Rock v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Kelsey and McClanahan
Argued at Richmond, Virginia

JOHN DAVIS ROCK, III
OPINION BY
v. Record No. 2107-03-2 JUDGE ELIZABETH A. McCLANAHAN
MARCH 15, 2005
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ESSEX COUNTY
Harry T. Taliaferro, III, Judge

Scot A. Katona (Dillard and Katona, on brief), for appellant.

Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.

John Davis Rock, III appeals his sentencing upon conviction of conspiracy to commit

robbery. Rock contends that the trial court erred in allowing the Commonwealth to present to

the jury victim impact testimony by the family of Michael Cook, who was murdered during the

conspired robbery. For the reasons that follow, we affirm.

I. BACKGROUND

On appeal, we review the evidence in the “light most favorable” to the Commonwealth.

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citation omitted).

That principle requires us to “discard the evidence of the accused in conflict with that of the

Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and

all fair inferences that may be drawn therefrom.” Kelly v. Commonwealth, 41 Va. App. 250,

254, 584 S.E.2d 444, 446 (2003) (en banc) (citations omitted).

Four masked intruders, two of whom were carrying assault rifles and one of whom was

carrying a handgun, broke into Pamela Gravely’s home in Essex County, Virginia. Gravely,
Michael Cook, Jill Cossica and Scott Cox were present in the living area of the home, and

Gravely’s two daughters were in a bedroom. Gravely removed a mask from one of the intruders

while the intruder was present in her home. One of the intruders demanded that Gravely, Cook,

Cossica and Cox get down on the floor. Another intruder demanded that Gravely’s daughters go

into the living area with the others. Cook approached one of the intruders who had a gun. The

intruder shot Cook, killing him. All four intruders fled.

DNA from the mask Gravely removed from one of the intruders matched that of Andre

White. Subsequently, White, Jason Hunt, Michael Williams and Rock were arrested for crimes

related to the intrusion into Gravely’s home, including attempted robbery, statutory burglary,

abduction, and murder. White and Hunt pled guilty to crimes related to the break-in and

homicide.

At Rock’s trial, both White and Hunt testified that Rock gave them directions to

Gravely’s home and participated in the planning of the robbery. Gravely testified that Rock

visited her home in Essex County several times in the past. The jury convicted Rock of

conspiracy to commit robbery, but acquitted him of eight other felony counts relating to the

attempted robbery and murder at Gravely’s home.

At the sentencing hearing, over Rock’s objection, the court permitted the Commonwealth

to present victim impact testimony of the murder victim’s brother, Eugene Cook, and the mother

of the murder victim’s children, Sarah Seely. Following the jury’s recommendation, the trial

court sentenced Rock to six years in the state penitentiary.

II. ANALYSIS

Rock asserts on appeal that the trial court abused its discretion in allowing victim impact

testimony by Cook’s family during the sentencing phase of his trial because Rock was convicted

of conspiracy to commit robbery, but was acquitted of Cook’s murder. More specifically, Rock

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argues that the victims who provided impact testimony at the sentencing phase were not victims

within the meaning of Code § 19.2-11.01(B) because they did not suffer as a “direct result” of

Rock’s conspiracy to commit robbery. Rock argues that any connection between the conspiracy

to commit robbery conviction and the murder is “purely speculative.” We disagree.

In 1995, in recognition of the concern for the victims and witnesses of crime, the General

Assembly enacted the Crime Victim and Witness Rights Act, Code §§ 19.2-11.01-11.4. The

purpose of the statute is “to ensure that the full impact of crime is brought to the attention of the

courts of the Commonwealth; that crime victims and witnesses are treated with dignity, respect

and sensitivity; and that their privacy is protected to the extent permissible under law.” Code

§ 19.2-11.01(A).

