Charles A. Hitchcock, s/k/a v. Commonwealth ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Coleman and
Senior Judge Duff
Argued at Alexandria, Virginia
CHARLES A. HITCHCOCK, S/K/A
CHARLES ALLEN HITCHCOCK
MEMORANDUM OPINION * BY
v. Record No. 1387-97-4 JUDGE SAM W. COLEMAN III
APRIL 21, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
J. Peyton Farmer, Judge
William G. Dade for appellant.
John K. Byrum, Jr., Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Charles Allen Hitchcock was convicted by a jury for two
counts of abduction and use of a firearm in the commission of
abduction. On appeal, he contends: (1) the Commonwealth failed
to disclose exculpatory evidence during discovery; (2) the trial
court erred by admitting evidence that he failed to appear at
preliminary hearing and arraignment proceedings pertaining to the
abduction charges; and (3) the evidence is insufficient to
support the convictions. We disagree and affirm the convictions.
BACKGROUND
Shawn Austin, one of the abduction victims, suspected that
appellant had stolen his all-terrain vehicle (ATV) and was
secreting it on appellant's property. Late at night, Austin and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Robert Perryman rode their ATVs onto appellant's property to
search for the missing ATV. Austin and Perryman, who were masked
or hooded, were riding across the property when appellant and his
brother, Shawn Hitchcock, "jumped out of the woods," pointed
rifles at Austin, and yelled "Freeze." Austin stopped, removed
his hood, and identified himself. Perryman tried to ride away,
but wrecked in a ditch. Shawn Hitchcock followed Perryman while
appellant held a gun on Austin and escorted him to where Perryman
had wrecked.
Perryman testified that appellant, while training his rifle
at him and Austin, stated: "If we help you get [Perryman's]
four-wheeler out [of the ditch], you are going back to the house
with us." Appellant helped Perryman retrieve the ATV from the
ditch while Shawn Hitchcock pointed his rifle at Austin and
Perryman. Shawn Hitchcock told Austin: "[T]ell your friend the
next time somebody tells him to freeze he had better stop,
because I was about two seconds from blowing his head off." The
Hitchcocks also told Austin and Perryman that the police had been
called and that the four of them had to await the arrival of the
police at the Hitchcocks' house. Shawn Hitchcock admitted at
trial that the police had not been called. Both Austin and
Perryman testified that they went with the Hitchcocks to the
house because they feared that appellant and his brother would
shoot them.
The Hitchcocks followed Austin and Perryman to the house.
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Although neither Austin nor Perryman observed whether the
Hitchcocks held their guns on them as they rode to the house,
they testified that appellant and Shawn were training their guns
on them when they started toward the house and when they arrived
there. Eventually, appellant and his brother told Austin and
Perryman to leave. Appellant was convicted by a jury for
abduction of Austin and Perryman and use of a firearm in the
commission of abduction.
I. COMMONWEALTH'S DUTY TO DISCLOSE EXCULPATORY EVIDENCE
Due process requires the Commonwealth to disclose all
exculpatory evidence to an accused. Allen v. Commonwealth, 20
Va. App. 630, 637, 406 S.E.2d 248, 251 (1995) (citing Brady v.
Maryland, 373 U.S. 83 (1963)). "Exculpatory evidence" is defined
as evidence that is "material to guilt or punishment and
favorable to the accused," id., and includes impeachment. See
United States v. Bagley, 473 U.S. 667, 676 (1985); Robinson v.
Commonwealth, 231 Va. 142, 150, 341 S.E.2d 159, 164 (1986).
Evidence is "material," and its nondisclosure justifies reversal
on appeal, only "if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different." Bagley, 473 U.S. at 682;
see Correll v. Commonwealth, 232 Va. 454, 465, 352 S.E.2d 352,
358 (1987).
In the present case, appellant's father had obtained
misdemeanor warrants charging Austin and Perryman with
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trespassing on the Hitchcocks' property. Upon learning of the
warrants and determining that they were "meritless," the
Commonwealth's attorney obtained a nolle prosequi of the
trespassing charges. The Commonwealth did not disclose to
appellant's counsel that Austin and Perryman had been charged
with trespassing and that the Commonwealth nol prossed the
charges.
Appellant contends the fact that trespass warrants were
issued and nol prossed constituted "exculpatory evidence" which
the Commonwealth was required to disclose under the holding in
Brady v. Maryland. We disagree. As noted in Part III, infra, a
landowner may use reasonable force to eject a trespasser but has
no right to abduct the trespasser. The fact that Austin and
Perryman had been charged with trespassing does not tend to
establish any "legal justification" for appellant to abduct them
or in any other way tend to exonerate the appellant or impeach
the testimony of a witness. Furthermore, we fail to see, and
appellant fails to demonstrate, how the Commonwealth's obtaining
a nolle prosequi of the charges could have induced Austin and
Perryman, as victims of the alleged abduction, to testify against
appellant, or improperly influenced their account of the
incident. Cf. Moreno v. Commonwealth, 10 Va. App. 408, 415-16,
392 S.E.2d 836, 841 (1990) (Commonwealth required to disclose
information regarding relationship of informant-witness with
prosecuting authorities). We fail to see that the nolle prosequi
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of the warrants was exculpatory or could have led to exculpatory
evidence. Accordingly, we cannot say that had the Commonwealth
apprised appellant of the facts surrounding the trespassing
warrants, that a reasonable probability exists that the outcome
of appellant's abduction trial would have been different. See
Bagley, 473 U.S. at 682. Because the evidence was not
exculpatory, the Commonwealth was not required under Brady to
disclose it.
