Eugene Harry Proctor, III v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Clements, Agee ∗ and Felton
Argued at Richmond, Virginia

EUGENE HARRY PROCTOR, III
OPINION BY
v. Record No. 2524-01-2 JUDGE G. STEVEN AGEE
APRIL 1, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF WESTMORELAND COUNTY
Horace A. Revercomb, III, Judge

Donald M. Haddock, Jr. (George W. Townsend,
III; Redmon, Peyton & Braswell, L.L.P.;
George W. Townsend, III, P.C., on briefs),
for appellant.

Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.

A Westmoreland County Circuit Court jury found Eugene H.

(a.k.a. "Trey") Proctor, III (Proctor) guilty of murder in the

first degree, discharging a firearm in an occupied building and

use of a firearm while committing murder. Proctor was sentenced

to life imprisonment, ten years imprisonment, and three years

imprisonment, respectively. On appeal Proctor alleges the trial

court erred by: (1) permitting the Commonwealth to treat its own

witness as hostile and impeach him through the use of a prior

∗
Justice Agee participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
written statement, (2) admitting improper testimony from the

victim's mother, (3) not finding as a matter of law that the

evidence was insufficient to support his conviction, (4)

allowing the Commonwealth to proceed with a charge under Code

§ 18.2-279 in addition to the charge of murder under Code

§ 18.2-32, and (5) denying his motion for a change of venue.

For the reasons that follow, we affirm the judgment of the trial

court.

I. BACKGROUND

"Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to it all reasonable

inferences fairly deducible therefrom." Birdsong v.

Commonwealth, 37 Va. App. 603, 605, 560 S.E.2d 468, 469 (2002)

(citing Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d

677, 678 (1997)).

The facts are generally undisputed. On April 23, 2000,

police officers responded to the residence of Proctor's parents

in Colonial Beach where they found Joseph Simmons ("Simmons")

standing by the body of the victim, Crystal Proctor ("Crystal"),

Proctor's wife. Simmons was present when Proctor shot Crystal

in the neck, at close range, with a single-shot twelve-gauge

shotgun.

- 2 -
 Earlier in the day Proctor, Crystal, and several of their

friends had been drinking alcohol and smoking marijuana. In the

early evening Proctor, Crystal, Carl Nave, Michael Bowie and

Simmons all went over to Proctor's house. Proctor, Crystal,

Nave and Bowie then left the house and attempted to purchase

some marijuana from Jeffrey Hunter ("Hunter") who took their

money but failed to deliver any marijuana. Proctor, upset by

this occurrence, returned to his house to retrieve a gun with

which to confront Hunter. Proctor went into the house while

Crystal, Nave and Bowie remained in the car. After hearing

yelling from inside the home, Crystal, Nave and Bowie entered

the house and saw Proctor and his mother struggling over control

of a shotgun. Proctor was yelling and screaming about shooting

someone, and the others tried to calm him down. After gaining

control of the shotgun, Proctor went outside and then re-entered

the house without the gun. Proctor (who did not have a driver's

license) demanded that Crystal drive him to find Hunter but she

refused. Proctor threatened to "blow her head off" if she did

not drive him as he demanded.

Nave grabbed Proctor in an effort to calm him down.

However, upon being released, Proctor wrestled with his mother

over a case containing shells for the shotgun and was able to

grab several shells. He loaded the shotgun and threatened to

shoot everyone if they touched him again. Everyone then left

the house except Simmons, Crystal and Proctor. Simmons

- 3 -
testified that Proctor then cocked the shotgun and pointed it at

Crystal who was crouched down before him weeping. Proctor kept

saying that he would shoot her if she did not give him a ride.

Proctor began counting to ten and reiterated that he would shoot

Crystal if she did not drive him to find Hunter. When Proctor

finished counting to ten, Crystal arose and began to walk out of

the room with the shotgun still pointed at her head. Proctor

then shot her from about five feet away. Proctor yelled to call

911 and ran out of the house with the gun. He surrendered to

police three days later.

