*1 573 S.E.2d Merry PEASE Christine v. Virginia.
COMMONWEALTH Record No. 2761-00-3. Virginia, Appeals
Court Richmond. 10, 2002.
Dec. *4 (Robert Galumbeck, Tazewell; Gray, Gerald L. Clintwood M. Firm, Clintwood; Galumbeck, Gray Dudley, Gerald Law Nec- Dennis, brief, Tazewell), essary appellant. on for McLees, Attorney (Jerry John H. Senior Assistant General General, brief), Kilgore, Attorney W. on for appellee. FITZPATRICK, C.J., BENTON, ELDER, Present: ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, AGEE, KELSEY, FELTON and JJ. A EN BANC
UPON REHEARING BUMGARDNER, III, Judge. RUDOLPH A jury Merry degree convicted Christine Pease of second during of a firearm the murder of her murder use husband, contends the trial Dennis Pease. The defendant had a placed jeopardy, prosecutor double the substitute case, interest the outcome of the and the evidence personal
347 A of this Court held panel convict. insufficient nor was the jeopardy twice in placed was not defendant it held the evidence disqualified, but prosecutor substitute a granted peti- We reversed the convictions. insufficient and mandate of the stayed the rehearing en banc and tion for banc, trial affirm the en we Upon rehearing panel decision. court. of the 1994, the defendant jury a convicted August
In the conviction This Court reversed murder of her husband. a witness Attorney examined the Commonwealth’s because jury and influenced appearance grand before the during her Pease v. Com jury returning the indictment. grand (1997). 400, 851, monwealth, 397, 852 24 482 S.E.2d Va.App. remand, trial substitute Common- judge appointed On 19.2-155, jury re- grand § new attorneys, wealth’s Code prosecutors prosequi Those moved nolle indicted. report of the medical they because received indictments substitute a suicide. The examiner ruled death report not when attorneys did Commonwealth’s re-indicted, from the first it was not in the files received trial the motion. prosecutor. judge granted later, Timothy judge appointed trial Several months trial, sub- McAfee, at the first Attorney the Commonwealth’s A indicted the attorney. grand stitute Commonwealth’s moved to dismiss for the third time. The defendant defendant misconduct at of prosecutorial the indictments because attor- Commonwealth’s trial and because the substitute first judge of interest. The trial denied ney had conflicts motions. Jeop ... that the Double long
“It
been settled
has
prosecu
against successive
ardy
general prohibition
Clause’s
retrying
defen
prevent
government
tions
does
aside,
conviction set
his first
getting
dant who succeeds
attack,
of some
or collateral
because
through
appeal
direct
v.
Lockhart
leading
to conviction.”
proceedings
error
(1988).
285,
Nelson,
33, 38, 109
102 L.Ed.2d
S.Ct.
U.S.
her retrial
jeopardy bars
argues that double
The defendant
prosecutor’s
because the
misconduct caused reversal of the
first conviction. “Only where
governmental
conduct in
question is intended to ‘goad’ the
moving
defendant into
for a
mistrial may a defendant raise the bar of double jeopardy to a
second trial after having succeeded in aborting the first on his
own motion.” Oregon
v. Kennedy,
*6
676,
456 U.S.
102 S.Ct.
2083,
(1982).
In this Attorney Commonwealth’s violated statutory criminal procedure by questioning a during witness grand jury appearance. found, As the trial judge misconduct was not an in instance which the “prosecutor was trying this case got and to a point certain thought and he was going to lose it.” The record nothing reflects to indicate the prosecutor delay intended to the trial or to goad the defendant into for asking a mistrial. “Without intent, the requisite however, gross prosecutorial misconduct satisfy will not exception set forth in Kennedy.” Robinson v. Common wealth, 551, 555, 17 Va.App. (1994). 622, 439 S.E.2d 625 Accordingly, we hold the trial court correctly denied the motion to bar retrial.
The defendant argues that the substitute Common wealth’s attorney, McAfee, Timothy personal had a interest the outcome of the second trial. She asserts that when the trial judge him appointed as substitute Commonwealth’s attor ney, McAfee had two ethical complaints him against pending from the first trial. She contends that he could not be impartial and the trial judge erred not dismissing the' indictment. Virginia State Bar was investigating two complaints
arising from McAfee’s during conduct improper first trial: communication grand with the first jury, and withholding medical report examiner’s indicating the victim committed suicide. After a full hearing on the motion to dismiss for McAfee noted that misconduct, trial court prosecutorial federal with “mixed the prosecutor a federal had been just as it was It found jury situations.” grand state part was a report examiner’s as not that the medical probable exam- from the medical received McAfee of the documents from the report McAfee withheld It did not find iner. furnished the defense. materials retaliating, McAfee was court concluded that The trial vindictive, ability and demonstrated to be had no reason judge The trial determined fair, objective. impartial, be outcome of [the] interest “personal had no that McAfee as the participation no actual bias bar case” and prosecutor. judge trial appointed by the special prosecutor
“A necessarily accepts public prosecutor steps into the role Commonwealth, 26 v. duty impartiality.” Adkins (1997). 19, 833, record Va.App. S.E.2d Common ruling special trial court’s supports the *7 Accordingly, we affirm the attorney impartial. wealth’s ruling. husband, killed Pease,
Dennis the defendant’s chest. The Common fired within an inch of his gunshots two murder; the defendant asserts maintains his death was wealth The Commonwealth It was one or the other. it was suicide. husband the bed that the defendant shot her postulated room living into the argument, an that he walked during room shot him a the defendant collapsed on the floor where and time, while that she then shot herself second and disguise kitchen to the murder. that the victim shot the defen- postulated
The defendant the hall dant, door down firing at her from the bedroom ran from the escaped The and toward the kitchen. defendant house, neighbor’s a she had run to trailer. When he saw that through passing himself with the bullet the victim shot ironing in the board. coming into the kitchen to rest lung and began he into the bedroom where The victim then went bleeding. living From there he trailed into the room blood he shot a through where himself second time the heart. two opposing physical The theories derive from the evidence scene, evidence, analysis the forensic of that and the statements that the during investigation. defendant made The defendant maintains the evidence was insufficient to her theory exclude of evidence and to verdict support Commonwealth, Dowden v. guilty. 459, 467, of 260 Va. 437, (2000), S.E.2d the precepts appellate reiterated review this issue: sufficiency challenged
Where the of the is after evidence conviction, duty it to it in light is our consider most to give favorable the Commonwealth and it all reasonable fairly inferences deducible therefrom. We should affirm the judgment appears unless it from the evidence judgment plainly wrong is or support without evidence to ____Additionally, when suffi- challenges defendant evidence, ciency of the [i]f there is evidence sustain the verdict, this Court should not overrule it and substitute its if judgment, own even its opinion might differ from jury. (Citations omitted). quotations and internal 1993, 4:00 p.m., ap-
