COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Coleman
Argued at Richmond, Virginia
DEREK ELLIOTT TICE
OPINION BY
v. Record No. 1397-00-1 JUDGE SAM W. COLEMAN III
MAY 21, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles E. Poston, Judge
James O. Broccoletti (Jeffrey R. Russell;
Zoby & Broccoletti, P.C., on briefs), for
appellant.
Paul C. Galanides, Assistant Attorney
General (Randolph A. Beales, Acting Attorney
General; Shelly R. James, Assistant Attorney
General, on brief), for appellee.
Derek Elliott Tice was convicted of rape and capital
murder. Tice contends on appeal that the trial court erred by
giving an instruction over his objection which allowed the jury
to find him guilty of capital murder based upon the theory that
he acted in concert with others to rape or kill the victim but
without finding that he was an active or immediate killer and by
refusing to admit certain evidence that another person confessed
to the crimes. We agree that the court erred by giving an
instruction that allowed the jury to find Tice guilty of capital
murder without finding that he was an active or immediate killer
of the victim. Accordingly, we reverse and remand for a new
trial if the Commonwealth be so advised. Because the
evidentiary issue is likely to arise again on retrial, we
address that issue.
Background
On July 8, 1997, William Bosko returned home from a naval
deployment to find his wife, Michelle Moore-Bosko, dead in their
bedroom. There were no signs of a struggle, and the apartment
was neat. Michelle had died as a result of three penetrating
stab wounds to her chest and manual strangulation. She had been
raped and had sustained several other non-lethal stab wounds.
Daniel Williams lived with his wife and Joseph Dick in the
apartment across from the Boskos. Dick testified that on the
evening of Michelle's death he, Tice, Williams and others were
together at Williams' apartment when Williams said, "He wanted
to see what color [Michelle's] panties were." The group
discussed going to Michelle's apartment. Williams had visited
the Boskos frequently, sometimes at unusual hours asking to use
the phone. They knocked on the Boskos' door but Michelle would
not let them inside her apartment. Dick testified that they
remained outside the apartment in the parking lot talking with
one another when Omar Ballard joined the group. Dick testified
that he did not know Ballard and only learned his name at a
later date. Ballard knew Michelle through another friend who
lived at the apartment complex. Dick testified that on the
second attempt to gain entry into the Boskos' apartment the men
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tricked Michelle into opening the door and they "rushed" into
the apartment and grabbed her. Dick testified that they took
Michelle directly to the bedroom where Williams first raped her
while the other men held her down. Dick testified that next the
defendant Tice and then the other men took turns raping her.
Dick testified that after raping Michelle one of the men went to
the kitchen, found a knife and each person then stabbed her.
Based upon Dick's admissions, the police questioned the
defendant Tice. Confronted with Dick's admissions, Tice gave a
detailed confession in which he admitted he had raped and
stabbed Michelle. While Tice's confession corresponded in
significant detail to Dick's confession and trial testimony,
Tice never mentioned in his confession that Omar Ballard had
joined the group. Also, none of the latent fingerprints found
at the scene matched Tice's fingerprints. A blanket found on
Michelle, fingernail clippings and PERK kit evidence were
submitted for DNA analysis. Robert Scanlon, a forensic
scientist, testified that Tice was eliminated as the source of
the DNA from the semen stain found on the blanket, the
fingernail clippings, and of the DNA from Michelle's vaginal
swabs of the PERK kit. Scanlon testified, however, that Omar
Ballard could not be eliminated as the source of the DNA found
on the blanket, Michelle's fingernail clippings and vaginal
swabs.
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Ballard, who was called as a witness by the defense,
testified that he was not involved in the murder and rape.
However, he acknowledged that he had previously given two
statements to the police in which he admitted that he alone
raped and murdered Michelle. The trial court allowed defense
counsel considerable latitude in asking Ballard about his two
prior confessions. Nevertheless, Ballard repeatedly testified
that he did not rape or murder Michelle, and he attempted to
explain his two confessions by saying he "was not under oath"
when he gave these statements. The trial judge permitted
Ballard's testimony that he did not rape or murder Michelle and
permitted extensive examination about his two prior out-of-court
admissions that he alone had raped and murdered Michelle.
However, the trial judge refused to admit, over defense
counsel's objection, Ballard's two confessions. The two
confessions contained some details from Ballard showing that he
knew that Michelle had been sexually assaulted, strangled, and
stabbed multiple times with a knife from the kitchen.
Defense counsel also attempted to ask Ballard about a
letter he allegedly had written to a person named Karen in which
Ballard made reference to having killed Michelle. The trial
judge sustained the Commonwealth's objection to any testimony
related to the letter. Defense counsel proffered the letter as
part of the record. The trial judge disallowed defense
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counsel's questioning of Ballard about the letter and disallowed
the proffered letter into evidence.
