PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton, S.J.
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 021891 JUSTICE DONALD W. LEMONS
April 17, 2003
LOUIS SCOTT HUDSON
FROM THE COURT OF APPEALS OF VIRGINIA
A jury found Louis Scott Hudson (“Hudson”) guilty of the
second-degree murder of his wife, Mary Donovan Hudson, known as
“Mimi,” and use of a firearm in the commission of the murder.
In an unpublished opinion, the Court of Appeals reversed the
judgment and dismissed the indictments. Hudson v. Commonwealth,
No. 0917-01-4, 2002 Va. App. LEXIS 389 (Va. Ct. App. July 16,
2002). For the reasons stated, we will reverse the judgment of
the Court of Appeals and reinstate the trial court’s judgment.
I. Facts and Proceedings Below
Hudson was indicted for first-degree murder of his wife and
for using a firearm in the commission of murder. At trial, the
court denied Hudson’s motion to strike the evidence but
permitted the case to proceed on charges of second-degree murder
and use of a firearm in the commission of murder. The jury
returned verdicts of guilty to both charges submitted. The
trial court imposed the sentence set by the jury of seventeen
years for murder and three years for use of a firearm and
suspended five years of the sentence for murder.
Hudson and Mimi had been living together for about six to
eight years prior to marrying in July 1999, three months before
her death. There was no evidence of abuse between the two. In
fact, evidence was presented that they had a good relationship.
Mimi had been declared incompetent in 1972 and was
estimated to have the mental age of a twelve-year old. Mimi
took prescription medicine and pain killers for chronic back
pain, and at the time of her death, she had an infection in her
right elbow. The infection in her elbow caused Mimi a “great
deal of pain,” and she was having “difficulty bending it and
lifting, or holding anything.” Just a few weeks prior to her
death, Mimi had “overdosed” on Darvocet, a mild prescription
pain-killer. Mimi’s physician testified that she did not
understand how to properly take the medicine, would not wait for
it to work, and took excessive amounts. Evidence was presented
that Darvocet can intensify the effects of alcohol.
Neither Mimi nor Hudson worked during the time they lived
together. Mimi’s allowance from her family trust fund supported
the couple financially. Upon her death, none of the proceeds of
the trust benefited Hudson.
Mimi loved horses and spent much of her time riding, and on
the morning of September 20, 1999, she went on a fox hunt.
After the hunt, she attended her father’s memorial service. Her
father had been sick for about 18 months, battling Parkinson’s
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disease and colon cancer and had died several days previously.
Evidence was presented that Mimi was unhappy with the property
distribution from her father’s estate; however, there was
evidence that Mimi was in good spirits after the fox hunt, had
bought a new dress for the memorial service, and was excited
about the family heirloom ring she had received from her
father’s estate.
During the luncheon following the memorial service, Mimi
and Hudson consumed alcohol. When they returned home, they
continued to drink. At the time of Mimi’s death, her blood
alcohol content was between .22 and .24, and Darvocet was
present in her system.
David G. Donovan, the victim’s twin brother, testified that
Mimi did not like guns and did not like to handle them, but
Hudson kept guns in the house. Evidence, however, was presented
that on one occasion prior to the date of her death Mimi had
fired a .22 revolver. Neighbors testified that on the night of
September 20, between 5:00 p.m. and 6:00 p.m., they heard two or
three high-powered rifle shots from the direction of Hudson’s
residence.
Wesley A. Thompson (“Thompson”), a friend of Mimi’s,
testified that about 7:45 p.m. on the night of September 20,
Mimi called him to talk about her father’s death. During the
call, Hudson interrupted the conversation with obscenities and
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asked Thompson why he was talking to Mimi. Thompson then hung
up the telephone.
Anne H. Hudson, Hudson’s mother, testified that Hudson
called her at approximately 7:30 p.m. and said that Mimi had
shot and killed herself. Obviously, the timing of the telephone
calls is in dispute because Mimi could not have been dead at
7:30 and alive and speaking with Thompson on the telephone at
7:45. Hudson’s parents estimated that they arrived at Hudson
and Mimi’s house about five minutes after Hudson’s call and saw
Mimi’s body, but that Hudson was not there. Hudson’s father
then returned to his house and called the police at 7:52 p.m.
The police arrived at Hudson and Mimi’s house at 7:57 p.m.
They observed Mimi’s body on the living room couch, with a .22
caliber revolver lying across her right palm in a manner
described by an officer as looking “like it was backwards.”