Prior to 1998, the statutes addressed victims’ rights in the sentencing process only

through the use of a pre-sentence or written report containing victim impact statements. See

Code § 19.2-11.01(A)(4)(a) (“Victims shall be given the opportunity . . . to prepare a written

victim impact statement prior to sentencing of a defendant . . . .”); Code § 19.2-264.5; Code

§ 19.2-299.1 (“[The] presentence report . . . shall, with the consent of the victim . . . include a

Victim Impact Statement.”). Such statements generally were available only to the judge.

Thomas v. Commonwealth, 263 Va. 216, 235, 559 S.E.2d 652, 663 (2002). The pre-1998

statutes did not provide for oral testimony by the victim during the sentencing proceeding.

In 1998, the General Assembly expanded the permissible scope of the Act by establishing

the victim’s right to present victim impact oral testimony during the sentencing proceeding.

Code §§ 19.2-11.01(A)(4)(c) and 19.2-295.3; see also Thomas, 263 Va. at 235, 559 S.E.2d at

662-63. Code § 19.2-11.01(A)(4)(c) provides that “[o]n motion of the attorney for the

Commonwealth, victims shall be given the opportunity, pursuant to §§ 19.2-264.4 and

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19.2-295.3, to testify prior to sentencing of a defendant regarding the impact of the offense.”

(Emphasis added). Code § 19.2-295.31 states:

In cases of trial by jury or by the court, upon a finding that the
defendant is guilty of a felony, the court shall permit the victim, as
defined in § 19.2-11.01, upon motion of the attorney for the
Commonwealth, to testify in the presence of the accused regarding
the impact of the offense upon the victim.

(Emphasis added). Whereas “[t]he written statements were generally available only to the judge

in the sentencing process, these amendments allowed the victim testimony to be presented to and

considered by the jury in its sentencing deliberations.” Thomas, 263 Va. at 235, 559 S.E.2d at

663. Under these amendments, victims who wish to offer impact testimony at the sentencing

hearing of a defendant found guilty of a felony have a statutorily protected right to testify in the

presence of the jury.

The pertinent language of Code §§ 19.2-11.01(A)(4)(c) and 19.2-295.3 is mandatory. By

explicitly providing that victims shall be allowed to testify regarding the impact of the offense on

them when the defendant is found guilty of a felony, Code § 19.2-295.3 establishes the victim’s

right to testify without interference. However, those persons given this right must meet the

definition of “victim” as defined in Code § 19.2-11.01(B). Thomas, 263 Va. at 235, 559 S.E.2d

at 663. Code § 19.2-11.01(B) defines a “victim” as:

(i) a person who suffered physical, psychological or economic
harm as a direct result of the commission of a felony, . . . (ii) a
spouse or child of such a person, . . . or (v) a spouse, parent, sibling
or legal guardian of such a person who is physically or mentally
incapacitated or was the victim of a homicide . . . .

(Emphasis added). Once it is determined that the persons who offer their impact testimony are

“victims” within the meaning of the statute, the court shall permit the victims to testify regarding

the impact of the offense. See Code § 19.2-295.3.

1
A 2004 amendment to this statute substituted “Whether by trial or upon a plea of guilty”
for “In cases of trial by jury or by the court.”
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 At Rock’s trial on all nine charges, he was acquitted of the murder charge, but was

convicted of the conspiracy to commit robbery charge. The trial court recognized that the jury

heard the evidence on all nine charges, and the court made the factual finding that the evidence

showed that the murder occurred as a direct consequence of the conspiracy to commit robbery

when it made its evidentiary ruling:

Certainly the jury has every detail about what happened. They
heard it for three days, exactly what happened in the robbery of
this trailer. There is hardly a detail left that they have not heard.
They considered that in coming to their verdict in this case. And I
know of no practical way at this point to put limitation on what is a
direct consequence of that conspiracy, which is that a man died as
a result of it.

