Shamont Damon Burrell v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
SHAMONT DAMON BURRELL
MEMORANDUM OPINION * BY
v. Record No. 1680-95-1 JUDGE JERE M. H. WILLIS, JR.
APRIL 1, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John E. Clarkson, Judge
Michael Morchower (Anthony G. Spencer; Lee W.
Kilduff; Morchower, Luxton & Whaley, on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Shamont Damon Burrell appeals his jury convictions for
murder, malicious wounding, conspiracy and two counts of using a
firearm in the commission of a felony. He contends: (1) that
the trial court erred in admitting into evidence a transcript of
an unavailable witness' prior testimony, and (2) that the
evidence was insufficient to sustain his convictions. We affirm
the convictions.
Under familiar notions of appellate review, "we review the
evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom." Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
In the early morning hours of January 17, 1994, following a
skating party, a fight erupted between two rival groups of
students from Norfolk State University. Burrell was associated
with one of the groups, which included students from the New York
City area. Gerard Edwards was identified with the other group,
which included students from the Washington, D.C. area. Burrell
and Edwards fought each other during the brawl.
Later that evening, Burrell gathered with several friends in
Room 228 of Scott Hall, a university dormitory. Burrell was
still angry with Edwards and stated that "he wanted to get the
D.C. boys." The understanding among the group was that they were
going to shoot Edwards. Derrick Washington testified that he
agreed to be a lookout, and Burrell was to be the "gunman." He
testified that Burrell announced that he knew the combination
lock to Edwards' dorm room. Burrell had lived with Edwards
previously.
Washington testified that Burrell, wearing a rubber glove,
punched in the combination to Edwards' door and entered the room
with Tony Britton. Washington heard gunshots, and Burrell fled
from Edwards' room, handing Washington the gun as he ran past.
Christopher Skinner had also agreed to act as a lookout. He
testified that prior to the shooting Burrell was wearing black
pants and a brown hooded sweatshirt. Ten minutes after the
shooting, Skinner saw Burrell in the first floor lobby in a
T-shirt and shorts. Skinner stated that he agreed to Burrell's
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request that he would say that Burrell was downstairs with him
during the shooting.
Ronald Richardson testified that he lived with Edwards in
Room 225 of Scott Hall. Before retiring on the night of January
17, Edwards pushed a desk against the door, and placed a baseball
bat beside his bed. Richardson noted that Edwards appeared
fearful. Richardson was awakened during the night by a loud
crash. He saw the door of the room open, and flashes coming from
a gun. Shot at least six times, Edwards died from his wounds.
Richardson also suffered serious injuries from gunshot wounds.
I.
At the preliminary hearing on April 1, 1994, Donald Toatley,
a student at Norfolk State University, was examined and
cross-examined under oath regarding the events that occurred at
the skating rink. He testified that he had seen Burrell and
Edwards fighting in a brawl at the skating rink, and saw Burrell
attempt to hit Edwards. He stated that he asked Burrell and the
others to "let it ride," and quit fighting. Burrell responded:
"F___ that, I'll kill him."
Toatley was subpoenaed by the Commonwealth, but failed to
appear at trial. The subpoena had been served several months
prior to trial by posting at Toatley's residence. Toatley's
appearance at previous proceedings had been secured by the same
method of service. On the second day of trial, the Commonwealth
learned that Toatley had not appeared. The trial court issued a
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capias for Toatley's arrest, and Police Investigator Glen Ford
attempted to locate Toatley by telephoning and visiting his
residence. Toatley's roommate told Ford that he had not seen
Toatley for two days, and did not know where he worked. Ford
determined that Toatley was not in custody in any neighboring
jurisdiction.
Because Toatley could not be located for trial, the
Commonwealth proffered into evidence his prior recorded testimony
from the preliminary hearing. The trial court admitted the
transcript into evidence.
First, Burrell argues that the Commonwealth failed to show a
diligent and good faith effort to locate Toatley.
Before admitting a transcript of prior
testimony, the court must be satisfied
"'that a sufficient reason is shown why
the original witness is not produced.'"[]
Thus, for a witness to be deemed unavailable,
the proponent of the evidence bears the
burden of proving to the satisfaction of
the court that one of the following
conditions exists: . . . (5) The party has
been unable by diligent inquiry to locate the
declarant. . . .