About November the defendant house, stated, peared neighbor’s at her “I have been shot. officer, me.” Help neighbor, law enforcement observed a gunshot that completely penetrated wound her abdomen. a powder He saw burn on her burn powder sweatshirt and ran right on her hand that from her to the knuckle wrist first finger. little explained defendant she her husband were into the arguing, he went bedroom. When out, get she knocked on the him come jerked door he *8 range. just door and shot at shot me open, very her close “He asked, I ran.” and When she specifically having denied gun. got the asked powder touched When how she the burn hand, on to rub it a she tried off with washcloth. house, neighbor’s displayed appre-
At the the defendant no might pursue that her her. She no hension husband exhibited The abdomen. than the wound to her injuries other visible for and Ketzie [her she it all Chris stated “did defendant and “I’m all that and marriage],” from a Chris prior children said, “I hospital, As left for the she Ketzie have now.” she I am not sure.” may have heard another shot. to the police deputies and sheriffs went defendant’s
When trailer, room they sprawled living found the victim across blood, a dead. In his left hand was lying pool floor in a his near other was a Both of rag; pistol. blood soaked palm carried no bloody, impression victim’s hands were but gun. No was on the pistol grip. from blood body, kitchen, an path past A of blood led from the to the chair, bed- through overturned the hall into master The blinds and room. That bedroom was shambles. curtains from window strewn across the pulled were off, including room. The bed covers a red sheet were pulled a open pillow everything. and feathers from covered ripped scene, re- disturbing investigators Before made video cording throughout and took extensive the trail- photographs trial, presented er. These were and the witnesses used describe, define, extensively clarify them as visual aids to their testimony. pistol living on the room floor was .357 caliber expended cartridges. Investiga-
revolver that contained three tors bullets during investigation. located two the initial One barely penetrating remained the victim the skin of his back. A lodged ironing laundry second bullet in an board kitchen. on a penetrated room behind the It the kitchen wall slightly the floor and trajectory downward inches above passed through detergent coming a box of to rest. before investigators though could not find third bullet days. for most They searched the trailer two searched for it door, extensively along path running bedroom it, fired where defendant said her husband had down hole, hallway They bullet, through the kitchen. found no or trace no They other of it. also found hole that the third bullet may anywhere furnishings. have caused in the structure or its
Four different officers testified that it affirmatively was not windowsill of the kitchen the window. bullet was not produced until about two weeks later. homicide,
Two after weeks the the chief in- investigator formed the defendant that the sheriffs office not could rule bullet, the death a suicide because “have a got missing and, you w, the one shot you kno can’t it.” A we find days few later the defendant called the investigator and informed him that she had the located bullet. He returned to trailer, the defendant’s and the took defendant him the kitchen, window, the moved curtain at the him showed a .38 caliber bullet. “lying The bullet was ... the like it sill never analysis single had been moved.” Later revealed red thread was attached to it. analysis
Laboratory of the physical evidence established that the decedent had been shot twice in the chest from a maximum distance one inch. The shot defendant had been range. from the same All three shots came from the revolver living recovered from the room. No discernible fingerprints appeared gun, gave on the and it no indication that had been wiped clean. report the autopsy described wounds and the paths through body.
the bullets Both victim’s entered his front chest. One penetrated right lung and exited body. The other but penetrated heart did not exit. Either lethal, wound was but the bullet through lung likely most would not cause death for several minutes. The bullet through the heart death If immediately. caused almost shot, through bullet were the first the victim lung would been capable inflicting have both wounds. The wounds to victim “could be or self inflicted inflicted someone else.” The Commonwealth from presented testimony extensive experts forensic explained interpreted physical gunshot analysis evidence found the scene. The residue had could determine whether the defendant or victim gun. fired the The victim had residue on both hands. primer hand, on primer right The defendant had residue her face residue primer were indicative “particles and she had her left hand.” on the muzzle of the revolver was expert
An in firearms stated discharged into defendant. “at or near contact” when it on the hand would person’s To hand deposit gunpowder gun. Touching gun inch when to be less than one *10 burn. powder fired would not leave being it was spatter analysis interpreted A and the blood blood stain A began trail victim’s blood single found the scene. the kitchen, hall, It ran through in the bedroom. down the the Nothing into more than one living suggested and the room. stepped The victim in his blood between trail blood. had kitchen the room and it to the living the and then transferred living as moved into room. carpet he the explain called to that a The defendant the medical examiner likely live person through lung with a wound most would a few but for minutes could survive for several hours. was to when medical examiner not able conclude the blood lung. to from the to It possible started flow wound was for to walk to fifteen after shot being someone twelve feet any without on the floor. It was dripping possible blood also distance, pull walk and off the to blinds curtains bedroom room, wall, living another into the inflict twenty walk feet and gunshot a second wound. of the presented
The Commonwealth evidence defendant’s statements and remarks over the course the investi- made subsequent from those made gation. explanations varied initially neighbor. hospital At the while she was still her room, away stated she walked emergency the defendant standing was from the door into the kitchen. She bedroom the husband near chair beside the kitchen table when opened door and shot her. He from five bedroom eight feet her He then came her when he shot. towards her hand pistol. right and She struck it with brandished away not to ran to begged jerked and him kill her. She and neighbors. morning,
The next the defendant she her said husband were about arguing money. He went to her car and did something to it. He returned and locked himself master bedroom. She went to the door and demanded opened door, know what he to her car. had done He shot her, caught gun but then the kitchen. hit his She hand without touching gun and ran out the front door. She thought she heard another shot as she ran off the porch. later, About two weeks argument the defendant said the him, over her not spending more time with had time, getting discussed a divorce. That hearing she denied any after left shots she the house.
