JOAQUIN SHADOW RAMS, SR., A/K/A JOHN ANTHONY RAMIREZ, JR., A/K/A JOHN ANTHONY RAMIREZ, A/K/A JUQUIN ANTHONY RAMS, A/K/A JOAQUIN SHADOW RAMS, A/K/A JOAQUIN S. RAMS v. COMMONWEALTH OF VIRGINIA
Record No. 1453-17-4
COURT OF APPEALS OF VIRGINIA
FEBRUARY 26, 2019
CHIEF JUDGE MARLA GRAFF DECKER
Present: Chief Judge Decker,* Judge Malveaux and Senior Judge Haley. Argued at Fredericksburg, Virginia.
PUBLISHED
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Randy I. Bellows, Judge Designate
Meghan Shapiro, Deputy Capital Defender (Christopher Leibig; Law Offices of Christopher Leibig, on briefs), for appellant.
Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Joaquin Shadow Rams, Sr., appeals his conviction for capital murder in violation of
evidence was sufficient to support
I. BACKGROUND2
A. The Victim and the Crime
The appellant‘s son, P.R., was born on July 1, 2011. The appellant and P.R.‘s mother resided together at the time of the birth, but the mother moved out with P.R. when he was about two weeks old. The mother had sole legal and physical custody of the child, and the appellant was eventually permitted to have unsupervised visitation.
P.R. developed normally as an infant and met all developmental milestones. Between eleven and fifteen months of age, P.R. had at least five febrile seizures, which were described by various doctors as “benign.”3 Each seizure was “brief,” lasting two seconds to ten minutes. P.R. stopped breathing briefly during one of the seizures, but each one resolved on its own without the need for resuscitation. P.R. had one of those seizures during a visit with the appellant.
A pediatric neurologist examined P.R. after the first three seizures and opined that he was a “neurologically . . . and developmentally normal” infant who was experiencing “classic febrile seizures.” After that visit, P.R.‘s mother provided the appellant with information regarding the seizures. That information included cooling P.R. during a seizure with a sponge bath.
On October 20, 2012, during visitation with the appellant, fifteen-month-old P.R. became unresponsive and later died. The appellant, who reported that he found P.R. unresponsive in his crib, claimed that P.R. was “very hot” and in the midst of a seizure. Others in the home who responded to the appellant‘s pleas for help could not confirm these claims. In the presence of witnesses, the appellant splashed the child with cold water in the bathtub while waiting for emergency medical personnel to arrive. First responders found P.R. cold, wet, and unresponsive. They began cardiopulmonary resuscitation (CPR) and other emergency measures, and transported P.R. to the hospital by ambulance. He was eventually resuscitated at the hospital, but he died the next day. The death occurred after the appellant had purchased more than $500,000 of insurance on P.R.‘s life.
B. Pre-Trial Motions and Theories of the Case
The appellant was charged with capital murder under an indictment alleging in relevant part that he “kill[ed]” P.R. “deliberately and with premeditation.” The parties consulted numerous medical experts in preparation for trial. Those experts agreed that P.R.‘s death resulted from oxygen deprivation, which led to irreversible brain damage and cardiac arrest. However, opinions varied regarding the precise cause of P.R.‘s death.
The appellant filed several pre-trial motions seeking a bill of particulars requiring the Commonwealth to specify what cause or causes of death it sought to prove. The trial court denied the motions. The Commonwealth‘s initial theory of the case, which the prosecutor conveyed to the appellant verbally prior to trial, was that the appellant drowned P.R. for the insurance money. The appellant contended that P.R. died from a febrile seizure or some other noncriminal cause. During trial, the prosecution altered its theory to contend that in addition to drowning, the death could have resulted from suffocation.
C. The Trial Court‘s Ruling
After considering the evidence, the court convicted the appellant of capital murder and sentenced him to life in prison without possibility of parole.4 The court also ordered him
1. Natural Causes of Death and the Appellant‘s Credibility
The trial judge rejected the theory that P.R. died from a febrile seizure. In doing so, he relied in large part on the testimony of Dr. Shlomo Shinnar, a professor and pediatric neurologist. The judge, in finding Dr. Shinnar to be the “most experienced, most knowledgeable, and most credible on the issue of febrile seizures and other neurology issues,” noted that even one of the appellant‘s experts recognized Dr. Shinnar as “the ‘febrile seizure king.‘” Shinnar opined to a reasonable degree of medical certainty that given P.R.‘s “strong family history of [such] seizures, he [fell] into” a particular category of inherited febrile seizures5 and that children in this category are “at high risk for frequent febrile seizures but not at increased risk of mortality.” The judge accepted Shinnar‘s specific testimony that children do not die from febrile seizures and that “[i]t is ‘beyond any shadow of a doubt’ that a febrile seizure was not a contributor in [P.R.]‘s death.” The judge also noted numerous other expert witnesses who confirmed Dr. Shinnar‘s opinion that febrile seizures do not lead to cardiac arrest or death.
