Dolly Yvonne Parks v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Frank
Argued at Salem, Virginia
DOLLY YVONNE PARKS
MEMORANDUM OPINION * BY
v. Record No. 0545-99-4 JUDGE ROBERT P. FRANK
AUGUST 15, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Robert W. Wooldridge, Jr., Judge
S. Jane Chittom, Appellate Counsel (Public
Defender Commission, on briefs), for
appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Dolly Yvonne Parks (appellant) was convicted, by a jury, of
first degree murder in violation of Code § 18.2-32. On appeal,
she contends the trial court erred in: 1) responding to the
jury's question in the sentencing phase of the trial and 2)
allowing her husband to testify to the content of telephone
messages made by appellant to the victim. We disagree and affirm
the judgment of the trial court.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. BACKGROUND
Appellant and her husband, Henry Parks (Parks), were married
in September 1992. They separated three years later for
approximately seven months before reconciling, and then separated
permanently in October 1996. They had two children, a son and a
daughter. In November 1997, appellant was living in New York with
the children and Parks was living in Fairfax County with his
girlfriend, Gwendolyn Jackson (Jackson), who was pregnant.
Parks met Jackson in July 1996. He moved into Jackson's
townhouse in September 1997, some three or four months after she
became pregnant with his child. Parks testified that appellant,
to whom he was still married, was hostile about his relationship
with Jackson.
On November 2, 1997, appellant unexpectedly came to the
residence shared by Parks and Jackson between 6:00 p.m. and
7:00 p.m. An argument ensued between appellant and Parks. She
made comments about Parks' life with Jackson, such as "I can't
believe you left me for this." Appellant threatened Jackson and
made derogatory remarks about her relationship with Parks.
Appellant told Jackson she would "beat" her and "kill" her had
Jackson not been pregnant. Appellant thought Jackson was the only
impediment to her reconciliation with Parks, even though Parks
told her that was not the case.
Parks returned home at 2:00 a.m. on November 26, 1997, and
noticed the living room was dark and the upstairs light was on.
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He quickly ran upstairs to check on Jackson because the house
"just felt very cold," "strange," and "like something had gone
wrong." Not finding Jackson, he ran back downstairs and
discovered her body on the living room floor. Her face was "very
bloody." Parks saw "something" wrapped around her neck "fairly
tightly." He immediately called 911.
The police responded at 2:16 a.m. The officers observed that
a struggle had taken place at the residence, but there were no
signs of forced entry. Jackson's body was fully clothed, and she
was wearing a leather jacket. Her purse and wallet were on the
floor near her outstretched hand. Her body was rigid, which
indicated she had been dead for several hours. One eye was
swollen shut, and there were scrapes and dried blood on her face.
A damp washcloth was found behind the stereo.
The medical examiner determined the cause of death was
"strangulation by ligature" and that Jackson's injuries were
consistent with having been caused by an extension cord.
Appellant's teeth matched the bite mark on Jackson's breast, and
the DNA taken from under Jackson's fingernails and from the blood
and saliva on her breast was consistent with a mixture of
Jackson's and appellant's DNA.
Appellant claimed Parks had given her money to bring their
son to Fairfax for Thanksgiving. She said she arrived at Parks'
apartment at 7:30 p.m. on November 25, 1997, but no one was home.
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She and her son went to a nearby fast food restaurant and
returned to the apartment at 9:30 p.m. As they approached the
apartment, two men she had seen there earlier ran down the steps
and left in a car. The apartment was open so she walked in with
her son to find Jackson lying on her side on the floor. Appellant
said that when she rolled Jackson onto her back, Jackson grabbed
and bit her and that she reacted by biting Jackson. She claimed
she told her son to find a phone while she tried to perform CPR on
Jackson.
Appellant also tried to clear the blood from Jackson's mouth,
using her own hand and scarf. She then checked for a pulse and
found none, and could not hear Jackson breathing.
Appellant further testified that a man she knew from New
York, with whom Parks allegedly had sold drugs, came downstairs
and admitted beating Jackson. He ordered her to leave and not to
say anything. Appellant took a cab to the bus station where she
and her son spent the night.
At trial, Parks testified, over appellant's hearsay
objection, that in June 1997 he retrieved two messages from
Jackson's voice mail system at her place of employment. Parks
called the message service number and then used the "pin number"
Jackson had given him to obtain messages. Parks recognized
appellant's voice as the caller. In the first message, appellant
said in an "angry" tone that Jackson was a "floozie" and a "tramp"
who "stole her husband." She also said Jackson was "stupid" for
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wanting to be with a man in Parks' situation. The second message
was "very short" but similar in context. The messages were not
saved.