Two other suggested incidents that the was pres- defendant ent after the victim was shot and that she lacked remorse. present during interrogation She was deputy chief medical examiner. When asked whether victim would in pain shot, have been after first interject- the defendant ed, “a during lot.” Another time investigation, witnesses laughing described her as as giggling she viewed the *11 photographs her dead husband on the floor of the trailer. From presented, jury the evidence the must determine credibility “ weight and the which it finds as true. weight given
‘The which should be to evidence and whether testimony the of a witness is are questions credible which the ” Commonwealth, fact must v. finder decide.’ Cantrell 7 269, 290, (1988) 328, Va.App. 373 S.E.2d 339 (quoting Bridge Commonwealth, 523, 528, 598, man v. 3 Va.App. 351 S.E.2d (1986)). 601
After determining and the credibility assessing weight testimony, jury of the the must ascertain what reason able inferences arise from facts proven by the found “ testimony. inferences are to from proved ‘[W]hat be drawn facts is the province jury....’” (quoting within the Id. Commonwealth, 349, Higginbotham 353, v. 216 218 Va. S.E.2d (1975)). 534, possible, 537 If alternative inferences are the jury resolves the and which differences determines inferences reasonably jury experience are must use drawn. its “[T]he
355 the Hol probabilities.” in weighing and events people 127, States, 121, 140, 75 S.Ct. 99 L.Ed. v. 348 U.S. land United (1954). “to responsibility fact resolve 150 The trier of has the evidence, and to draw testimony, weigh in the conflicts facts ultimate facts.” from basic reasonable inferences 319, 2781, 307, 61 99 S.Ct. Virginia, v. U.S. Jackson (1979). L.Ed.2d 560 facts, if
Finally, jury proven decides them, guilt establish inferences the reasonable drawn instructed, so, jury, If as beyond a reasonable doubt. of innocence jury theory If the decides that convicts. instructed, reasonable, it, acquits. as theory remains and the is is hypothesis an alternative innocence reasonable “Whether Commonwealth, 26 question is a of fact....” Archer v. Va. 1, 826, (1997). App. 492 S.E.2d if jury’s we decision to see reasonable appeal, On review have make. jurors could made choices did juror let conclude no rational We the decision stand unless we could reached that decision. there is evidence “[I]f have verdict, this not overrule it and sustain the Court should might if its judgment, opinion substitute its own even differ Dowden, 467, 536 jury.” from that of the 260 Va. at S.E.2d (citations omitted). quotations internal Three shots were fired inflicted three distinct wounds: victim, person two to one to the defendant. The who fired through through fired the shot lung the shot the victim’s agree person heart. Both sides to that inference. The who could been victim or the fired those two shots defendant. through living heart was fired shot victim’s lodged
room in him. Both sides where bullet remained where the other two agree place to that inference. The *12 easily Tangible bullets is not so fixed. discharged were in damage path not the of the found the does record bullet windowsill, not and the defense do and the Commonwealth However, agree it. do that the same bullet agree about could have hit both the victim and the defendant. not path exactly
The of the bullet into ironing the board was opposite to path the of a bullet found in the the windowsill: former from going right to left when the trailer facing latter left going right. from The location of the bullet in the windowsill approximately plane the same as that formed the wall kitchen laundry between the and the room. If ironing-board-bullet defendant, struck the victim did door, hall, a shot from fire the bedroom down the and into her as she claimed. evidence, the jury theoretically
Before scrutinized the either hit person. bullet could have either ironing-board-bullet The or the windowsill-bullet could hit the victim or the But, defendant. once the believable evidence links one of the shot, two bullets to persons one the two the other bullet must person be linked to the other shot. whom the Defining ironing-board-bullet whom struck defines the windowsill-bullet If struck. ironing the bullet board passed through lung, victim’s then the bullet in the windowsill hit the defen- dant. If ironing-board-bullet passed through the defen- dant, then the windowsill-bullet penetrated lung. victim’s The possible explanations mutually were exclusive.
Defining person which bullet struck which defines whether or homicide is murder suicide. victim The committed ironing-board-bullet suicide if the hit him ifor the windowsill- bullet hit Conversely, the defendant. the defendant commit- ted murder if the if ironing-board-bullet hit or the win- hit the dowsill-bullet victim. When evidence establishes the alternatives, truth falsity any or one resolves the so, falsity truth or of all In possibilities. it resolves the doing guilt or innocence of beyond the defendant a reasonable doubt. resolved the issue whether a bullet passed door, defendant, the bedroom through the and landed windowsill. jury’s The verdict reflects the decision disbe- story. unequivo- lieve defendant’s Four witnesses stated cally night no the sill contained bullet the of the shoot- ings. suspiciously investigator after the appeared bullet told the defendant he would not rule death suicide
357 the defen- to make evidence contributed it. Other without defendant, the bullet to the unlikely. According story dant’s landed at eight feet and maximum distance of six to traveled a flight. It to initial axis of landed nearly right angle the point discharge, the closest to the corner of the windowsill breaking onto sill without spent it the dropped but was so window, sill, curtains that marking tearing the or the covered window. claim
In to she found deciding disbelieve the defendant’s her other bullet, and evaluated jury would have considered to her From her first statement statements conduct. physi- with gave incompatible stories irrefutable neighbor, she but she gun, she had never touched the cal facts. She claimed hand, burn on her which she tried wash large powder had eight six to feet from off. maintained she was The defendant shot, on her estab- gun when but the residue sweatshirt discharged. inch of her when it gun lished the was within one shot, the victim was but She claimed she left trailer before remarks that otherwise. she made indicated the reasonableness The was entitled to evaluate jury “Moreover, the not re story. jury the defendant’s if explanation, quired believe defendant’s believed, may that the ac explanation is not infer Commonwealth, Black v. lying guilt.” is to conceal his cused (1981) 838, 842, jurors did not 284 S.E.2d. The Va. landed in the where defen believe the bullet windowsill true, it it. If that basic fact was not dant said she found fact that the shot was to infer the ultimate reasonable defendant, door, through the and onto fired from the bedroom lied, reasonable Having the windowsill. found defendant in the found the bullet elsewhere jurors could infer she bolster her hoping it in planted trailer and the windowsill were the victim. Such decisions story by that she was shot very of trial but the essence arbitrary capricious, nor neither by jury. conclusion reasonable physical permits evidence not shot the victim. herself and was
