Troy Lee Atkins, Jr. v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia
TROY LEE ATKINS, JR.
MEMORANDUM OPINION * BY
v. Record No. 2740-96-2 JUDGE JAMES W. BENTON, JR.
FEBRUARY 24, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Carl C. Muzi for appellant.
Leah A. Darron, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Troy Lee Atkins, Jr., was convicted of second degree murder.
On appeal, he argues that the trial judge abused his discretion
by allowing a witness to be recalled to testify at trial after
the witness violated the trial judge's order not to discuss the
case with other witnesses. He also argues that the evidence was
insufficient to support his conviction. We affirm the
conviction.
I.
On appeal, we view the evidence in the light most favorable
to the Commonwealth, granting it all reasonable inferences fairly
deducible therefrom. See Higginbotham v. Commonwealth, 216 Va.
349, 352, 218 S.E.2d 534, 537 (1975). So viewed, the evidence
proved that in the early morning hours of December 27, 1995,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Atkins drove from Emporia to Richmond with Sara Lee Odom, two of
their children, and another couple. Atkins and Odom registered
at a motel and put the children to bed.
A registered nurse testified that Atkins arrived at the
hospital emergency room on the afternoon of December 27. When
the nurse went outside to see Odom in Atkins' truck, Odom did not
have a pulse. Atkins told the nurse that several girls attacked
Odom after Odom went to a store. He said when Odom returned
home, Odom told Atkins what happened and complained of a
headache. Atkins said when he asked Odom if she wanted to go to
the hospital, Odom refused and said she would be fine after
taking a shower.
Atkins also spoke with a clinical social worker in the
emergency room and repeated the same events. The social worker
noted that Atkins was upset. Atkins said that he brought Odom to
the hospital after she passed out. The social worker informed
Atkins that Odom's situation was life threatening. She also told
him that if Odom was attacked, criminal assault charges would be
filed against the assailants. Atkins walked through the
emergency room entrance to smoke a cigarette and never returned.
Detective Leonard testified that when he went to the
hospital on December 27, Odom's body had been removed by the
medical examiner. Detective Leonard visited Emporia several
times looking for Atkins and left his business cards with Atkins'
friends and family. Atkins was apprehended in North Carolina on
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February 6, 1996, brought to Richmond for questioning, and gave a
lengthy statement to the Richmond police explaining the events
that occurred on December 27.
Testifying from Atkins' written statement, Detective Leonard
stated that Atkins said he and Odom were waiting in Atkins' truck
for a friend at 6:00 a.m. on December 27 when Odom decided to go
to a nearby store for sodas and cigarettes. About twenty minutes
later, Atkins heard loud "fussing" outside his truck. When he
exited the truck, he saw Odom with a stick. Odom told Atkins
that two or three women were "messing with her." After Atkins
yelled at the women, they ran. He saw two or three people
running off. Odom had a gash and two scratches on her face and a
bleeding finger. When Atkins told Odom she should go to the
hospital, she said she was fine and asked him to take her to the
motel.
Atkins said that when he arrived at the motel he sent the
children to get a soda for Odom. Odom then went into the room
and got into the bathtub. Atkins said Odom complained because he
made the water too hot and at one point said "ouch." Atkins said
that he asked Odom if she had been hit with sticks and she said
that she had. After the children returned, Odom sat on the bed,
changed her clothes, talked and joked with the children, walked
around the room, smoked cigarettes, and drank a soda. Atkins
said that Odom asked him to not mention the beating to the
children. At Odom's request, he took the children to a friend's
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house.
Atkins' statement further recited that when he took the
children to the friend's house, Odom's daughter saw blood in the
truck. She accused Atkins of fighting with her mother and asked
him where the blood came from. She said "I know you and
mama . . . got mad and been fighting." Atkins said he told her
she was being "nosy." In his statement, Atkins admitted that he
and Odom had had fights before but never so severe as to require
medical attention.
After leaving the children, Atkins went to a store and
purchased something for Odom's pain. When he returned to the
motel, Odom was dressed. Odom said she did not have a headache
and was not sore. Although he rubbed the ointment on her, Odom
did not take the medicine he purchased for her pain.
Atkins said that later in the afternoon he and Odom went to
Atkins' uncle's house and remained inside for twenty minutes.
Odom said she couldn't breath, and she fainted. With the
assistance of another woman, Atkins gave Odom mouth-to-mouth
resuscitation. Atkins then took Odom to the hospital. Atkins
said that he did not contact the police after leaving the
hospital because he did not have their phone number and because
he was afraid a warrant would be issued for his arrest.