The judge next recounted the evidence surrounding the events of October 20, 2012. He noted that the only evidence tending to indicate that P.R. had a seizure that day came from the appellant, and he concluded that the appellant was lying. The judge based this finding on evidence contradicting the appellant‘s stated observations about P.R. The appellant reported that he had observed P.R. having a seizure just before another member of the household called 911 at 2:20 p.m. The judge additionally noted that during the call, at approximately 2:21 p.m., the appellant stated that P.R. was “really hot.” When emergency medical personnel arrived “at the patient‘s side” at 2:27 p.m., they found the child in cardiac arrest and attempted to resuscitate him. However, in contrast to the appellant‘s report that P.R. was “really hot,” the emergency responder who was “the first person to put hands on” the child upon arriving six minutes later testified that P.R. was “cold” and “pale” and “had bluish lips.” Another first responder, who carried P.R. to the ambulance before it departed minutes later, noted that when he picked the child up, “he was very cold to the touch.” Finally, when P.R.‘s temperature was taken at the hospital at 2:44 p.m., it was 91.2 degrees, which was “hypothermic.” At 3:00 p.m., hospital personnel resuscitated P.R., but he was later declared brain dead and was removed from life support the following day.
The judge found, based on evidence that P.R. was cold to the touch at 2:27 p.m. and had a hypothermic temperature of 91.2 degrees at the hospital seventeen minutes later, that P.R. could not have been “really hot” at 2:21 p.m. as the appellant had claimed. He noted expert testimony that it would take “a couple of hours,” not a mere twenty-three minutes, for the child‘s body to cool from 98 to 91 degrees and that a “child should still feel hot” or “warm to the touch even [if] splashed with cold water,” as P.R. had been. Dr. Shinnar also opined that it was “not medically plausible that the child was actively convulsing . . . in the way the [appellant] ha[d] stated” and “a few minutes later was dead and cold.” The judge recognized that other witnesses testified that the reported drop in temperature was “understandable and credible,” but he “was not persuaded by these witnesses.” Further, the judge concluded from the seizure and breathing activity that the appellant reported, as well as his claim regarding the child‘s temperature, that the appellant did not simply misperceive the immediate aftermath of cardiac arrest for a febrile seizure. The judge specifically found that the appellant “was lying” about P.R.‘s temperature to support his bigger “false claim” that he had witnessed the child having a febrile seizure that turned fatal.
2. Corpus Delicti: Unnatural Death and Criminal Agency
The judge then turned to the issue of the corpus delicti. He pointed to established case law providing that a court considering the cause of a death is not limited to evidence regarding the body itself and may also consider the surrounding circumstances. He noted further that the Commonwealth was not required to prove the precise cause of death as long as the trier of fact found beyond a reasonable doubt that the victim‘s death was caused by the criminal agency of another rather than by suicide, accident, or some noncriminal natural cause.
The judge specifically found that “[P.R.‘s] oxygen supply was cut off,” causing cardiac arrest and “irreversible brain damage.” He further found that the oxygen deprivation resulted from drowning or suffocation and that these were not natural causes on the facts of this case. The judge instead concluded from the evidence that P.R.‘s death resulted from the criminal agency of another. He noted that the appellant told several lies to emergency medical personnel and that these showed guilty knowledge and criminal intent. Finally, the judge held that the appellant was the only person who had motive, opportunity, and means to commit the murder.
a. Motive
Regarding motive, the judge found that the appellant was “in desperate financial straits” at the time of P.R.‘s death and “st[ood] to benefit financially” from it. He noted that the appellant‘s finances were “on a downward spiral” from 2009 to 2012. The appellant initially received financial help from his girlfriend, P.R.‘s mother, but within a few weeks of P.R.‘s birth on July 1, 2011, she moved out of the appellant‘s residence with P.R. and stopped paying the mortgage. The appellant then began renting out his home in order to pay the mortgage, while he and his teenaged son S.R. lived with his friends Harold and Sue Jestice.
In September of 2011, the appellant filed for custody of P.R. and began purchasing insurance on P.R.‘s life. Between September and November 2011, the appellant obtained three insurance policies totaling almost $525,000, which was about $6,000 more than the outstanding mortgage balance on the appellant‘s home.