There were bloody handprints on the back cushion of the couch,
on Mimi’s jeans, and on her forearm. The officers did not see
any blood on Mimi’s hands. Outside of the house, the garden
hose was turned on “full blast” despite the fact that it was
raining heavily that night.
Around 9:00 p.m. that night, Hudson’s brother, Steven
Hudson (“Steven”), saw Hudson sitting in his car in their
parents’ driveway. Steven took Hudson inside to “sober up,”
while Hudson’s father called the police. Hudson’s father saw no
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blood on Hudson when he came in the house. At 9:17 p.m., the
police arrived at Hudson’s parents’ house. When they entered
the house, Hudson was sitting on the couch with a cup of coffee
in his hand, and he appeared extremely intoxicated. Hudson’s
father told the police that he wanted Hudson out of his house.
The police arrested Hudson for being drunk in public and took
him into custody. At the time of his arrest, Hudson’s blood
alcohol content was .215. Although he did not tell the police
when they arrived at his house, Hudson’s father had removed a
.270 caliber rifle from Hudson’s car and taken it into the house
prior to the arrival of police.
After being transported to the jail, Hudson was searched,
and a .22 caliber bullet was found in his coat pocket. At 6:30
a.m. on September 21, Hudson was advised of his Miranda rights,
and he gave a statement. According to Hudson, Mimi was unhappy
after her father’s memorial service because she felt that she
deserved more money and property from her father’s estate. He
stated that while they were in the house, Mimi picked up the .22
caliber revolver that Hudson kept either on the couch or in a
drawer adjacent to the couch, and started playing with it.
Hudson told her, “[p]lease don’t do that[,]” and said that
“[e]verything will be okay.” He said that while he was in the
bathroom he heard a shot. He stated that when he returned, he
saw Mimi slumping over on the couch. He said he never went near
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the body. He did not remember calling anyone after the
shooting, including his mother, and he did not know why he did
not call the 911 emergency number. He said that he left his
house after the shooting, but cannot account for his whereabouts
or actions from the time of Mimi’s shooting until 9:00 p.m.,
when he arrived at his parents’ house. Regarding the .22
caliber bullet found in his coat pocket, Hudson said he must
have picked it up when he picked up loose change from his
dresser.
On November 18, 1999, the Virginia State Police interviewed
Hudson with his attorney present. Hudson made reference to a
trust established for Mimi’s benefit. He again stated that he
and Mimi had been drinking at home after the memorial service
and that Mimi was upset because her brother, as trustee of the
trust, would not allow her to purchase a pick-up truck and a
trailer. He stated that Mimi then began playing with the .22
caliber revolver. After Hudson went into the bathroom, Mimi
announced that she was going to shoot herself. Hudson replied
not to worry about it, referring to the trust. He then heard a
shot, and when he came out he saw that Mimi had shot herself.
Hudson said he saw a little bit of blood around one of Mimi’s
eyes. During the interview, Hudson said he never went near the
body, but later he said he did not recall going near the body or
touching it. He denied handling any firearms that night; he
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stated that his most recent handling of a firearm was two days
prior to Mimi’s death. Again, he could not account for his
whereabouts between the time of the shooting and the time he
arrived at his parents’ house. Hudson did not remember any
telephone calls being made or received that night, either by
Mimi or him, including the telephone call to Thompson.
During trial, the medical examiner, Dr. Carolyn Revercomb
(“Revercomb”), who conducted the autopsy on Mimi, testified that
Mimi had a contact range wound to her head through her left ear.
The bullet traveled from the left ear up towards the right and
towards the back of her head. Revercomb testified that such a
wound would cause immediate unconsciousness, and death would
follow within minutes. She also testified that after the shot
was fired, rapid and copious bleeding occurred and there would
have been no voluntary movement by the victim.
Gary Arnsten (“Arnsten”), a forensic scientist with a
specialty in firearms, testified that the bullet recovered from
Mimi’s brain was fired from the .22 caliber revolver found on
her right palm. Arnsten also testified that it is necessary to
manually cock the hammer of this revolver before firing it.
Additionally, a fingerprint expert, Richard Willett
(“Willett”) and a gunshot residue expert, Eugene R. Harrison
(“Harrison”) testified. Willett testified that no latent
fingerprints were found on the revolver or any cartridges.
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Harrison, however, testified that both Hudson and Mimi had
primer residue on their hands. Only Mimi’s right hand had
primer residue on it, and the residue matched the .22 caliber
cartridge identified as having contained the fatal bullet.