(Emphasis added). This factual finding was a prerequisite to the court’s determination that

Eugene Cook and Sarah Seely satisfied the legal definition of victim under Code §19.2-11.01(B)

and that, therefore, their victim impact testimony was admissible. See Claytor v. Anthony, 27

Va. (6 Rand.) 285, 299-300 (1828) (inquiry involved a preliminary determination of fact by the

judge in order that he or she may determine whether the evidence is admissible); see also

Rabeiro v. Commonwealth, 10 Va. App. 61, 64, 389 S.E.2d 731, 732 (1990) (“Factual

determinations which are necessary predicates to rulings on the admissibility of evidence and the

purposes for which it is admitted are for the trial judge [to decide].”).

Determination of the admissibility of evidence lies within the broad discretion of the trial

court. See Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). The trial

court’s ruling regarding the admissibility of evidence will not be disturbed on appeal absent a

clear abuse of discretion. See Commonwealth v. Shifflett, 257 Va. 34, 44, 510 S.E.2d 232,

236-37 (1999). “Given the ‘broad discretion’ of a trial judge over evidentiary matters, we apply

a deferential abuse-of-discretion standard of appellate review.” Seaton v. Commonwealth, 42

Va. App. 739, 752, 595 S.E.2d 9, 15 (2004) (citations omitted); see Valentine v. Commonwealth,

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28 Va. App. 239, 244, 503 S.E.2d 798, 800 (1998); Herbin v. Commonwealth, 28 Va. App. 173,

185, 503 S.E.2d 226, 232 (1998). “We review the trial court’s factual findings only to determine

if they are plainly wrong or devoid of supporting evidence.” Campbell v. Commonwealth, 39

Va. App. 180, 186, 571 S.E.2d 906, 909 (2002).

We cannot say that the trial court was plainly wrong or that its factual findings were

without supporting evidence when it made the factual determination that the murder was a direct

consequence of the conspiracy. Rock assembled the men, planned the robbery that involved the

use of guns, and directed the men to Gravely’s home. The robbery occurred contemporaneously

with Cook’s murder, for which the other defendants pled guilty. Rock was the only defendant

who knew Gravely, had been in her home in the past, and knew where her home was located.

White, Hunt and Williams did not know Gravely, did not know where Gravely lived, and had

never been in her home, where Cook was murdered. These facts and circumstances provide a

rational basis for concluding that the murder in Gravely’s home during the robbery was a direct

consequence of the conspiracy to rob her home. Applying the statutes to this case, and in light of

the General Assembly’s purpose in enacting the Crime Victim and Witness Rights Act,2 we hold

that the trial court did not abuse its discretion by admitting the victim impact testimony during

the sentencing proceeding.

Furthermore, we hold that the admissibility of the victim impact testimony was relevant

and within the sound discretion of the trial court even if persons who are not deemed “victims”

under the statute offered the testimony. See Beck v. Commonwealth, 253 Va. 373, 385, 484

S.E.2d 898, 905 (1997). In Thomas, the Supreme Court held the trial court erred by failing to

2
In Beck v. Commonwealth, 253 Va. 373, 384, 484 S.E.2d 898, 905 (1997), the Supreme
Court observed that “[t]he clear import of the [Crime Victim and Witness Rights] Act is to
preserve the right of victims of crimes to have the impact of those crimes upon their lives
considered as part of the sentencing process, if that is their wish . . . .”
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apply the proper test to the defendant’s motion to change venue. Although not dispositive of the

case, the court addressed the admissibility of victim impact testimony and whether persons who

do not meet the definition of victim under the statute have a right to testify. In Thomas, a cousin

of the murder victim and the victim’s fiancé were allowed to testify in the penalty phase of the

trial where the potential punishment was death. 263 Va. at 233, 559 S.E.2d at 662. The Court

deemed admissible relevant victim impact testimony by persons who did not meet the statutory

definition of “victim.” Id. at 235, 599 S.E.2d at 663. The Court held that “[w]hile such persons

do not have a statutorily protected right to testify, their testimony is not automatically barred by

Code § 19.2-264.4(A1).” Id. The Thomas Court relied on Beck, stating Beck’s determination

that:

[T]he statutes do not limit evidence of victim impact to that
received from the victim’s family members. Rather, the
circumstances of the individual case will dictate what evidence
will be necessary and relevant, and from what sources it may be
drawn. In a capital murder trial, as in any other criminal
proceeding, the determination of the admissibility of relevant
evidence is within the sound discretion of the trial court subject to
the test of abuse of that discretion.

