COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Fitzpatrick Argued at Alexandria, Virginia
MICHAEL DAVID HILLMAN a/k/a WAYNE SCOTT SELMAN
v. Record No. 2194-93-4 MEMORANDUM OPINION * BY JUDGE JOHANNA L. FITZPATRICK COMMONWEALTH OF VIRGINIA MAY 16, 1995
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Frank A. Hoss, Jr., Judge
Denise Jakabcin Tassi for appellant. Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Michael David Hillman (appellant) was convicted in a jury
trial of distribution of heroin in violation of Code § 18.2-248
and felony murder in violation of Code § 18.2-33. On appeal, he
argues that the trial court erred in: (1) failing to strike or
excuse a juror distracted by a work deadline; (2) finding the
evidence sufficient to support his felony murder conviction as an
accessory before the fact; (3) finding a causal link between his
sale of the heroin and the death of the victim; and (4) denying
his motion for a new trial filed more than twenty-one days after
the final order. For the reasons that follow, we affirm the
trial court. BACKGROUND
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. On January 31, 1993, appellant bought ten bags of high grade
heroin in Washington, D.C. for his own use and for sale to
others. At 7:30 p.m., Willie Ordonez (Ordonez) called Suzann
Szabolsoky (Szabolsoky) and requested to buy heroin. Szabolsoky
contacted appellant, and appellant sold her a bag of heroin at
9:00 p.m. at her house. Appellant, who stayed only a few
minutes, left before Ordonez arrived. Yvonne Johnson (Johnson)
heard Szabolsoky tell appellant that the heroin was for Ordonez,
and appellant warned her to tell Ordonez "to take it easy because
[the heroin was] some powerful stuff." Thirty to forty-five
minutes later, Szabolsoky sold the heroin to Ordonez; gave him
some cotton, which is used for injecting heroin; and left him in
the kitchen with a syringe. After fifteen minutes, Ordonez went
into the living room, drank a beer, fell asleep on her sofa, and
died. The cause of death was morphine poisoning. 1 FAILURE TO STRIKE JUROR
Appellant argues that the trial court erred in refusing to:
(1) strike Juror Martin for cause, and (2) in the alternative, 2 excuse her under Code § 8.01-341.2. Juror Martin testified that 1 The evidence established that heroin changes into morphine within five minutes of being ingested and that morphine can stay in a person's system for as long as overnight. 2 Code § 8.01-341.2 provides, in pertinent part, that:
The court, on its own motion, may exempt any person from jury service for a particular term of court, or limit that person's service to particular dates of that term, if serving on a jury during that term or certain dates of that term of court would cause such person
2 she had a work deadline and would be distracted during the trial,
but that she would "make an attempt" to give the trial her
attention.
"Upon appellate review, we must give deference to the trial
court's decision whether to exclude or retain a prospective juror
because the trial court 'sees and hears the juror;' accordingly,
the trial court's decision will be disturbed only upon a showing
of manifest error." Weeks v. Commonwealth, 248 Va. 460, 475, 450
S.E.2d 379, 389 (1994) (quoting Eaton v. Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385, 391 (1990), cert. denied, 502 U.S. 824
(1991)).
The trial judge did not abuse his discretion in refusing to
strike Juror Martin for cause. Her work concerns were of no
greater concern than most jurors. See Mu'Min v. Commonwealth,
239 Va. 433, 444-45, 389 S.E.2d 886, 893-94 (1990). She
indicated that she would try to give the trial her attention and
that she recognized its importance.
Appellant's argument that the trial judge should have
excused the juror pursuant to Code § 8.01-341.2 is barred on
appeal because he did not present it to the trial court. Rule
5A:18. Even if we addressed this issue, the trial judge clearly
had discretion under Code § 8.01-341.2. SUFFICIENCY OF THE EVIDENCE
Appellant next argues that the evidence was insufficient to a particular occupational inconvenience.
3 support his conviction as an accessory before the fact for felony
murder because no evidence proved that he was a contriver,
instigator, or advisor to Szabolsoky.
"When considering the sufficiency of the evidence on appeal
of a criminal conviction, we must view all the evidence in the
light most favorable to the Commonwealth and accord to the
evidence all reasonable inferences fairly deducible therefrom.
The jury's verdict will not be disturbed on appeal unless it is
plainly wrong or without evidence to support it." Traverso v.
Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988)
(citations omitted). "[T]he weight which should be given to
evidence and whether the testimony of a witness is credible are
questions which the fact finder must decide." Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601-02 (1986).
In McGhee v. Commonwealth, 221 Va. 422, 270 S.E.2d 729
(1980), the Supreme Court of Virginia determined that: in the trial of an accessory before the fact the Commonwealth [must] establish the following elements beyond a reasonable doubt: the commission of the crime by the principal, the accessory's absence at the commission of the offense, and that before the commission of the crime, the accessory was "in some way concerned therein . . . as [a] contriver, instigator or advisor."
