Tyjuan Decourtland Epps v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 20, 2023
• Docket: 1149222
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Chief Judge Decker, Judges Malveaux and Causey Argued at Richmond, Virginia

TYJUAN DECOURTLAND EPPS MEMORANDUM OPINION* BY v. Record No. 1149-22-2 CHIEF JUDGE MARLA GRAFF DECKER JUNE 20, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS Lynn S. Brice, Judge

(Michael Lee; Lee & Associates, PLC, on brief), for appellant. Appellant submitting on brief.

Craig W. Stallard, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Tyjuan Decourtland Epps appeals his convictions, following a jury trial, for first-degree

murder, use of a firearm while committing murder, and maliciously shooting at an occupied vehicle,

in violation of Code §§ 18.2-32, -53.1, and -154. The appellant asserts that the trial court abused its

discretion when it sustained the Commonwealth’s hearsay objection during his cross-examination of

an eyewitness. For the following reasons, we disagree, and we affirm the convictions.

BACKGROUND1

The appellant and Ashley White lived together for three years and had a son together. Their

relationship was tumultuous. In March 2021, White ended the relationship and rekindled a prior

* This opinion is not designated for publication. See Code § 17.1-413. 1 On review, the appellate court “consider[s] the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth, the prevailing party at trial.” Crawford v. Commonwealth, 281 Va. 84, 97 (2011) (quoting Bass v. Commonwealth, 259 Va. 470, 475 (2000)). relationship with Gerard Richardson, the father of her two older children. The appellant was “very

upset,” and he continuously called and texted White for weeks. White, by contrast, communicated

with the appellant only regarding their son. In late April 2021, the appellant broke into White’s

apartment by “kick[ing] in the door.” Once inside, he physically and sexually assaulted her and

destroyed a number of her belongings. White fled and called Richardson. As White drove away,

Richardson arrived, and she saw him and the appellant engage in a fight.

Later that day, the appellant texted White and threatened twice to “kill him,” which White

believed was a reference to Richardson. The appellant continued with a series of texts: “I swear on

everything shit going to get real today.” “I love you. Take care of my son, Ashley. Tonight gonna

change my life forever, but I won’t be disrespected.” “I’m not gonna be here after tonight.” “Boo,

I’m going back to jail over you not be[ing] real with me.”

When White returned to her apartment, she was unable to secure it due to the appellant’s

earlier break-in. Fearful that he would return, White and Richardson decided to stay at a hotel that

night. The two drove to an area hotel and entered the lobby, as shown in security video footage.

Because the couple wished to relax in a jacuzzi, however, they decided to leave that hotel and stay

in a different one.

White and Richardson got into their vehicle. As Richardson pulled away from the hotel, a

man in a black hoodie approached from behind and fired several shots into the driver’s side window

before fleeing on foot.2 White heard glass shattering, and Richardson yelled. He was unable to

continue driving, and White knew that he was hurt. A car pulled alongside them, and more shots

were fired. Richardson covered White with his body. Before her view was obstructed, White saw

2 White did not see the man or realize where the shots came from at the time, but she later viewed a hotel surveillance video that showed what had occurred. -2- the appellant’s brother shooting at them. When the gunfire stopped, Richardson was bleeding. At

that point, White called 911. Richardson died from the injuries he sustained in the attack.

Tiffany Ellis testified to related events. She was in her car outside a nearby restaurant

waiting for her husband and a friend to finish their work shifts when she heard the sounds of gunfire

and a car speeding away. A man in a black hoodie then ran up to her car and asked for a ride,

stating that someone was trying to kill him. Ellis obliged the man, who “laid down on the back

seat” and remained there as she drove him to his destination. He left his hoodie in the car when he

got out, and Ellis later threw it away. At trial, Ellis identified the appellant as the man to whom she

gave the ride.3

The police found seven bullet holes in the car driven by Richardson. Five bullets were

recovered from various areas of the vehicle, and two bullets were removed from Richardson’s body.