253 Va. at 384-85, 484 S.E.2d at 905.

“Evidence which tends to prove a material fact is relevant and admissible, unless

excluded by a specific rule or policy consideration.” Pughsley v. Commonwealth, 33 Va. App.

640, 645, 536 S.E.2d 447, 449 (2000) (internal quotation marks and citations omitted). The

Beck Court reasoned that “[i]n a capital murder trial, as in any other criminal proceeding, the

determination of the admissibility of relevant evidence is within the sound discretion of the trial

court subject to the test of abuse of that discretion.” Beck, 253 Va. at 384-85, 484 S.E.2d at 905.

Although the specific statute at issue in Thomas is not at issue in this case, we find that the

rationale of the case is applicable. Congdon v. Congdon, 40 Va. App. 255, 265, 578 S.E.2d 833,

838 (2003) (noting that the principle that courts are bound by the doctrine of stare decisis
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“applies not merely to the literal holding of the case, but also to its ratio decidendi -- the

essential rationale in the case that determines the judgment”). Guided by these principles, we

perceive no sound reason why relevant victim impact testimony that may be considered by a jury

in a capital case should not likewise be considered in a non-capital case. Accordingly, we hold

that Code §§ 19.2-295.3 and 19.2-11.01(B) do not limit the admission of relevant evidence.3

Because the trial court, acting within its sound discretion, determined that Eugene Cook and

Sarah Seely’s testimony was relevant to Rock’s sentencing for conspiracy to commit robbery, we

cannot say the trial court abused its discretion in admitting this evidence.

Finally, Rock’s argument that the prejudicial effect of the testimony outweighed its

probative value ignores the statutory mandate of Code §§ 19.2-295.3 and 19.2-11.01(A)(4)(c).4

Those sections provide a statutorily protected right for victims to testify at the sentencing hearing

regarding the impact of the offense upon them. Both statutes mandate that a victim be given the

opportunity to testify.

3
On appeal, Rock did not contend that the victim impact testimony was outside the
procedural boundaries and limited scope of the admissibility of evidence under the bifurcation
statute, Code § 19.2-295.1. We, therefore, do not address this issue because it is waived under
Rule 5A:20(e).
4
Rock only appeals his sentence in this case, and the dissent suggests that the victim
impact testimony’s only purpose was to “add an emotional element far out of proportion to the
crime for which Rock was convicted.” However, “‘[w]hen a statute prescribes a maximum
imprisonment penalty and the sentence does not exceed that maximum, the sentence will not be
overturned as being an abuse of discretion.’” Fortune v. Commonwealth, 12 Va. App. 643, 651,
406 S.E.2d 47, 51 (1991) (quoting Abdo v. Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900,
903 (1977) (citation omitted)). The jury’s recommendation and trial judge’s sentence in this case
were clearly within the statutory limits for conspiracy to commit robbery. See Code §§ 18.2-10,
18.2-22.
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 III. CONCLUSION

We hold the trial court did not abuse its discretion in permitting the murder victim’s

brother and mother of his children to testify in the sentencing proceeding about the impact of the

offense upon them and upon the victim’s children. We affirm the judgment of the trial court.

Affirmed.

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Benton, J., dissenting.

The jury acquitted John Davis Rock of eight offenses: first-degree murder of Michael

Cook, attempting to rob Cook, attempting to rob Scott Cox, attempting to rob Pamela Gravely,

abduction of Jamie Gravely, abduction of Jessica Gravely, breaking and entering with the intent

to commit a felony, and use of a firearm in the commission of robbery. The jury convicted Rock

only of conspiracy to commit the robbery.