II. STANDARD OF REVIEW

The admissibility of evidence is within the broad

discretion of the trial court, and this Court reviews a trial

court's evidentiary rulings for abuse of discretion. Smallwood

v. Commonwealth, 36 Va. App. 483, 487, 553 S.E.2d 140, 142

(2001) (citing Quinones v. Commonwealth, 35 Va. App. 634, 639,

547 S.E.2d 524, 527 (2001)). "The rule is well established in

Virginia that 'great latitude [will be given] to the discretion

of the trial [judge] as to the order in which witnesses may be

called and the manner of their examination.'" Whitehead v.

Commonwealth, 31 Va. App. 311, 318, 522 S.E.2d 904, 907 (2000)

(citing Butler v. Parrocha, 186 Va. 426, 433, 43 S.E.2d 1, 5

(1947)).

- 4 -
 III. ANALYSIS

A. Direct Examination of Carl Nave

During the direct examination of Carl Nave, the

Commonwealth had him review a written statement he had given to

the police before trial. The Commonwealth then sought to elicit

testimony from Nave in conformity with the statement. Proctor

objected to this testimony, based on the written statement, as

inadmissible hearsay.

The trial court stated its assumption that the statement

was being used to refresh Nave's memory and was therefore

permissible. The Commonwealth, however, denied the statement

was to refresh Nave's recollection and represented that the

statement was "not in conflict" with Nave's testimony to that

point in the trial. The Commonwealth's Attorney then told the

trial court she intended "to put it [the prior written

statement] in evidence." The court sustained defense counsel's

hearsay objection to admission of the statement.

The Commonwealth then requested a bench conference where

the admissibility of the written statement was argued. The

Commonwealth again admitted that Nave's testimony was "not in

conflict with what he said before but it is not as much as he

said before." Proctor objected to any use of the statement

because Nave "made no prior inconsistent statement and his

recollection doesn't need to be refreshed. He has not once said

I don't remember." At the end of this discussion, the trial

- 5 -
court permitted the Commonwealth to approach Nave "with that

document if he's not including all his prior statements."

Proctor's objection was overruled. Shortly thereafter, the

trial court also permitted the Commonwealth to treat Nave as a

hostile witness, to which Proctor objected.

The Supreme Court of Virginia has stated that:

As a general rule, a prior consistent
statement of a witness is inadmissible
hearsay. Graham v. Danko, 204 Va. 135, 138,
129 S.E.2d 825, 827 (1963); Crowson v. Swan,
164 Va. 82, 94, 178 S.E. 898, 903 (1935);
Scott v. Moon, 143 Va. 425, 434, 130 S.E.
241, 243 (1925). To allow such a statement
to corroborate and buttress a witness's
testimony would be an unsafe practice, one
which not only would be subject to all the
objections that exist against the admission
of hearsay in general but also would tend to
foster fraud and the fabrication of
testimony. Scott, 143 Va. at 434, 130 S.E.
at 243. Indeed, it has been said that "'the
repetition of a story does not render it any
more trustworthy.'" Id.

Faison v. Hudson, 243 Va. 397, 404, 417 S.E.2d 305, 309 (1992)

(citations omitted).

The Commonwealth contends on appeal that Nave's written

statement to the police was properly used to refresh his

recollection on the witness stand. However, that argument

contradicts the Commonwealth's own statements at trial. 1

1
At trial the following colloquy occurred between the
Commonwealth and the court:

THE COURT: I'm assuming that she's
presenting this to refresh his memory in

- 6 -
 The Commonwealth clearly sought to buttress and augment

Nave's oral testimony on the witness stand with his previously

recorded consistent written statement. This is inadmissible

hearsay, unless it fits within one of the narrow exceptions to

the hearsay rule, whether Nave is a hostile witness or not. See

Faison, 243 Va. at 404-05, 417 S.E.2d at 305 (listing the

exceptions to the general rule that such consistent statements

are inadmissible). However, the hearsay exception for past

recollection recorded does not apply here as the record does not

reflect Nave forgot anything for which his memory was to be

order to proceed with questioning. Is that
what –-

MRS. GARLAND: No, Your Honor. I intend to
put it in evidence.

THE COURT: In lieu of his actual testimony?

MRS. GARLAND: In addition. It's not in
conflict.

