Rebecca L. Scott v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Senior Judge Hodges
Argued at Chesapeake, Virginia
REBECCA L. SCOTT
MEMORANDUM OPINION * BY
v. Record No. 2132-00-1 JUDGE WILLIAM H. HODGES
APRIL 3, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Edward L. Hubbard, Judge
Charles E. Haden for appellant.
Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Rebecca L. Scott appeals her convictions for first degree
murder, use of a firearm in the commission of a felony, criminal
solicitation, and conspiracy. She contends (1) the trial court
erred in admitting into evidence the preliminary hearing
transcript of the testimony of James Armstrong; and (2) the
evidence was insufficient to sustain her convictions. We affirm
the convictions.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted).
So viewed, the evidence proved that at approximately
6:00 p.m. on October 31, 1999, Clarence Scott, Jr., appellant's
grandfather, and her grandmother arrived home after returning
from an out-of-town trip. Appellant's grandparents shared their
home with their son, James Scott, and appellant, their
sixteen-year-old granddaughter. When Clarence Scott entered the
house, he saw a holster, a .22 magazine, and a butcher knife on
the dining room table. Appellant was not in the house at that
time. Appellant's grandparents discovered the dead body of
James Scott in the den. James Scott, who had been shot, was
sitting slumped over in his recliner.
The next morning at approximately 5:00, appellant arrived
home accompanied by her boyfriend, Ray Grantham. Appellant
asked her grandfather if she could wash her clothes.
Appellant's grandfather said to appellant, "You know, your daddy
is dead, go out there and take a look in his room and see what a
mess it is . . . ." Appellant's grandfather told appellant that
the police had been there and had told him to call them if he
saw appellant and Grantham. As appellant's grandfather picked
up the telephone to call the police, appellant went to her room
and Grantham "hot-footed it out the door like he had ants in his
pants."
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On November 1, 1999, at 6:45 a.m., Detective Misty Mercer
advised appellant of her Miranda rights and began to question
her with respect to her father's death. Mercer testified that
appellant initially denied any involvement in her father's
death. Mercer stated that appellant was reluctant to talk to
her because appellant did not want to get anyone in trouble.
Eventually, appellant made a statement to Mercer, which was
transcribed and introduced into evidence.
In that statement, appellant admitted that she and a group
of people had been talking "seriously" about killing her father
for the past two months. Appellant admitted she and Grantham
had offered a person named "Shawn" money to kill her father.
She said that the "pot" had gotten up to $1,500. She stated
that Shawn never committed the crime, so they thought of other
alternatives. She claimed that she had connections to gang
members. She stated that she called some of her gang friends,
but none of them would agree to kill her father. Appellant told
Mercer that on Saturday night, October 30, 1999, while she was
out with Grantham, her father paged her and told her to come
home. Grantham took appellant home and then left. Appellant
stated that her father was angry and she thought that he was
going to hit her with a yardstick, so she ran into her room.
She claimed that she left the house. When she returned, her
father was at the computer. Appellant told Mercer that the next
day, she went out with her friends, including Grantham, before
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she went to work. She acknowledged that Grantham knew about her
father's behavior on Saturday night. Appellant claimed that her
father had previously physically abused her. Appellant told
Mercer that "[w]e were all to our limits." She thought that
"today was the day" and that Grantham or someone else was going
to kill her father.
Appellant told Mercer that when she arrived home from work
at approximately 4:15 p.m. on October 31, 1999, her grandparents
were out of town and her father was asleep. Appellant admitted
that she retrieved two of her father's guns and took extra
bullets "cause usually [her] Dad wants them stay loaded."
Appellant stated that she placed the guns on the dining room
table. Appellant admitted that she knew Grantham was coming
over to her house, but denied that she knew James Armstrong
would be with him. When Mercer asked appellant, "And you knew
what [Grantham] was gonna do when he got there," appellant
replied, "Basically, yes."
Appellant told Mercer that when Grantham and Armstrong
arrived at her house, they entered the dining room and saw the
guns. She stated that Grantham was wearing gloves and a blue
ski mask. Appellant admitted that she gave the automatic gun to
Grantham, but when he tried to use it, it did not work. During
this time, Armstrong and Grantham were arguing over who would
kill appellant's father. Appellant told Mercer that Armstrong
knew that the first person to kill her father would get $1,500.
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Appellant stated that after the first gun did not work, Grantham
came back to the dining room and appellant handed him the other
gun and then went back to her room. She admitted that she heard
one gunshot. After that, she got her bookbag and they all left
the house. She told Mercer that Grantham disposed of the gun,
gloves, and mask at the location where they dropped off
Armstrong. After that, appellant and Grantham went to the home
of her friend, Heather.
