COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and Senior Judge Duff Argued at Alexandria, Virginia
ROBERT SANTORA, S/K/A ROBERT J. SANTORA MEMORANDUM OPINION * BY v. Record No. 2962-98-4 CHIEF JUDGE JOHANNA L. FITZPATRICK FEBRUARY 22, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Thomas A. Fortkort, Judge
John Clifton Rand for appellant.
Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Robert J. Santora (appellant) was convicted in a jury trial
of solicitation to commit murder and solicitation of the use of
a firearm in that murder. On appeal, he contends the trial
court erred in: (1) failing to grant his motion to strike; (2)
permitting the Commonwealth to offer evidence of a date
different than that alleged in the indictment; (3) finding that
evidence of his prior threats to kill the intended victim were
relevant and probative; (4) denying his motion for a
continuance; and (5) denying his motion for bail and to suspend
execution of sentence. For the following reasons, we affirm.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to it all reasonable
inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that appellant and his
ex-wife, Julia Clark (Clark), divorced in 1988 and appellant was
granted sole custody of their two minor children. In the fall
of 1993, Clark contested previous rulings regarding visitation
and custody. In 1994, Clark acquired joint custody of the
children. In 1995, Clark petitioned for and gained sole custody
of the older child, and in 1996, she acquired sole custody of
the younger child.
Clark testified that around "the '94 time frame," appellant
threatened to kill her before he would allow her to gain custody
of the children. Clark indicated that appellant made this
threat "[a]t least two or three times."
In October 1997, appellant's visitation rights were
terminated and a no contact order was entered. Appellant was
jailed in March 1998 for failure to pay support. At that time,
James Robichaud (Robichaud), another inmate in the jail,
befriended appellant. Appellant requested Robichaud to get him
an unregistered firearm that could not be traced. Appellant
talked about killing Clark, the circuit court judge presiding
- 2 - over the custody proceedings and the guardian ad litem for the
children. Appellant made sure that Robichaud "had his phone
number" and address. After his release, Robichaud located
appellant and "asked him if he still wanted the gun." Appellant
met with Robichaud the next night and gave him $300 to purchase
a gun "to kill his [ex-]wife." Robichaud used the money to buy
drugs.
Robichaud later contacted appellant and reopened
discussions about the gun. At that time, appellant discussed
his plan to murder or have someone murder Clark. Eventually,
appellant indicated that Clark had to be killed before an
impending October 16, 1997 support hearing or he would be
returned to jail for contempt. Robichaud feared that Clark
would be killed if he did nothing and went to the police. The
police provided Robichaud with an inoperable gun and videotaped
the September 12, 1997 meeting when Robichaud delivered the gun
to appellant.
At trial, the Commonwealth presented the testimony of
Robichaud and introduced the videotaped transaction between
Robichaud and appellant on September 12, 1997. Additionally,
the trial court admitted an audiotape of a conversation between
appellant and Robichaud that occurred several hours before the
videotaped transaction. In that conversation, Robichaud
informed appellant that he had "picked up a toy" that "will do
the job," to which appellant replied, "Great, great." During
- 3 - the conversation, appellant agreed to "swing by with the car and
pick [Robichaud] up" around 6:30 p.m.
In his defense, appellant testified that he had never
discussed killing his ex-wife or the other two individuals. He
said that he had given Robichaud $200 to buy tools. Appellant
stated that Robichaud was the individual who suggested to him
that he kill his ex-wife. Finally, appellant testified that he
did not know that Robichaud had a gun in the bag on the day of
the exchange and that he took the gun to prevent danger to
children and other bystanders. The jury rejected appellant's
testimony and found appellant guilty of solicitation to commit
murder and solicitation of the use of a firearm in that murder.
II.
In the indictments the grand jury charged appellant with
the following:
On or about the 12th day of September, 1997, in the County of Arlington, ROBERT SANTORA did command, entreat, or otherwise attempt to persuade another person to commit a felony, to wit: murder of his wife.
In a pretrial hearing and at trial, the Commonwealth's Attorney
explained that the indictment was based on appellant's asking
Robichaud to supply a gun to be used to murder Clark. Because
an accessory before the fact may be indicted and tried the same
as the principal, the Commonwealth argued that appellant
solicited Robichaud to commit a felony, to-wit: being an
accessory before the fact to the murder of Clark. On appeal,
- 4 - appellant contends that because the Commonwealth failed to prove
that Robichaud was an accessory before the fact, the evidence
was insufficient to convict appellant of solicitation to commit
the murder.
When a defendant presents evidence in his own behalf, after
the trial court denies his motion to strike made at the
conclusion of the Commonwealth’s case-in-chief, the reviewing
court considers the entire record to determine whether the
evidence was sufficient. See Sheppard v. Commonwealth, 250 Va.
