Opinion
Record No. 2018-92-3
Decided: November 1, 1994
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY, Nicholas E. Persin, Judge
Affirmed.
H. F. Salsbery (Anne E. Shaffer; C. Eugene Compton; Salsbery Shaffer; C. Eugene Compton, P.C., on briefs), for appellant.
Marla Lynn Graff, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Koontz, Elder and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Sharon Adeline Justus Smith (appellant) was convicted of solicitation to commit murder in violation of Virginia Code Sec. 18.2-29. Appellant contends (1) the trial court improperly admitted co-conspirator declarations, (2) the trial court improperly admitted evidence of her husband's shooting, (3) the evidence was insufficient to sustain her conviction, (4) the Commonwealth unconstitutionally failed to disclose exculpatory audiotapes, and (5) the trial court erred in instructing the jury about accomplice testimony. For the following reasons, we affirm appellant's conviction.
Because the parties are well acquainted with the relevant facts, we need not repeat them in detail. In early October 1989, Cornelius Rife told Carl Ferrell that two women decided they wanted to kill a man who had molested his child. On October 10, 1989 Ferrell and Rife met with the two women, identified by Ferrell as Patricia Justus and her sister Sharon (appellant), to discuss killing Sharon's husband, Smitty. Ferrell later cooperated with authorities in tape recording his conversations with his co-conspirators; these tapes were played for the jury and revealed details of the conspiracy.
Smitty was shot in the head on October 18, 1989 by Frank Eugene Justus (appellant's brother) and Johnny Stevenson Smith (a distant relative of Smitty), who pled guilty to the crime but were not parties to the Sharon Justus/Patricia Justus/Ferrell/Rife conspiracy. The victim survived this attack. Rife told Ferrell that he did not know who hired the man that shot Smitty and stated that Smitty was still targeted for death because he had been caught by his wife trying to rape their fourteen-month old daughter.
At the first hearing on appellant's motion in limine, the Commonwealth could not prove a link between the Frank Justus/Johnny Smith conspiracy and the instant conspiracy. The trial court ruled that the prosecutor could not mention the first conspiracy unless the two conspiracies were connected.
Appellant learned for the first time at trial that additional tapes existed, which were not disclosed prior to trial. Appellant listened to the tapes and decided not to use the potentially exculpatory information contained therein and not to move for a continuance or a mistrial. On one of those undisclosed tapes, in a conversation between Rife and Ferrell, Rife gave the name of the person to whom Ferrell spoke at the October 10, 1989 meeting as "Easter" or "Esther."
At the close of the trial, the judge declined to give appellant's proposed jury instruction regarding uncorroborated co-conspirator testimony. Appellant was convicted of solicitation to commit murder, and she appealed to this Court.
I.
We affirm the trial court's determination that the co-conspirators' hearsay declarations were admissible because the Commonwealth proved a prima facie case of conspiracy before their introduction. As a general rule, "[t]he admissibility of a co-conspirator's declarations made in furtherance of the conspiracy . . . is a long established exception to the hearsay rule in Virginia." Rabeiro v. Commonwealth, 10 Va. App. 61, 63, 389 S.E.2d 731, 732 (1990). However, "before the co-conspirator's hearsay declaration may be admitted, a prima facie case of conspiracy must be established by evidence independent of the declarations themselves." Id. at 63, 389 S.E.2d at 732.
"In reviewing whether evidence was sufficient to establish the existence of a conspiracy, we consider the evidence in the light most favorable to the Commonwealth, granting it all reasonable inferences fairly deducible therefrom." Id. at 64, 389 S.E.2d at 732. Ferrell's testimony about the October 10 meeting between Rife, Ferrell, and the Justus sisters proved a prima facie case that appellant was involved in a conspiracy to kill Smitty, and this testimony did not involve hearsay declarations. See Cirios v. Commonwealth, 7 Va. App. 292, 300, 373 S.E.2d 164, 168 (1988).
II.
