*1 Gary Anthony PRYOR Virginia. COMMONWEALTH 0784-05-3. Record No. Virginia, Appeals
Court Salem. April 2006. *3 (Office Bobbitt, Defender, E. Jr. of Public William brief), for appellant. (Judith Theisen, Attorney B. Assistant General
Virginia brief), General, on Jagdmann, Attorney appellee. Williams BENTON, KELSEY, and Present: CLEMENTS JJ. KELSEY, Judge. Gary of murder and jury Pryor guilty first-degree
A found his conviction appeal, abduction. On he claims his of the victim physical should be vacated because restraint only Pryor her also contends prelude served as murder. both overturned because the trial court convictions should be by admitting § 19.2-271.2 into evidence the violated Code preliminary of at his Pryor’s previously given wife assertion, no we affirm Finding merit either both hearing. convictions.
I. Under principles, settled we review the evidence “light most favorable” to the Commonwealth. Commonwealth Hudson, (2003). 578 S.E.2d That us principle requires to “discard the evidence the accused in conflict with that of the and regard true all the credible evidence favorable to the Commonwealth all and fair inferences be drawn therefrom.” Parks v. Common wealth, (emphasis omitted). and citation day murder,
On the Lisa Johnson visiting there, Gary Pryor. mobile home of Mary and Johnson While Pryors and the illegal used drugs. When Johnson tried to drugs, leave without for the paying Gary Pryor fought with Johnson. fell ground, Pryor After Johnson to the Gary “went top down on of her and held her.” While detaining Johnson in way, Pryor this Gary instructed his wife to “get him the tape to tape Mary her.” Pryor complied, Gary Pryor and taрed Johnson so she could not escape. Gary Pryor then left momentarily Johnson a plastic bag. retrieve He returned to Johnson used bag and to smother her to death.
Gary Mary and later dumped body Johnson’s over side North Mountain near Buffalo AGap. witness saw Pryors their shortly vehicle after they discarded Johnson’s body. The witness also found Johnson’s still-warm body police. Upon summoned the Pryors’ search home, police mobile personal found Johnson’s identifica- tion, jewelry, plastic bag. and underwear in a police The also *4 found traces of pieces tape Johnson’s blood as well as of used to prior restrain Johnson her death. testing Later forensic identified Johnson’s hair on the tape. apprehend- fibers After ing Pryors Michigan, police the the found a bed sheet with body stained Johnson’s miles from blood few where her dumped. had been Gary Pryor’s
At preliminary hearing, Mary Pryor elected to against sorry, her “I’m I testify Proclaiming Gary. husband. truth,” have to tell no the she asserted testimonial eviden- testimony sworn de- gave kind. She tiary privilege and the effort hide the murder in detail both scribing came of the out specifics of the murder body. Most Johnson’s by Gary Pryor’s counsel. during cross-examination Mary called trial, the At later Commonwealth jury stand, invoking take the refused to Pryor as a witness. She At § 19.2-271.2. privilege testimonial Code marital Pryor Mary the trial court declared request, Commonwealth’s be рrior as a witness and allowed unavailable that his Gary Pryor testified jury. response, read to the In a scuffle accidentally during suffocated Johnson to death wife Pryor his case. Gary rested testifying, the two. After between murder and abduc- guilty first-degree The found him jury tion.