the defendant shot ironing-board-bullet penetrated the wall 45 inches from floor, height the exact of the entrance wound to the defendant. The its jury used experience people and in weighing probabilities events story: the defendant’s that the victim decided to shoot during the defendant their argument; that he found the defendant’s gun, hidden where *14 it; she did not him to expect find and that he it used rather than his own pistol, which was readily loaded and available. jury victim, The also probability assessed the that the after shooting once, the defendant let her from his grasp flee firing without second time. jury
The determined was reasonable to the believe victim first shot lung, himself the to then walked the bedroom bleeding without where he tore room the apart, living then walked to back the room before shooting himself bedroom, the second victim dripped time. The blood from the kitchen, to to living the the room. The began trail next to the dresser under which gun. the defendant had hidden It inexorably path records weakening his capacity and dimin- ishing consciousness from the into living bedroom room where the fatal shot penetrated his heart. jury The assessed of way demonstration the victim had to hold the to gun inflict the first wound. The victim was right-handed. The shot entered near nipple passing right from up center and outward. The emergency victim had training medical lung knew his where heart was. The shot would have re- quired a conscious contortion to avoid heart. jury
The also assessed whether it was to reasonable believe the victim walk dripping could the trail of blood in the shown exhibits without on getting right gun blood hand. The had it, no blood or on fingerprints right and the victim’s had palm no imprint pistol grip. from An testified he investigator expected on way find blood the victim’s hand of the because he dripped jury had blood. The assessed whether was in light specific reasonable testimony palm the victim’s type coughed contained blood distinctive from the from his lay mouth and as he dying. nose infer that it was assessed whether reasonable jurors The The the victim was shot. present when the defendant not afraid the victim from trailer but was fled defendant indicated statements that her. The defendant made pursued pain he knew the victim was she knew was dead. She no indication that blood-spatter expert A found lung shot. by on back could been made of blood the victim’s smear in the trapped strand of the defendant’s hair him. One dying. as he on the floor coughed up lay blood the victim no when one The was able find third bullet defendant else could. in her that if an item of argues defendant brief is of two susceptible interpretations,
evidence
cannot
shows the
rely on it to convict unless the Commonwealth
is,
is
That
if another
interpretation
impossible.
defendant’s
must
explanation
possible,
is
the Commonwealth
exclude
rejected
is a
facts
in Cantrell.
possibility.
It
review the
we
requirement
argument misapplies
defendant’s
every
hy
the Commonwealth must exclude
reasonable
*15
pothesis
applies
of innocence. The
the maxim to
defendant
If
each
item
offers a
individual
of evidence.
the defense
item,
explanation
the
the
fails to
possible
for
Commonwealth
it
every
hypothesis
exclude
reasonable
of innocence unless
impossible.
is
“We
possible explanation
shows
defendant’s
if
place
great
require
too
a
on the Commonwealth we
burden
every possible theory
or
presented
to exclude
surmise
Black,
841,
at
jury had those demonstrations in assessing mind while wheth- er the interpretation defendant’s all reasonable under related facts and circumstances. On appeal grant we if inference favorable the Commonwealth it is reasonable. on appeal The record not provide does those demonstrations However, that give integral spoken of definition word. record not does that we find it require reject unreasonable to theory the defendant’s accept the Commonwealth’s theo- ry. Accordingly, an adverse inference could be drawn powder burn powder burn was circumstance the jury guilt. could consider when deciding
The statement
that circumstantial evidence must
every
exclude
hypothesis
reasonable
is an
guilt
alternative
way
stating the fundamental precept
the Common
prove
wealth has the burden to
of an
each element
offense
beyond a
It
appli
reasonable doubt.
reiterates “the standard
Commonwealth,
every
cable
criminal case.”
v.
Cook
226
427,
325,
433,
(1983);
Holland,
Va.
309 S.E.2d
329
see
348 U.S.
140,
Whether the defendant’s
ais
“‘reason
hypothesis
Cantrell,
able
question
innocence’ is a
of fact.”
361 Commonwealth, v. reasonably Inge those facts.” related to (1976). 360, 366, 563, 567-68 217 Va. S.E.2d undisputed. in this case was Much of the evidence juryA interpretations. re opposing two offered sides Indeed, juries accepted the inter twice solves such conflict. “When, the Commonwealth.1 pretation argued by of evidence from the evi here, conflicting undisputed as flow inferences dence, require adopt us appellate procedure principles if to the Commonwealth those conclusions most favorable Pugh v. fairly proven from the facts.” Common deducible (1982). wealth, 663, 667, 292 S.E.2d Va. light facts are viewed in the most favorable When the and all reasonable inferences consistent with Commonwealth it, guilt granted are no theories of innocence reasonable many remain. The combined force of the concurrent and beyond reasonable doubt that proved related circumstances Thus, ironing-board-bullet through the defendant. passed her, shot not Mil the victim could he did himself. evidence, jury reasonably only As this viewed the the defen- Accordingly, dant could have Mlled him. we affirm. Affirmed. ELDER,
BENTON, J., J., joins, concurring, in with whom part, dissenting, in part. majority
I concur on the issues of double opinion dissent, however, I misconduct. jeopardy prosecutorial majority’s from the conclusion that evidence was sufficient to sustain the convictions.
I. trial, on proved morning At the evidence Novem- 18, 1993, approached of Merry ber friend Pease’s husband him thought angry at work because he Pease’s husband was grant appeal sufficiency 1. This Court did not an on issue appeal. on the the evidence first *17 him. He testified that acting Pease’s husband was than differently “just normal and wasn’t his self.” Pease’s thought having husband said he Pease an was extra-marital affair, and he “something going said was to real happen soon.” The co-worker told Pease’s husband that thought when he his affair, having own wife was an he had ignition removed the coil car her so that she could not leave home. Pease’s left husband work shift end his at 8:00 a.m. afternoon, Later that loudly Pease knocked at a the door of neighbor, officer, who a police said, was and “I have been shot. Help neighbor me.” The called the emergency number and abdomen, then attended to near wound Pease’s where penetrated “bullet had all way her.” He through saw powder clothing burn on her and on her hand. In response to neighbor’s questions, Pease said her her husband shot and she had gun. Although touched the he later wrote that n.ot blank,” Pease was shot “point neighbor testified this only interpretation what she said. He testified that him following Pease told events occurred: She they said that arguing having had been and some problems. door, That she had went to the back or the back bedroom to door was knocking and on the trying door to get Dennis to come jerked out. And she said that he door open pointed gun at her and shot her. And she turned around and ran out of the residence.
