Marqui Rashawn Pittman v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: October 17, 2023
• Docket: 1316221
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Malveaux, Ortiz and Friedman Argued at Norfolk, Virginia

MARQUI RASHAWN PITTMAN MEMORANDUM OPINION* BY v. Record No. 1316-22-1 JUDGE MARY BENNETT MALVEAUX OCTOBER 17, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Timothy S. Fisher, Judge Designate

Charles E. Haden for appellant.

Liam A. Curry, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Following a jury trial, Marqui Rashawn Pittman (“appellant”) was convicted in the Newport

News Circuit Court of first-degree murder, in violation of Code § 18.2-32, robbery, in violation of

Code § 18.2-58, and two counts of using a firearm in the commission of a felony, in violation of

Code § 18.2-53.1. Appellant contends that the evidence was insufficient to support his convictions.

Appellant also argues that the trial court erred in refusing his proposed jury instructions. For the

following reasons, we affirm his convictions.

I. BACKGROUND

On appeal, we view “the evidence in the light most favorable to the Commonwealth, the

prevailing party in the circuit court, and we accord the Commonwealth the benefit of all reasonable

inferences deducible from the evidence.” Britt v. Commonwealth, 276 Va. 569, 573 (2008).

* This opinion is not designated for publication. See Code § 17.1-413(A). On November 25, 2016, Newport News police officer J.N. Garber arrived at an apartment

complex in response to a reported shooting. When he arrived, Officer Garber observed a man he

recognized as Tommy Strayhorn lying face down in the entryway to one of the apartment buildings.

Strayhorn had multiple gunshot wounds and only a slight pulse, and was not breathing. Officer

Garber accompanied Strayhorn to a hospital and later collected his belongings. He then returned to

the apartment building and gave Strayhorn’s belongings to the crime scene technician. Those

belongings did not include a Gucci bag containing money. Strayhorn succumbed to his injuries a

few days later.

Latasha Lee was staying with her friends, Joe and Michelle Reaves, in one of the apartments

on the day of the shooting. Strayhorn, Felton Berrian, and Tarique Lomax were at the apartment

with her at various times throughout the day. In the evening, appellant arrived and asked for a cigar

and inquired if anyone had change for a $20 bill. Strayhorn pulled change out of his pocket and

gave it to appellant. During the exchange, appellant held his phone in his hand “like he was taking a

picture of something.” Strayhorn carried a green and red Gucci bag with him, although Lee did not

know what the bag contained. Appellant then asked Joe Reaves to go to the store with him, and the

two men left. Strayhorn, Berrian, and Lomax also exited the apartment.

About ten minutes later, Lee heard gunshots. Peering through the window, Lee observed

two people in dark clothing “standing with guns in their hands.” She could not see who the men

were because it was dark. Lomax approached the window and told Lee to call 911 because

Strayhorn had been struck by gunfire. When someone else in the apartment opened the apartment

door, Lee saw Strayhorn lying on the ground.

An autopsy revealed that Strayhorn suffered a fatal gunshot wound to his head and neck

when a bullet entered through his right ear and pierced the top of his neck, injuring his spinal cord.

Strayhorn also suffered a gunshot wound to his right ankle.

-2- Berrian testified that he was outside the apartment with Strayhorn when appellant and

brothers James and Kardara Miles arrived in a silver or gray minivan and started talking with them.

Berrian, Strayhorn, and appellant then went inside the apartment so appellant could say hello “to

everybody that was in the house.” After they left the apartment, appellant “walked off” as Lomax

arrived. Berrian, Strayhorn, and Lomax were “talking and laughing and joking and stuff” when “the

Miles brothers walked up.” James Miles pointed a silver revolver at Strayhorn and said, “let me get

that bag,” as Kardara Miles, who also held a firearm, instructed Strayhorn, Berrian, and Lomax to

empty their pockets. James Miles fired two shots in the air because he did not believe that

Strayhorn gave him everything that Strayhorn possessed at the time. James Miles and Kardara

Miles then both started shooting in Strayhorn’s direction before running off. According to Berrian,

during the incident, appellant stood next to the minivan approximately 33 feet away. When Berrian

neared Kardara Miles, appellant, who was also holding a firearm, said, “nope, don’t think about it.”

The Miles brothers and appellant then left the scene in the van, taking Strayhorn’s Gucci bag with

them.