Mary Ellen Goodman, a convicted felon who shared a room
with appellant for several days in the medical ward of the
Hampton Roads Regional Jail, testified that appellant told her
about the murder. Goodman stated that appellant told her that
the murder happened on Halloween night and that they had been
planning it for months. Appellant told her they did it on
Halloween because her grandparents were gone. Appellant told
Goodman that Grantham and a boy named "James" were involved.
Appellant told Goodman that she challenged them to kill her
father, saying, "You don't have the balls to kill my dad
. . . ." Appellant told Goodman that she went upstairs and got
a pillowcase for one of them to put over his face and that the
other one placed a ski mask over his face. Appellant told
Goodman that a gun was already on the dining room table and that
"[Grantham and James] took the gun, walked down three steps to
the bedroom, and [appellant] also got a pillow from her bedroom,
and they held the pillow over the father's head and pulled the
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trigger, but the gun didn't go off." Grantham and James
returned to the dining room, gave the gun to appellant, and told
her that it wouldn't go off. She called them a "dumb ass" and
told them they didn't take the safety off or something. Then
appellant "snuck" into her father's room and got another gun out
of the closet and brought the gun out to them. She loaded it
with a full clip and gave it to Grantham, but he didn't want to
shoot appellant's father. He was crying and shaking. James
told him, "Come on, you got to do it or the dad is going to beat
her again, and she'll lose the baby this time," and appellant
kept saying, "You don't have the balls, you don't have the
balls." Then Grantham and James walked into the father's room
and Grantham shot appellant's father while she was upstairs in
her bedroom getting a bag of clothes ready so she could run away
with them. Appellant ran downstairs and they all left the
house. They went to the home of a person named "Steve" and gave
him the gun and the pillowcase. Steve threw "the evidence" into
a river or creek behind the house. Goodman stated that she was
willing to testify because she feared for appellant's unborn
child, who appellant referred to as "the little bastard thing."
Goodman stated that all her charges have been dropped and that
the Commonwealth had not offered her anything for her testimony.
Patrick Campbell testified that he had known appellant for
approximately one and one-half years. Campbell stated that on
the evening of October 31, 1999, appellant, Grantham, and
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Armstrong came to his house at approximately 6:30 to 7:30 p.m.
Grantham had a pillowcase, which Campbell found the next day
stuffed inside a cabinet. There is a pond behind Campbell's
house. He did not see anyone discard anything into the pond,
but he heard a loud splash while they were there. Campbell
heard a "slight remark" from appellant that her dad was dead.
Mary Fuller testified that appellant and Grantham visited
her on the evening of October 31, 1999. Appellant ate dinner
and then went trick-or-treating with Fuller's son. Appellant
did not act as if anything was wrong. Appellant told Fuller
that her father was in West Virginia, that he was fine, and that
he said she and Grantham could go to Fuller's house. Appellant
told Fuller that she hated her father. Fuller stated that
Grantham acted as if something was wrong and would not eat.
The Commonwealth subpoenaed Armstrong to testify at trial
at two different addresses, 375 Hilltop Drive, Apartment C, the
address Armstrong gave at appellant's preliminary hearing, and
304 Fourstall, Apartment 3, Newport News, Virginia, another
address provided by Armstrong. The Commonwealth also obtained
personal service on Armstrong to testify at appellant's trial
when Armstrong was in the courthouse on another matter.
Armstrong did not appear in court on the date of appellant's
trial, and the Commonwealth represented that it had not heard
from him and did not know why he was not there to testify. The
Commonwealth requested that Armstrong be declared an unavailable
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witness and that it be allowed to introduce into evidence the
January 19, 2000 transcript of his testimony given at
appellant's preliminary hearing.
Appellant's counsel objected and argued that Armstrong, who
had been subpoenaed, was not an unavailable witness and that the
Commonwealth should go forward without his testimony or not go
forward at all. Appellant also argued that the use of the
transcript denied her right of confrontation. The trial court
overruled appellant's objection and allowed the Commonwealth to
introduce Armstrong's preliminary hearing transcript into
evidence.
Armstrong testified at the preliminary hearing that
Grantham came to Armstrong's job on October 31, 1999, and told
him that "today's the day we're going to kill Rebecca's dad."
Grantham told Armstrong that he was going to do it, but he would
pay Armstrong if Armstrong was "thinking about doing that."