When asked at the sentencing hearing how the family was
coping with Jackson's death, her father replied they would not
"have a chance to meet" her baby. Neither the question nor answer
was objected to by appellant.
During deliberations, the jury asked if it could "take the
(absence of) the life of Jackson's baby into consideration."
Following the question, counsel and the trial court discussed an
appropriate answer. The Commonwealth suggested the jury should be
told that they could consider any harm "flowing" from the crime.
Appellant disagreed, contending, because the fetus is not a life,
the jury could not take the fetus' life into consideration.
Defense counsel further said the jury could be told it "'must
consider only the evidence before you,' which would allow them to
take into consideration that [Jackson] was pregnant, but would not
define that the child was a life." Yet, counsel preferred that
the trial court simply answer "no" to the jury's question.
The trial judge, indicating he would not answer the question
with a simple "no," proposed telling the jury that they "may not
consider that the fetus in Gwen Jackson's body was murdered," but
that her pregnancy was a circumstance to be considered along with
the other evidence in the case. Defense counsel continued to
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object to any language that assumed the unborn baby was murdered,
i.e. that appellant committed two murders.
The trial court asked the jury to clarify the question. The
foreperson said the jurors wanted to know whether they could
consider "the loss of the baby's life, the fetus . . . the loss of
two lives versus one" in sentencing.
The entire jury panel responded that the foreperson's
clarification was what they understood the question to be. The
trial court then concluded the jury was asking if it could
consider the loss of the fetus as a second murder and decided the
jury should be told if that was the question, "the answer is no."
Appellant continued to object, asserting that the jury's question
was improper because there could not have been a murder of the
fetus and that the jury should be told "no," that it could not
consider the loss of the fetus. The prosecutor asked the trial
court to add that the jury could "consider all of the evidence in
the case with respect to the impact upon the victim," but the
court declined to do so. The court responded to the jury in
writing: "If by this question you are asking whether you may
consider the loss of the fetus in Gwen Jackson as a second murder,
the answer is no."
II. ANALYSIS
A. The Jury's Question
Appellant contends the trial court's answer to the jury's
question implies that the death of the fetus has some relevance to
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sentencing, though not as a second murder. In her reply brief,
appellant further contended the trial court erred in not telling
the jurors not to consider the death of the fetus.
A trial court may provide supplemental instructions to a jury
over a defendant's objection. See Blevins v. Commonwealth, 209
Va. 622, 628, 166 S.E.2d 325, 330 (1969). In fact, "[i]t is
proper for a trial court to fully and completely respond to a
jury's inquiry concerning its duties." Marlowe v. Commonwealth, 2
Va. App. 619, 625, 347 S.E.2d 167, 171 (1986) (citation omitted).
The trial court must "give a direct and correct response to an
inquiry by the jury and its failure to do so is ground for
reversal." Shepperson v. Commonwealth, 19 Va. App. 586, 591, 454
S.E.2d 5, 8 (1995) (citation omitted).
Appellant's sole concern as to the jury's clarification of
their initial question was that there could not be a murder of a
fetus. Counsel suggested to the trial court that the answer to
the question should be "no." The trial court answered the jury,
"If by this question you are asking whether you may consider the
loss of the fetus in Gwen Jackson as a second murder, the answer
is no." Appellant's concern was to insure that the jury would not
consider the fetus' death as a murder. The trial court advised
the jury of that specific issue.
Appellant contends the trial court's answer gives credence to
the fact that the child was eligible to be murdered. The trial
court's response implied no such thing. The response clearly and
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correctly addressed appellant's concern by informing the jury that
they could not consider the loss of the fetus as murder. The
members of the jury, in the clarifying question and the responses
to the trial court's poll, indicated their question dealt with
whether there was one murder or two. The trial court properly
responded they could not consider the death of the fetus as
murder.
B. Hearsay
Appellant contends Parks' testimony regarding voice mail
messages to Jackson from appellant is inadmissible double
hearsay and because the tape was not produced, its reliability
could not be tested. Appellant contended the tape could have
been altered.
"'The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be
disturbed on appeal in the absence of an abuse of discretion.'"
James v. Commonwealth, 18 Va. App. 746, 753, 446 S.E.2d 900, 904
(1994) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371
S.E.2d 838, 842 (1988) (citation omitted)).