Lomax testified that he, Strayhorn, and Berrian were standing outside by the door

“chit-chatting” when James Miles approached and asked for a lighter. Lomax stated that James

Miles then pointed a gun at Strayhorn and said, “give me the bag.” After Strayhorn put the Gucci

bag on the ground, James Miles said, “I know you got more, give me more,” and fired two shots in

the air. Kardara Miles was also standing there holding a gun. Lomax further testified that at first,

appellant and Joe Reaves were standing “a little ways down the sidewalk,” but as Strayhorn and

James Miles continued to argue, appellant approached with his own firearm and told Strayhorn, “I

told you we’re going to get you, I told you we’re going to get you.” When Strayhorn tried to run

inside “shots started going off.” Lomax ran behind some bushes until he saw appellant and the

-3- Miles brothers running away. James Miles took the Gucci bag with him. Lomax testified that

Strayhorn normally carried money in the Gucci bag.

Appellant moved to strike the evidence and argued that, at best, the evidence proved he was

an accessory after the fact to the crimes. The trial court denied his motion to strike, and the jury

convicted him of first-degree murder, robbery, and use of a firearm in the commission of those

felonies. This appeal followed.

II. ANALYSIS

A. Sufficiency of the Evidence

Appellant argues that the evidence failed to prove he was a principal actor in the robbery

and murder. He claims the evidence proved only that he acted as an accessory after the fact.

“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is

presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support

it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original) (quoting

Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does not ask itself

whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Id.

(alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). “Rather, the

relevant question is whether ‘any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting

Williams v. Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support for the

conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its opinion

might differ from the conclusions reached by the finder of fact at the trial.’” McGowan, 72

Va. App. at 521 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).

“A principal in the first degree is the actual perpetrator of the crime.” Muhammad v.

Commonwealth, 269 Va. 451, 482 (2005) (quoting Jones v. Commonwealth, 208 Va. 370, 372

-4- (1967)). “A principal in the second degree is one not the perpetrator, but present, aiding and

abetting the act done, or keeping watch or guard at some convenient distance.” Johnson v.

Commonwealth, 58 Va. App. 303, 318 (2011) (quoting Rollston v. Commonwealth, 11 Va. App.

535, 539 (1991)). To prove “a defendant guilty as a principal in the second degree, the

Commonwealth must establish that the defendant procured, encouraged, countenanced, or approved

the criminal act.” McMorris v. Commonwealth, 276 Va. 500, 505 (2008). “[A] defendant is guilty

as a principal in the second degree if he is guilty of some overt act done knowingly in furtherance of

the commission of the crime, or if he shared in the criminal intent of the principal committing the

crime.” Id.

As appellant correctly notes, “[m]ere presence during the commission of a crime and

subsequent flight do not constitute sufficient evidence to convict a person as a principal in the

second degree.” Moehring v. Commonwealth, 223 Va. 564, 567 (1982). “The Commonwealth

must prove that the defendant consented to the felonious purpose and the defendant contributed to

its execution.” Brickhouse v. Commonwealth, 276 Va. 682, 686 (2008) (quoting McMorris, 276

Va. at 505). However, “[e]very person who is present at the commission of a [crime], encouraging

or inciting the same by words, gestures, looks, or signs, or who in any way, or by any means,

countenances or approves the same is, in law, assumed to be an aider and abettor, and is liable as

principal.” Dunn v. Commonwealth, 52 Va. App. 611, 617 (2008) (second alteration in original)

(quoting Foster v. Commonwealth, 179 Va. 96, 99 (1942)).

Further, “[t]he status of the accused as a principal in the second degree may be established

by any combination of circumstantial evidence or direct evidence.” Brickhouse, 276 Va. at 687.

“Circumstantial evidence [presented during the course of the trial] is as competent and is entitled to

as much weight as direct evidence, provided it is sufficiently convincing to exclude every

reasonable hypothesis except that of guilt.” Salcedo v. Commonwealth, 58 Va. App. 525, 535

-5- (2011) (alteration in original) (quoting Holloway v. Commonwealth, 57 Va. App. 658, 665 (2011)).

“The statement that circumstantial evidence must exclude every reasonable theory of innocence is

simply another way of stating that the Commonwealth has the burden of proof beyond a reasonable

doubt.” Commonwealth v. Hudson, 265 Va. 505, 513 (2003). Moreover, it is the duty of the fact

finder to “determine[] which reasonable inferences should be drawn from the evidence[] and

whether to reject as unreasonable the hypotheses of innocence advanced by a defendant.” Young v.

Commonwealth, 70 Va. App. 646, 654 (2019) (second alteration in original) (quoting

Commonwealth v. Moseley, 293 Va. 455, 464 (2017)). “Consequently, whether the evidence

excludes all reasonable hypotheses of innocence is a ‘question of fact,’ and like any other factual

finding, it is subject to ‘revers[al] on appeal only if plainly wrong.’” Id. (alteration in original)

(quoting Thorne v. Commonwealth, 66 Va. App. 248, 254 (2016)).