379, 387, 464 S.E.2d 131, 136 (1995). Having presented evidence
in his defense, appellant waived the right to rely solely upon
the Commonwealth's evidence on his motion to strike.
Accordingly, we consider all the evidence in determining the
sufficiency of the evidence.
Code § 18.2-29, the statute under which appellant was
convicted, provides that "[a]ny person who commands, entreats,
or otherwise attempts to persuade another person to commit a
felony, shall be guilty of [criminal solicitation,] a Class 6
felony." Thus, "[c]riminal solicitation involves the attempt of
the accused to incite another to commit a criminal offense."
Branche v. Commonwealth, 25 Va. App. 480, 490, 489 S.E.2d 692,
697 (1997). "'It is immaterial whether the solicitation has any
effect and whether the crime solicited is in fact committed.
. . . The gist of [the] offense is incitement.'" Id. (quoting
Huffman v. Commonwealth, 222 Va. 823, 827, 284 S.E.2d 837, 840
- 5 - (1981)). "The act of solicitation may be completed before an
attempt is made to commit the solicited crime." Ford v.
Commonwealth, 10 Va. App. 224, 226, 391 S.E.2d 603, 604 (1990).
In the instant case, the evidence proved that appellant
entreated or persuaded Robichaud to procure an untraceable gun
to be used to kill Clark. Moreover, appellant told Robichaud
the purpose for which he wanted the gun, thus making Robichaud
subject to prosecution as an accessory before the fact to
murder, because Robichaud procured the gun for that purpose. It
is immaterial whether the solicited crime had been completed, as
the gravamen of the offense is the attempt to persuade another
to commit an unlawful act. Here, the Commonwealth properly
characterized the wrongful act that appellant solicited
Robichaud to commit, that is, being an accessory before the fact
to the murder of Clark. We find no error.
III.
Appellant next contends the trial court erred in permitting
the Commonwealth to introduce evidence of a different date than
that alleged in the indictment. He also argues that the
Commonwealth improperly proceeded on a theory of the case
different from that outlined in its response to his bill of
particulars. Appellant first raised these arguments in his
post-trial motion to set aside the verdict. The matter was
never set for hearing before the trial court, and these issues
were never presented to the trial court. Having failed to
- 6 - properly preserve the alleged error, his challenge is barred
upon appeal. See Rule 5A:18. Additionally, the record does not
reflect any reason to invoke the good cause or ends of justice
exceptions to Rule 5A:18. See Marlowe v. Commonwealth, 2 Va.
App. 619, 622, 347 S.E.2d 167, 169 (1986) (holding that the
Commonwealth may prove the commission of the crime on a date
different from that alleged in the indictment); see also
Pederson v. City of Richmond, 219 Va. 1061, 1067, 254 S.E.2d 95,
99 (1979) ("Solicitation may comprise a course of conduct,
intended to induce another to act, that continues over an
extended period.").
IV.
Appellant next contends the trial court erred in admitting
evidence of his prior threats he made to Clark. The threats
were made during the spring of 1994, and the crimes were alleged
to have occurred on September 12, 1997. Accordingly, appellant
argues that the threats were "too remote" to be relevant to the
solicitation charges and were overly prejudicial. We disagree.
"Once factual relevance has been established, the trial
court may consider remoteness as one of the factors in
determining evidentiary relevance of prior bad act evidence, but
it should not withhold such evidence solely on the basis of
remoteness unless the expanse of time has truly obliterated all
probative value." Lafon v. Commonwealth, 17 Va. App. 411, 419,
438 S.E.2d 279, 284 (1993). "Whether evidence is so remote that
- 7 - it lacks probative value is a matter resting largely within the
discretion of the trial court." Bunch v. Commonwealth, 225 Va.
423, 438, 304 S.E.2d 271, 279 (1983).
In the instant case, the evidence proved that appellant and
Clark divorced in 1988 and that appellant was initially granted
sole custody of their minor children. However, the parties were
locked in a custody dispute that lasted several years, and the
threats to kill her related to that issue. Appellant's threats
were relevant to show the conduct and feeling of the accused
towards Clark and the custody battle. More importantly, it
tended to explain appellant's motive for soliciting Robichaud.
The record demonstrated ongoing and increased acrimony between
appellant and Clark beginning in 1993 and culminating with Clark
acquiring sole custody of the children in 1996. Under these
circumstances, the trial court did not abuse its discretion in
finding that appellant's threats were not too remote and that
its probative value outweighed any prejudice. See, e.g., Falon,
17 Va. App. at 419-20, 438 S.E.2d at 284-85 (allowing testimony
that the defendant had shown his friends how to "grab" a woman
fourteen months before the crime); Moore v. Commonwealth, 222
Va. 72, 75-77, 278 S.E.2d 822, 824-25 (1981) (allowing the
admission of sexual acts occurring twenty months before and
three months after the date of the offense on trial); Brown v.
