Schlimme v. Commonwealth , 16 Va. App. 15 ( 1993 )

Opinion

ELDER, J.

Albert C. Schlimme, IV (appellant), appeals from convictions for second degree murder and use of a firearm in the commission of a murder. He challenges the giving of a jury instruction on flight. He also contests the sufficiency of the evidence based on the theory that the circumstantial evidence was insufficient to support a finding of guilt beyond a reasonable doubt and failed to exclude every reasonable hypothesis of innocence. For the reasons set forth below, we affirm appellant’s convictions.

The murder victim, Brian Hinchey, was shot in the chest around 1:00 a.m. on April 8, 1990, by an unidentified person in a red car. No bullet was found in Hinchey’s body, but police recovered a small lighter resembling a gun beneath the body and a shell casing and bullet¹ about ten feet away. Ballistics evidence showed that the bullet and casing had been fired from a 9mm pistol found under the seat of appellant’s car on September 19, 1990. This gun was also identified as one stolen from the car of a third party, Julian Skipper, in the early morning hours of April 7, 1990, approximately twenty-four hours before Hinchey’s shooting. In addition to the gun, Skipper had reported ammunition and a baseball cap missing. In conducting their search of September 19, the police recovered these items from inside a house in Maryland where appellant was staying with his grandmother.

Between 9:00 and 11:00 a.m., also on April 7, 1990, appellant arrived at the house of a friend, Warren Younce, with a 9mm pistol in his possession, which appellant and Younce fired. Younce testified that he had never seen the pistol before and did not know how appellant had obtained it. Later that evening, Younce’s younger sister, Sherri, a man named Kendall Bess, and appellant left the Younce house in a 1988 burgundy-red Dodge Daytona owned by Warren and Sherri’s mother. Sherri Younce remembers very little about that evening because she had been drinking and taking drugs. She did testify, however, that she was at home by 1:00 a.m. and that her mother’s car was in the driveway when she woke up the next morning. Before trial, Bess was killed in an auto accident.

Warren Younce last saw appellant, Sherri and Bess in his mother’s car at 7:00 p.m. that same evening, and did not see appellant again for at least two months because appellant was out of town. Appellant phoned Younce two or three times during that period, and at one point appellant told Younce that he had been involved in a shooting.

At trial, after the Commonwealth rested, counsel for appellant moved to strike, and the motion was denied. Appellant elected not to put on any evidence, and renewed his motion, which was again denied.

1.

Appellant asserts first that the court erred in giving the jury an instruction on flight. Although appellant objected to the giving of the instruction at the close of trial, he did not object during trial to admission of the evidence relating to flight. Based on Rule 5A:18, he may not raise such an objection for the first time on appeal. Accordingly, our only concern is with the propriety of the instruction itself. Our review of this issue is governed by the principle that a proffered instruction should be given “[i]f [it] finds any support in credible evidence.” McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975).

A determination of the propriety of the flight instruction requires an analysis of the two different types of flight implicated in this case: flight from the scene of the crime and flight from the area or jurisdiction. Although appellant’s assignment of error is premised on flight from town and not from the crime scene itself, the instruction was neutral on its face and could have applied to either type. Generally speaking, evidence of either type of flight is admissible when “[the flight] may be to avoid arrest, prosecution, or confinement[,] [because it] tends to show a consciousness of guilt.” Langhorne v. Commonwealth, 13 Va. App. 97, 103, 409 S.E.2d 476, 480 (1991).

A.

In regard to flight from the scene, this is an unusual case in that the record contains no eyewitness testimony directly linking appellant to the scene of the crime. All the evidence presented by the Commonwealth was circumstantial. Although appellant argues otherwise and there appear to be no cases on point, this fact is not fatal to the Commonwealth’s case. “[A]ny . . . criminal charge . . . [may] be proved by circumstantial evidence . . . ‘[w]here all the circumstances of time, place, motive, means, opportunity and conduct concur in pointing out the accused as the perpetrator of the crime.’ ” Potts v. Commonwealth, 12 Va. App. 1093, 1097, 408 S.E.2d 256, 258 (1991) (quoting Lyons v. City of Petersburg, 221 Va. 10, 13, 266 S.E.2d 880, 881 (1980) (per curiam)) (other citation omitted). Logically, then, circumstantial evidence may also be used to place appellant at the scene of the crime, thereby justifying the giving of an instruction on flight.

The evidence shows that the murderer, who was travelling in a red car, fled the scene within minutes after the fatal shot was fired. Appellant and Kendall Bess were also travelling in a red car that night. On the morning before the murder, appellant was seen with a 9mm pistol in his possession. The evidence shows that a bullet and casing found at the scene were fired from a 9mm pistol which had been stolen from a third party approximately twenty-four hours before the murder. That same pistol was found under the seat of appellant’s car several months later. Other items stolen along with the pistol were found inside a house in Maryland where appellant was staying with his grandmother. Clearly, the Commonwealth presented credible circumstantial evidence linking appellant to the scene of the crime, thereby justifying the giving of an instruction on flight.

B.