In July 2012, the appellant was granted unsupervised visitation with P.R. On September 8, 2012, P.R. had a febrile seizure during a visit with the appellant. On September 21, 2012, the appellant‘s visitation was cancelled “due to [P.R.‘s] seizure and sickness.” Consequently, the appellant knew by that time that P.R. had experienced at least two febrile seizures. The very next day, September 22, 2012, despite the fact that the appellant‘s financial situation remained “bleak” and the bank had referred his home mortgage for foreclosure, the appellant texted his realtor that he was “thinking of moving back home.” Then, less than a month later, the appellant again texted his realtor and confirmed that she should take the house off the market because he would be “moving . . . back [in]to [it],” buying new appliances, having the house repainted, and maybe even “doing the deck or pool.” The judge found “nothing” in the appellant‘s “financial life” at that time that would cause him to believe that he could pay the mortgage arrearages and the new monthly mortgage payments, as well as buy new appliances and put in a deck or pool. Finally, the judge specifically noted that “even though [the appellant] was so broke he couldn‘t pay his mortgage, he never missed a premium payment on [P.R.‘s] life insurance policies.”
Regarding the appellant‘s opportunity to kill P.R. on the day in question, the judge found that the murderer would have needed five to ten minutes alone with the child to commit the crime. The judge accepted evidence, including the testimony of the Jestices, that P.R. seemed normal during his visit that morning. The Jestices further related that they left the appellant‘s portion of their home, located on the second floor, between 12:00 and 1:35 p.m. so that P.R. could nap. The appellant was then alone in his room with P.R. for some period of time and later put P.R. in his crib in S.R.‘s bedroom. Sometime after 2:00 p.m., the appellant yelled to Roger Jestice to “call 911.” Roger grabbed the phone and ran upstairs while dialing. Upon arriving upstairs, he saw the appellant holding P.R. in the bathtub while splashing water onto the lower portion of the child‘s body.
The judge evaluated the testimony of S.R., upon whom the appellant relied in part for his alibi. He concluded that S.R.‘s testimony about when various things happened that day was unreliable because the thirteen year old was distracted while playing a video game. The judge determined, based on his finding that S.R. was not a credible reporter of events due to inattention, that the appellant had a period of at least forty-five minutes, between when the Jestices departed and when the appellant claimed to have discovered P.R. having a seizure, during which the appellant could have inflicted the fatal injuries. In the alternative, the judge concluded that even if he credited S.R.‘s testimony, the appellant had what S.R. testified was “about five minutes” alone with P.R. before putting the child into his crib during which the appellant could have killed him. (Emphasis added). The judge found that S.R. could simply not have noticed that P.R. was dead when he passed the child, who was lying on his stomach in the crib, on his way to the bathroom.
c. Means
Regarding means, the judge noted that the appellant had ready access to the water needed to drown P.R., as well as to a pillow with which to suffocate him. The judge also observed that the appellant, in defending himself, “focused on what occurred after [P.R.] was removed from the crib.” (Emphasis added). The court, however, emphasized that the appellant had access to the same sources of water before he put P.R. in his crib. Further, the judge noted that experts who ruled out drowning as a possible cause of death did so at least partially because no witnesses reported seeing P.R. “submer[ged]” in water to an extent that could have caused drowning. Although those experts obviously took the reported observations of the witnesses, including the appellant, at face value, the judge was not required to do so. Accordingly, the evidence left open the possibility that P.R. had in fact been submerged in a sufficient amount of water to cause drowning. Consequently, the judge found that the evidence proved that the appellant killed P.R. by either drowning or suffocating him.
II. ANALYSIS
The appellant contends that the evidence was insufficient to support his conviction for capital murder. He also suggests that the circuit court‘s denial of his request for a bill of particulars violated his due process rights.
A. Sufficiency of the Evidence
The appellant argues that the evidence did not support his conviction in two ways. First, he suggests that the Commonwealth did not prove the corpus delicti—that P.R.‘s death resulted from a criminal act. Second, the appellant contends that the circumstantial evidence as a whole failed to establish his guilt.
“When considering a challenge to the sufficiency of the evidence to sustain a conviction, th[e appellate court] reviews ‘the evidence in the light most favorable to the prevailing party at trial and consider[s] all inferences fairly deducible from that evidence.‘” Clark v. Commonwealth, 279 Va. 636, 640 (2010) (second alteration in original) (quoting Jones v. Commonwealth, 276 Va. 121, 124 (2008)). “Viewing the record through this evidentiary prism requires [the court] to ‘discard the evidence of the accused in conflict with that of the
“The fact finder, who has the opportunity to see and hear the witnesses, has the sole responsibility to determine their credibility, the weight to be given their testimony, and the inferences to be drawn from proven facts.” Hamilton v. Commonwealth, 279 Va. 94, 105 (2010) (quoting Commonwealth v. Taylor, 256 Va. 514, 518 (1998)). When expert witnesses give conflicting opinions, “a credibility battle” arises, and it is up to the fact finder to determine which expert‘s testimony is more credible. See Riner v. Commonwealth, 268 Va. 296, 329-30 (2004). Similarly, where a single witness makes contradictory statements on direct and cross-examination, those statements “go not to competency but to the weight and sufficiency of the testimony. If the trier of the facts sees fit to base [its ruling] upon that testimony[,] there can be no relief in the appellate court.” Towler v. Commonwealth, 59 Va. App. 284, 291 (2011) (quoting Swanson v. Commonwealth, 8 Va. App. 376, 379 (1989)). Additionally, in drawing inferences from the evidence, the fact finder may conclude regarding even a non-testifying defendant that his false statements establish that he has lied to conceal his guilt. See Shackleford v. Commonwealth, 262 Va. 196, 209-10 (2001); Rollston v. Commonwealth, 11 Va. App. 535, 545, 548 (1991).