A week after the shooting, a firearm was found in a grassy area near the crime scene. Testing

determined that several bullets collected from the car could not be eliminated as having been fired

from the recovered firearm. That testing also confirmed that the rest of the bullets collected had

been fired from a different gun.

The appellant made a motion to strike the Commonwealth’s evidence, which the trial court

denied. He then called two law enforcement officers who testified about the identifications of the

appellant by White and Ellis.

At the conclusion of all the evidence, the appellant renewed his motion to strike, arguing

that a reasonable jury would not believe the eyewitnesses in this case. The trial court again denied

the motion.

3 A few weeks after the shooting, Ellis identified the appellant in a photo lineup but stated she was only “halfway” certain that the man in the photo was the man to whom she had given a ride. She explained that it was “kind of hard to tell because he looked different in the photo[].” At trial, however, she did not equivocate in her identification. -3- The jury convicted the appellant of all the charges. The trial court sentenced him to

seventy-three years of incarceration with fifteen years suspended.

ANALYSIS

The appellant challenges the trial court’s ruling restricting his cross-examination of

Ashley White on hearsay grounds. He suggests that this ruling was error and improperly limited

his ability to contest the accuracy of the witness’s identification of him as the shooter during

argument to the jury.

“It is well-settled that ‘[d]ecisions regarding the admissibility of evidence “lie within the

trial court’s sound discretion and will not be disturbed on appeal absent an abuse of

discretion.”’” Nottingham v. Commonwealth, 73 Va. App. 221, 231 (2021) (alteration in

original) (quoting Blankenship v. Commonwealth, 69 Va. App. 692, 697 (2019)). “This

bell-shaped curve of reasonability governing our appellate review rests on the venerable belief

that the judge closest to the contest is the judge best able to discern where the equities lie.”

Atkins v. Commonwealth, 68 Va. App. 1, 7 (2017) (quoting Thomas v. Commonwealth, 62

Va. App. 104, 111-12 (2013)). To the extent applicable here, a trial court has abused its

discretion if its decision was affected by an error of law or was one with which no reasonable

jurist could agree. Nottingham, 73 Va. App. at 231.

The appellant argues that the trial court erred when it sustained the Commonwealth’s

hearsay objection to an exchange that occurred while defense counsel was cross-examining Ashley

White, the victim’s girlfriend. White testified that she phoned Richardson’s mother and told her

that he had been shot. Defense counsel asked if Richardson’s mother then accused White’s

“boyfriend,” the appellant, of being the shooter. He also asked whether Richardson’s mother was

yelling at White and was mad at her because her former boyfriend had shot Richardson. At this

juncture, the prosecutor objected to the questioning of White on hearsay grounds. White

-4- nonetheless began to answer, stating, “No. That’s not what --[.]” The trial court told White to

“[h]old on” and asked defense counsel if he wanted to respond to the objection. Defense counsel

replied that the statement was an excited utterance. The court observed, “It’s not her excited

utterance, right?” Defense counsel conceded that it was not. The court said that it “th[ought]” the

evidence sought was hearsay, and defense counsel replied, “Yes, Judge.” The court then sustained

the Commonwealth’s objection.

The appellant now challenges the trial court’s ruling limiting this cross-examination of

White on two grounds. He first argues that the testimony he sought to elicit from White in fact was

not hearsay at all. Alternatively, he suggests that even if the testimony was hearsay, the court erred

by not admitting it under the excited utterance exception. We consider these claims regarding the

hearsay objection and the excited utterance exception in turn.

I. Hearsay

Hearsay is defined as “a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Va. R. Evid.

2:801(c); see Lawrence v. Commonwealth, 279 Va. 490, 496 (2010) (providing that hearsay

“includes testimony given by a witness who relates what others have told him”). As provided in the

definition itself, evidence is not hearsay if it is not specifically offered for its truth. See

Commonwealth v. Swann, 290 Va. 194, 197 (2015) (citing Jenkins v. Commonwealth, 254 Va. 333,

338 (1997)).