Id. at 425-26, 270 S.E.2d at 731 (footnotes omitted) (quoting
Tolley v. Commonwealth, 216 Va. 341, 348, 218 S.E.2d 550, 555
(1975)). Only the third prong of this test is at issue in this
case. In further defining the third element, the Court stated
4 that: [a]n instigator of a crime is an accessory before the fact even though he or she did not participate in the planning of the crime or even though unaware of the precise time or place of the crime's commission or of the precise method employed by the principal. . . .
. . . [T]he accused must either know or have reason to know of the principal's criminal intention and must intend to encourage, incite or aid the principal's commission of the crime.
McGhee, 221 Va. at 427, 270 S.E.2d at 732 (footnote and citation
omitted).
In this case, the jury believed the testimony of the
Commonwealth's witnesses that: (1) appellant sold the heroin to
Szabolsoky; (2) he knew that she planned to resell the drugs to
Ordonez; and (3) he cautioned Szabolsoky that the heroin was
"some powerful stuff." Thus, the evidence established that
appellant knew of Szabolsoky's criminal intention and aided her
by supplying the heroin for resale to Ordonez. FELONY MURDER CAUSATION
Appellant further argues that no evidence linked his
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COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Fitzpatrick Argued at Alexandria, Virginia
MICHAEL DAVID HILLMAN a/k/a WAYNE SCOTT SELMAN
v. Record No. 2194-93-4 MEMORANDUM OPINION * BY JUDGE JOHANNA L. FITZPATRICK COMMONWEALTH OF VIRGINIA MAY 16, 1995
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Frank A. Hoss, Jr., Judge
Denise Jakabcin Tassi for appellant. Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Michael David Hillman (appellant) was convicted in a jury
trial of distribution of heroin in violation of Code § 18.2-248
and felony murder in violation of Code § 18.2-33. On appeal, he
argues that the trial court erred in: (1) failing to strike or
excuse a juror distracted by a work deadline; (2) finding the
evidence sufficient to support his felony murder conviction as an
accessory before the fact; (3) finding a causal link between his
sale of the heroin and the death of the victim; and (4) denying
his motion for a new trial filed more than twenty-one days after
the final order. For the reasons that follow, we affirm the
trial court. BACKGROUND
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. On January 31, 1993, appellant bought ten bags of high grade
heroin in Washington, D.C. for his own use and for sale to
others. At 7:30 p.m., Willie Ordonez (Ordonez) called Suzann
Szabolsoky (Szabolsoky) and requested to buy heroin. Szabolsoky
contacted appellant, and appellant sold her a bag of heroin at
9:00 p.m. at her house. Appellant, who stayed only a few
minutes, left before Ordonez arrived. Yvonne Johnson (Johnson)
heard Szabolsoky tell appellant that the heroin was for Ordonez,
and appellant warned her to tell Ordonez "to take it easy because
[the heroin was] some powerful stuff." Thirty to forty-five
minutes later, Szabolsoky sold the heroin to Ordonez; gave him
some cotton, which is used for injecting heroin; and left him in
the kitchen with a syringe. After fifteen minutes, Ordonez went
into the living room, drank a beer, fell asleep on her sofa, and
died. The cause of death was morphine poisoning. 1 FAILURE TO STRIKE JUROR
Appellant argues that the trial court erred in refusing to:
(1) strike Juror Martin for cause, and (2) in the alternative, 2 excuse her under Code § 8.01-341.2. Juror Martin testified that 1 The evidence established that heroin changes into morphine within five minutes of being ingested and that morphine can stay in a person's system for as long as overnight. 2 Code § 8.01-341.2 provides, in pertinent part, that:
The court, on its own motion, may exempt any person from jury service for a particular term of court, or limit that person's service to particular dates of that term, if serving on a jury during that term or certain dates of that term of court would cause such person
2 she had a work deadline and would be distracted during the trial,
but that she would "make an attempt" to give the trial her
attention.
"Upon appellate review, we must give deference to the trial
court's decision whether to exclude or retain a prospective juror
because the trial court 'sees and hears the juror;' accordingly,
the trial court's decision will be disturbed only upon a showing
of manifest error." Weeks v. Commonwealth, 248 Va. 460, 475, 450
S.E.2d 379, 389 (1994) (quoting Eaton v. Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385, 391 (1990), cert. denied, 502 U.S. 824
(1991)).
The trial judge did not abuse his discretion in refusing to
strike Juror Martin for cause. Her work concerns were of no
greater concern than most jurors. See Mu'Min v. Commonwealth,
239 Va. 433, 444-45, 389 S.E.2d 886, 893-94 (1990). She
indicated that she would try to give the trial her attention and
that she recognized its importance.
Appellant's argument that the trial judge should have
excused the juror pursuant to Code § 8.01-341.2 is barred on
appeal because he did not present it to the trial court. Rule
5A:18. Even if we addressed this issue, the trial judge clearly
had discretion under Code § 8.01-341.2. SUFFICIENCY OF THE EVIDENCE
Appellant next argues that the evidence was insufficient to a particular occupational inconvenience.
3 support his conviction as an accessory before the fact for felony
murder because no evidence proved that he was a contriver,
instigator, or advisor to Szabolsoky.
"When considering the sufficiency of the evidence on appeal
of a criminal conviction, we must view all the evidence in the
light most favorable to the Commonwealth and accord to the
evidence all reasonable inferences fairly deducible therefrom.
