Opinion
Record No. 1820-91-1
February 2, 1993
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS ROBERT W. CURRAN, JUDGE
(David Redden; Felton, Johnson Redden, on brief), for appellant.
John H. McLees, Jr., Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Bray, Elder and Willis
Argued at Norfolk, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
David Boyce appeals from his convictions for robbery and capital murder. He argues that the trial court erred (1) in denying his motions to strike and to set aside the verdict on both the robbery and capital murder convictions, and (2) in admitting certain photographs depicting the body of the victim at the crime scene. For the reasons set forth below, we affirm appellant's convictions.
The parties are familiar with the record; consequently, this memorandum opinion recites only those facts necessary to a disposition of the issues before the Court.
I.
In reviewing 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). It is also within the province of the jury to judge the credibility of the witnesses, "weighing such factors as [their] appearance and manner . . . on the stand, their intelligence, their opportunity for knowing the truth and observing the things about which they testify, their interest in the outcome of the case, their bias, and if any has been shown, their prior inconsistent statements and prior criminal convictions." Mullis v. Commonwealth, 3 Va. App. 564, 571, 351 S.E.2d 919, 923 (1987) (citing Zirkle v. Commonwealth, 189 Va. 862, 870, 55 S.E.2d 24, 29 (1949)). It is in light of these principles that we review appellant's convictions.
A.
Appellant argues first that the trial court erred in denying his motion to strike and to set aside the verdict on his robbery conviction. A conviction for robbery requires proof of "the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation." Hoke v. Commonwealth, 237 Va. 303, 310, 377 S.E.2d 595, 599, cert. denied, 491 U.S. 910 (1989). He asserts that the evidence was insufficient as a matter of law to prove, first, that he was at the scene of the murder and, second, that he or anyone else took the victim's money. However, appellant disregards the testimony of Herman Elkins, which provided key evidence to support the jury's verdict on the robbery charge.
Appellant is correct in his assertion that no direct physical evidence affirmatively linked him to the scene of the crime. Equally true, however, is the fact that none of the physical evidence excluded the possibility that he was present in room 204 on the morning of Askew's murder. As we held in Fordham v. Commonwealth, 13 Va. App. 235, 238, 409 S.E.2d 829, 831 (1991), it is not necessary for the Commonwealth to prove beyond a reasonable doubt that appellant was present at the scene of the murder. Rather,
[w]hat our circumstantial evidence cases do stand for is the proposition that those circumstances which are proved must each be consistent with guilt and inconsistent with innocence, and that they must also be consistent with each other, that is to say, they must concur in pointing to the defendant as the perpetrator beyond a reasonable doubt.
Id. (quoting Cantrell, 229 Va. at 398, 329 S.E.2d at 29).
In addition, the testimonial evidence provided by Herman Elkins placed appellant at the scene, and other evidence corroborated that testimony. A blood hound brought to the scene behaved in a manner indicating that the last person to handle a bloody towel in room 204 went next to room 235. In addition, the motel's desk clerk testified that, at about 3:00 a.m., he saw a person matching appellant's general description heading in the direction of room 235. When the desk clerk turned in his direction, however, the person attempted to evade the clerk and disappeared into the nearby woods.
Although appellant argues that Elkins' testimony was inherently incredible, based on both his status as a convicted felon and the conflicting testimony of Reverend James Robinson, we cannot reach such a conclusion. As stated above, case law clearly holds that the fact that a witness has previously been convicted of a crime goes to the weight to be given his testimony, a matter within the province of the jury. Mullis, 3 Va. App. at 571, 351 S.E.2d at 923 (citing Zirkle, 189 Va. at 870, 55 S.E.2d at 29). Elkins' prior conviction renders his testimony neither inadmissible nor inherently incredible.
The jury also was entitled to conclude that Elkins' testimony was more credible than Robinson's. Such a conclusion was not necessary under the evidence, however, for the testimony of Elkins and Robinson was not in conflict. Although Elkins testified that appellant confessed to a minister visiting the jail, he was not sure whether that minister was Reverend Robinson, and the evidence showed that several different ministers visited the jail during that time period. Finally, Elkins' testimony contained certain information from which the jury could have concluded that it was more credible than Robinson's testimony. Elkins knew that Askew's throat had been cut from behind, information that had not yet been revealed to the public at the time Elkins testified. On this basis, even though not necessary to uphold the conviction, we conclude that the evidence was sufficient to place appellant at the scene of the murder.