Doan v. Commonwealth, 15 Va. App. 87, 100-01, 422 S.E.2d 398,
405-06 (1992) (citations and footnote omitted). "'[I]t is well
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settled that the sufficiency of the proof to establish the
unavailability of a witness is largely within the discretion of
the trial court, and, in the absence of a showing that such
discretion has been abused, will not be interfered with on
appeal.'" Doan, 15 Va. App. at 102, 422 S.E.2d at 406 (quoting
Burton v. Oldfield, 195 Va. 544, 550, 79 S.E.2d 660, 665 (1954)).
Upon reviewing the record, we conclude that the evidence
does not support the trial court's finding that the Commonwealth
exercised due diligence to secure Toatley's appearance. Cf.
Doan, 15 Va. App. at 101-02, 422 S.E.2d at 406 (holding that
reasonable diligence not demonstrated where witness not
subpoenaed and no evidence shown of other measures to secure his
appearance). The Commonwealth did not confirm that Toatley
actually received the subpoena. It had no contact with him from
the issuance of the subpoena to the time of trial, and thus
developed no continuing assurance of his appearance. It did
not check for his appearance before the commencement of the
trial. Its frantic efforts to locate him upon discovering his
non-appearance were insufficient to compensate for a lack of
appropriate pretrial precaution.
While we hold that the trial court erred in ruling that the
Commonwealth had exercised due diligence to procure Toatley's
appearance, we find that error to be harmless. The events
described by Toatley bore only tangentially on the circumstances
surrounding the murder. Furthermore, Toatley's testimony was
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only cumulative.
Second, Burrell contends that he was denied an adequate
opportunity to cross-examine Toatley at the preliminary hearing.
He argues that he was unable to question Toatley regarding the
circumstances under which Toatley identified Burrell as having
threatened to kill Edwards. Burrell also asserts that because
the preliminary hearing was held prior to his indictment for
conspiracy to murder Edwards, he was unable to fully
cross-examine Toatley regarding the statements and actions of
others who may have conspired to kill Edwards.
An accused's right to confrontation is
satisfied with respect to the admission
of prior testimony when the prior testimony
was given under oath in an adversary
proceeding, such as a preliminary hearing,
at which the accused had an adequate
opportunity to cross-examine the witness on
the issues which later develop at trial.
Jones v. Commonwealth, 22 Va. App. 46, 52, 467 S.E.2d 841, 844
(1996) (citing Fisher v. Commonwealth, 217 Va. 808, 813, 232
S.E.2d 798, 801-02 (1977); Lassiter v. Commonwealth, 16 Va. App.
605, 614, 431 S.E.2d 900, 905 (1993)).
Burrell's counsel availed himself of the opportunity to
cross-examine Toatley at the preliminary hearing. While counsel
declined to explore whether the photographic identification by
Toatley of Burrell was unduly suggestive, he was not denied
adequate opportunity to do so. The subsequent indictment for
conspiracy did not render Burrell's prior opportunity to confront
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Toatley at the preliminary hearing inadequate. The issues at the
preliminary hearing, and at trial, about which Toatley could
testify, concerned the events witnessed at the skating rink. The
skating rink brawl occurred prior to the formation of the
conspiracy, prior to the murder of Edwards, and prior to the
malicious wounding of Richardson. Because the issues at the
preliminary hearing were the same or similar to the issues which
later developed at trial, the addition of the conspiracy charge
was of no consequence in guaranteeing Burrell an adequate
opportunity to cross-examine Toatley.
II.
Burrell contends next that the evidence was insufficient to
sustain his convictions because Christopher Skinner and Derrick
Washington benefitted from their testimony and gave conflicting
accounts of what transpired. We disagree.
When the law says that it is for the
triers of fact to judge the credibility of a
witness, the issue is not a matter of degree.
So long as a witness deposes as to facts
which, if true, are sufficient to maintain
their verdict, then the fact that the
witness' credit is impeached by contradictory
statements affects only the witness'
credibility; contradictory statements by a
witness go not to competency but to the
weight and sufficiency of the testimony. If
the trier of fact sees fit to base the
verdict upon that testimony there can be no
relief in the appellate court.
Swanson v. Commonwealth, 8 Va. App. 376, 379, 382 S.E.2d 258, 259
(1989) (citation omitted).
The jury accepted the Commonwealth's evidence, and rejected
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Burrell's testimony that he was not involved in the shooting of
Edwards and Richardson. Our review of the record reveals
sufficient credible evidence to sustain Burrell's convictions.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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