The sufficiency “inquiry does not distinguish between direct and circumstantial evidence, as the fact finder . . . ‘is entitled to consider all of the evidence, without distinction, in reaching its determination.‘” Commonwealth v. Moseley, 293 Va. 455, 463 (2017) (quoting Commonwealth v. Hudson, 265 Va. 505, 512-13 (2003)). Circumstantial evidence is not “viewed in isolation” because the “combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable [fact finder]” to conclude beyond a reasonable doubt that a defendant is guilty. Muhammad v. Commonwealth, 269 Va. 451, 479 (2005).
When circumstantial evidence is involved, the evidence as a whole must be “sufficiently convincing to exclude every reasonable hypothesis except that of guilt.” Dowden v. Commonwealth, 260 Va. 459, 468 (2000). However, the Commonwealth is “not required to exclude every possibility” of the defendant‘s innocence but, rather, “only . . . hypotheses of innocence that flow from the evidence.” Id. “The reasonable-hypothesis principle is ‘simply another way of stating that the Commonwealth has the burden of proof beyond a reasonable doubt.‘” Moseley, 293 Va. at 464 (quoting Hudson, 265 Va. at 513). The reasonableness of “an alternate hypothesis of innocence” is itself a question of fact, and thus, the fact finder‘s determination regarding reasonableness “is binding on appeal unless plainly wrong.” Wood v. Commonwealth, 57 Va. App. 286, 306 (2010) (quoting Emerson v. Commonwealth, 43 Va. App. 263, 277 (2004)). “By finding the defendant guilty, therefore, the [fact finder] ‘has found by a process of elimination that the evidence does not contain a reasonable theory of innocence.‘” Haskins v. Commonwealth, 44 Va. App. 1, 9 (2004) (quoting United States v. Kemble, 197 F.2d 316, 320 (3d Cir. 1952)).
Finally, “[i]f there is evidence to support the conviction[], the reviewing court [may not] substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.” Clark, 279 Va. at 641 (quoting Commonwealth v. Jenkins, 255 Va. 516, 520 (1998)). Again, the appellate court will reverse the judgment of the trial court only if it is “plainly wrong or without evidence to support it.” Id. at 640 (quoting Wilson v. Commonwealth, 272 Va. 19, 27 (2006)).
It is in
1. Corpus Delicti
The appellant challenges various aspects of the evidence related to proving the corpus delicti.
“The corpus delicti is a material fact to be established in every criminal prosecution.” Bowie v. Commonwealth, 184 Va. 381, 389 (1945) (quoting Nicholas v. Commonwealth, 91 Va. 741, 750 (1895)); see Jackson v. Commonwealth, 255 Va. 625, 645 (1998). The term “means, literally, ‘the body of a crime‘” and refers to “the fact that the crime charged has been actually perpetrated.” Aldridge v. Commonwealth, 44 Va. App. 618, 648 (2004) (first quoting Corpus Delicti, Black‘s Law Dictionary (7th ed. 1993); and then quoting Lucas v. Commonwealth, 201 Va. 599, 603 (1960)). In other words, the prosecution must prove “that the alleged offense was attributable to a criminal act, and not to mere accident or chance.” Id. As it relates to murder, “the corpus delicti has two components—death as the result, and the criminal agency of another as the means.” Nicholas, 91 Va. at 750 (quoting Smith v. Commonwealth, 62 Va. (21 Gratt.) 809, 813 (1871)), cited with approval in Opanowich v. Commonwealth, 196 Va. 342, 355-56 (1954).