The instruction was also proper as applied to the second type of flight—flight from the jurisdiction. The evidence showing appellant’s flight to Maryland was even stronger than that relating to flight from the scene. Although the Commonwealth was unable to show precisely when appellant left the area, it did show that one witness, Warren Younce, did not see appellant for at least two months after the shooting. Younce testified that he had known appellant for about a year and that they saw each other “frequently” prior to the murder. The evidence also showed that appellant phoned Younce several times after leaving town and admitted during one of those conversations that he had been involved in a shooting. Given that ‘ ‘any credible evidence’ ’ will support the giving of a proffered jury instruction, we conclude that the instruction was appropriate as it related to flight from the jurisdiction.

Appellant argues that the instruction was improper because the evidence did not show precisely when he left the jurisdiction, but only that he was out of town two months after the murder. Typically, however, “[t]he remoteness in time of the flight goes to the weight of the evidence and not to its admissibility.” Langhorne v. Commonwealth, 13 Va. App. at 103, 409 S.E.2d at 480 (citations omitted). The more remote in time the flight, the greater the chance that it was caused by something other than guilt of the crime. Id. The immediacy of the flight may “go to admissibility . . . where ‘the defendant does not know, or his knowledge is doubtful, about the charges and the accusations made against him.’ ” Id. (quoting United States v. Hernandez-Miranda, 601 F.2d 1104, 1106 (9th Cir. 1979)). However, “the importance of the immediacy of the flight is diminished if there is . . . other evidence to indicate that the defendant knew he was sought for the crime.” Id. (quoting United States v. Martinez, 681 F.2d 1248, 1258 (10th Cir. 1982)).

Appellant argues, under the principles stated above, that the instruction should not have been given because the Commonwealth did not show that he had any knowledge of the charges against him at the time he fled. This argument fails for several reasons. First, appellant admitted to Warren Younce that he had been involved in a shooting. Second, the nature of the crime in this case is such that the murderer would have known that the crime would be discovered soon after its commission. This is in marked contrast to the case cited above, which involved drug transactions which might never have been discovered by the authorities. See, e.g., Langhorne, 13 Va. App. at 103, 409 S.E.2d at 480. In this case, however, the murderer almost certainly knew that the crime would become known to the police as a result of the gunshots and the presence of the victim’s body by the side of the road. For that reason, proving that appellant had knowledge of pending charges is less important in this case. Third, the above principles concerning knowledge of pending charges and the immediacy of the flight apply to the admissibility. of evidence, not to the giving of a flight instruction based on evidence already admitted. As stated earlier, appellant did not object to the admission of that evidence at trial and may not raise such an objection for the first time on appeal.

Based on the evidence introduced at trial, we hold that the court did not err in giving the instruction on flight.

II.

Appellant also challenges the sufficiency of the evidence.

When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. The jury’s verdict will not be disturbed on appeal 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) (citations omitted). It is true that, in a case based upon circumstantial evidence, the Commonwealth must exclude every reasonable hypothesis of innocence. Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988). “However, ‘[wjhether the Commonwealth relies upon either direct or circumstantial evidence, it 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.’ ” Id. (quoting Bridgeman v. Commonwealth, 3 Va. App. 523, 526-27, 351 S.E.2d 598, 600 (1986)).

In this case, the circumstantial evidence is sufficient to exclude all reasonable hypotheses of innocence. Although no one actually saw appellant at the scene of the crime, the circumstantial evidence, viewed in the light most favorable to the Commonwealth, was sufficient to justify the jury’s conclusion that appellant was present at the scene. The evidence established that the murderer, who was travelling in a red car, fled the scene within minutes after the shots were fired. Appellant and Kendall Bess were also travelling in a red car that night. On the morning before the murder, appellant was seen with a 9mm pistol in his possession. The bullet and casing found at the scene were fired from a 9mm pistol which had been stolen from a third party approximately twenty-four hours before the murder, and that same pistol was found under the seat of appellant’s car several months later.

Appellant’s mere presence at the scene does not necessarily exclude all reasonable hypotheses of innocence, for the evidence established that Kendall Bess may also have been present. When coupled with evidence concerning appellant’s flight from the jurisdiction, however, the Commonwealth’s proof is sufficient. Although the Commonwealth was unable to show precisely when appellant left the area, it did show that one witness, Warren Younce, did not see appellant again for at least two months after the shooting. Younce testified that he had known appellant for about a year and that they saw each other “frequently” prior to the murder. He also testified that he had seen appellant twice on the day before the murder. He had joined appellant in test-firing the 9mm pistol on the morning before the murder, and he saw appellant, who was out with Younce’s sister and Kendall Bess in Younce’s mother’s car, on the evening of the murder. The evidence also showed that appellant phoned Younce several times after leaving town and admitted during one of those conversations that he had been involved in a shooting.

Viewing the evidence of appellant’s flight from both the scene and the jurisdiction in conjunction with the Commonwealth’s other evidence, including appellant’s possession of the 9mm pistol and other stolen items at the time of his arrest, we find the evidence sufficient to support the jury’s finding of guilt. For the reasons outlined above, we cannot say that the verdict was plainly wrong or without evidence to support it. Accordingly, the judgment of the trial court is affirmed.

Affirmed.

Willis, J., concurred.

1 Although the casing was found on the night of the murder, the bullet was not discovered until two months later through the use of a metal detector.