* * * * * * *

THE COURT: You've indicated to the Court
there is some inconsistency in that
statement, and –

MRS. GARLAND: What he has said is not in
conflict with what he said before, but it is
not as much as he said before.

- 7 -
refreshed or supplemented by documentary evidence. 2 Charles E.

Friend, The Law of Evidence in Virginia § 3-7 (5th ed. 1999). 3

Assuming, therefore, that the trial court erred by

permitting the Commonwealth to examine Nave by use of the prior

consistent statement, only error that is prejudicial to Proctor

warrants reversal of the trial court's verdict. The

Commonwealth asserts that if admitting the testimony derived by

use of the prior statement was improper, any error in doing so

was nonetheless harmless. We agree.

When a trial court errs in allowing the
presentation of evidence to the jury, this
Court must decide whether that error was
harmless. As this issue involves
non-constitutional error, if appellant "had
a fair trial on the merits and substantial
justice has been reached," his convictions
will not be reversed. Code § 8.01-678. The
Commonwealth has the burden "to prove that

2
Nave did indicate confusion at one point in response to a
question from the Commonwealth's Attorney; however, his
responses to the subsequent questions were substantially the
same as his prior testimony.
3
Proctor characterizes the use of Nave's prior written
statement as (1) impeachment of the Commonwealth's own witness,
(2) improper hearsay by use of a prior consistent statement, and
(3) improper hearsay because the past recollection recorded
exception does not apply. We address only the last two items as
the record does not reflect impeachment of Nave's credibility
during his questioning from the written statement. Further,
while Proctor objected to Nave being declared a hostile witness,
he made no argument to the trial court as to why its ruling was
erroneous. The trial court's determination of whether a witness
is properly declared hostile is reviewed for an abuse of
discretion in making that designation. See Whitehead, 31
Va. App. at 318, 522 S.E.2d at 907 (stating that the manner in
which witnesses are examined is left to the discretion of the
trial court). Proctor has identified no abuse of discretion,
and we find none.

- 8 -
 the error was non-prejudicial." Beverly v.
Commonwealth, 12 Va. App. 160, 163-64, 403
S.E.2d 175, 177 (1991).

Smallwood, 36 Va. App. at 490, 553 S.E.2d at 143. "An error

does not affect a verdict if a reviewing court can conclude,

without usurping the jury's fact finding function, that, had the

error not occurred, the verdict would have been the same."

Lavinder v. Commonwealth, 12 Va. App. 1003, 1006, 407 S.E.2d

910, 911 (1991) (en banc). We analyze each case individually to

determine whether an error affected the verdict. Id. at 1009,

407 S.E.2d at 913.

Nave's testimony based on the prior written statement

centered on Proctor's actions before the shooting. The

Commonwealth used the statement to elicit Nave's testimony about

Proctor's desire to shoot Hunter for taking his money and

failing to deliver the marijuana, his struggle with his mother

over the shotgun shells, his threats to shoot Crystal if she did

not give him a ride, and his pointing of the gun at Crystal.

An examination of the record reveals that Nave's testimony

elicited from the statement duplicated, as defense counsel

repeatedly noted, that to which he had already testified. Nave

had already testified that Proctor "was going to go get his gun"

and go back for Hunter. He had already testified that Proctor

"and his mother were struggling over [the case containing the

shells]." Likewise, he had previously stated that Proctor

threatened to "blow [Crystal's] head off" unless she gave him a

- 9 -
ride. Nave did testify, after looking at the statement, that

Proctor pointed the gun at Crystal, but he had previously

testified Proctor was waving the gun around while she was in the

room. In short, Nave didn't testify, by use of the written

statement, to anything materially different from his prior

uncontested testimony before the jury.

The testimony of Joseph Simmons, who (unlike Nave) was in

the room when Proctor shot Crystal, offered much of the same

testimony. Although Simmons did not go with Proctor and the

others to buy marijuana, he testified that when the group

returned to the house Proctor was yelling and screaming and

"talking about how he was going to shoot somebody." He

testified that Proctor "and his mom started wrestling with the

bullet case." Simmons also stated that he saw Proctor load,

cock and point the gun towards Crystal while threatening to

shoot her if she didn't give him a ride. Finally, he testified

that Proctor gave Crystal a count to ten while holding the

shotgun towards her face.