Virginia courts “have long held that the corpus delicti may be proven by circumstantial evidence.” Epperly v. Commonwealth, 224 Va. 214, 229 (1982); see Opanowich, 196 Va. at 355 (quoting Bowie, 184 Va. at 390); Cochran v. Commonwealth, 122 Va. 801, 817 (1917); see also United States v. Russell, 971 F.2d 1098, 1110 n.24 (4th Cir. 1992). This is so because “[a]n examination of the body of a dead person will not always disclose whether death was from natural causes or . . . violence.” Opanowich, 196 Va. at 355 (quoting Bowie, 184 Va. at 390). Consequently, “[t]he circumstances surrounding the cause of death may be inquired into[,]” and “[t]hey may or may not furnish a clue to the identity of the criminal agent.” Id. (quoting Bowie, 184 Va. at 390). Virginia law also clearly permits proof of the “death” prong of the corpus delicti by circumstantial evidence. See Epperly, 224 Va. at 228-30; Edwards v. Commonwealth, 68 Va. App. 284, 297 (2017).
Finally, for at least a century, legal scholars have recognized that in many cases, proof that a death was criminal rather than natural and that the defendant was the criminal agent is “shown at the same time” because “the two matters are so intimately connected.” 1 Francis Wharton, A Treatise on the Law of Evidence in Criminal Issues § 325f, at 655 (O. N. Hilton ed., 10th ed. 1912), quoted with approval in, e.g., State v. Deslovers, 100 A. 64, 68 (R.I. 1917); see Abdell v. Commonwealth, 173 Va. 458, 465-66, 470-72 (1939).
Notably, contrary to the appellant‘s argument, Virginia law also provides that motive is among the types of circumstantial evidence that may be used to establish both that a death was not the result of natural causes and that it was caused by the defendant. In Abdell v. Commonwealth, 173 Va. 458, for example, the Supreme Court of Virginia affirmed the defendant‘s conviction for murdering his wife based on circumstantial evidence proving beyond a reasonable doubt that her death was a killing rather than a suicide, thereby establishing the corpus delicti as well as proving that the defendant was the criminal agent. The Court relied on evidence that the defendant authored two fake suicide notes ostensibly written by his wife; had numerous fights with her; and wanted “to escape the threat of a penitentiary sentence” after he beat her, providing “a specific motive” for the killing. Id. at 465-66, 470-72; see Edwards, 68 Va. App. at 297-301 (considering motive as part of the circumstantial evidence proving that the missing victim had been killed and the defendant was the criminal agent).6
The appellant‘s reliance on Ferrell v. Commonwealth, 177 Va. 861 (1941), and Van Dyke v. Commonwealth, 196 Va. 1039 (1955), to support his argument regarding motive is similarly misplaced. Neither case involved any question regarding proof of the corpus delicti because it was undisputed that each victim was wounded by a gunshot fired by another. Ferrell, 177 Va. at 864-65; Van Dyke, 196 Va. at 1042-43. In that limited context, the Court stated in dicta that “the absence of motive is a factor for the consideration of the jury, but only as bearing on the question whether or not the crime was committed by the accused.” Ferrell, 177 Va. at 873-74 (emphasis added) (quoting 2 Wharton, supra, § 878, at 1647); see Van Dyke, 196 Va. at 1046, 1049 (citing Ferrell, 177 Va. at 873-74). Consequently, Ferrell and Van Dyke are not controlling on the issue of whether the presence of motive is relevant to prove that a death resulted from criminal rather than natural causes.
Applying the relevant legal principles regarding proof of the corpus delicti in the appellant‘s case, including considering whether anyone had a motive to kill P.R., the trial court found that the circumstantial evidence proved that P.R.‘s death was criminal and did not result from natural causes. That evidence included the appellant‘s false claims that he discovered P.R. seizing and “very hot” to the touch. It also included the motive derived from his dire financial condition combined with the more than $500,000 of insurance policies on P.R.‘s life. Finally, the evidence also established that the appellant texted his real estate agent twice during the month prior to P.R.‘s death that he could afford not only to move back into his home but also to undertake major improvements. This evidence was sufficient to disprove all reasonable hypotheses that P.R. died from natural, noncriminal causes.