Commonwealth, 208 Va. 512, 516-17, 158 S.E.2d 663, 667 (1968)
(allowing the admission of acts of incestuous intercourse
- 8 - occurring during a period of several years prior to the date of
the offense on trial). 1
V.
Appellant argues that the trial court erred in denying his
motion for a continuance because he was unable to access certain
information from his computer which was in the custody of the
Commonwealth. Although the Commonwealth produced the computer,
appellant could not access any of the files. Accordingly,
appellant concludes, he was denied the opportunity to adequately
develop his defense and a continuance should have been granted.
We disagree.
"The decision whether to grant a continuance is a matter
within the sound discretion of the trial court." Lowery v.
Commonwealth, 9 Va. App. 304, 307, 387 S.E.2d 508, 509 (1990).
The Virginia Supreme Court has established a two-pronged test
for determining whether a trial court's denial of a continuance
request is reversible error. Under this test, we may reverse a
trial court's denial of a motion for a continuance only if it
appears from the record: (1) that the court abused its
discretion and (2) that the movant was prejudiced by the court's
1 Boney v. Commonwealth, 29 Va. App. 795, 514 S.E.2d 810 (1999), cited by appellant, is factually distinguishable. In that case, the Commonwealth presented evidence that three years prior to the offense charged the defendant had been convicted of assault. We held that the assault involved "a man unrelated to the instant prosecution" and that "[n]othing in the trial record established any nexus" between the defendant, the victim and the unrelated assault victim. Id. at 801, 514 S.E.2d at 813.
- 9 - decision. See Cardwell v. Commonwealth, 248 Va. 501, 509, 450
S.E.2d 146, 151 (1994). Evidence is considered 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).
"Exculpatory evidence" is defined as evidence that is "material
to guilt or punishment and favorable to the accused," Allen v.
Commonwealth, 20 Va. App. 630, 637, 460 S.E.2d 248, 251 (1995),
and includes impeachment evidence. See United States v. Bagley,
473 U.S. 667, 676 (1985).
Here, the record establishes that on April 16, 1998, five
days before trial, appellant requested the trial court to grant
him access to his computer to recover certain computer records
necessary for his defense. Counsel stated the following:
[T]here's some evidence that he was . . . using the Internet to solicit hit men. There's some evidence that [he was] using his computer at the time that Mr. Robishaw [sic] tried to get him, that he was purposely using his computer, uh, to try to avoid Mr. Robishaw, other, some other facts that show what exactly he was doing on the computer that relate to this case.
Appellant's attorney indicated that he asked for the computer
records in discovery and the Commonwealth allowed counsel to
"fool with [the] computer." Counsel stated that he was
unfamiliar with computers and, thus, he was unable to access the
information. Defense counsel also acknowledged that appellant
- 10 - made a specific request to the Commonwealth "as to some sort of
directory" and, in response, he received a number of computer
records on April 10, 1998. However, according to defense
counsel, those records were "not, apparently, what [appellant]
asked for in terms of relaying of a request through me." The
trial court ordered the Commonwealth to take appellant's
computer to the jail and allow him access to it.
On the day of trial, appellant told the trial court that
the Commonwealth delivered the computer. However, he "was never
able to access what was in the computer." Specifically,
appellant asserted that he needed more than the two available
electrical outlets and, therefore, he "was never able to boot
the computer up" or get "what he wanted from the computer." The
trial court directed the Commonwealth to have the computer
brought to a room in the courthouse that contained sufficient
plugs, and, "once he's properly set up and booted," to allow
appellant the fifteen or twenty minutes he averred he needed to
get the data.
On the second day of trial, appellant indicated that he
"got on the computer" "for about 15, 20 minutes," but it did not
"boot up." The evidence showed that the data on the hard drive
was no longer accessible. However, the Commonwealth indicated
that the information on the hard drive was earlier backed up in
compressed form and could be accessed with the proper expertise.
Before proceeding, the trial court directed appellant to make a
- 11 - proffer as to what information he sought to recover and use at
trial. Defense counsel proffered the existence of "Web pages
that [appellant] was in the process of constructing, having to
do with the three alleged victims." This evidence was intended
to show that appellant "was making preparations to make public
his anger toward these individuals" and that would be "extremely
material" because a "rational person" would not commit a violent
act on someone about whom he is constructing a Web page and
"making angry statements." Defense counsel further proffered
that computer data would establish that appellant "purposely
tied the Internet up so that he wouldn't have to take" a
telephone call from Robichaud and that he "didn't want anything
to do with Mr. Robichaud." Such proof, argued appellant's
attorney, would corroborate appellant's testimony. Finally,
appellant proffered that computer records would confirm his
"planned vacation to Florida, which would refute the statements
of Mr. Robichaud that he simply intended to go to Florida to buy
guns."