II. A. Doctrine & The Brown Abduction Murder Brown
Relying (1985), conviction contends his abduction S.E.2d 711 accepting must a matter of law. Even reversed as be value, Pryor argues, at his Commonwealth’s evidence face suffocation was sim of Johnson before her physical restraint “incidental” merely to the ply prelude murder—a brief an separately that cannot criminalized as abduc detention disagree. tion. We prin argued jeopardy
In the defendant that double with of an abduction conviction ciples coupling forbid the conduct sodomy convictions when rape related forcible 311-12, Id. criminal episode.” arose “out of same at 712. Brown resolved the problem” “constitutional Assembly that authorized thе General it did involve the so as punishment long abduction “kind of restraint which is an intrinsic element crimes such 313-14, Id. robbery, 337 S.E.2d at and assault.” rape, added). facts, that to the Applying principle 713 (emphasis Brawn found us that “the record before shows not the kind conviction was underlying detention *5 6 314,
of restraint that is inherent in the act Id. at rape.” 337 of added). (emphasis S.E.2d at 714 Because the “acts of force and intimidation the abduction were apart from the restraint inherent the сommission of added), rape,” (emphasis id. multiple-punishment chal lenge failed. recently
We confirmed our of Brown in understanding just these terms. principle, “Under this a ‘charged defendant with abduction detention and another crime that factually includes (e.g., restraint of the victim rape robbery)’ as a matter of law cannot ‘be convicted both unless abduc factually tion-detention is from distinct the restraint inherent ” Commonwealth, in the other crime.’ Walker v. 47 Va.App. 114, 123, 282, (2005) 622 S.E.2d 286-87 (quoting Roger D. Groot, (5th Virginia Criminal & at 3 Offenses Defenses ed.2005) omitted)). (emphasis In this way, Brown focuses not on whether the restraint was merely useful perpetrating detention-plus crime—but whether restraint was “intrin to, Commonwealth, sic” Cardwell v. 248 Va. 450 146, 152 (1994), in, S.E.2d or “inherent” Bell v. Common wealth, 97, 93, 114, 22 Va.App. (1996); 468 S.E.2d 116 Coram 623, 625-26, v. 532, 3 352 S.E.2d (1987), detention-plus crime.
No case ever Virginia multiple- has held that the Brown punishments principle applies coupled homi with made, first cide. The time such an assertion ever was Virginia Suprеme summarily Court it dismissed with the observation that a necessary restraint “is not element of Thus, homicide. contention that the restraint of [defendant’s] was not more than what necessary [victim] incident to his attempt kill her is without v. merit.” Powell Common wealth, (2001). 512, 11, n. 360 n. 11 sense, great This given makes deal that an abduction preceding legally murder can never said to “inherent be be in the act” of murder. See 230 Va. at 714; Dir., Corr., see also Dept. Jerman complaint (dismissing habeas immediately preceding that abductions ground on the law, cannot, “inherent in following a as a matter murder *6 act of murdering”).1 a matter Maybe not, Pryor argues, as some practical but a of simultaneous restraint. physical murders do involve form find, likely times would multiple A murder victim stabbed blade, of the during penetration the time between each here, a Similarly of restrained as result. freedom movement continues, very not die at the moment he Pryor Johnson did bag mouth and nose. The placed plastic process over her took of time to asphyxiation period of some measurable shut organs down her internal to cause her death. This sufficient period separately cannot criminalized under the restraint statute, Pryor abduction concludes. argument posits not this since it a
We need
address
case,
wholly
Pryor physically
situation.
In this
hypothetical
held
on
while his wife obtained the
ground
Johnson down
requested
tape, Pryor
When she returned with
tape.
he
to
taped Johnson so she could not
while
went
escape
An
bag
retrieve a
to
her with.
abduction
plastic
smother
airways
occurred
off
with the
sealed
Johnson’s
before
her to
plastic bag
began
suffocating
death.
process
Had he
at the last moment and decided against
relented
Johnson, Pryor
have
an
murdering
could
convicted of
been
An
upon what
had
done.
already
abduction based
he
abduc
“requires only showing
‘physical
tion conviction
a
detention
deprive
personal
of a
him of his
person, with
intent
force, intimidation,
liberty, by
without more.”