The neighbor testified that Pease said “as [she] went out of house, may [she] have heard another shot.” Pease also told him that her husband had car disabled her she first went get help the road to no but one stopped.
Pease transported hospital to a where she received medical treatment for a life-threatening wound to her abdo- investigators men. questioned Several Pease she ar- after rived at the hospital. Investigator Darnell testified Pease said that she and her had argued couple weeks,” husband for “a that, checkbook, that her husband had her on taken this day, had she been unable start car. her Pease also said she chair, husband, a kitchen near eight feet from was five to her. when shot he not record did
Investigator Robinson testified following then* with Pease. He recalled she said interview in the interview: of master door bedroom gone had bedroom
[S]he *18 ... what he had done to her car. and asked into the from the bedroom away She turned and walked The or the door into the kitchen. bedroom kitchen bedroom striking pistol turned fired a [he] door and she and opened her in the abdomen. the She pistol.
He came towards her. He brandished right her hand and asked pistol said she struck the with him, me, from him jerked away kill and please said don’t she ran at the seeking out the mobile home and ran assistance neighbors’. next door in living
The husband police discovered Pease’s dead the wounds, right room home gunshot of the with two one his lung wearing a second heart. was not wound his He underpants, shoes or a shirt. A in his woman’s drenched blood, hand. on and his was near his left Feathers were near from body. pocket, police In his the found a a car’s wire had been removed from the cap distributor and a wire that revolver, Ruger home’s A which the telephone. .357 was bullets, body; near weapon that fired the was on floor his as empty it had chambers. The Commonwealth offered three two report, gunshot which described the autopsy evidence “If report [the] also contains notation: wounds. shot, lung] husband] wound was the first [to [Pease’s inflicting would been both wounds.” Pease’s capable blood an alcohol content .10. husband’s had testimony concerning The record contains extensive home configuration condition and of the mobile residence. home, primary bedroom was police When the entered on in from the bedroom window were disarray. blinds pillow Feathers from a burst were floor demolished. door, be strewn about. The bedroom which could locked inside, only six feet from the A kitchen table. kitchen in hallway chair was two overturned between the rooms. in Pease’s husband’s shoes were one the children’s bed- rooms, along cigarettes and an A alcoholic drink. desk had in been overturned that room.
The investigators found a bullet in lodged ironing an board bullet, near the kitchen. Another which caused the wound to heart, Pease’s lodged husband’s in found his back. The investigators that night searched for the third bullet but were unable to They locate it. also found no hole the third may bullet furnishings. have caused the structure or its The next morning, investigators again visited Pease hospital. investigator questioned One they said when Pease, she said lot pain she was but wanted to talk. interview, During this Pease following: recounted the [TJhey been arguing had for about about money two weeks kids, and the day they that that about arguing money were made a enough she comment that he wouldn’t give money household, run arguing had been *19 morning money. that about
[*] [*] [*] [*] [*] [*] She indicated had begin she went the bedroom door to husband, Dennis, with because her had went to her car and something done to her car and back came into the trailer bedroom, into the master locked the door.
She you went the door and asked him what have done to my damn car and he the door opened and shot her. *
* * * * # gave Investigator She an explanation Mullins that [her her, had caught up husband] with she was headed toward living caught the room but he had her the kitchen and she had hit gun his hand that had the in it but that she never gun. touched the
[*] [*] [*] pushed gun When she it away hand had kitchen, she ran out the front entrance of the trailer off running as shot she was she she heard another thought trailer. porch, porch front later, Mullins visited Pease Investigator weeks About two police her the could not her He testified he told home. they got missing “have rule case suicide because this know, and, bullet, can’t you you one was shot with we [sic] if husband abused her in the find it.” he asked her When argued had about past, Pease said that she her husband him, that she had told her spending her more time with days week her spend she had to several each husband father, a divorce. She getting and that had discussed unfaithful, being her said husband had never accused her also extremely possessive. but he obsessive and Pease her investigators told that her husband was strict with her, she children, verbally that he toward but that abusive for against had obtained warrants husband abuse. never any if had shots after she left When asked she heard house, she she said had not. days called a
Investigator Mullins testified Pease few him had bullet. "When he later to inform she located the . home, curtain returned to Pease’s moved the on Pease caliber exposed Investigator kitchen window and .38 bullet. in the “lying [window- that the bullet was ... Mullins testified it had He testified that the like never been moved.” also sill previously bullets were “wad cutters” that had been reloaded. as charges He in the bullets were not explained that that, commercially purchased as bullets and when powerful as as a gun, shot the bullet would travel fast from regular, manufactured bullet. po- produced extensive evidence Commonwealth experts. investigators forensic investigators
lice on gun. fingerprints found no blood and no discernible *20 wiped had been They gun also found no indication that analysis his expert clean. An testified that gunshot residue or her him conclude Pease husband did not allow to whether had that husband weapon. fired the He testified Pease’s that Pease had primer residue on both hands and primer on right residue her face “particles hand and that were of primer indicative residue on her left gunshot hand.” The on person residue hands could indicate the fired a or weapon discharge was in close to proximity weapon of a or handled dirty a weapon. He also “it testified would not be unusual at all for ... primer residue to be on found individual [an] [distance] of six feet” he expect would primer find if residue an individual had a hand around the of a barrel or revolver around the cylinder. expert
An the field firearms and toolmarks testified that, sweatshirt, based on examination of Pease’s muzzle the revolver “at was or near contact” with Pease it discharged when was at her. He testified that a hand could a gunpowder have burn even without with coming contact gun the heel portion “[i]f directly the hand was above muzzle, it pick up then would opposed the residue as to the extending fingers or expert down elbow.” The firearms testified that in order gunpowder for on deposit person’s person’s hand the hand would be than inch less one away from the that gun anticipate he would not on a burn person’s the heel of a hands by simply would be caused touching gun firing. when it was not
A blood stain and spatter expert testified that the shots to Pease’s not necessarily husband would spray cause blood to from the wound. She also testified that there “one blood trail connecting blood drops that connect from the bed- hall, through room area through kitchen and into the living room.” There no indication that been there had paths. The multiple expert further that on testified the blood floor between the kitchen living and the room been had disturbed “which indicates ... had into something come contact with that to move or to alter the that was in that blood pre-existing pattern.” stain She if testified that someone’s heel had disturbed the blood drop, that the foot would create a “diminishing repetitive transfer ... every time stepped.” She also testified there was evidence of such on transfers the floor and that stain on the heel Pease’s husband’s foot indicated he was for responsible the transfer.