Second, we hold that although the trial court erroneously admitted evidence of Smitty's shooting, the admission constituted harmless error. During pretrial motions, the trial court judge stated
it seems that the Court should not restrict [the Commonwealth] from mentioning the shooting and the other matter that has already gone through the Court provided that [the Commonwealth is] able to link up your evidence with regard to the charge that is pending against this Defendant today. In other words, there will have to be some link up in the evidence in order to allow, even by the way of statement, which is not evidence, that information to come before the jury.
(Emphasis added.) Although testimony regarding the actual shooting was introduced by the Commonwealth, the trial court never required the link up. Thus, the judge should have stricken the evidence.
However, we find that the introduction of this evidence was harmless error. See Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc). The audiotapes revealed that there was no connection between the two conspiracy groups. For example, the audiotape from October 31, 1989 revealed that Rife still wanted Ferrell to kill the victim; that the person charged with the shooting had nothing to do with appellant's conspiracy; that Rife believed the shooting was drug-related; and that the shooting to be committed by appellant's conspiracy group would have to wait until the group raised funds to pay for the shooting.
III.
Viewing the evidence in the light most favorable to the Commonwealth, we hold that sufficient evidence was introduced as to the identification of appellant to submit the evidence to the jury and to sustain appellant's conviction. We refuse to disturb the jury's verdict, as it was not plainly wrong or without evidence to support it. Stockton v. Commonwealth, 227 Va. 124, 146, 314 S.E.2d 371, 385, cert. denied, 469 U.S. 873 (1984); Code Sec. 8.01-680. Both Ferrell's direct testimony and the audiotapes played to the jury provided sufficient evidence to allow a fact finder to conclude that appellant was involved in a solicitation to kill Smitty.
IV.
We hold appellant waived her right to appeal the Commonwealth's failure to divulge certain audiotapes prior to trial. Due process requires that the prosecution produce evidence favorable to the accused upon request when that evidence is material either to guilt or to punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963); Keener v. Commonwealth, 8 Va. App. 208, 212, 380 S.E.2d 21, 23 (1989). Appellant was permitted to listen to the additional audiotapes overnight (after their discovery) to determine whether they contained exculpatory material. Appellant learned that night that potentially exculpatory information was contained in the October 22, 1989 tape, namely, that Rife commented that the woman he met with was named "Esther" or "Easter" (not Sharon).
However, appellant expressly "elected not to use [the tape]" at trial. Appellant's counsel further informed the court that the tape was discussed with appellant, appellant had read portions of the transcript, and appellant made an informed decision with her attorneys not to use the tape at trial. Appellant did not move for a continuance or a mistrial based on the alleged discovery violation, nor did she raise the claim in her motion to set aside the verdict. It is also significant to note that appellant felt it was not in her best interests to request a mistrial based on the alleged discovery violation, as the "trial was going well" from her perspective. This was a strategic decision made knowingly by appellant, and her decision not to request a mistrial constituted a waiver of her right to claim a discovery violation.
VI.
Finally, we hold the trial court did not err in refusing to instruct the jury about the danger of uncorroborated co-conspirator testimony. "Our sole 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." Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982).
In Virginia the uncorroborated testimony of an accomplice is sufficient without more to convict a person accused of a crime. However, when an accomplice's testimony is uncorroborated the trial court is required to give a cautionary instruction, warning the jury of the danger in convicting the defendant upon such testimony.
Brown v. Commonwealth, 8 Va. App. 474, 477, 382 S.E.2d 296, 298 (1989) (citations omitted). "[W]hen the accomplice's testimony implicating the defendant is corroborated by independent evidence the need to warn the jury is diminished, and the trial court is not required to give a cautionary jury instruction." Id. at 477-78, 382 S.E.2d at 298; see also Tomlinson v. Commonwealth, 8 Va. App. 218, 226, 380 S.E.2d 26, 30 (1989).
The record reveals that Ferrell's statements as a co-conspirator were corroborated by independent evidence of appellant's involvement, and thus the need to warn the jury was lacking. The evidence presented at trial independently connected appellant with the crime, and it was sufficient to warrant the jury in crediting the truth of Ferrell's testimony.
For the foregoing reasons, appellant's conviction is affirmed.
Affirmed.