The appellant suggests that the answers he sought to elicit from White were not hearsay

because they were not offered for the truth of the matter asserted. He contends instead that they

related to “the effect the decedent’s mother[’s act of] yelling at White could have had on White’s

later identification of the [a]ppellant as the shooter.” According to the appellant, the answers were

admissible to help the fact finder understand White’s subsequent conduct.

-5- Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis for

reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for

good cause shown or to . . . attain the ends of justice.” Among the recognized purposes of the rule

are “enabl[ing] the trial judge to rule intelligently” and “avoid[ing] unnecessary reversals.” Bethea

v. Commonwealth, 297 Va. 730, 744 (2019) (quoting Palmer v. Atl. Coast Pipeline, LLC, 293 Va.

573, 579 (2017)). Additionally, the “precise nature of the objection must be clear because

‘[m]aking one specific argument on an issue does not preserve a separate legal point on the same

issue for [appellate] review.’” Belcher v. Commonwealth, 75 Va. App. 505, 524 (2022) (quoting

Mollenhauer v. Commonwealth, 73 Va. App. 318, 329-30 (2021) (alterations in original)). The trial

judge must “know the particular point being made in time to do something about it.” Bethea, 297

Va. at 743 (emphasis added) (quoting Dickerson v. Commonwealth, 58 Va. App. 351, 356 (2011)).

Here, in the trial court, defense counsel contended only that the testimony he sought to elicit

from White was admissible under an exception to the hearsay rule. He did not suggest that the

statements were not hearsay in the first instance or, more specifically, that they were not offered for

the truth of the matter asserted. In fact, just prior to its ruling, when the trial court responded that it

“th[ought]” the evidence sought was inadmissible hearsay because the excited utterance exception

did not apply, defense counsel replied simply, “Yes, Judge.” On these facts, we hold that the

appellant failed to preserve for appeal the claim that his cross-examination was improperly limited

because the evidence he sought to elicit did not fall within the definition of hearsay.

The appellant asks this Court to apply the ends-of-justice exception to Rule 5A:18 to reach

his unpreserved claim. However, he provides no analysis explaining why the limited exception

should be applied, and he cites no law in support of his request.4 See Rule 5A:20(e) (providing that

4 The appellant argues only that the limitation on this line of questioning was not harmless because, as a result of the exclusion, he was unable to “argu[e] that [White’s] -6- “[w]hen [an] assignment of error was not preserved in the trial court, counsel must state why the

good cause and/or ends of justice exceptions to Rule 5A:18 are applicable” and include supporting

“principles of law” and “authorities” (emphasis added)); Jay v. Commonwealth, 275 Va. 510,

518-20 (2008) (permitting the appellate court to hold that an assignment of error is waived when a

failure to comply with Rule 5A:20(e) is not “insignificant”); cf. Startin v. Commonwealth, 56

Va. App. 26, 30 n.1 (2010) (en banc) (holding under Rule 5A:20(e) that the Court was “unable to

consider the merits of” the appellant’s claim where he “asked th[e] Court to invoke the ends of

justice exception” to consider a sufficiency argument but “did not brief [the merits] argument”),

aff’d on other grounds, 281 Va. 374, 379 (2011).

In any event, the record does not meet the standard for applying the exception, which “is

narrow and is to be used sparingly.” See Holt v. Commonwealth, 66 Va. App. 199, 209 (2016) (en

banc) (quoting Redman v. Commonwealth, 25 Va. App. 215, 220 (1997)). To determine whether

the ends-of-justice exception applies, the appellate court considers “whether the failure to apply the

[exception] would result in a grave injustice.” Williams v. Commonwealth, 294 Va. 25, 27-28

(2017) (per curiam) (quoting Commonwealth v. Bass, 292 Va. 19, 27 (2016)). It applies in

circumstances in which a defendant was convicted of conduct that was not a criminal offense, “the

record . . . affirmatively prove[s] that an element of the offense did not occur,” or the trial court

clearly erred by failing to adhere to a “crucial” procedure. West v. Commonwealth, 43 Va. App.