Harrison identified primer residue on both of Hudson’s hands,
containing three elements, lead, barium, and antimony. The
residue found on Mimi’s right hand contained only two elements,
lead and barium. In light of these findings, Harrison testified
that it would be “unlikely” but not “inconceivable” that the
residue on Hudson’s hands came from the revolver that caused
Mimi’s death.
Marjorie Harris (“Harris”), an expert in blood stains,
testified regarding the blood stains found on the couch cushion,
the front left thigh of Mimi’s jeans, and Mimi’s right forearm.
Harris testified that the blood contact transfer stains came
from heavily bloodied hands, but the stains did not come from
Mimi’s hands because she had no visible blood on her hands.
Harris also testified about the large blood stain that was found
on the couch underneath a telephone book. She opined that
[t]he blood would have had to be placed there
first and then the telephone book on top of that.
. . . [T]he stain that is prevalent and shows on
the telephone book is not consistent with the
stain underneath it. That cushion had to be open
to receive the blood and then the telephone book
at a later time covered that blood stain.
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Carol Palmer (“Palmer”), an expert in forensic biology,
testified concerning the DNA composition of the various blood
stains. First, Palmer testified that a spot of blood found on
Hudson’s left shirt sleeve was consistent with Mimi’s DNA
profile, and inconsistent with Hudson’s DNA profile. Palmer
further testified that the probability of finding someone with
the same DNA profile as Mimi would be approximately one in
fifty-one million in the Caucasian population. Palmer also
identified the stains on the couch, the back cushion of the
couch, and Mimi’s jeans as having the same DNA profile as Mimi’s
blood, but a different DNA profile than that of Hudson.
II. Analysis
The burden of proof upon the state in a criminal case was
given constitutional status in In re Winship, 397 U.S. 358, 364
(1970) wherein the Court stated “that the Due Process Clause
protects the accused against conviction except upon proof beyond
a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” Later, with an analysis of the
history of the use of the “beyond a reasonable doubt” standard,
the Court acknowledged that the standard “defies easy
explication,” but held the following:
The beyond a reasonable doubt standard is a
requirement of due process, but the Constitution
neither prohibits trial courts from defining
reasonable doubt nor requires them to do so as a
matter of course. Indeed, so long as the court
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instructs the jury on the necessity that the
defendant’s guilt be proved beyond a reasonable
doubt, the Constitution does not require that any
particular form of words be used in advising the
jury of the government’s burden of proof. Rather
“taken as a whole, the instructions [must]
correctly convey the concept of reasonable doubt
to the jury.”
Victor v. Nebraska, 511 U.S. 1, 5 (1994) (internal citations
omitted).
Generally, there are two types of evidence presented during
a trial – direct evidence and circumstantial evidence. Direct
evidence is offered to prove as a fact the point in issue.
Circumstantial evidence, by contrast, is offered to prove a fact
not directly in issue, from which a fact in issue may reasonably
be inferred.
There is no distinction in the law between the weight or
value to be given to either direct or circumstantial evidence.
The finder of fact is entitled to consider all of the evidence,
without distinction, in reaching its determination. See Downden
v. Commonwealth, 260 Va. 459, 468, 536 S.E.2d 437, 441 (2000).
An instruction given in the case before us included the
following:
When the Commonwealth relies upon circumstantial
evidence, the circumstances proved must be consistent with
guilt and inconsistent with innocence. It is not
sufficient that the circumstances proved create a suspicion
of guilt, however, strong, or even a probability of guilt.
The evidence as a whole must exclude every reasonable
theory of innocence.
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While such an instruction properly paraphrases our case law, the
instruction, properly understood, does not add to the burden of
proof placed upon the Commonwealth in a criminal case. The
statement that circumstantial evidence must exclude every
reasonable theory of innocence is simply another way of stating
that the Commonwealth has the burden of proof beyond a
reasonable doubt. See Cox v. Commonwealth, 140 Va. 513, 517,
125 S.E. 139, 141 (1924).
In the case before us, the Court of Appeals held that “the
Commonwealth’s evidence fails to exclude all reasonable
hypotheses of innocence.” Noting that Hudson argued that Mimi
may have been “shot by accident” or “intentionally by her own
act[,]” the Court of Appeals held that, “[t]here is evidence to
support this hypothesis [sic] of innocence.” With respect to
the question of who fired the weapon, the Court of Appeals held
that “there is some evidence that Mrs. Hudson may have fatally
fired the gun.” The error of the Court of Appeals is manifest
in these holdings.