The evidence also was sufficient to support the finding that appellant robbed Askew. Elkins testified that appellant admitted that he and Askew had had a dispute over money and that appellant had killed Askew. The evidence also showed that Askew had cashed several checks the afternoon before his murder and that appellant likely was aware of this fact because Askew took his wallet out in appellant's presence that same afternoon in their motel room. Although Askew had several hundred dollars in his wallet and twelve dollars in his pants pocket within hours before his murder, neither that money nor his wallet were found at the scene or among his personal effects, and the pockets of his jeans had been turned inside out as if they had been searched and emptied. We conclude that Elkins' testimony concerning appellant's confession, combined with the aforementioned corroborative evidence, is sufficient to support appellant's robbery conviction. See Williams v. Commonwealth, 234 Va. 168, 175, 360 S.E.2d 361, 366 (1987), cert.denied, 484 U.S. 1020 (1988).
B.
Appellant also argues that the trial court erred in denying his motion to strike and to set aside the verdict on his capital murder conviction. We hold that the evidence, viewed in the light most favorable to the Commonwealth, is sufficient to support appellant's capital murder conviction.
A conviction for capital murder required proof that appellant killed Askew and that the killing was willful, deliberate and premeditated and occurred during the commission of a robbery with a deadly weapon. Code § 18.2-31(4). Elkins' testimony concerning appellant's confession, coupled with other evidence, is sufficient to support the jury's finding as to three of these elements — that appellant willfully, deliberately and with premeditation killed Askew in the course of a robbery with a deadly weapon. Although appellant again argues that Elkins' testimony was not credible, we cannot so conclude; it was within the province of the jury to make such a determination.
As stated above, Elkins had information concerning the murder that could have been learned only from the killer. In addition, other evidence corroborated Elkins' testimony: the determination that the last person to handle a bloody towel in room 204 went next to room 235, and the desk clerk's testimony that he saw a person resembling appellant heading toward room 235 and fleeing in the direction of the woods once he had been spotted. Finally, the evidence of the brutality of the attack, including the number and nature of the knife wounds inflicted, was sufficient to support the jury's finding that the killing was willful, deliberate and premeditated. See Clozza v. Commonwealth, 228 Va. 124, 134, 321 S.E.2d 273, 279 (1984), cert. denied, 469 U.S. 1230 (1985).
II.
Lastly, appellant argues that the trial court erred in admitting certain photographs depicting the body of the victim. Although appellant admits that our review is governed by an abuse of discretion standard, see, e.g., Edwards v. Commonwealth, 10 Va. App. 140, 142, 390 S.E.2d 204, 205 (1990), he argues that the trial judge abused his discretion in admitting Commonwealth's Exhibits 3 and 4 into evidence over his objection. He argues that the trial court improperly focused on the number of photos the Commonwealth sought to admit as opposed to their content. He also argues that Commonwealth's Exhibit 3(a) was duplicative of Exhibit 1, and Exhibits 3(c) and (d) were not relevant to the guilt phase of the trial because they depicted non-fatal wounds. Finally, he argues that Exhibits 3(b) and 4 should not have been admitted because both were highly inflammatory and duplicative.
We consider first appellant's contention that the trial judge improperly focused on the number of photos the Commonwealth sought to admit as opposed to their content. The transcript reveals that the following exchange took place over defense counsel's initial objections to the photographs:
MR. GWYNN (Commonwealth's Attorney): I am not going to seek to introduce this whole stack [of photos]. There's only . . . five that shows [sic] the injuries. Of course, there are several more that show the crime scene which don't depict any injury. And I intend to introduce those, too.
. . . .
THE COURT: So, the number doesn't concern me. I think we have to address the pictures. The first thing, I thought if we had that stack, [Defense Counsel's objection] might be appropriate, that it may be more than you need to show the jury what happened and it may tend to inflame the jury. But if you're talking about five pictures, that's an entirely different situation and we have to look at the pictures.
(Emphasis added). Appellant did not object to those photos showing the crime scene, Commonwealth's Exhibits 1 and 2(a) through (c). Rather, he objected only to the five photos showing the victim's specific injuries, Exhibits 3(a) through (d) and 4. Following appellant's objection and the above-quoted exchange, the trial court considered each photo separately and made specific findings as to why each photo should be admitted. This portion of the transcript shows clearly that the judge did not determine the admissibility of the photos based solely on their number; rather, he appropriately considered, first, whether the challenged photos were relevant and, second, whether they were repetitive or overly prejudicial, as called for by appellant's objections.