367 witness, assistant chief medical as Pease’s Testifying report. testimony autopsy about the gave only examiner choose, that the likely if it is more he had He testified immediately incapacitating opposed as to the heart was shot that a with a bullet opined person He lung. the shot to husband, in could such as found Pease’s lung, wound to the ... minutes, minutes several probably live “at least few cases, ... hours.” He testified perhaps, in several some [a]nd enough strength have had person that such “would walking great many things including” presence of mind to do curtains off the pulling feet and blinds and twelve fifteen that such a could walk twelve to person wall. He also testified any without blood on the being dropping fifteen feet after shot the blood possible floor and that it was not to conclude when on a depend to flow because that would number started person’s body. of that He including position factors this person it was that a possible farther testified twenty another type lung of wound to a could walked feet, room, living to the the distance from the bedroom “in He testified that the absence inflicted second wound. information, self any you say extraneous could this could be also testified that by inflicted or inflicted someone else.” He Pease’s husband had a .10% blood alcohol content which would judgment. have affected his evidence, jury convicted Pease
At the conclusion of the degree murder and use of a firearm the commis- second sion of murder.
II.
commission of a
every
is
for the
prosecution
“It
essential
delicti.”
corpus
prove
the Commonwealth
homicide
Commonwealth,
509, 514,
781,
Lane v.
248
783
219 Va.
S.E.2d
(1978).
homicide,
corpus
delicti
in a
“To
establish
victim’s death resulted
prove
Commonwealth must
Betancourt v.
agency
person.”
act or
of another
the criminal
Commonwealth,
873,
363, 373,
494 S.E.2d
Va.App.
(1998).
law, the Due Process
As a matter of constitutional
upon proof
“except
from conviction
protects
Clause
an accused
beyond a
every
reasonable doubt of
fact necessary to consti-
tute the crime with which
charged.”
[she] is
In re Winship,
358, 364,
(1970).
397 U.S.
90 S.Ct.
[W]ell established to testing the sufficiency of circumstantial Supreme [The evidence. Court sum- has] principles marized those as follows: “... the proof upon [I]f relied by the Commonwealth is wholly circumstantial, is, as it here then to guilt establish beyond a reasonable doubt all necessary circumstances proved must be consistent with guilt and inconsistent with innocence. They must overcome presumption of inno- cence and exclude all reasonable conclusions inconsistent with that guilt. that, To accomplish chain of neces- sary circumstances must be unbroken and the evidence aas whole must satisfy guarded judgment that both the corpus delicti and the criminal agency the accused have been proved to the any exclusion of other hypothe- rational sis and to a moral certainty____”
But, circumstances of suspicion, no matter grave how or strong, proof are not of guilt sufficient to support a verdict of guilty. The actual commission of the by crime accused must be shown by beyond evidence a reasonable doubt to sustain his conviction. Commonwealth, v. 619, 623, 820, 218 Va. 238 S.E.2d
Clodfelter (1977) (citations omitted). 822 majority reasons that because the provides evidence
reasonable basis from which could conclude Pease husband, killed her this Court must defer to the jury’s deci- however, sion. reasoning, This disregards prosecutor’s obligation every exclude reasonable hypothesis of innocence whenever, here, as a conviction is solely based on circumstan- tial evidence. The is law clear:
369
...
if it
circumstantial evidence “is not sufficient
Proof
guilt.
only
probability
or even a
engenders
suspicion
Littlejohn v.
upon conjecture.”
cannot
rest
Conviction
Commonwealth,
401, 414,
853,
24
482 S.E.2d
859
Va.App.
Commonwealth,
(1997)
950, 955,
(citing Hyde v.
217
234
Va.
(1977)).
circumstances
74,
necessary
78
‘“[A]ll
S.E.2d
inconsistent with
guilt
be consistent with
proved must
of inno-
every
hypothesis
and exclude
reasonable
innocence
”
Commonwealth,
623,
v.
618,
222
Stover
Va.
283
cence.’
Commonwealth,
(1981)
v.
194,
(quoting Inge
217
S.E.2d
196
(1976)).
360, 366,
563,
“When,
228
from the
Va.
S.E.2d
567
evidence,
if
just
likely,
circumstantial
‘it is
as
not more
likely,’ that a
hypothesis
explains
‘reasonable
innocence’
conduct,
the accused’s
the evidence cannot be said to rise to
Littlejohn,
proof beyond
the level of
a reasonable doubt.”
v.
414,
(quoting Haywood
Va.App.
Betancourt, 373-74, Va.App. 26 494 at 878. S.E.2d
A jury’s merely verdict a upon founded reasonable belief that Pease killed her husband is not a sufficient basis to meet of proof beyond standard a reasonable doubt. Such a simply verdict means there is some evidence consistent with Louisiana, See Sullivan v. 275, 278, guilt. her 508 U.S. 113 (1993) 2078, 124 (noting S.Ct. L.Ed.2d 182 that the constitu- tional a proof beyond standard reasonable doubt is not satisfied that is “hav[ing] jury determine the defendant probably guilty”). has that Supreme “emphasized Court proof beyond traditionally a reasonable doubt has been re- garded culpability as the decisive difference between criminal v. 307, 315, Virginia, Jackson civil 443 99 liability.” U.S. (1979). 2781, 61 560 These also are principles S.Ct. L.Ed.2d as articulated decisions follows: It is well settled in that Virginia justify conviction of a crime, it is not sufficient to create a suspicion probability or guilt, but the evidence must establish guilt anof beyond accused a reasonable doubt. It every must exclude reasonable hypothesis except guilt. The guilt party is not to be because the are consistent inferred facts guilt, they but must be inconsistent with his innocence. Commonwealth, 108, 110-11,
Cameron v. 211 Va. 175 S.E.2d 275, (1970) (citations omitted) added). (emphasis short, In here, as where “inferences upon are relied to establish guilt, they must point guilt so clearly any other conclusion Commonwealth, would be inconsistent therewith.” Dotson v. 514, 518, 199 (1938). 171 Va. S.E.