Appellant argues that the Commonwealth presented no evidence showing he shared in the

criminal intent of the Miles brothers or that he acted in any way to assist, incite, or encourage them

to commit the crimes. We reject his argument and instead conclude from the proven facts and

circumstances presented at trial that it was reasonable for the fact finder to find that appellant acted

as a principal in the second degree in the robbery and murder of Strayhorn. The evidence proved

that appellant arrived with the Miles brothers to the scene of the crime. He then asked Strayhorn to

exchange a $20 bill and appeared to take a photograph of Strayhorn during the exchange of that

money. Appellant then stood at a distance while Strayhorn was robbed of his Gucci bag,

approached during the robbery to remind Strayhorn of the robbers’ shared intent to “get him,”

prevented Berrian from interfering by displaying a firearm, and then fled with the Miles brothers

after the offenses were completed. These proven facts, along with all reasonable inferences drawn

from those facts, supported the jury’s conclusion that appellant acted as a principal in the second

degree.

-6- We do not find the evidence insufficient, as asserted by appellant, because Berrian did not

testify, as Lomax did, that appellant approached the men during the robbery and yelled, “I told you

we’re going to get you.” It is well settled that “[p]otential inconsistencies in testimony are resolved

by the fact finder.” Towler v. Commonwealth, 59 Va. App. 284, 292 (2011). “We do not revisit

such conflicts on appeal ‘unless “the evidence is such that reasonable [persons], after weighing the

evidence and drawing all just inferences therefrom, could reach but one conclusion.”’” Id.

(alteration in original) (quoting Molina v. Commonwealth, 47 Va. App. 338, 369 (2006)). We find

no reason in the record to disturb the jury’s resolution of the slight differences between Berrian and

Lomax’s respective testimony.

In sum, the evidence presented at trial sufficiently established that appellant acted as a

principal in the second degree in the commission of the robbery and resulting murder of Strayhorn.

Thus, the jury’s rejection of appellant’s assertion that he did not assist in the commission of the

offenses was not plainly wrong.

B. Jury Instructions

Appellant also argues that the trial court erred in refusing his proposed

accessory-after-the-fact jury instructions.

“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.’”

Fahringer v. Commonwealth, 70 Va. App. 208, 211 (2019) (quoting Darnell v. Commonwealth, 6

Va. App. 485, 488 (1988)). We review a trial court’s decisions in giving and denying requested jury

instructions for abuse of discretion. Barney v. Commonwealth, 69 Va. App. 604, 609 (2019).

“[W]hether a jury instruction accurately states the relevant law is a question of law that we review

de novo.” Watson v. Commonwealth, 298 Va. 197, 207 (2019) (quoting Payne v. Commonwealth,

292 Va. 855, 869 (2016)).

-7- In Commonwealth v. Dalton, 259 Va. 249 (2000), the trial court refused a defendant’s

proposed accessory-after-the-fact jury instruction upon its finding that “accessory after the fact” is

not a lesser-included offense of murder. Id. at 251. The defendant argued on appeal that the trial

court abused its discretion in refusing his “accessory-after-the-fact jury instruction” where the

instruction, according to the defendant, was supported by the evidence. Id. The Virginia Supreme

Court affirmed the decision of the trial court, explaining that “an accused cannot be convicted of a

crime that has not been charged, unless the crime is a lesser-included offense of the crime charged.”

Id. at 253. The Court reasoned that “neither the Commonwealth nor an accused is entitled to a jury

instruction on an offense not charged, unless the offense is a lesser-included offense of the charged

offense” and concluded that since “the crime of being an accessory after the fact is not a

lesser-included offense of the crime of murder,” the defendant was not entitled to an

accessory-after-the-fact jury instruction. Id. at 253-54.

In the present case, appellant was not charged with being an accessory after the fact to either

the robbery or the murder.1 Therefore, as in Dalton, the trial court correctly refused to grant the

accessory-after-the-fact instructions. We decline appellant’s invitation to overrule the Dalton

decision. Even if we were to agree with appellant that Dalton was wrongly decided, “we are bound

by decisions of the Supreme Court of Virginia and are without authority to overrule” them. Roane

v. Roane, 12 Va. App. 989, 993 (1991). The trial court did not abuse its discretion in refusing

appellant’s proposed instructions.

III. CONCLUSION

For the foregoing reasons, we hold that the evidence was sufficient to support appellant’s

convictions for robbery, murder, and use of a firearm in the commission of those offenses. We also

1 Appellant concedes that the accessory after the fact offense is not a lesser-included offense of the robbery; therefore, our analysis applies to both offenses. -8- find no abuse of discretion in the trial court’s refusal of appellant’s proposed accessory-after-the fact

jury instructions.

Affirmed.

-9-