By statute, a trial judge “shall permit the victim, as defined in [Code] § 19.2-11.01 . . . to

testify . . . regarding the impact of the offense upon the victim.” Code § 19.2-295.3.

For purposes of this chapter, “victim” means (i) a person who has
suffered physical, psychological or economic harm as a direct
result of the commission of a felony . . . , or (v) a spouse, parent,
sibling or legal guardian of such a person who is physically or
mentally incapacitated or was the victim of a homicide.

Code § 19.2-11.01(B).

Application of the provisions of Code §§ 19.2-295.3 and Code § 19.2-11.01 involves a

mixed question of law and fact. See Smyth County Comm. Hospital v. Town of Marion, 259 Va.

328, 336, 527 S.E.2d 401, 405 (2000) (holding that application of a statutory requirement “is a

mixed question of fact and law”). When we review mixed questions of law and fact on appeal,

we do so de novo and “are not bound by the trial [judge’s] determination in this regard.” Id. The

trial judge’s determination that the Cook family were “victims” who suffered as a “direct result”

of the robbery conspiracy was a mixed question of law and fact that we review de novo, and not

for abuse of discretion. It is the province of this Court to define the statutory standard.

Code § 19.2-295.3 allows for victim impact statements during sentencing. However, by

any ordinary understanding of the statutory language, the victim that the statute references is the

victim of the felony for which the defendant is found guilty. The pertinent provision reads:

“Whether by trial or upon a plea of guilty, upon a finding that the defendant is guilty of a felony,

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the court shall permit the victim . . . to testify in the presence of the accused regarding the impact

of the offense upon the victim.” Id. (emphasis added). In this case, the scope of the victim

impact testimony referenced in Code § 19.2-295.3 could only refer to the conspiracy to commit

robbery, the sole offense for which the jury convicted Rock. When the jury convicted Rock only

for conspiracy to commit robbery, the statutory definition of “victim” became fixed with

reference to that offense.

Code § 19.2-295.3 explicitly defines “victim” as a person who suffers harm as a “direct

result” of the commission of a felony offense. In no way can it be said that the murder of Cook

was the direct result of Rock’s participation in the conspiracy to commit robbery. When used as

an adjective, the relevant meaning of “direct” is “without intervening persons, conditions, or

agencies; immediate: [as in] direct sunlight [or] direct answer” or “lacking compromising or

mitigating elements.” American Heritage Dictionary 400 (Houghton Mifflin, 2nd ed. 1991). A

“result” is “[t]he consequence of a particular action, operation, or course; [an] outcome.” Id. at

1054. Thus, a “direct result” is the consequence of an action without intervening circumstances,

or without compromising or mitigating elements. In other words, the action must immediately

produce a result; it is a consequence flowing definitely, immediately, and largely automatically.

It is a result that in the ordinary course of human experience can be expected automatically to

occur. See generally Blue Stone Lane Company v. Neff, 259 Va. 273, 277-78, 526 S.E.2d 517,

518-19 (2000) (in the context of damages, direct means flowing naturally or ordinarily from

conduct or is a result that can be expected in the ordinary course of human experience); State v.

Smith, 532 S.E.2d 773, 786 (N.C. 2000) (defining direct consequences as those having a

“definite, immediate and largely automatic effect”); Frey v. State, 265 P.2d 502, 505 (Okla. App.

1953) (holding that, in the criminal context, a “direct result” is one which immediately and

necessarily follows an act).