The law does not require the Commonwealth to prove the precise cause of death, only that the death “resulted through a criminal agency.” See Bowie, 184 Va. at 390; see Epperly, 224 Va. at 228-30 (affirming a conviction for first-degree murder despite the fact that the victim‘s body was never found and the cause of death never established because the evidence proved that the death was unnatural and the defendant was the criminal agent). The Commonwealth was not required to furnish medical evidence independently excluding every conceivable natural cause of death in order to establish the cause was criminal. Further, contrary to the appellant‘s suggestion, the record establishes that the trial court did not improperly shift the burden to the appellant to disprove the corpus delicti and to establish a natural death. Instead, the trial court conducted a thorough
The trial court was entitled to conclude that the only reasonable hypothesis flowing from the evidence, including the medical testimony, is that P.R. did not die of natural causes and that his death was a homicide caused by drowning or suffocation. The evidence established that Dr. Constance DiAngelo, who performed P.R.‘s autopsy, concluded that the child died from drowning. Dr. William Gormley, the Chief Medical Examiner of Virginia, apparently acted within his authority as Dr. DiAngelo‘s supervisor when he later set aside her conclusion regarding the cause of P.R.‘s death in the official autopsy report and issued an amended report changing the cause of death from drowning to “undetermined.” Nevertheless, the trial court was not bound by Gormley‘s determination, and Gormley conceded that because DiAngelo performed the autopsy, she was “in the best position to see and understand what [she was] seeing.” Gormley also explained that part of the reason that he set her conclusion aside was because he did not believe the evidence ruled out suffocation as a potential cause of death. Additionally, Dr. Shinnar opined that the “severe hypoxic ischemic insult” that led to P.R.‘s death “was due to asphyxiation or to drowning” and that as a neurologist, he could not distinguish between the two because “their effects on the brain would be very similar (oxygen deprivation).” As the appellant concedes, Drs. Tracey Corey and Janice Ophoven also stated that they could not exclude the possibility that the death was caused by suffocation.
The appellant argues that drowning as a possible cause of death was disproved. He notes that “even the shortest expert opinion” regarding the length of time that P.R. would have to have been submerged in order to drown was “at least a couple of minutes.” The appellant emphasizes that “consistent witness accounts” indicate that he was “alone with [P.R.] with the tub running for mere seconds” and that he could not have drowned P.R. in this short a period of time. However, this argument relies on the appellant‘s view of S.R.‘s testimony in the light most favorable to the appellant. Further, given the trial court‘s view of the evidence as establishing that P.R. suffered the fatal oxygen deprivation significantly earlier than right before the 911 call at 2:20 p.m., the evidence leaves open the possibility that the appellant could have drowned P.R. at an earlier time. Finally, the fact that experts had differences of opinion regarding whether death by drowning was a possibility did not prevent the trial court from finding that drowning was one of two possible causes of death. The court was entitled to weigh the testimony of the experts and make necessary findings of fact. See Riner, 268 Va. at 329-30.
The appellant also contends that the Commonwealth failed to disprove the reasonable hypothesis that P.R. died from natural causes.7 He specifically mentions sudden infant death syndrome (SIDS), sudden unexplained death in childhood (SUDC), sudden unexplained death in epilepsy (SUDEP), and accidental suffocation during a febrile seizure. The evidence, viewed under the proper standard, permitted the trial court to conclude that P.R. did not die from any of these noncriminal causes.
Dr. Shinnar opined that the fact that P.R. died from a hypoxic ischemic injury to the brain, which “takes a while to occur,” was “not consistent with” the various forms of “sudden unexplained death” advanced by the appellant as possible natural causes. Dr. Shinnar explained that children with a history of complex febrile seizures who die from
Shinnar also eliminated SUDEP because P.R.‘s medical records contained no indication that he suffered from epilepsy. The doctor further noted that even in children with epilepsy, which P.R. did not have, the rate of sudden unexplained death in otherwise normal children in P.R.‘s age group is “extraordinarily low” and “basically doesn‘t happen.” Consequently, the suggested hypothesis that P.R. had both (i) developed epilepsy, i.e., unprovoked seizures, and (ii) died from SUDEP did not flow from the evidence in the record. See id.
Additionally, Dr. Shinnar ruled out the possibility that P.R. might have suffocated by accident in his crib immediately following a seizure. First, Shinnar testified “to a reasonable degree of medical certainty[] that febrile seizures were not a contributor to [P.R.‘s] death.” Second, Dr. Shinnar‘s testimony excluded the theory that P.R. could have suffocated during a febrile seizure because his breathing was obstructed in some noncriminal way. Shinnar explained that if a breathing obstruction was present in the crib prior to the seizure, a healthy, active toddler such as P.R. would simply have “pushed it away.” He further explained that to suffocate during a seizure, the child “would have to[,] while convulsing[,] remain prone even though [he was] shaking all over, and somehow be in a position that something [was] impairing [his] ability to breath[e] which before [he] started having the seizure wasn‘t there.” Dr. Shinnar opined that this scenario was merely “a theoretical construct that [doctors] don‘t typically encounter or see” and that it would be “extraordinarily unusual” for it to occur. This testimony allowed the trial court to reject the notion of accidental suffocation.
Finally, the court rejected the hypothesis that P.R. could have died from a heart malfunction such as a spontaneous cardiac arrhythmia because “nothing in the record . . . would support this as a cause of death.” Although Drs. Gormley, Ophoven, and Shinnar testified that such a cause of death was “possible,” none of them stated that the autopsy report or anything else in the record tended to indicate that this was what occurred in P.R.‘s case. Dr. Shinnar in fact testified affirmatively that nothing in P.R.‘s medical history indicated that he had a cardiac arrhythmia. Dr. Robin Foster emphasized that if a child P.R.‘s age had a “cardiac dysrhythmia” significant enough to lead to death, it would have “manifested [itself] in some way” prior to causing death. Consequently, this “possibility” also did not flow from the evidence. See id.