327, 338 (2004) (alterations in original) (quoting Herring v. Herring, 33 Va. App. 281, 287 (2000)).

“It is never enough for the defendant to merely assert a winning argument on the merits—for if that

were enough[,] procedural default ‘would never apply, except when it does not matter.’” Winslow

identification of [him as the shooter] m[ight] have been influenced by the decedent’s mother[’s statement],” causing White to implicate him incorrectly. -7- v. Commonwealth, 62 Va. App. 539, 546 (2013) (quoting Alford v. Commonwealth, 56 Va. App.

706, 710 (2010)).

Here, the appellant suggests only that weaknesses existed in the Commonwealth’s evidence

identifying him as the criminal agent and that the limitations on his cross-examination of White

improperly prevented him from “further challenging . . . conflicting statements . . . identifying him”

as the shooter. His allegation does not meet the standard of establishing that the court erred by

failing to adhere to a crucial procedure or affirmatively proving that an element of the offense did

not occur. Instead, at best, it constitutes a modicum of evidence through which he could attempt to

challenge the Commonwealth’s significant proof on the element of identity. This is insufficient to

meet the ends-of-justice standard.

Consequently, the ends-of-justice exception does not apply, and we do not consider whether

the challenged evidence was admissible because it did not fall within the definition of hearsay.

II. Excited Utterance Exception

The appellant argues that even if the answers were hearsay, they were admissible under the

excited utterance exception. He suggests that the trial court erred when it determined that the

statements were not excited utterances because they were not made by the witness herself.

We assume without deciding that the appellant preserved an argument that the testimony fell

under the excited utterance exception. We also assume that he proffered adequate information

about the basis for his objection by means of his leading questions.5 Nonetheless, the statements

that the appellant sought to elicit did not qualify as excited utterances.

5 An appellate court may structure a decision to assume without deciding a point “to resolve [an] appeal on the best and narrowest grounds.” McGinnis v. Commonwealth, 296 Va. 489, 501 (2018); see Ali v. Commonwealth, 75 Va. App. 16, 37 n.9 (2022). We assume without deciding that the appellant did not waive his right to raise this point on appeal by agreeing with the trial judge’s ruling below that the excited utterances were not ones made by the witness. We also assume without deciding that he made an adequate proffer of the testimony he hoped to elicit due to the leading nature of his two questions immediately preceding the objection, -8- An excited utterance is defined as a “spontaneous or impulsive statement prompted by a

startling event or condition and made by a declarant with firsthand knowledge at a time and under

circumstances negating deliberation.” Va. R. Evid. 2:803(2) (emphasis added); see Caison v.

Commonwealth, 52 Va. App. 423, 431 (2008). Here, Richardson’s mother, the declarant, did not

have any firsthand knowledge about who shot her son. White, the only person who saw the

appellant shoot at Richardson, was not the person who made the alleged utterances. Therefore, the

mother’s statements, although perhaps “spontaneous” or “impulsive” and “prompted by a startling

event,” do not fall within the excited utterance exception to the rule against hearsay. See generally

Hicks v. Commonwealth, 71 Va. App. 255, 275 (2019) (recognizing that the trial court makes the

findings of fact that underpin the admissibility of the evidence and the appellate court must defer to

those findings unless they are plainly wrong).

Accordingly, the trial court’s ruling refusing to admit the statements under the excited

utterance exception was not error.

CONCLUSION

For these reasons, the record does not support the appellant’s claim that the trial court

abused its discretion by excluding the challenged testimony. Accordingly, we affirm his

convictions.

Affirmed.

including, “[S]he told you it was your boyfriend who shot him, right?” and “[She] was mad at you [as a result,] is that right?” But cf. Kearney v. Commonwealth, 36 Va. App. 106, 108-09 (2001) (en banc) (holding that defense counsel’s failure to proffer the defendant’s excluded testimony was error and that the appellate court could not presume “the answer was apparent from the question”). -9-