The issue upon appellate review is not whether “there is
some evidence to support” these hypotheses. The issue is
whether a reasonable jury, upon consideration of all the
evidence, could have rejected Hudson’s theories in his defense
and found him guilty of murder beyond a reasonable doubt. In
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support of its holding, the Court of Appeals focused primarily
upon the evidence supporting Hudson’s theories, namely, that the
“.22 revolver that fired the fatal shot was found in Mrs.
Hudson’s hand[,]” “the gunshot residue found on Mrs. Hudson’s
right hand was consistent with the .22 shells at the scene[,]”
“the gunshot residue . . . found on Hudson’s hands was not
consistent with that ammunition[,]” “there were no identifiable
fingerprints found on the .22 revolver or any of the cartridges
attributable to Hudson[,]” and the unsupported statement that
“[t]here is simply no evidence establishing Hudson ever touched
the weapon that fired the fatal bullet.”
We have held in many cases that, upon appellate review, the
evidence and all reasonable inferences flowing therefrom must be
viewed in the light most favorable to the prevailing party in
the trial court. Derr v. Commonwealth, 242 Va. 413, 424, 410
S.E.2d 662, 668 (1991); Higginbotham v. Commonwealth, 216 Va.
349, 352, 218 S.E.2d 534, 537 (1975). Circumstantial evidence
is not viewed in isolation. “While no single piece of evidence
may be sufficient, the ‘combined force of many concurrent and
related circumstances, each insufficient in itself, may lead a
reasonable mind irresistibly to a conclusion.’ ” Derr, 242 Va.
at 425, 410 S.E.2d at 669 (citations omitted). It is the
province of the jury to evaluate the credibility of witnesses.
Bloom v. Commonwealth, 262 Va. 814, 821, 554 S.E.2d 84, 87
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(2001); Phan v. Commonwealth, 258 Va. 506, 513, 521 S.E.2d 282,
286 (1999). It is “within the province of the jury to determine
what inferences are to be drawn from proved facts, provided the
inferences are reasonably related to those facts.” Inge, 217
Va. at 366, 228 S.E.2d at 567-68.
In the case before us, the analysis of the Court of Appeals
viewed the evidence in the light most favorable to Hudson rather
than to the Commonwealth as required. Additionally, the Court
of Appeals emphasized Hudson’s evidence rather than the totality
of the evidence as required. Finally, the Court of Appeals’
analysis did not give proper deference to the province of the
jury to consider the testimony and the credibility of the
witnesses to determine reasonable inferences from such evidence,
and reject as unreasonable the hypotheses offered by Hudson.
Of course, upon appellate review, the issue of exclusion of
reasonable theories of innocence is limited to those theories
advanced by the accused at trial. Subject to the ends of
justice exception, appellate courts will not entertain matters
raised for the first time on appeal. Rule 5A:18; Rule 5:25. In
the case before us, Hudson did not testify at trial; however,
many of his pretrial statements were introduced through other
witnesses. Hudson’s theory of innocence was advanced in
counsel’s argument to the jury.
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Hudson argued only that Mimi committed suicide. He did not
advance a theory of accidental shooting by Mimi or by himself.
He did not advance a theory that the fatal shot was fired by
someone other than Mimi. In closing argument, counsel stated to
the jury, “Tragically, tragically, suicide is the only
reasonable explanation of what happened on September 20th,
1999.” Emphasizing the circumstantial nature of the evidence
and the presumption of innocence, Hudson maintained that Mimi
shot herself. He argued that there was no motive for Hudson to
kill her, that Mimi had recently taken an overdose of
medication, that there was no evidence of a prior history of
violence between Hudson and Mimi, that both he and Mimi were
under the influence of intoxicants, that the time between the
telephone call to Thompson and Hudson’s telephone call to his
parents was too short for a murder and a cover-up of the murder
to take place, and that gunshot residue evidence was
inconsistent with Hudson having fired the fatal shot.
The Commonwealth argued that the jury must consider all of
the evidence, not just Hudson’s narrow isolation of certain
aspects of the evidence. The Commonwealth argued that Hudson
committed an unpremeditated killing of Mimi with malice
sufficient to support a conviction for second-degree murder and
that his theory of suicide was not reasonable. The Commonwealth
properly noted that proof of motive is not an element of the
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offense, but nonetheless noted that the fatal shot was fired
shortly after Hudson expressed his anger over a telephone call
between Thompson and Mimi. Mimi had placed the call, but it was
terminated when Hudson took the telephone, and directed
obscenities at Thompson. Thompson hung up the telephone.