Based on the record in this case, the circumstantial evidence supports the trial court‘s finding that P.R.‘s death was criminal and did not result from natural, noncriminal causes. The corpus delicti was proven.
2. Sufficiency of the Circumstantial Evidence Regarding Time and Opportunity
The appellant contends that the circumstantial evidence was insufficient to support his conviction because it established that he did not have the time or opportunity to kill P.R.
The appellant relies on the testimony of his teenaged son S.R. about the appellant‘s movements and P.R.‘s condition at various times to suggest that the evidence failed to prove the factors of time and opportunity in the circumstantial evidence chain. Consistent with this argument, he also challenges the trial court‘s assessment of S.R.‘s credibility. The appellant notes that the court found S.R. unreliable—rather than dishonest—due to a variety of factors.
The appellant further points out that it was the Commonwealth that called S.R. to testify and that the court denied the Commonwealth‘s pre-trial request to treat S.R. as an adverse witness. He argues that the effect of the judge‘s ruling was “to sua sponte and retroactively find [S.R.] incompetent” to give evidence. We reject these arguments for several reasons and conclude that the evidence was sufficient to support the conviction.
S.R., who was thirteen years old at the time of his brother‘s death, testified that when he first saw P.R. in the appellant‘s room during his nap time on the day at issue, P.R. was lying on his back and snoring. The color of P.R.‘s face was normal, and no blood was visible on his nose. Afterward, the appellant was alone with P.R. for what S.R. thought was “[a]bout” five minutes, but the teenager admitted that he “[didn‘t] really remember” how much time passed. At the end of that period of time, the appellant took P.R. to S.R.‘s room and laid P.R. face down in his crib. S.R. was about six feet from the crib, playing an online action video game with three friends while wearing “one-sided” headphones. He did not “hear anything from [P.R.] at all” and did not “notice anything unusual.” When S.R. later got up to go to the bathroom, “stood over the crib,” and “rubbed [P.R.] on his back,” S.R. did not “notice anything unusual about him.” Finally, S.R. testified that “[m]aybe 15 to 25 minutes” after the appellant put P.R. in the crib, the appellant came back in to check on P.R., “scream[ed] out [P.R.]‘s name,” and took him to the bathroom.
The appellant‘s reliance on S.R.‘s testimony to prove that he lacked the opportunity to kill the child is unavailing. The trial court was entitled to reject the teen‘s testimony, in whole or in part, and to accept the contradictory testimony of other witnesses. See Lea v. Commonwealth, 16 Va. App. 300, 304 (1993). Contrary to the appellant‘s suggestion, “[n]o litigant is bound by contradicted testimony of a witness even though []offered by the litigant.” Williams v. Commonwealth, 234 Va. 168, 176 (1987). Also, in addition to assessing a witness’ “veracity,” the trier of fact may consider the impact of “perception, memory, [and] narrat[ive ability]” on the accuracy of the witness’ testimony. See McCarter v. Commonwealth, 38 Va. App. 502, 506 (2002) (quoting Charles E. Friend, The Law of Evidence in Virginia § 4-1, at 101 (5th ed. 1993)). In short, based on a variety of factors, the trier of fact is free to believe or disbelieve, in whole or in part, the testimony of any witness. Carosi v. Commonwealth, 280 Va. 545, 554-55 (2010).
Here, it was entirely within the purview of the trial judge as the trier of fact to determine
The appellant argues that the timeline evidence does not fit the trial judge‘s findings of fact regarding when P.R. went into cardiac arrest. Pointing to the testimony of two defense witnesses, Dr. Ophoven and Dr. Brian Bridges, he asserts that the maximum length of time a patient can be in cardiac arrest before CPR is started and still have his or her heartbeat successfully restored is “10-15 min[utes]” or “[l]ess than 10 min[utes].” Calculating backward using this testimony, he reasons that the earliest that P.R. could have gone into cardiac arrest was fifteen minutes before the first responders began CPR at about 2:30 p.m., which would have been at about 2:15 p.m.