As the jury heard nothing new from Nave by use of the

written statement, there was no prejudice to Proctor by reason

of the trial court's error in permitting the Commonwealth to use

the prior consistent statement. Further, given the

substantially similar evidence from other witnesses, it is

apparent that the jury's verdict would have been the same had

the use of the prior written statement not occurred.

- 10 -
Accordingly, we find no reversible error in the trial court

permitting the Commonwealth to examine Nave by use of the prior

written statement.

B. Testimony of Tracy McGuire

Proctor alleges the trial court erred by admitting certain

hearsay testimony from Tracy McGuire, the victim's mother. We

disagree.

The record discloses that the Commonwealth and the court

repeatedly instructed the witness not to testify to hearsay.

Nonetheless, there were occasions when Proctor's counsel

objected to McGuire's testimony as improper hearsay. The trial

court sustained all of Proctor's hearsay objections. Proctor

also requested the trial court give the jury a cautionary

instruction which was promptly given, and McGuire was dismissed

as a witness.

The jury is presumed to follow the court's instructions.

Burley v. Commonwealth, 29 Va. App. 140, 147, 510 S.E.2d 265,

269 (1999) ("Juries are presumed to follow prompt cautionary

instructions regarding the limitations placed upon evidence."

(citing LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d

644, 657 (1983))). Proctor cites no reason upon which to base a

finding that the jury did not do as the court instructed.

Further, Proctor made no motion for a mistrial and identifies no

request for relief that was not promptly granted. Accordingly,

we find no error by the trial court.

- 11 -
 C. Sufficiency of the Evidence

Our standard of review when evaluating the sufficiency of

the evidence on appeal is guided by familiar principles:

"When considering the sufficiency of the
evidence on appeal of a criminal conviction,
we must view all the evidence in the light
most favorable to the Commonwealth and
accord to the evidence all reasonable
inferences fairly deducible therefrom. The
jury's verdict will not be disturbed on
appeal unless it is plainly wrong or without
evidence to support it."

Clark v. Commonwealth, 30 Va. App. 406, 409-10, 517 S.E.2d 260,

261 (1999) (quoting Traverso v. Commonwealth, 6 Va. App. 172,

176, 366 S.E.2d 719, 721 (1988)). "If there is evidence to

support the conviction, the reviewing court is not permitted to

substitute its judgment, even if its view of the evidence might

differ from the conclusions reached by the finder of fact at the

trial." Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d

312, 314 (1998).

Proctor argues that the evidence was insufficient to

support his conviction. He essentially argues that he was too

intoxicated to form the requisite intent for first-degree murder

as a matter of law. "Generally, voluntary intoxication is not

an excuse for any crime." Wright v. Commonwealth, 234 Va. 627,

629, 363 S.E.2d 711, 712 (1988). Virginia does recognize one

exception to this rule: voluntary intoxication can negate the

premeditation required for first degree-murder. Id. (citing,

inter alia, Fitzgerald v. Commonwealth, 223 Va. 615, 631, 292

- 12 -
S.E.2d 798, 807 (1982)). As Proctor points out in his brief,

the jury was properly instructed on this point.

The jury heard testimony from several witnesses regarding

the events leading up to the shooting. It heard testimony from

Simmons, an eyewitness to the shooting, that Proctor repeatedly

threatened to shoot Crystal if she did not give him a ride. It

heard testimony that Proctor retrieved the gun, struggled with

his mother over the shells and loaded the gun. Simmons also

testified that Proctor pointed the gun at Crystal's head and

counted to ten. Whether Proctor's voluntary intoxication rose

to such a level that it negated his ability to premeditate the

crime was a factual determination for the jury. The jury was

entitled to consider the evidence and conclude that his

intoxication did not rise to that level. As a matter of law

this was a proper question for the jury, and its decision in

this regard was not plainly wrong or without evidence to support

it.