The jury's verdict will not be disturbed on appeal unless it is
plainly wrong or without evidence to support it." Traverso v.
Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988)
(citations omitted). "[T]he weight which should be given to
evidence and whether the testimony of a witness is credible are
questions which the fact finder must decide." Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601-02 (1986).
In McGhee v. Commonwealth, 221 Va. 422, 270 S.E.2d 729
(1980), the Supreme Court of Virginia determined that: in the trial of an accessory before the fact the Commonwealth [must] establish the following elements beyond a reasonable doubt: the commission of the crime by the principal, the accessory's absence at the commission of the offense, and that before the commission of the crime, the accessory was "in some way concerned therein . . . as [a] contriver, instigator or advisor."
Id. at 425-26, 270 S.E.2d at 731 (footnotes omitted) (quoting
Tolley v. Commonwealth, 216 Va. 341, 348, 218 S.E.2d 550, 555
(1975)). Only the third prong of this test is at issue in this
case. In further defining the third element, the Court stated
4 that: [a]n instigator of a crime is an accessory before the fact even though he or she did not participate in the planning of the crime or even though unaware of the precise time or place of the crime's commission or of the precise method employed by the principal. . . .
. . . [T]he accused must either know or have reason to know of the principal's criminal intention and must intend to encourage, incite or aid the principal's commission of the crime.
McGhee, 221 Va. at 427, 270 S.E.2d at 732 (footnote and citation
omitted).
In this case, the jury believed the testimony of the
Commonwealth's witnesses that: (1) appellant sold the heroin to
Szabolsoky; (2) he knew that she planned to resell the drugs to
Ordonez; and (3) he cautioned Szabolsoky that the heroin was
"some powerful stuff." Thus, the evidence established that
appellant knew of Szabolsoky's criminal intention and aided her
by supplying the heroin for resale to Ordonez. FELONY MURDER CAUSATION
Appellant further argues that no evidence linked his
distribution of the heroin to Ordonez's death.
"While the felonious distribution of drugs is obviously
embraced by the statute, it will suffice as the predicate
'initial felony' necessary to felony-murder only 'where the
killing is so closely related . . . in time, place, and causal
connection as to make it a part of the same criminal
5 enterprise.'" Talbert v. Commonwealth, 17 Va. App. 239, 245, 436
S.E.2d 286, 289 (1993) (quoting Haskell v. Commonwealth, 218 Va.
1033, 1044, 243 S.E.2d 477, 483 (1978)). The homicide must be
"within the res gestae of the initial felony and . . . an
emanation thereof." Berkeley v. Commonwealth, 19 Va. App. 279,
286, 451 S.E.2d 41, 45 (1994). "[T]he fact finder must determine
in each case if the underlying felony has been completed,
terminated, or abandoned for purposes of this element." Talbert,
17 Va. App. at 245, 436 S.E.2d at 290. When a conviction is based on circumstantial evidence, the
Commonwealth's evidence "'must be consistent with guilt and
inconsistent with innocence and must exclude every reasonable
hypothesis of innocence.'" Feigley v. Commonwealth, 16 Va. App.
717, 724, 432 S.E.2d 520, 525 (1993) (quoting Bishop v.
Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)).
The Commonwealth met its burden in this case. The evidence
established that: (1) appellant sold the heroin to Szabolsoky at
9:00 p.m.; (2) appellant knew she was going to resell the heroin
to Ordonez and warned her of the strength of the drugs; (3)
thirty to forty-five minutes later, she sold the heroin to
Ordonez; (4) Ordonez remained in her kitchen with the bag of
heroin and cotton, which is used for injecting heroin; and (5)
Ordonez fell asleep on her sofa and died. The Commonwealth
proved an unbroken chain of events leading from appellant's sale
of the heroin to Ordonez's death.
6 MOTION FOR A NEW TRIAL
Appellant argues that the trial court erred in denying his
motion for a new trial because the court had jurisdiction to hear
the motion under Code § 19.2-303. 3
The final sentencing order was entered on October 27, 1993,
and the motion was filed on January 18, 1994, more than twenty-
one days after entry of the final order. The trial court
correctly found that Rule 1:1 precluded a hearing on appellant's
motion. See Mueller v. Commonwealth, 15 Va. App. 649, 653, 426
S.E.2d 339, 341 (1993).
Appellant's argument that Code § 19.2-303 gave the court
jurisdiction to hear the motion is without merit. Code
§ 19.2-303 applies to a request for sentence modification when a
prisoner has not been transferred to the department of
corrections rather than a request for a new trial.
Accordingly, the decision of the trial court is affirmed.
Affirmed. 3 Code § 19.2-303 provides, in pertinent part, that:
If a person has been sentenced for a felony to the Department of Corrections but has not actually been transferred to a receiving unit of the Department, the court which heard the case, if it appears compatible with the public interest and there are circumstances in mitigation of the offense, may, at any time before the person is transferred to the Department, suspend or otherwise modify the unserved portion of such a sentence. The court may place the person on probation for such time as the court shall determine.