Later in his statement, Atkins gave another version of the
events. Atkins said that when he was sitting in the truck and
heard the voices, he jumped out of the truck and saw Odom coming
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toward him. Odom had a gash on her face. Later, when Odom was
taking her bath and Atkins saw her injuries, he told her it
looked as if she had been hit with sticks. She told him she had
been beaten with sticks.
Odom's fourteen-year-old daughter testified that at 8:00
a.m. on December 27, her mother was seated motionless in Atkins'
truck in front of the motel room. Atkins got a coat from the
motel room. Odom's daughter next saw the coat over her mother's
shoulders. Atkins sent the two children to get sodas, and he
told them he and Odom were going to visit another couple in the
motel. When the children returned with the sodas, Atkins and
Odom were in the bathroom of the motel room. Odom's daughter
passed a soda through the slightly opened door and heard her
mother say "ouch." Later, Odom's daughter saw her mother lying
in bed with the sheets pulled up to her shoulders. Odom's
daughter said her mother never spoke to her or the other child.
She never saw Odom walking around, smoking, talking, or drinking
her soda.
Later, when the children awoke, Atkins left Odom at the
motel and took the two children to a friend's house. The
daughter saw blood in Atkins' truck on the rear passenger window
and headrest. When she asked Atkins if he had been fighting with
her mother, he just smiled. He asked her why she asked, and she
replied "[b]ecause I see blood." She testified that Atkins made
no further comment.
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Dr. Jack Daniel, the assistant medical examiner, opined that
Odom died of acute head trauma. He testified that "her entire
back, her buttocks, . . . the entire extent of her left arm,
[and] much of her right arm were covered with prominent bruises.
Associated with those bruises were a large number of small
angular . . . lacerations." Four lacerations on Odom's head
caused "a great deal of bleeding into her scalp" and bleeding on
the top of her brain. Odom had bruising and abrasions on the
front of both of her lower legs and her right knee, and she had
extensive bruising and swelling on both hands. Her right ring
finger was broken. Dr. Daniel testified that Odom also had
abrasions on the tip and sides of her nose and around her mouth.
The most severe injury on her face was a deep laceration about a
quarter of an inch long on the right side of her face near her
nose. Dr. Daniel further testified that if a stick had been used
in the beating, he would have expected a broken nose rather than
this type of injury.
Dr. Daniel opined that the "very, very severe bruising," the
extensive tissue damage, and the absence of major bone fractures
indicated that a flexible instrument was used to inflict Odom's
injuries. He testified that all of the marks, including the
angular irregular marks, were "entirely consistent" with having
been inflicted with a belt buckle. He also opined that the
configuration of a belt and its buckle recovered by the police
from Atkins' truck was "entirely consistent" with Odom's
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injuries. He testified, however, that any other belt could have
been used and that he could not rule out the possibility that a
tree branch was used to inflict these injuries. Dr. Daniel
further testified that Odom's injuries were inflicted by a dozen
or more blows and that the severity of Odom's injuries would have
been immediately apparent to anyone who saw her.
Dr. Daniel was recalled to testify after several witnesses
had testified. When Atkins' counsel objected to his further
testimony, Dr. Daniel was questioned to determine whether he had
violated the judge's admonition not to discuss the case with
others. During the course of this voir dire, Dr. Daniel
testified that a North Carolina detective, who had testified
earlier in the trial and had sat through Dr. Daniel's testimony,
talked with him during lunch. After further voir dire, the trial
judge overruled the objection.
Dr. Daniel testified again and opined that while Odom might
have been conscious for several hours after the injuries were
inflicted, he could not say "with any confidence" that she would
have been coherent. He stated that Odom would have become
"progressively less coherent, less responsive over a period of
hours if in fact she did not lose consciousness immediately."
At the conclusion of the evidence, the trial judge convicted
Atkins of second degree murder.
II.
Atkins first contends that the trial judge erred in not
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barring Dr. Daniel's second testimony. Atkins argues that Dr.
Daniel violated the judge's order not to discuss the case with
others and that the doctor had been prepared by other
Commonwealth's witnesses to answer certain questions prior to
being recalled to testify. Atkins asserts that he was prejudiced
by the testimony because without it, the Commonwealth would not
have established when Odom was beaten.