Armstrong testified that when they arrived at appellant's house
that day, he saw appellant give a gun to Grantham, who was
wearing a ski mask and gloves. Armstrong testified that the
first gun did not work and that appellant said she was going to
the cabinet to get another gun. Armstrong saw Grantham with
another gun and he saw Grantham shoot appellant's father.
Grantham testified on behalf of appellant. Grantham
claimed that Armstrong took the gun and shot appellant's father.
Grantham denied killing appellant's father and stated that
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appellant had nothing to do with the murder. Grantham testified
that appellant's father was abusing her. He stated that the
murder was not planned. He claimed that when he and Armstrong
arrived at appellant's house on October 31, 1999, she did not
know Armstrong was coming over and that she thought Grantham was
coming to get her away from her father. Grantham claimed that
appellant was cleaning two of her father's guns when he and
Armstrong arrived at appellant's house because appellant's
father told her the guns needed to be cleaned by the end of the
weekend.
Appellant testified that she did not know Grantham was
going to kill her father on October 31, 1999. She denied any
involvement in the murder and contradicted some of the
statements she made to Mercer on November 1, 1999. She
contended that her father had been sexually abusing her since
the age of seven and that he had been physically abusing her
since the age of thirteen or fourteen. Nevertheless, she denied
that she wanted her father dead. Appellant testified that she
had reported the physical abuse to authorities prior to the
murder, but had not reported the sexual abuse to anyone before
her father's murder.
On rebuttal, Mercer testified that she obtained a taped
statement from Grantham on November 1, 1999. Mercer stated that
Grantham told her that he and appellant had talked to several
people about hiring them to kill appellant's father during the
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month or so before the murder. Grantham told Mercer that he and
Armstrong went to appellant's house on October 31, 1999.
Grantham stated that when they arrived at the house, there were
two guns on the dining room table and that he had a mask and
gloves. Grantham told Mercer that he took one of the guns and
tried to shoot appellant's father, but the gun did not work.
Grantham retrieved the other gun, took a pillow, placed it up to
appellant's father's head, pulled the trigger, and killed him.
I. Admission of Preliminary Hearing Transcript
of Armstrong's Testimony
In Longshore v. Commonwealth, 260 Va. 3, 530 S.E.2d 146(2000), the Supreme Court held that a trial court may admit into
evidence the preliminary hearing testimony of a witness who is
absent at a subsequent criminal trial if the following
conditions are satisfied:
(1) that the witness is presently
unavailable; (2) that the prior testimony of
the witness was given under oath (or in a
form of affirmation that is legally
sufficient); (3) that the prior testimony
was accurately recorded or that the person
who seeks to relate the testimony of the
unavailable witness can state the subject
matter of the unavailable witness's
testimony with clarity and in detail; and
(4) that the party against whom the prior
testimony is offered was present, and
represented by counsel, at the preliminary
hearing and was afforded the opportunity of
cross-examination when the witness testified
at the preliminary hearing.
Id. at 3-4, 530 S.E.2d at 146.
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Appellant contends that the Commonwealth failed to
establish that Armstrong was unavailable and that his testimony
was reliable. Appellant also argues that the admission of the
transcript of Armstrong's preliminary hearing testimony denied
her Sixth Amendment right to confront her accusers.
Unavailability
The party offering the testimony bears the
burden of establishing the witness'
unavailability.
"'[A] declarant is unavailable if the
party seeking to introduce the statement has
been unable by diligent inquiry to locate
the declarant.'" We have held that
reasonable or "due diligence is that amount
of prudence 'as is properly to be expected
from, and ordinarily exercised by, a
reasonable and prudent man under the
particular circumstances.'" This standard
"requires only a good faith, reasonable
effort; it does not require that every
possibility, no matter how remote, be
exhausted." Furthermore, "it is well
established that the sufficiency of the
proof to establish the unavailability of a
witness is largely within the discretion of
the trial [judge], and, in the absence of a
showing that such discretion has been
abused, will not be interfered with on
appeal."
Bennett v. Commonwealth, 33 Va. App. 335, 347-48, 533 S.E.2d 22,
28-29 (2000) (en banc) (citations omitted).
The trial court did not abuse its discretion in finding
that Armstrong was unavailable because the Commonwealth had
exercised due diligence to secure Armstrong's appearance at
trial. The Commonwealth subpoenaed Armstrong at two different
addresses and obtained personal service upon him while he was in
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the courthouse on another matter. No evidence suggested that
Armstrong had relocated or was otherwise unaware of his
obligation to appear at appellant's trial. Under these
circumstances, the trial court did not abuse its discretion in
concluding that the Commonwealth had acted reasonably and
diligently to secure Armstrong's attendance at trial and thereby
establishing his unavailability.