Shortly thereafter, Mimi died from a gunshot wound to her brain
through her left ear.
The Commonwealth argued that Hudson shot Mimi immediately
after the telephone call was terminated. Further, the
Commonwealth argued that the crime scene evidence was
inconsistent with Hudson’s proffered theory of suicide and
inconsistent with his own statements. There was no blood on
Mimi’s hands. The revolver was on top of Mimi’s right palm in a
position that was “backwards” from the position in which the
revolver would have been found had Mimi shot herself. Mimi had
an infected right elbow that was painful when manipulated. To
have fired a long-barreled .22 revolver with her right hand into
her left ear would have been awkward at best, and was most
unlikely given her physical impairment.
Three bloody palm prints were found at the crime scene –
one on the back of the sofa upon which Mimi’s body was located,
one on the left pant leg on top of the pocket, and one on her
forearm. Mimi had no blood on her hands. Hudson said that he
did not touch Mimi after he found her on the sofa with a gunshot
15
wound to the head. Under Hudson’s theory, only two people were
in the house when the fatal shot was fired, Hudson and Mimi.
Hudson’s parents came to the crime scene before the police, but
they stated that neither of them touched Mimi and that they got
no closer to the body than the coffee table in front of the
sofa. Mimi’s right hand was found lying on open pages of a
commercial telephone book. Mimi’s blood was pooled under the
telephone book despite the fact that her right palm with the
revolver in it was on top of the telephone book. An expert
witness opined that the blood pooled on the sofa and thereafter,
the telephone book covered the blood.
Hudson stated that he found Mimi on the sofa.
Subsequently, according to his parents, he called his parents to
tell them that Mimi had shot herself. Then he disappeared for
over an hour. Hudson cannot account for his whereabouts during
this time. When he was found by police at his parents’ house
over an hour later, he had no blood on his hands. Curiously,
when police had arrived at the crime scene, they had found a
garden hose outside the house running “full blast” despite the
fact that it was “pouring down rain.” Hudson recalled no
telephone calls that had been made or received that night. His
parents and Thompson refuted this statement. Hudson stated that
he had not handled a firearm for two days. Primer residue was
found on Hudson’s hands; however, in addition to lead and
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barium, the residue included antimony. Neighbors had heard
rifle shots coming from the direction of the Hudson home in the
afternoon before Mimi’s death. A .270 caliber rifle was taken
by Hudson’s father from the back seat of Hudson’s car when he
arrived at their home after Hudson’s unexplained absence
following the fatal shot. Forensic examination revealed a blood
stain, identified as Mimi’s blood, on Hudson’s shirt.
The Commonwealth argued to the jury that Hudson lied. He
said that he had not handled a firearm in two days, yet primer
residue was on his hands. He said that he had not touched Mimi
or the couch, yet there were three bloody palm prints at the
scene. Hudson never argued that his parents or anyone else
accounted for these prints. Mimi’s hands were not bloody. When
examined, Hudson’s hands were not bloody, but the hose had been
found running “full blast” and over an hour had elapsed from the
time that the police arrived at the crime scene to the time that
Hudson was found at his parents’ house. The Commonwealth noted
that the additional element of antimony found on Hudson’s hands
was explained by its theory of the case: that Hudson shot Mimi,
tried to arrange the crime scene to look like a suicide, washed
his own hands, disappeared for over an hour, and was found with
a recently fired rifle that was handled by Hudson after Mimi’s
murder.
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The jury was entitled to evaluate Hudson’s theory of
innocence upon consideration of all the evidence and the
reasonable inferences that flow from that evidence. It is clear
that the jury rejected Hudson’s theory as unreasonable. The
evidence from the crime scene and the ensuing investigation was
inconsistent with Hudson’s theory of innocence and with his own
statements to police. The jury was entitled to conclude that
Hudson was lying to police and to reject the explanation offered
by Hudson and utilized in closing argument by Hudson’s counsel.
III. Conclusion
For the reasons stated, we hold that the Court of Appeals
erred in reversing the judgment of the trial court. We will
reverse the judgment of the Court of Appeals and enter final
judgment reinstating the judgment of the trial court.
Reversed and final judgment.
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