deception’
(citation
Walker,
120,
1. To be even when serves offense for abduction murder, felony principles preclude separate jeopardy double do not (and punishments) both multiple convictions thus murder Commonwealth, 385, 392, Va.App. Spain v. 373 abduction. See (1988) Commonwealth, Fitzgerald (relying 731-32 (1982)). Powell, Based on the logic of Brown and the we an preceding conclude that may murder lead case, convictions for each. The trial in Pryor’s court therefore, did not err in refusing set aside the abduction conviction.2 Privilege
B. Marital Testimonial Pryor also the trial court argues erroneously testimony admitted into evidence his wife’s prior prelim his inary hearing. question He does that this evidence fits within hearsay exception for former of an unavailable witness. See Nowlin v. generally (invoiсing marital testimonial privilege by witness-spouse, prop when er, Instead, makes for hearsay her “unavailable” purposes).3 *7 argues he that his wife’s invocation the marital testimonial privilege precluded at trial the trial court admitting from into prior, voluntary evidence her testimony preliminary at the hearing.4 again disagree. We that, § provides
Code 19.2-271.2 except certain kinds of prosecutions, spouse one cannot to “compelled be against called as a witness the other” in criminal At a case. point no Mary Pryor compelled testify this case was ever to against Though her husband. she could have invoked the reasons, analyze For these we see no need to the detention dissimilar- 2. 489, Commonwealth, ity Hoyt Va.App. factors outlined in v. 44 605 (2004). Hoyt did apply preced- S.E.2d 755 not Brown to an abduction any ing legal precedents murder discuss that did. Gary Pryor question prelimi- 3. does not his voluntariness of wife's nary testimоny. hearing challenge Nor does other he condition ordinarily testimony required preliminary hearing for the admission of testify generally Sapp to of witness unavailable at trial. See v. Commonwealth, 415, 423, 645, (2002). 263 Va. 559 S.E.2d 649 trial, argue appeal, did at nor he assert on his not does that 4. his statements to wife constituted “confidential communications” under Acts, generally §§ Code 8.01-398 and 19.2-271.2. See 2005 Va. ch. 809 incorporating (amending § 8.01-398 and its amended text into 19.2-271.2). opinion § paragraph exрress We thus no on the second subject.
9 Livingston v. Com see hearing, at preliminary privilege 757, (1996), 621, 628, 760 monwealth, 21 466 S.E.2d Va.App. for her the time came testify. voluntarily chose to When she In neither instance trial, chose to. testify at she of the word—to any ordinary sense least compelled—at she § 19.2-271.2 affords her husband. “Code testify against voluntary spouse’s to his right object on trial no defendant Commonwealth, 136, 141,554 Va.App. 37 testimony.” v.Wolfe Commonwealth, 33 695, (2001); see also Turner 698 S.E.2d 619, (2000).5 88, 95, 622 Va.App. 531 S.E.2d cases, criminal Code applicable only Though must that be construed penal § 19.2-271.2 is not “a statute Brown v. Common strictly against the Commonwealth.” (1982). wealth, Exactly 292 S.E.2d 322 “the § is Because 19.2-271.2 opposite impairs true. Code public to have all evidence introduced right of relevant statutory its reach “should be strict fact-finding process,” States, Trammel v. United 445 U.S. ly (citing construed.” Id. (1980)); 40, 50, 906, 912, 63 186 see also L.Ed.2d S.Ct. Bennett v. Va. strictly § that Code 19.2-271.2 “must be (holding
construed”). therefore, testimony, of spousal The аdmission rule” and exclusion that “general should be 322; 606, 292 at at exception.” “the (confirming Livingston, construed”). “strictly § 19.2-271.2 should be Code roots, the “modern Though privilege has ancient *8 spousal testimo justification privilege against for this adverse harmony sanctity in its role the ny perceived fostering is Trammel, 100 marriage relationship.” of the U.S. “one has testified in a criminal spouse at 909. And when S.Ct. Mary Pryor's waiver holding, we need not whether 5. Given our address waiver, releasing subject-matter рrivilege constituted a of the marital protection privilege. topics the of the all time the she discussed from Commonwealth, 633, 641, Blackman v. Cf. 464-65 (2005) against principle privilege (applying self-incrimina- tion). against other, prosecution harmony the whatever marital once dissipated, existed has been and the no spousal privilege longer serves a useful purpose.” Va. at S.E.2d at Mary Pryor 323. After of accused husband court, premeditated open murdеr in any harmony marital they may have previously enjoyed effectively by overtaken events. Applying privilege the under such circumstances cannot be justified either the text of the statute the underlying public policy it. supporting reasons,
For these we hold the trial court did not err in into admitting preliminary evidence hearing testimony Mary of Pryor.6
III. conviction, error in Finding no either affirm the we trial jury’s court’s final order confirming Gary verdict holding of Pryor guilty first-degree murder and abduсtion. Affirmed.