Reliability
Appellant argues on appeal that the preliminary hearing
transcript of Armstrong's testimony should not have been
admitted into evidence at her trial because his testimony was
not credible. Appellant did not make this argument to the trial
court at the time that she objected to the admission of the
transcript when the Commonwealth offered it into evidence. 1 "To
be timely, an objection must be made when the occasion
arises -- at the time the evidence is offered or the statement
made." Marlowe v. Commonwealth, 2 Va. App. 619, 621, 347 S.E.2d
167, 168 (1986). Because appellant did not raise this
particular argument at the time the transcript was offered into
evidence and when she objected to its admission, we will not
consider it on appeal. See Rule 5A:18.
1
Appellant's counsel argued during closing argument that
Armstrong's preliminary hearing testimony was not credible.
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Right of Confrontation
Appellant argues that her trial counsel, who was different
from her counsel at the time of her preliminary hearing, did not
have an opportunity to cross-examine Armstrong at the
preliminary hearing and, therefore, she was denied her Sixth
Amendment right of confrontation.
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).
Armstrong's testimony at the preliminary hearing was given
under oath, and appellant was represented by counsel at the
preliminary hearing. The fact that appellant's trial counsel
was different from her preliminary hearing counsel was of no
consequence. Appellant's counsel was provided an adequate
opportunity at the preliminary hearing to cross-examine
Armstrong on the issues that later developed at trial. Under
these circumstances, appellant's Sixth Amendment right of
confrontation was met, and the trial court did not abuse its
discretion in admitting the preliminary hearing transcript of
Armstrong's testimony into evidence.
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II. Sufficiency of the Evidence
Code § 18.2-29 provides that "[a]ny person who commands,
entreats, or otherwise attempts to persuade another person to
commit a felony, shall be guilty of [criminal solicitation,] a
Class 6 felony." Thus, "[c]riminal solicitation involves the
attempt of the accused to incite another to commit a criminal
offense. 'It is immaterial whether the solicitation has any
effect and whether the crime solicited is in fact committed.
. . . The gist of [the] offense is incitement.'" Branche v.
Commonwealth, 25 Va. App. 480, 490, 489 S.E.2d 692, 697 (1997).
"[T]he act of solicitation may be completed before an attempt is
made to commit the solicited crime." Ford v. Commonwealth, 10
Va. App. 224, 226, 391 S.E.2d 603, 604 (1990).
"A conspiracy is 'an agreement between two or more persons
by some concerted action to commit an offense.'" Smith v.
Commonwealth, 19 Va. App. 594, 598, 453 S.E.2d 572, 575 (1995)
(citations omitted).
"A principal in the second degree is
one not the perpetrator, but present, aiding
and abetting the act done, or keeping watch
or guard at some convenient distance." . . .
The defendant's conduct must consist of
"inciting, encouraging, advising or
assisting in the [crime]." It must be shown
that the defendant procured, encouraged,
countenanced, or approved commission of the
crime. "To constitute one an aider and
abettor, he must be guilty of some overt
act, or he must share the criminal intent of
the principal."
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Rollston v. Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823,
825 (1991) (citations omitted). See Code § 18.2-18 (in felony
cases, except most capital murders, principal in second degree
may be indicted, tried, convicted and punished in all respects
as if principal in first degree).
Based upon Mercer's testimony and appellant's statements to
Mercer, the fact finder could conclude that appellant attempted
to persuade others to kill her father and that she conspired
with Grantham to kill her father. Based upon Mercer's testimony
and appellant's statements to Mercer, appellant's statements to
Goodman, and Armstrong's testimony, the fact finder could
conclude that appellant was present at the commission of the
crime and that she incited, encouraged, advised, or assisted in
the murder of her father. The fact finder was entitled to
accept the testimony of the Commonwealth's witnesses and to
reject the contrary testimony of appellant and Grantham. "The
credibility of the witnesses and the weight accorded the
evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995). The testimony of the Commonwealth's witnesses was
competent, was not inherently incredible, and was sufficient to
prove beyond a reasonable doubt that appellant was guilty of
criminal solicitation and conspiracy and that she was guilty of
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murder and the use of a firearm in the commission of a felony as
a principal in the second degree.
For these reasons, we affirm appellant's convictions.
Affirmed.
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