On voir dire, before his second testimony, Dr. Daniel
testified that when he spoke to the North Carolina detective at
lunch, "there was some question as to whether or not . . .
certain questions that might have been asked . . . about the
length of survival" and "what [the victim] might have been
capable of doing." Dr. Daniel stated that his opinions were not
changed as a result of his conversation with the detective. When
questioned by the trial judge, Dr. Daniel testified that although
he was aware of the nature of the questions he was about to be
asked by the Commonwealth's attorney, any response he would give
was unrelated to his conversation with the detectives.
The North Carolina detective testified that during their
walk to lunch he said to Dr. Daniel, "in North Carolina one of
the questions . . . would have asked the time. How long she
would have lived." He said that Dr. Daniel's response was "that
would have been a responsible or respectable question."
Detective Leonard, who testified after the lunch recess,
overheard the conversation. He testified that the North Carolina
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"detective . . . asked him -- he didn't understand why . . . the
Commonwealth attorney didn't ask Dr. Daniel . . . what the girl
could do after the beating. What she would be able to do."
Detective Leonard could not recall Dr. Daniel's response and
stated that he did not remember contributing to the conversation.
The Commonwealth's attorney stated that after lunch he
realized that he had forgotten to ask Dr. Daniel several
important questions. The Commonwealth's attorney stated that he
did not discuss these questions with Detective Leonard or the
North Carolina detective and that the questions were in his notes
but that he simply forgot to ask them.
Defense counsel asked the trial judge to prohibit Dr. Daniel
from testifying or to declare a mistrial. The judge denied the
motion and ruled as follows:
The paramount question in the Court's mind is
whether the conversations that took place
outside of this courtroom that should not
have taken place is likely to change the
testimony to be offered at this time by Dr.
Daniel. The Court has concluded that those
conversations and the manner in which this
situation arose will not affect the testimony
by Dr. Daniel as to whatever questions he may
be asked at this point during the remainder
of his time on the stand as a witness and for
that reason the Court sees no useful purpose
would be served by declaring a mistrial and I
shall not do that.
"The purpose of excluding witnesses from the courtroom is,
of course, to deprive a later witness of the opportunity of
shaping his testimony to correspond to that of an earlier one."
Huddleston v. Commonwealth, 191 Va. 400, 405, 61 S.E.2d 276, 279
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(1950). "A judge's admonition to witnesses not to discuss
[their] testimony with third parties until the trial is completed
. . . [is intended to] lessen the danger that [a witness']
testimony will be influenced by hearing what other witnesses have
to say, and to increase the likelihood that [witnesses] will
confine themselves to truthful statements based on their own
recollections." Perry v. Leeke, 488 U.S. 272, 281 (1989).
"A trial [judge] has discretion to decide whether a witness
who violates an exclusion order should be prevented from
testifying." Bennett v. Commonwealth, 236 Va. 448, 465, 374
S.E.2d 303, 314 (1988). On review, we must consider "whether
there was prejudice to the defendant . . . [,] whether there was
intentional impropriety attributable to the prosecution . . . [,]
whether the out-of-court comments concerned any substantive
aspect of the case[,] and whether [the comments] had any effect
on the witness' testimony." Id. Thus, "we cannot reverse the
trial court's action in permitting [Dr. Daniel] to testify unless
it appears that [Atkins] was prejudiced by such action." Satcher
v. Commonwealth, 244 Va. 220, 244, 421 S.E.2d 821, 836 (1992).
Although Dr. Daniel's testimony regarding the length of time
Odom would be conscious after the beating and Odom's degree of
coherence was damaging to Atkins, that is not the test of
prejudice. Rather, prejudice occurs where the violation of the
exclusion order somehow influences the testimony of the witness
on the stand. See Bennett, 236 Va. at 464-65, 374 S.E.2d at
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314-15 (no abuse of discretion where witness did not change
testimony as result of information obtained from Commonwealth in
violation of exclusion order); Jury v. Commonwealth, 10 Va. App.
718, 721, 395 S.E.2d 213, 215-16 (1990) (abuse of discretion to
refuse to allow witness who unintentionally remained in courtroom
in violation of exclusion order to testify because there was no
showing that witness' presence in courtroom influenced his
testimony). No evidence proved that Dr. Daniel's testimony was
influenced by his conversation with the North Carolina detective.