Later that afternoon, Vice Intelligence Detective Rimer
testified that the data could be restored, but it would take a
few days and possibly require technical assistance from an
outside computer company. The trial court ruled as follows:
There are several of those issues that you can address that the Commonwealth is not going to question, I assume. But the machine was running that day, I mean, they don't know one way or the other. . . .
- 12 - At this point, unfortunately, we're going to have to proceed without [the computer].
On appeal, appellant contends that the "evidence [he]
sought was critical to his case because it involved a number of
pieces of computer evidence which would have substantiated his
testimony." In support, appellant contends that computer
records would have substantiated that he "purposely tied up his
telephone by using the internet to avoid being called by
Robichaud for their September 12 meeting." He also contends
that he would have presented Web pages on which he vented his
anger on his alleged victims and "a variety of computer records
substantiating his actions and movements which contradicted
evidence of the Commonwealth."
Assuming such evidence existed and would have been
admissible, the record fails to show that the evidence was
exculpatory or that its absence prejudiced appellant. Any
evidence tending to show that appellant was using his computer,
thereby tying up his telephone line, would not prove that he
purposely did so to avoid Robichaud. Moreover, Officer Jessup
testified that Robichaud contacted him about appellant's
solicitations "around the 10th, the 9th or 10th of September";
shortly thereafter, Jessup observed appellant and Robichaud
"talking and working on [a] car" belonging to appellant.
Finally, the September 12, 1997 audiotape of Robichaud's
telephone call showed that appellant's answering machine
- 13 - activated after the fourth ring, but when Robichaud identified
himself and began to leave a message, appellant picked up the
telephone and spoke with Robichaud. Appellant's act of
overriding the answering machine, which acted as a screening
device, picking up the telephone, and setting up a meeting with
Robichaud later that day belied appellant's assertion that he
tried to avoid talking with Robichaud.
The fact that appellant may have been precluded from
presenting evidence that he prepared Web pages expressing his
anger at Clark was not prejudicial. Moreover, such evidence was
not exculpatory. The record was replete with evidence of
appellant's enmity toward Clark. He had voiced threats against
her and had been embroiled in a lengthy and bitter custody
battle with her.
Regarding the "various computer records substantiating his
actions and movements which contradicted evidence of the
Commonwealth," appellant failed to allege in his petition what
these records would show, what evidence they would contradict,
and how they would have assisted his defense. At trial,
appellant proffered that his calendar would show that he had
scheduled a trip to Florida, not to procure firearms, but to
vacation. The Commonwealth did not allege that appellant
planned to purchase guns in Florida; it contended that appellant
solicited Robichaud to procure a "clean" gun to use.
- 14 - Based on appellant's proffer, the record fails to show that
the evidence sought and allegedly contained on appellant's
computer was material and would have made a difference in the
outcome of the case. Therefore, appellant has failed to show
how he was prejudiced. Accordingly, the trial court did not
abuse its discretion in denying the motion for a continuance.
VI.
Finally, appellant argues that the trial court erred in
failing to postpone execution of his sentence pursuant to Code
§ 19.2-319 2 and to rule on his motion for bail. Appellant's
argument has not been properly preserved and, therefore, is
barred on appeal. See Rule 5A:18.
At his September 11, 1998 sentencing hearing, appellant
requested pursuant to Code § 19.2-319 that he be allowed "to
remain in Arlington [County jail] pending his appeal
preparation." Arguing that the statute was inapplicable, the
Commonwealth's Attorney stated, "I think that's an appeal bond."
Appellant's counsel responded, "It does appear to be, Your
Honor. I have not looked at this and so I don't --" No further
discussion of the matter occurred.
2 Code § 19.2-319 provides that "[i]f a person sentenced by a circuit court to . . . confinement in the state correctional facility indicates an intention to apply for a writ of error, the circuit court shall postpone the execution of such sentence for such time as it may deem appropriate."
- 15 - When appellant filed his post-trial pro se motions, his
counsel included a motion to suspend sentence, but made no
reference to bail. Only appellant's handwritten pro se motion
mentioned bail. Appellant failed to schedule a hearing to
present argument and allow the trial court to rule on the issue.
Accordingly, it is barred on appeal. See Rule 5A:18.
For the foregoing reasons, appellant's convictions are
affirmed.
- 16 -