BENTON, J., concurring, in part, part. in dissenting, I concur in the trial that the did not err in judge Gary overruling Anthony Pryor’s objection of admission his wife’s preliminary hearing testimony. agree I also the trial did not judge permitting abuse his discretion in prosecutor and to reenact testimony by witness the wife’s dissent, question however, and answer at trial. I from the portion of the opinion upholding the abduction conviction. Gary Pryor challenges preliminary 6. also manner which the hearing jury, was read tо the which he characterizes an law, however, impermissible Virginia "reenactment.” Under aspect "manner of the a core introduction evidence” involves " discretion, trial court’s in the 'and absence abuse this discretion case,' resulting prejudice ruling defendant’s court’s will [the] appeal.” Cheng reversed v. 240 Va. London, Virginian (quoting Ry. 393 699, 716, (1927)). Nothing suggests 139 S.E. this record subject the trial court abused its discretion on this or that any prejudice suffered event. *9 Testimony
I. Spousal wife, -wife Pryоr’s his Pryor objection by any Without hearing the preliminary for the Commonwealth testified during cross-exami- Only Lisa Johnson. strangled Pryor that to explain asked she attorney was by Pryor’s nation that first time for the then testified of events. She sequence wrists, taped he Johnson’s tape, to retrieve Pryor asked her to suffocate Johnson. bag plastic to obtain a and he rose about cross-examination, wife testified Pryor’s this During occurring. were as these events made to her Pryоr statements on 19.2-271.2, attorney contends Pryor’s § Citing Code admitting in the wife’s judge the trial erred that appeal her “the wife exercised testimony because hearing preliminary essence, In he the husband.” testify against ... not right not privilege testimonial wife invoked her Pryor’s that argues Pryor’s husband. her testify against compelled to be appeal on argue trial and does not not attorney argue did interspous- by have been barred testimony that should recognized Code privilege al confidential communication § 19.2-271.2, Interspous- 8.01-398. incorporated Code § which distinct separate, is privilege communication al confidential v. Common- the statute. See Church by created privilege (1985). wealth, 208, 213-15, 826-27 335 S.E.2d 230 Va. did reason, judge that the trial ruling I concur For this that articulated objection was overruling not err in at trial. Pryor’s attorney
II. Abduction of Johnson was that his detention Pryor argues appeal in the act from the detention apart majority’s conclu- I with the disagree the homicide. causing in Brown v. that the sion is a defendant (1985), apply cannot when with a homicide. coupled charged with time did not establish wife’s Pryor’s or that moved lengthy of these events sequence body obtaining Johnson’s beyond distance significant The bag. absence of those facts critical is because Brown *10 Supreme the Court ... that one accused of by
h[e]ld
abduction
detention and
victim,
another
involving
crime
restraint of the
growing
both
continuing
conduct,
out of a
course of
is subject upon
conviction to separate penalties
separate
for
only
offenses
the
when
detention committed in the act of abduction is
from,
separate
apart
to,
and
merely
incidental
the
in
restraint
employed
the commission of
other
crime.
314,
230
atVa.
aIn recent we analyzed series of Virginia cases applied that the Brown holding and concluded that there are four “factors courts Virginia have on a case-by-case basis determining whether an is incidental another crime.” v. Hoyt (2004). factors, 757-58 Those stated sum- fashion,
mary are: “(1) (2) the duration of the asportation; detention or wheth- asportation er the detention or during occurred the commis- (3) offense; of a separate sion or whether the detention asportation which occurred is of- separate inherent fense; asportation whether detention created significant to thе danger independent posed victim of that offense.” Id. (quoting Virgin Government of (3d Cir.1979)). Berry, Islands 604 F.2d These Folck, factors are not far from cited in removed those case a rule similar to applying our Court referenced Supreme holding. that in the Brown adopted case, to this the Brown and our distillation Applied Pryor’s four factors lead to the conclusion that deten- to the em- merely tion of Jackson was incidental restraint ployed by Pryor the commission of thе homicide.
First, Pryor’s the duration of detention of Johnson and of the other events connected to the detention were not shown significant. proved The evidence and Johnson argued money Pryors drugs about Johnson owed the she kill if Pryor, you consumed. Johnson said to ‘"You can me want I’m not going pay you.” During argument, Pryor upon fell Johnson when she at “the corner of tripped the bar There, ... the counter.” bag he tied her and then retrieved a *11 from the cabinet and “smothered” her. No evidence proved any moved Johnson that he moved dis- significant in obtaining tance the bag suffocate her. No evidence proved any that lengthy period of time occurred the between tying Indeed, and the asphyxiation. the evidence suggests that Pryor immediately smothered Johnson after tying her. addition, In testimony by the assistant medical examiner proved that “very high level” of the controlled substance Fentanyl in system Johnson’s would have caused her to have “serious problems” breathing even without contact with Pryor.