Following this exchange, the court admitted Commonwealth's Exhibits 1 and 2 without objection. However, when the Commonwealth sought to introduce Exhibit 3(a), which showed the entire body of the victim and its position between the two beds as viewed from inside the motel room, appellant objected. He asserted that Exhibit 3(a) was duplicative of Exhibit 1, which showed a portion of the body between the two beds as viewed at a greater distance from outside the motel room. Appellant did not assert that these photos were unnecessarily inflammatory. After examining the two photos, the trial court overruled appellant's objection on the ground that "there is a distinction between the two pictures." We conclude, also after viewing the photos, that Exhibits 1 and 3(a) show the position of the body and the layout of the room from different perspectives and are, therefore, not overly repetitive. Even if they were repetitive, they would not automatically be inadmissible, for it is within the sound discretion of the trial court "to admit photographs of the victim's body or wounds when they are relevant and material . . . and are not unduly inflammatory." Edwards, 10 Va. App. at 142, 390 S.E.2d at 205 (citations omitted). Accordingly, we hold that the trial court did not abuse its discretion in admitting Exhibit 3(a) into evidence.
Appellant also objected to the admission of four photos depicting the victim's specific injuries. He made a relevancy objection to the admission of Exhibits 3(c) and (d), which depicted injuries to the back of the victim's neck and his left armpit. He asserted that, because these injuries were nonfatal, they had no bearing on the Commonwealth's evidentiary burden at trial. Under the holding in Clozza, 228 Va. at 134, 321 S.E.2d at 279, however, these photos depicting the number and severity of the victim's injuries were clearly relevant to show that the murder was willful, deliberate and premeditated, as required for a capital murder conviction. Accordingly, we hold that the trial court did not abuse its discretion in admitting Exhibits 3(c) and (d) into evidence.
Lastly, appellant objected to the trial court's admission of Exhibits 3(b) and 4 on the ground that they were highly inflammatory and duplicative. Exhibit 3(b) shows the victim's bloody trunk, including one large laceration stretching from the left lung to the groin area and another across the throat. Exhibit 4 shows a close-up view of the injuries to the front of the victim's neck after the dried blood had been removed, which actually reveals at least three separate wounds. These photos were far more prejudicial than probative, he asserts, especially in light of the fact that the Commonwealth had already offered substantial medical testimony concerning the victim's injuries, which was sufficient in itself to support the finding of willfulness and premeditation required under the statute.
As stated above, it is within the sound discretion of the trial court "to admit photographs of the victim's body or wounds when they are relevant and material to corroborate medical testimony and are not unduly inflammatory." Edwards, 10 Va. App. at 142, 390 S.E.2d at 205. "If [they] accurately portray the scene created by a criminal in the commission of the offense on trial, [they are] not rendered inadmissible merely because [they are] 'gruesome' or shocking." Kelly v. Commonwealth, 8 Va. App. 359, 372, 382 S.E.2d 270, 277 (1989) (quoting Washington v. Commonwealth, 228 Va. 535, 551, 323 S.E.2d 577, 588 (1984),cert. denied, 471 U.S. 1111 (1985)). If they are relevant and material to show premeditation and malice, their admission does not constitute an abuse of discretion. Absent a showing of abuse, a conviction will not be overturned on appeal. Id. (citing Stockton v. Commonwealth, 227 Va. 124, 144, 314 S.E.2d 371, 384,cert. denied, 469 U.S. 873 (1984)).
In Hanson v. Commonwealth, 14 Va. App. 173, 182, 416 S.E.2d 14, 19 (1992), based on these principles, we upheld the trial court's admission of a series of photographs showing how the murder at issue was perpetrated. Hanson did not challenge the admissibility of two photos showing the victim as he was found — with his head covered by a plastic bag secured by a plastic strap. He did, however, challenge the admissibility of two other photos, one showing the victim's body after the plastic bag had been removed from his head and the other after the duct tape blindfold had been removed. Id. We concluded inHanson that "[t]he jury was entitled to consider how the killing was accomplished, as well as the details, circumstances and nature of the killing. The pictures accurately depicted these matters and were, therefore, relevant and probative." Id. Likewise, in this case, we conclude that the photos admitted into evidence, although gruesome, were relevant because they accurately depicted the victim's various injuries. Exhibit 3(b) showed mainly the laceration to the victim's trunk and a distant view of the victim's neck injuries. Exhibit 4, showing a close-up view of three separate wounds to the front of the victim's neck, is not unduly repetitive of Exhibit 3(b). For these reasons, we hold that the trial court did not abuse its discretion in admitting Exhibits 3(b) and 4 into evidence.
Accordingly, we affirm appellant's convictions.
Affirmed.