949).

"The general test to determine whether or not a witness is

an accomplice is to determine whether he could be indicted for

the same offense." Guthrie v. Commonwealth, 171 Va. 461, 469,

198 S.E.2d 481, 484 (1938). Here, Albert testified that on the

night of the murder he hit the victim, threatened the victim with

a beer bottle, and "told [the victim that he would] kill him."

Furthermore, Albert was present when the murder took place,

helped the defendant place the victim's body in a river, and

helped the defendant dispose of the gun and shells. Moreover,

the defendant testified that Albert was the person who murdered

Harris. Thus, on this evidence, Albert could have been indicted

as an accomplice in the murder of Lester Dale Harris. Nevertheless, although the evidence supports a finding that

Albert was an accomplice, the trial court did not err by refusing

to give the cautionary instruction regarding accomplice

testimony. A trial court shall not give the cautionary

instruction when the accomplice's testimony "is corroborated in

material facts which tend to connect the [defendant] with the

crime, [in a manner] sufficient to warrant the jury in crediting

the truth of the accomplice's testimony." Dillard v.

Commonwealth, 216 Va. 820, 823, 224 S.E.2d 137, 140 (1976).

"This rule applies even though the corroborative evidence falls

-3- short of constituting `independent evidence which supports the

alleged ultimate fact that the [defendant] committed the offense

charged.'" Id. at 823-24, 224 S.E.2d at 140.

Both Lee Johnston and John Sutphin tended to corroborate

Albert's testimony that the defendant committed the murder. They

testified that on the night of the murder, the defendant

threatened to kill Harris. Moreover, the defendant's own

testimony placed him at the scene of the murder, established that

he told Albert to dispose of the gun and shells, and proved that

he first shot the victim. Cardwell v. Commonwealth, 248 Va. 501,

512, 450 S.E.2d 146, 153 (1994) (holding that "an accomplice's

testimony can be corroborated by an accused's admissions"), cert.

denied, 115 S.Ct. 1826 (1995); Clark v. Commonwealth, 219 Va.

237, 243, 247 S.E.2d 376, 379 (1978); Russell v. Commonwealth,

216 Va. 833, 837, 223 S.E.2d 877, 879-80 (1976). The defendant

testified that "the gun went off" while he struggled with the

victim, and that the victim "pitched backwards and . . . went

right down over the bank." Although the defendant claims that he

shot Harris accidentally, his testimony corroborates Albert's

testimony that the defendant willfully and maliciously shot

Harris. See Clark, 219 Va. at 243, 247 S.E.2d at 379 (holding

that the defendant's testimony corroborated the accomplice

testimony even though the defendant offered an innocent

explanation).

The trial court did not err by admitting Albert's testimony

-4- regarding Lee Johnston's statement to the defendant, or by

refusing to give Instruction 11A. Accordingly, we affirm the

defendant's convictions.

Affirmed.

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