Hearsay is "primarily testimony which consists [of] a
narration by one person of matters told him by another."
Williams v. Morris, 200 Va. 413, 417, 105 S.E.2d 829, 832
(1958). However, "[i]f the declaration is offered solely to
show that it was uttered, without regard to the truth or falsity
of its content, the declaration is not excluded by the hearsay
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rule." Speller v. Commonwealth, 2 Va. App. 437, 446, 345 S.E.2d
542, 548 (1986) (citation omitted)). "In addition, hearsay
evidence is admissible if it falls into one of the recognized
exceptions to the hearsay rule which are based on necessity and
inherent trustworthiness." Evans-Smith v. Commonwealth, 5 Va.
App. 188, 197, 361 S.E.2d 436, 441 (1987) (citation omitted).
If, however, the statement is admitted
to prove some other extraneous fact, such as
that the statement was in fact made, the
state of mind of the declarant, or notice or
knowledge, then the statement is not hearsay
and will be admissible if relevant and not
otherwise violative of another rule of
evidence. When evidence that might
otherwise be hearsay is admitted for a
limited, non-hearsay purpose, the trial
court must instruct the jury that they are
to consider the evidence for the specific
limited purpose; where such a limiting
instruction is given, we presume that the
jury followed that instruction.
Hanson v. Commonwealth, 14 Va. App. 173, 187, 416 S.E.2d 14, 22
(1992) (citations omitted).
In Church v. Commonwealth, 230 Va. 208, 211-15, 335 S.E.2d
823, 825-27 (1985), the Supreme Court of Virginia addressed the
statement of a young victim who told her mother that sex was
"'dirty, nasty and it hurt.'" The Court ruled that the child's
statement was not hearsay. See id. at 211-12, 335 S.E.2d at
825-26.
The Commonwealth did not offer the child's
statement to prove that sex is "dirty, nasty
and it hurt." Rather, it was offered to
show the child's attitude toward sex, an
attitude likely to have been created by a
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traumatic experience. Although the child
made no prompt report of the crime, the
Commonwealth was entitled to prove, by
circumstantial evidence, that she had been a
victim. Thus, the child's out-of-court
statement was not hearsay, but was
admissible as circumstantial evidence
tending to establish the probability of a
fact in issue.
Id. at 212, 335 S.E.2d at 825-26.
Similarly, in this case, the challenged testimony was not
offered to prove Jackson was a "floozie" or a "tramp" or to
prove Jackson stole appellant's husband. The evidence was
offered solely to show appellant's attitude toward Jackson. The
Commonwealth was entitled to prove the bad feelings appellant
harbored toward Jackson because motive is "'relevant and often
most persuasive upon the question of the actor's intent.'"
Archie v. Commonwealth, 14 Va. App. 684, 690, 420 S.E.2d 718,
722 (1992) (quoting Epperly v. Commonwealth, 224 Va. 214, 232,
294 S.E.2d 882, 892-93 (1982)).
Appellant further contends Parks' testimony was double
hearsay. Essentially, appellant argues, there were two
out-of-court asserters, appellant and the voice mail recording.
Assuming without deciding that the admission of Parks'
testimony, which reported the voice mail recording, was hearsay,
the admission of Parks' testimony was harmless error.
Non-constitutional error is harmless
"[w]hen it plainly appears from the record
and evidence given at trial that the parties
have had a fair trial on the merits and
substantial justice has been reached." To
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determine whether an error is harmless, we
"must review the record and the evidence and
evaluate the effect the error may have had
on how the finder of fact resolved the
contested issues."
Purvis v. Commonwealth, 31 Va. App. 298, 308, 522 S.E.2d 898,
902 (2000) (citations omitted).
In this case, Parks' testimony was admitted to show
appellant's attitude toward Jackson. There was evidence before
the jury that appellant appeared on November 2, 1997, at the
home shared by Parks and Jackson. On that date, she told Parks,
"I can't believe you left me for this." She also threatened
Jackson and made derogatory remarks about Jackson's relationship
with Parks. Specifically, she told Jackson she would "beat" her
and "kill" her had Jackson not been pregnant. This evidence
clearly established appellant's feelings about Jackson and
Jackson's relationship with Parks. Therefore, we find Parks'
testimony regarding the voice mail messages did not affect the
jury's ability to resolve the contested issues.
For these reasons, we affirm the judgment of the trial
court.
Affirmed.
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