Although the conversation between Dr. Daniel and the North
Carolina detective violated the nondiscussion order, it did not
constitute a "coaching session" as Atkins suggests. The North
Carolina detective merely commented that the Commonwealth's
attorney forgot to ask a pivotal question, and Dr. Daniel agreed.
The detective did not prepare Dr. Daniel to answer certain
questions; indeed, he and Dr. Daniel did not discuss Dr. Daniel's
responses to any questions. Furthermore, Dr. Daniel testified
that although he knew what he would be testifying about, his
answer to the question was based on his autopsy and examination
of the victim, not on his lunch time conversation.
Having examined the record, we hold that the trial judge did
not abuse his discretion in permitting the witness to testify.
III.
We also hold that the evidence was sufficient to support
Atkins' conviction for second degree murder. Although the
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evidence in this case is entirely circumstantial, the principle
is well established that circumstantial evidence alone may be
sufficient to support a conviction. See Johnson v. Commonwealth,
2 Va. App. 598, 604-05, 347 S.E.2d 163, 167 (1986). When a case
is based on circumstantial evidence, the circumstances proved
must be consistent with guilt and exclude every reasonable
hypothesis of innocence. See Garland v. Commonwealth, 225 Va.
182, 184, 300 S.E.2d 783, 784 (1983). The Commonwealth "'is not
required to disprove every remote possibility of innocence, but
is, instead, required only to establish guilt of the accused to
the exclusion of a reasonable doubt.'" Cantrell v. Commonwealth,
7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988) (citation
omitted).
Atkins argues that his mere presence with Odom was
insufficient to support his conviction and that the evidence does
not exclude the hypothesis suggested by his statements to police
that Odom was injured when she was attacked on the street by a
group of people. The principle is firmly established that
"[o]pportunity is always a relevant circumstance . . . and, when
reinforced by other incriminating circumstances, may be
sufficient to establish criminal agency beyond a reasonable
doubt." Christian v. Commonwealth, 221 Va. 1078, 1082, 277
S.E.2d 205, 208 (1981). Here, there is substantial other
circumstantial evidence that supports the trial judge's finding.
Atkins' statement that Odom was functioning normally several
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hours after receiving her injuries was contradicted by the
medical evidence presented by Dr. Daniel and the testimony of
Odom's daughter. Dr. Daniel testified that by the nature and
severity of Odom's injuries, she could not have functioned as
Atkins suggests. If Odom had not been rendered unconscious by
the beating, Odom would have become progressively less coherent
and responsive. Odom's daughter's testimony further contradicts
Atkins' statements about Odom's behavior after the beating. She
did not see Odom smoke, drink, walk around, or even talk after
Odom and Atkins arrived at the motel.
The trial judge was not required to accept Atkins' version
of events. See Rollston v. Commonwealth, 11 Va. App. 535, 547,
399 S.E.2d 823, 830 (1991). The trial judge could disregard
Atkins' versions of events and chose to believe the testimony of
Dr. Daniel and Odom's daughter. "[D]eterminations of credibility
lie within the purview of the fact finder, who may reject a
witness' testimony and base a finding of guilt upon contradictory
statements. The fact finder may conclude that the defendant lied
to conceal his guilt." Moore v. Commonwealth, 25 Va. App. 277,
289, 487 S.E.2d 864, 870 (1997). See Sheppard v. Commonwealth,
250 Va. 379, 389, 464 S.E.2d 131, 137 (1995). Indeed, Atkins'
contradictory statements to police and witnesses about the events
leading up to Odom's death render doubtful the hypothesis
suggested by Atkins that Odom's injuries were caused by others.
The trial judge could reasonably infer that Odom could not have
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functioned normally as Atkins suggests but that she would be
increasingly approaching a state of unconsciousness.
In summary, Atkins was present when Odom was injured and
bleeding; he gave several contradictory statements about the
events in question; and Atkins' version of Odom's functioning
ability after the beating was contradicted by the medical
evidence. In addition, the belt found in Atkins' truck was
consistent with the marks on Odom's body. Atkins fled the
hospital, left the jurisdiction, and intentionally evaded the
police for one and a half months after the incident. See
Langhorne v. Commonwealth, 13 Va. App. 97, 102, 409 S.E.2d 476,
480 (1991) (an inference of guilty conduct arises from evidence
and avoidance of the police). Viewed in the light most favorable
to the Commonwealth, the evidence was sufficient to prove beyond
a reasonable doubt Atkins' guilt of the offense of second degree
murder.
For the foregoing reasons, we affirm the conviction.
Affirmed.
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