D. Conviction under Code § 18.2-279

It is unlawful for any person to "maliciously discharge a

firearm within any building when occupied by one or more persons

in such a manner as to endanger the life or lives of such person

or persons." Code § 18.2-279. The statute further states that

"[i]n the event of the death of any person, resulting from such

malicious shooting . . . the person so offending shall be guilty

- 13 -
of murder, the degree to be determined by the jury or the court

trying the case without a jury."

At the close of the Commonwealth's case, Proctor made a

motion to strike, arguing the Commonwealth could not

simultaneously prosecute charges under Code § 18.2-279 and

§ 18.2-32. Proctor asserted that the Commonwealth must elect

which theory of murder (and consequently which statute) it

wished to present to the jury. The trial court denied the

motion.

Proctor raises two issues on appeal in support of his

argument. First, he contends that Code § 19.2-294 mandated the

Commonwealth elect which charge it would present to the jury.

Code § 19.2-294 provides that "if the same act be a violation of

two or more statutes . . . conviction under one of such statutes

or ordinances shall be a bar to a prosecution or proceeding

under the other or others." However, this argument was not made

to the trial court and, thus, we will not consider it on appeal.

Rule 5A:18; Ohree v. Commonwealth, 26 Va. App. 299, 308, 494

S.E.2d 484, 489 (1998) ("The Court of Appeals will not consider

an argument on appeal which was not presented to the trial

court.").

Secondly, Proctor argues that where a death occurs during

the malicious discharge of a firearm in an occupied dwelling,

Code § 18.2-279 only allows a murder conviction – not a

conviction for malicious discharge and murder.

- 14 -
 He contends that the legislature's decision not to use the

language "shall also be" instead of "shall be guilty of murder,"

in Code § 18.2-279 evidences an intent that a malicious

discharge resulting in death is removed from Code § 18.2-279 by

operation of law and thrust into Code § 18.2-32 —— the murder

statute. As such, he argues, the trial court erred in

submitting both charges to the jury.

"When the language of a statute is plain and unambiguous,

we are bound by the plain meaning of that language. We must

determine the intent of the General Assembly from the words

contained in the statute, unless a literal construction of the

statute would yield an absurd result." Shelor Motor Co. v.

Miller, 261 Va. 473, 479, 544 S.E.2d 345, 348 (2001) (citations

omitted). Indeed, when determining the boundaries of such a

statute, "[t]he plain, obvious, and rational meaning of a

statute is always preferred to any curious, narrow or strained

construction . . . ." Branch v. Commonwealth, 14 Va. App. 836,

839, 419 S.E.2d 422, 424 (1992). "Although penal laws are to be

construed strictly [against the Commonwealth], they 'ought not

to be construed so strictly as to defeat the obvious intention

of the legislature.'" Willis v. Commonwealth, 10 Va. App. 430,

441, 393 S.E.2d 405, 411 (1990) (quoting Huddleston v. United

States, 415 U.S. 814, 831 (1974)).

Code § 18.2-279 makes clear that to be guilty of

maliciously discharging a firearm, contemporaneous physical

- 15 -
occupation of the building is an essential element of the

offense. See Johnson v. Commonwealth, 18 Va. App. 441, 447-48,

444 S.E.2d 559, 563 (1994). When viewed in the light most

favorable to the Commonwealth, the evidence at trial showed that

Proctor fired a twelve-gauge shotgun in the living room of his

home, killing his wife, Crystal, who was standing about five

feet away. At the time Proctor discharged the weapon, Joseph

Simmons was also in the house, indeed, "maybe only three or four

feet" from the victim. Simmons testified that when Proctor

fired the gun, he was knocked back onto the couch and could not

hear. Proctor clearly endangered Simmons by discharge of the

firearm within the building as the Commonwealth noted at trial. 4

To adopt Proctor's interpretation of the statute would allow him

to evade its punitive consequences for endangering the other

occupants of the house by the contemporaneous murder of one of

them. Such a reading would be a narrow and strained

construction that would defeat the obvious intention of the

legislature. We will not adopt such a reading and, therefore,

find no error in the conviction of Proctor under both Code

§ 18.2-279 and Code § 18.2-32 under the facts of this case.

4
The Commonwealth argued "there were other people in the
house . . . it was occupied by other people, or at least one
other person when this firearm was discharged."