Second, the during detention occurred the argument and struggle that culminated in the homicide. No evidence estab- lished that the detention was an act that occurred separately from the act of the homicide. Both the detention and the homicide flowed from the argument a continuous sequence.
Third, the detention was the mode of action that facilitated the homiсide. It was inherently part the method of the homicide that was committed. The of Johnson was done tying incidental to and in Pryor suffocating furtherance of Johnson. See Johnson v. 275 592, 596-97 (reversing an abduction conviction because the evidence that a proved defendant who held a woman while
committing battery an assault and committed this act furtherance of sexual advances and the merely detention was offense). Here, incidental to that Pryor cоuld have suffo- her, cated detaining only Johnson without and he moved a in obtaining trivial distance the bag.
Fourth,
the detention did not
significant danger
create
independent
danger posed by
Johnson
of the
In Hoyt,
homicide.
this Court held that a
lasting
detention
and,
five minutes and
the victim
moving
slight
ten feet was
thus, the defendant could not
be convicted
abduction as well
as the
underlying felony. Va.App.
As Supreme Court’s suggests, dispositive issue is whether the “merely detention was inciden- ... tal to the restraint the commission of the at 714. In Hoyt, other ciime.” 230 Va. at we observed that ... Supreme Maryland Court of noted that “a majority
of courts ... now hold that ‘kidnapping statutes do not apply to unlawful confinements or incidental movements ” Maryland the commission of other felonies’ [and court] that a recognized reading literal of abduction and kidnap- crimes, ping robbery, statutes would “overrun other such as and assault.” rape, *12 493, Stouffer, State v. at 757 (quoting 97, 207, 212
352 Md. 721 A.2d Frank J. (quoting Wozniak, Annotation, Seizure or Detention Purpose for Committing Rape, Robbery, Constituting Other Offense (1996))). Separate Kidnapping, Crime 283, 39 A.L.R.5th Brown. in This view is consistent with the Powell v. 11 in Relying footnote (2001), 541 n. 360 n. 11 the majority has opinion Supreme Virginia asserts that the Court sum- Brown marily principle dismissed the contention that to an with a homicide. foot- applies coupled This note, however, in merely charge is dicta because the abduction homicide, in Powell did not arise connection with a and this upon by Supreme footnote has never been relied Court or Indeed, any other court. as the following passage demon- strates, the abduction in Powell was incidental to the any restraint in other offense: Here, there is support sufficient evidence to the finding of jury that Powell used greater restraint than was neces- sary First, to commit rape. go Powell ordered Kristie to a more part secluded of the home prior rape. to the Al- though display time, Powell did not weapon her at that it is clear under the circumstances that Kristie was reasonable fear for her life having just discovered her sister’s lifeless body and aware that being Powell was usually Moreover, armed. the rape was completed, after Powell bound Kristie and some time left before returning to to kill attempt her. This restraint clearly exceeded that necessary accomplish the rape. Accord- ingly, we hold that the trial court did not err in failing to strike the evidence as to the charge of abduction. added) (citations
Id. at 552 S.E.2d at (emphasis omitted). footnote
I also disagree with
majority
opinion’s conclusion that
the Supreme
Dir.,
Court held
Jerman v.
Dept. Correc
tions,
(2004),
The first abduction accomplished through asportation by deception, which is proscribed by § Code 18.2-47. Panko picked Rhatigan up and drove him to her house on the pretext that some оf her friends were they there and “all wanted to trip.” She did not to Rhatigan disclose the fact Jerman, Bohn, and Joe were him awaiting with baseball bats____ *13 second abduction occurred when [after assault]
The
house,
out of the
Rhatigan’s body
Bohn and Joe carried
fence,
and then tossed him over
through
backyard
the fence.
439-40,
facts,
force after the assault. Neither
involved the restrаint or force
Id.
act
murdering Rhatigan.”
inherent
at 260.
Simply put,
proved Pryor’s
the evidence
this case
deten
suffocating
tion of
was incidental
to the act of
John
Johnson
words,
son.
In other
the detention was not “remote
terms
not,
from
homicide and
“in
of time and distance”
...
apart”
terms of
from
quality
quantity,
the restraint
the suffocation of Johnson.
reasons,
I
Salem. April 2006.