Several investigators and Pease’s neighbor testified from their notes about statements Pease made them at various times. None of recorded, Pease’s statements were and Pease no gave written account of the events. In each rendition of statements, however, Pease’s Pease denied shooting her hus- band and said her Noting husband shot her. that Pease made several concerning statements the events and her conduct that ensued, brief, argues the Commonwealth in its that the jury could reasonably find that Pease contradicted herself on vari- (i) things including ous struggle whether a occurred (ii) kitchen, her, distance from her husband when he shot (iii) (iv) home, whether she heard shot as she ran from the (v) windowsill, whether she found the bullet on the how she conflicts, received the burn on her hand. None of the however, story excludes Pease’s that her husband committed suicide.
Although the is entitled to believe that Pease made statements, contradictory Pease’s statements concerning what transpired must be viewed in the context which were Supreme made. The Court has probative held “[t]he *24 value of [a defendant’s] inconsistent statements must be deter- in light mined of the situation in they which were made.” Commonwealth, 950, 955, v. Hyde 217 Va. 234 S.E.2d (1977). conflicting Pease’s unquestionably statements were at a made time when Pease was in severe from pain Furthermore, gunshot wound. most of the conflicts in the statements concerned matters that are not material concern- ing identity of the shooter. proved
The evidence the events occurred inside a mobile home, great. where the distances are not Although the proved evidence in disarray, the bedroom was no evidence established that Pease caused it or was the bedroom when it occurred. The evidence is consistent her statements that her husband locked himself the bedroom after he removed a wire from the car’s distributor cap. evidence proved further that Pease’s husband had been alcohol drinking and that the room where his drink was located was also in Moreover, disarray. the evidence proved that the distance from the door the bedroom to the kitchen table was only six feet. Each of Pease’s places statements her between the bedroom door and the kitchen when she was shot. The Commonwealth’s firearms expert testified that the muzzle of the firearm “at or near contact” with her when was fired. The expert’s testimony is not inconsistent with Pease’s statements she did not gun. fire the This evidence is also consistent with Pease’s defense that her husband shot her this area at close range.
The Commonwealth and majority opinion make much of the fact that Pease found the bullet suggest third that the jury could find that she placed it there. The evidence is however, undisputed, that three bullets discharged were gun. Although the investigators residence, searched the they did not find it. Tellingly, investigator testified, one when asked whether was looking hole, he for the bullet or the bullet course, “[w]ell we were for looking the bullet hole. You got find the you hole before can find the bullet.” Indeed, it likely is the officers failed to find the bullet because looking were for a bullet hole. proved evidence that the bullet had been reloaded and did not have the usual charge. The bullet was a “homemade Thus, reload” with a “low load.” expert forensic testified *25 bullet, altered, an which having charge that such a reduced with- body, could have struck the structure passed through fallen to the windowsill. The forensic penetrating out it and therefore, evidence, that the negate does not the conclusion Indeed, expert bullet landed the windowsill. the forensic if was shot from the area door gun testified that bedroom hallway, go in the the bullet could to the possibly someone trajectory, velocity, area. on Depending kitchen window bullet, angle of the the bullet could have landed on the windowsill. addition, explained
In no evidence the red fiber the Com- The monwealth contends was on the bullet. Commonwealth it compare any did not ask the examiners with other fibers. Moreover, know, that he not expert the forensic testified did knowledge, of his own that the fiber came from the bullet. however, proved, The evidence that the officer who collected it in a put bag the bullet from the windowsill that “came from and, thus, may exposed lunch” the bullet extrane- [his] ous substances.
Moreover, conclusively the evidence does not establish that lodged ironing the bullet found board the bullet expert The testified that the penetrated that Pease. firearms on a ironing bullet that went into the board was downward trajectory. established that order for this to evidence through be the bullet that went Pease’s abdomen Pease would shot was fired. against have had to be the wall when the bullet, it also have trajectory Given the downward could lung. been bullet that entered Pease’s husband’s There- fore, this is consistent with the forensic evidence evidence from the windowsill was the bullet the bullet retrieved evidence, In the investi- wounded Pease. view of the forensic the house for gators’ testimony they thoroughly searched reasonably they obviously third bullet establishes that bullet in the windowsill. overlooked the is incon- argues also that the evidence Commonwealth when present sistent Pease’s that she was assertion to a points The Commonwealth her husband was wounded. puddle hair found in the of blood strand of Pease’s husband’s mouth and to a foreign DNA substance found on Pease’s shoe as evidence that Pease present when her husband was shot. Although the evidence established that one hair blond that had been forcibly removed from Pease’s head was in a puddle mouth, of blood near her husband’s an expert in hair and natural fiber examination testified that it was possible the hair could have been in combing. removed Only one strand of hair was expert found. The testified was unlikely only *26 that one strand of hair could have been forceably pulled from a person’s head person. another The expert also testified that this hair could have been transported from Furthermore, the husband’s clothes. Pease’s hair likely would be found at in any place her own residence.
A forensic in expert DNA testing testified that DNA materi- al, consisting blood and material, some other was found on Pease’s left shoe. He explained that “the major profile [of the DNA in found was consistent blood] with ... Pease.” There were also regions of DNA genetic material incon- sistent with Pease’s DNA. The DNA material in regions these could have been indicative of a small saliva, amount of blood or sweat, or some bodily other fluid. Although expert could not rule out Pease’s a possible contributor, husband as DNA was also found one out of seven people of the Caucasian population in region. that More importantly, the expert could not identify when the DNA material deposit- was Therefore, ed. neither piece of evidence establishes that Pease was present when her husband was wounded. This evidence was merely indicative of the fact she lived residence. argues Commonwealth that reject could
Pease’s hypothesis that her husband shot her and then shot himself. It argues that her husband had told his co-worker that he believed Pease having affair, an extra-marital that Pease was unsympathetic death, after her husband’s and that Pease had a financial motive to kill her husband.