II. EVIDENCE OF APPELLANT'S FAILURE TO APPEAR
AT PRELIMINARY HEARING AND AT ARRAIGNMENT
The Commonwealth introduced evidence that appellant failed
to appear at a preliminary hearing in general district court and
at arraignment in the circuit court regarding the abduction
charges relating to Austin and Perryman. The Commonwealth
presented the evidence to establish appellant's consciousness of
guilt on the charges against him.
Evidence of an accused's flight from prosecution is
admissible as evidence of consciousness of guilt, and, thus, of
guilt itself. See Palmer v. Commonwealth, 14 Va. App. 346,
348-49, 416 S.E.2d 52, 53 (1992); Langhorne v. Commonwealth, 13
Va. App. 97, 103, 409 S.E.2d 476, 479 (1991) ("Any flight at a
time when it may be to avoid arrest, prosecution, or confinement
tends to show a consciousness of guilt."). We have held that
evidence of an accused's failure to appear at trial may be
properly admitted to prove his flight from prosecution and, thus,
is a fact that may be proven for the jury to infer the accused's
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consciousness of guilt. See Langhorne, 13 Va. App. at 101-02,
409 S.E.2d at 477.
The trial court did not err by admitting evidence that
appellant failed to appear at the preliminary hearing and
arraignment. Appellant's argument is unsound that his appearance
at trial rendered irrelevant and immaterial the evidence that he
failed to appear at arraignment and at the preliminary hearing.
By his truancy, the jury could find that appellant attempted to
elude the charges and hinder the prosecution against him.
Appellant's failure to appear for a preliminary hearing and
arraignment, like the failure to appear for the trial, is
evidence of flight from prosecution and was admissible to
establish his consciousness of guilt on the charges against him.
Furthermore, contrary to appellant's assertion, the
Commonwealth was not required to prove that appellant had been
convicted of failing to appear at the proceedings. See Wright v.
Commonwealth, 245 Va. 177, 191, 427 S.E.2d 379, 388-89 (1993).
III. SUFFICIENCY OF THE EVIDENCE
Code § 18.2-47 provides, in pertinent part, that "[a]ny
person who, by force, intimidation or deception, and without
legal justification or excuse, seizes, . . . detains or secretes
the person of another, with the intent to deprive such other
person of his personal liberty . . . shall be deemed guilty of
abduction."
Under familiar principles of appellate review, we will not
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disturb the jury's verdict 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). When the sufficiency of
the evidence is challenged on appeal, we review the evidence in
the light most favorable to the Commonwealth and grant to it all
reasonable inferences fairly deducible therefrom. Higginbotham
v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
Viewed accordingly, the evidence is sufficient to prove that
appellant abducted Austin and Perryman and that he used a firearm
in the commission of the abductions. Appellant and his brother
jumped out of the woods, brandished rifles at Austin and
Perryman, and commanded them to "freeze." With his rifle trained
at Austin and Perryman, appellant told them that after he helped
retrieve Perryman's wrecked ATV "you are going back to the house
with us." Appellant and his brother also coerced the victims to
go to the house by falsely telling them the police had been
called. Both Austin and Perryman recounted how appellant and his
brother pointed their rifles at them when they started riding
toward the house and were doing so when they arrived. On these
facts, the jury could reasonably conclude that appellant used
"intimidation," by pointing his rifle at Austin and Perryman and
commanding them to go with him to his house, and "deception," by
falsely telling them the police had been called, in order to
detain the two victims "with the intent to deprive [them] of
[their] personal liberty." See Scott v. Commonwealth, 228 Va.
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519, 526, 323 S.E.2d 572, 576 (1984).
Appellant argues that he had "legal justification" to
confront and detain Austin and Perryman because they trespassed
onto his property. Assuming, as the facts suggest, that Austin
and Perryman were trespassing, appellant's argument has no merit.
Virginia common law has long recognized the right of a landowner
to order a trespasser to leave his property, and, should the
trespasser refuse, "to employ proper force to expel him, provided
no breach of the peace is committed . . . ." Pike v.
Commonwealth, 24 Va. App. 373, 375, 482 S.E.2d 839, 840 (1997)
(emphasis added). However, although a proprietor may use such
force as is reasonably necessary to expel a trespasser, a
proprietor may not unlawfully seize or detain a trespasser. Cf.
Montgomery v. Commonwealth, 99 Va. 833, 835-36, 37 S.E. 841,
842-43 (1901) (no right to attack trespasser). Accordingly, even
if Austin and Perryman were trespassing, the appellant had no
right to abduct them under Virginia law.
For these reasons, we affirm the convictions.
Affirmed.
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