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 Contrary to the plain meaning of direct result, the Commonwealth argues that, despite the

number of intervening persons and conditions between the conspiracy to commit robbery and

Cook’s murder, the result was “direct.” If that were the case, the jury certainly would have

convicted Rock on all the related charges. However, they did not. Simply put, the

Commonwealth’s argument rests upon an interpretation derived in patent disregard of the jury’s

acquittal of Rock of the murder charge. Significantly, the jury received instructions concerning

principal in the second degree liability and also rejected that as a basis for convicting Rock for

any of these eight offenses, including the murder. By acquitting Rock, the jury necessarily

rejected the Commonwealth’s attempt to implicate him in these eight offenses. The jury found

that Rock was not present and that he did not know of or participate in the killing. Thus, the jury

determined that there were a number of circumstances attenuating any connection between the

conspiracy to commit robbery and the killing. Without Rock, each of those convicted for the

crimes made an individual decision to commit these other offenses and each made a separate

decision to carry a weapon. The actual killer made a decision, remote from Rock’s participation,

to shoot Cook. These intervening events demonstrate that the killing cannot be considered a

direct result of the conspiracy to commit robbery within the meaning of the statute. Thus, the

Cook family cannot be “victims” within the meaning of the statute.

While “victim impact testimony is relevant to punishment in a capital murder

prosecution,” Weeks v. Commonwealth, 248 Va. 460, 476, 450 S.E.2d 379, 389-90 (1994), none

of the factors that bear on punishment for the murder charge are relevant to sentencing Rock.

Thus, this case is unlike Beck v. Commonwealth, 253 Va. 373, 484 S.E.2d 898 (1997), where the

accused was convicted of capital murder. Indeed, the jury acquitted Rock of murder. In

determining which punishment to impose in a capital murder trial, Code § 19.2-264.2 requires a

jury to consider, first, whether “there is a probability that the defendant would commit criminal

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acts of violence that would constitute a continuing serious threat to society,” and second, “that

his conduct in committing the offense for which he stands charged was outrageously or wantonly

vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to

the victim.” By statute, these factors are relevant only “[i]n assessing the penalty of any person

convicted of an offense for which the death penalty may be imposed.” Code § 19.2-264.2. Yet,

this evidence was allowed in Rock’s sentencing even though he was acquitted of murder.

It is clear that the decisions in Beck and Thomas v. Commonwealth, 263 Va. 216, 559

S.E.2d 652 (2002), address factors bearing only upon capital murder convictions, and they

demonstrably establish the prejudice the victim impact testimony had on Rock in this case. The

testimony about psychological and economic harm to Cook’s family resulting from a killing

caused by another was unduly prejudicial and inadmissible at Rock’s sentencing. “Evidence as

to the result of another defendant’s trial for the same crime is irrelevant to the determination by

the jury of the appropriate punishment for the defendant whose sentence is being weighed.”

Coppola v. Commonwealth, 220 Va. 243, 254, 257 S.E.2d 797, 805 (1979). The victim impact

evidence, therefore, was irrelevant to the conspiracy to commit robbery, and it encouraged the

jury to rely upon raw emotions and other arbitrary factors in sentencing Rock. This evidence

gave the Commonwealth the opportunity to divert the jury’s attention from the offense for which

it convicted Rock and to obtain punishment for the very offense for which the jury acquitted

Rock.

When “evidence is introduced that is so unduly prejudicial that it renders the trial

fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a

mechanism for relief.” Payne v. Tennessee, 501 U.S. 808, 527 (1991). The victim impact

testimony had no other effect than to inflame the jury and to prejudice Rock during sentencing.

The testimony from Cook’s family members about the impact of his death upon them and his

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dependents provided a component to Rock’s sentencing that had no purpose except to add an

emotional element far out of proportion to the crime for which Rock was convicted. Unlike

Beck, where the Supreme Court in addressing the issue of relevance “stress[ed] that [Beck’s

trial] was a trial without a jury,” 253 Va. at 385, 484 S.E.2d at 906, Rock’s trial was before a

jury. Unlike a judge, a jury is not “uniquely suited by training, experience and judicial discipline

to disregard potentially prejudicial comments and to separate, during the mental process of

adjudication, the admissible from the inadmissible.” Id. (citation omitted).

For these reasons, I would hold that the trial judge committed reversible error in

permitting testimony at the penalty phase about the murder of Cook and the effect of the murder

on his family.

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