This argument mischaracterizes the evidence from Dr. Bridges. His testimony of “less than 10 minutes” was given in response to a different question—“how long” it takes to sustain “irreversible brain damage” “from the time the heart stops . . . if there is no resuscitation effort.” Only after Bridges provided that response did the judge ask him about the subject that the appellant raises, concerning “the outer limit” of “restart[ing] . . . the heart . . . after a prolonged period without CPR.” Dr. Bridges, a pediatric intensive care physician, candidly replied that he did not “know a specific time for that” and did not “know if anyone knows that.” Bridges said that he had personally restarted a heart after “more than a half hour or an hour” without a heartbeat. Finally, when the judge asked specifically about P.R.‘s case, in light of the fact that he had no pulse at 2:27 p.m. when emergency personnel arrived and began CPR and had his pulse restored at 3:00 p.m., Bridges said he was unable to opine how long before 2:27 p.m. P.R. “might not have had a pulse.”
Consequently, the record contains conflicting evidence regarding how long a patient can be in cardiac arrest before CPR is begun and still have his or her heartbeat successfully restored. The trial judge was entitled to accept Dr. Bridges’ testimony on this subject, that he did not “know if anyone knows that,” over Dr. Ophoven‘s testimony, that the outer limit is “10 to 15 minutes.” Additionally, the remaining evidence, such as that concerning P.R.‘s cold body temperature, supports the trial court‘s finding that the child stopped breathing much longer than fifteen minutes before CPR was begun.10
B. Bill of Particulars
The appellant argues that the trial court improperly denied his numerous motions for a bill of particulars regarding the Commonwealth‘s theory of the corpus delicti. He represents that he received “unofficial” verbal notice from the Commonwealth that “it planned to ‘go with’ the cause of death of ‘drowning.‘” He suggests that he was prejudiced because the Commonwealth began midway through trial to pursue suffocation as a cause of death and the trial court ultimately concluded that the cause of death was either drowning or suffocation. Although the appellant claims that he had an absolute right to this information prior to trial, the real crux of his claim is that he did not have adequate notice of suffocation as a possible cause of death in time to address it during the trial. He asserts that these errors violated his right to due process under both the United States and Virginia Constitutions.
On appeal of the denial of a request for a bill of particulars, the appellate court reviews the trial court‘s decision for an abuse of discretion. See Swisher v. Commonwealth, 256 Va. 471, 480 (1998). To the extent the challenge involves interpreting the federal or state constitution, however, this is a question of law reviewed de novo on appeal. See Shivaee v. Commonwealth, 270 Va. 112, 119 (2005).
“Both the United States and Virginia Constitutions recognize that a criminal defendant enjoys the right to be advised of the cause and nature of the accusation lodged against him.” Simpson v. Commonwealth, 221 Va. 109, 114 & n.3 (1980) (first citing
Pursuant to
Applying these principles here, we conclude that the appellant has established no constitutional entitlement to notice of the precise manner in which the Commonwealth alleged that he caused his son‘s death. Cf. Simpson, 221 Va. at 115 (holding that indicting a defendant using the
Further, when the appellant claimed surprise at trial based on the Commonwealth‘s change in its theory of the case to prove suffocation rather than drowning, he did not request a continuance. Instead, at the close of the Commonwealth‘s case in rebuttal, he moved to strike the Commonwealth‘s evidence based on his claims that the Commonwealth was not permitted to change its theory regarding the cause of death and that the evidence did not prove drowning. Finally, the appellant concedes that “[i]t is fair to say that” any prejudice “might have been remedied by a continuance.”
Thus, the record shows that the appellant had notice of the existence of an alternate theory of the case in time to satisfy any due process right to notice of the precise manner in which he was alleged to have caused his son‘s death. Cf. Coley v. Commonwealth, 55 Va. App. 624, 635-36 (2010) (holding that the appellant failed to prove reversible error when he learned at trial that the Commonwealth had exculpatory evidence because he “did not claim surprise, did not ask for a continuance,” and “therefore suffered no prejudice“); cf. also Ortiz v. Commonwealth, 276 Va. 705, 723 (2008) (holding that where the trial court permitted a midtrial amendment to the time frame covered by the indictment and the court denied the defendant‘s request for a continuance, he was not entitled to reversal because he failed to prove that the amendment operated as a surprise or that the denial of his continuance motion prejudiced him); Lane v. Commonwealth, 20 Va. App. 592, 595 (1995) (rejecting the defendant‘s challenge to the admissibility of late-produced evidence under a state criminal discovery rule based on a claim of surprise because the defendant did not request a recess or continuance and instead “sought only suppression of the truth“). Accordingly, the appellant has failed to establish that the trial court erred by denying his request for a bill of particulars and convicting him for murder based upon the theory that he drowned or suffocated P.R.
III. CONCLUSION
We hold that the evidence, viewed under the proper standard, was sufficient to prove that P.R.‘s death was a homicide and that the appellant was the criminal agent. The record also establishes that the denial of his request for a bill of particulars was not reversible error. Consequently, we affirm the challenged conviction.
Affirmed.