Although the record contains testimony extensive about forensics, the evidence fails disprove hypothesis Pease’s husband was the A shooter. large amount of testimo- shots were fired and whether ny centered on where the Pease’s account of what had location of the bullets matched medical examiner testified The assistant chief transpired. to inflict certainly possible that it was for Pease’s husband lung that after the first both wounds to himself. He testified minutes, shot, probably “at least a few person could live cases, ... ... several perhaps, several minutes some [a]nd “would have had hours.” He testified that Pease’s husband presence great many of mind to do enough strength pulling into the blinds things including” walking bedroom Moreover, curtains off the wall. he also testified intake of alcohol would have affected Pease’s husband’s judgment. also that Pease’s opined possible
He further living to the husband could have walked from bedroom area, and room, immediately adjacent to the kitchen which is wheth- Although he did not know inflicted the second wound. possible person that it was for happened, er it he testified dropping being twelve to fifteen feet after shot without walk to the assistant chief any According on the floor. blood examiner, just as not to believe medical it was as reasonable depos- without hallway that Pease’s husband walked down the *27 window, blood, shot the blinds from the and iting pulled in the himself heart. on argues that because there was blood
The Commonwealth hands, gun not have handled the to Pease’s husband’s he could explained an expert shot to his heart which fire the second A blood stain immediately incapacitating. would have been however, to that the shots spatter expert explained, necessarily spray not cause blood Pease’s husband would on also testified that the blood experts from the wound. coughing blood Pease’s husband’s hands could come that there was evidence Although from his nose and mouth. in against one hand carrying, husband could have been Pease’s his wound, that were found underpants his the woman’s that possibility ruled out the reasonable body, no evidence woman’s carrying the hand husband had blood on Pease’s gun. carrying other hand and no blood on the underpants revealed that no blood from the heart shot had The evidence jeans toward husband’s but small flowed down Pease’s he on lay amount of the blood had flowed across his back as spatter opinion that Contrary expert’s floor. the blood upright there was no indication Pease’s husband had been fired, when the shot to his heart was the assistant chief medical examiner testified that Pease’s could have husband been but the was on his standing began flowing blood after he opined side. He also that Pease’s husband could have been standing lung the shot to his was fired that it was when for him necessary against to have surface for the any been short, bullet to have remained his back. In lodged not negate evidence that hypothesis did Pease’s husband shot fired the second and that he committed suicide. Although argues the Commonwealth could infer that had a kill from Pease motive to the husband’s belief affair, that Pease was an no in this having evidence record establishes the truth of supposition. the husband’s The testi- mony indication, by the co-worker of Pease’s husband an gives however, of the husband’s and his beliefs state mind. Indeed, testimony reveals that several before the hours [him]self,” husband shooting appeared was “not to the co- angry, worker to be expressed “something view that going happen real soon.” The proved evidence further enough the husband to affect judgment drank alcohol his after car, he left work that also as morning. He disabled Pease’s suggested, telephone friend and disabled the in the home. This evidence tends to prove Pease’s husband had motive to initiate what the Pease home on transpired 18,1993. November Parker
Investigator testified Pease was when present investigators deputy interviewed the chief medical examiner regarding the incident. asked the investigators When pain medical examiner whether Pease’s husband had been *28 shot, investigator after the first Pease “a lot.” said Another present testified that he was pictures when Pease viewed the of her house and her said Pease deceased husband. He
376 another witness pictures, she saw the
laughed when laughing pointing giggling stated that Pease “was these were paper.” Although notes on a making them and consider, only inappro- they indicated jury matters the could not inconsistent with the after the fact and are priate reactions shot her. conclusion that her husband neighbor that Pease’s testi- also notes The Commonwealth waiting in his home for the emer- that while Pease was fied team, part of the conversation he overheard gency response his wife. He testified that Pease having she was problems having.” “some she had been telling his wife about children, get the need to have someone discussing After “I in the chair” and said either done Pease then “leaned back Although the Commonwealth [my children].” or did all for state- jury could have that Pease’s argues that the concluded testimony clearly incriminating, neighbor’s ment was Pease’s only part that he heard of the conversation. indicates in which Pease’s fails to reveal the entire context evidence reasonably re- Pease’s comment could statement was made. having neighbor’s with her wife to the discussion she was late Indeed, later told the problems. about her marital Pease weeks about argued and her husband had for investigators she provide “enough failure to their children and her husband’s Thus, is also not run this evidence money to the household.” that her husband shot her. hypothesis inconsistent with the interpreta- of two “equally susceptible the facts are Where tions, of the of which is consistent with the innocence one accused, arbitrarily adopt interpretation cannot Commonwealth, Massie v. accused].” incriminates [the which (1924). 557, 564, 125 S.E. Va. Administration testified Security A from the Social witness would husband’s death Pease that as a result of Pease’s age youngest daughter until her receive a month $718 a month until receive and her two children would $718 however, that Pease knew proved, 18. No evidence age were security benefits amount of social receive this that she would specu- additional husband’s death. Without as a result of her theory the Commonwealth’s lation, does not aid this evidence *29 kill Pease wanted to her husband to personal advance her financial gain. light Commonwealth,
Viewed
most favorable to the
the evidence does not exclude the reasonable hypothesis that
Pease’s husband shot her and himself. The forensic evidence
does not
exclude
reasonable hypothesis. The close con-
tact nature of the shots is consistent with that hypothesis.
“[T]he doctrine
long-standing]
[is
where the evidence
leaves
true,
it indefinite which of
hypotheses
several
is
or
only
establishes
some
probability
finite
in favor of
hypoth-
one
esis, such evidence
proof,
cannot amount to
great
however
Massie,
probability
be.”
may
565,
atVa.
573 S.E .2d 289 7-ELEVEN, INC., Corporation, The Southland f/k/a
v. QUALITY. The DEPARTMENT OF ENVIRONMENTAL Record No. 2380-01-2. Appeals Virginia,
Court of
Richmond.
Dec. 2002.