- 16 -
 E. Change of Venue

A trial court's decision whether to grant a motion for

change of venue is reviewed for an abuse of discretion.

Cressell v. Commonwealth, 32 Va. App. 744, 753, 531 S.E.2d 1, 5

(2000) (citing Kasi v. Commonwealth, 256 Va. 407, 420, 508

S.E.2d 57, 64 (1998)).

Arguing that the case had garnered a prejudicial amount of

pretrial publicity, Proctor asked the trial court for a change

of venue. In support of his motion Proctor presented numerous

newspaper articles about the case, including the Commonwealth

Attorney's regular newspaper column. Proctor submitted

twenty-two affidavits from Westmoreland County citizens

expressing their belief that it would be difficult for him to

receive a fair trial in the county. The trial court denied the

motion.

The Supreme Court of Virginia recently addressed the

relevant factors for assessing the denial of a motion for a

change of venue in Thomas v. Commonwealth, 263 Va. 216, 559

S.E.2d 652 (2002).

[T]here is a presumption that a defendant
will receive a fair trial in the
jurisdiction where the offense occurred and
the defendant bears the burden of overcoming
"this presumption by demonstrating that the
feeling of prejudice on the part of the
citizenry is widespread and is such that
would 'be reasonably certain to prevent a
fair trial.'" Mueller v. Commonwealth, 244
Va. 386, 398, 422 S.E.2d 380, 388 (1992)).

- 17 -
Thomas, 263 Va. at 230, 559 S.E.2d at 659-60. The presumption

is not overcome simply because there is widespread knowledge of

the case as "[j]urors need not be ignorant of the crime." Id.

(citing Irvin v. Dowd, 366 U.S. 717, 722 (1961); Buchanan v.

Commonwealth, 238 Va. 389, 406, 384 S.E.2d 757, 767 (1989)).

Along with the sheer volume of publicity, other factors are

relevant in evaluating whether the defendant can obtain a fair

trial. Id. Among these factors are the accuracy of the

publicity, whether the publicity is temperate and

non-inflammatory, and the timing of the publicity. Id. A

"critical element" in determining whether widespread pretrial

publicity has so prejudiced the community that the defendant

cannot get a fair trial is the ease in seating an impartial

jury. Id. at 231, 559 S.E.2d at 660 (citing Roach v.

Commonwealth, 251 Va. 324, 242, 468 S.E.2d 98, 109 (1996)). As

the Thomas Court stated:

[I]t is the ease of seating the jury that is
the relevant factor, not the ultimate result
of that process. Never has this Court held
the impartiality of the seated jury to be a
factor in considering whether a motion for a
change of venue should be granted, much less
found it dispositive.

Id. at 232, 559 S.E.2d at 661 (citations omitted). The "more

difficult it is to seat a jury, the more likely it is that the

public will believe the judicial process to be tainted by

prejudice." Id. at 233, 559 S.E.2d at 661.

- 18 -
 Application of these factors to the case at bar

demonstrates the trial court did not err in denying Proctor's

motion. Proctor admits he did not contest the accuracy of the

media reports, but he did contend some of the articles written

by the Commonwealth's Attorney were intemperate and

inflammatory. It appears the trial court did not make specific

findings in this regard, though it noted that the Commonwealth's

Attorney came "very close" to improperly expressing her opinion

on factual matters in some instances.

Nonetheless, the trial court specifically noted the

"relative ease" with which it empanelled a jury. It took five

days for the trial court in Thomas to voir dire over 100 persons

with seventy-three struck for cause. Thomas, 263 Va. at 229,

559 S.E.2d at 659. By contrast, of twenty-seven jurors for voir

dire in the case at bar, only three were struck from the jury

pool for cause related to pretrial publicity.

Given the trial court's specific finding of "the relative

ease" with which a jury was seated in this case, the trial court

clearly considered this "critical element." We therefore find

the trial court did not abuse its discretion in denying

Proctor's motion for a change of venue.

- 19 -
 IV. CONCLUSION

For the reasons set forth above, we find no reversible

error in the decisions of the trial court and affirm the

defendant's convictions.

Affirmed.

- 20 -