Jury Instruction
The trial court charged the jury with Instruction 11, which
provided in pertinent part:
The defendant is charged with capital
murder. The Commonwealth must prove beyond
a reasonable doubt each of the following
elements of that crime:
(1) That the defendant or someone
acting in concert with him, killed Michelle
Moore-Bosko . . . .
The trial court also instructed the jury on a person's criminal
responsibility for concert of action in Instruction 12 and for
being a principal in the first and second degree in Instruction
14. Instruction 12 told the jury:
If there is concert of action with the
resulting crime one of its incidental
probable consequences, then whether such
crime was originally contemplated or not,
all who participate in any way in bringing
it about are equally answerable and bound by
the acts of every other person connected
with the consummation of such resulting
crime.
Instruction 14 stated:
A principal in the first degree is the
person who actually commits the crime. A
principal in the second degree is a person
present, aiding and abetting, by helping in
some way in the commission of the crime.
Presence and consent alone are not
sufficient to constitute aiding and
abetting. It must be shown that the
defendant intended his words, gesture,
signals or actions to in some way encourage,
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advise, or urge, or in some way help the
person committing the crime to commit it.
A principal in the second degree is
liable for the same punishment as the person
who actually committed the crime, except
that a principal in the second degree to
capital murder shall be convicted and
punished as though the offense were murder
in the first degree.
On appeal, appellant asserts that the language in
Instruction 11 "or someone acting in concert with him"
impermissibly lowered the standard of proof for capital murder.
He contends that this language, when considered with Instruction
12, allowed the jury to find him guilty of capital murder if he
acted in concert with others to rape Michelle and as a
consequence of the rape the others killed her without his direct
participation. The Commonwealth argues that Tice failed to
state this ground when he objected to Instruction 11 and that he
is procedurally barred pursuant to Rule 5A:18 from raising this
issue on appeal.
"The primary function of Rule 5A:18 is to alert the trial
judge to possible error so that the judge may consider the issue
intelligently and take any corrective actions necessary to avoid
unnecessary appeals, reversals and mistrials." Martin v.
Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992)
(en banc). During consideration of the instruction, Tice
objected to the addition of the language "or someone acting in
concert with him" in Instruction 11. Tice specifically argued
that the holding in Strickler v. Commonwealth, 241 Va. 482, 404
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S.E.2d 227 (1991), required proof that he was an "active and
immediate participant" in killing Michelle in order to be guilty
of capital murder. Tice specifically identified for the trial
judge the alleged error in Instruction 11 and cited cases in
support of that position. Thus, Tice preserved the issue for
appeal.
"A reviewing court's responsibility in reviewing jury
instructions is 'to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370
S.E.2d 717, 719 (1988) (citation omitted).
Except in the case of murder for hire, only the actual
perpetrator of the crime may be convicted of capital murder.
Johnson v. Commonwealth, 220 Va. 146, 150, 255 S.E.2d 525, 527
(1979). "Thus, neither an accessory before the fact nor a
principal in the second degree may be so convicted." Cheng v.
Commonwealth, 240 Va. 26, 42, 393 S.E.2d 599, 608 (1990).
However, a defendant who "jointly participated in [a] fatal
beating" is an "immediate perpetrator" of the crime and is
guilty of capital murder. Coppola v. Commonwealth, 220 Va. 243,
256-57, 257 S.E.2d 797, 806-07 (1979). "[W]here two or more
persons took a direct part in inflicting fatal injuries, each
joint participant is an 'immediate perpetrator' for purposes of
the capital murder statutes." Strickler, 241 Va. at 495, 404
S.E.2d at 235 (citation omitted). However, where two or more
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people act in concert to commit one felony, and as an incidental
consequence of that felony one of the criminals murders a victim
without the direct or joint participation of the other in
inflicting the fatal wounds, the person who only acted in
concert to commit the first felony is guilty of first degree
murder and not capital murder.
Instruction 11 as modified and Instruction 12 permitted the
jury to find Tice guilty of capital murder if the jury
determined that Michelle was killed as an "incidental probable
consequence" by "someone acting in concert with [Tice] to commit
rape" even though Tice may have taken no active or immediate
action in killing Michelle. Concert of action has been defined
as "[a]ction that has been planned, arranged, adjusted, agreed
on and settled between parties acting together pursuant to some
design or scheme." Rollston v. Commonwealth, 11 Va. App. 535,
542, 399 S.E.2d 823, 827 (1991). "All participants in such
planned enterprises may be held accountable for incidental
crimes committed by another participant during the enterprise
even though not originally or specifically designed," Berkeley
v. Commonwealth, 19 Va. App. 279, 283, 451 S.E.2d 41, 43 (1994),
except where the incidental crime is capital murder. To be
guilty of a crime under a concert of action theory, a person
does not need to be an "active participant" or "immediate
perpetrator," but is guilty due to the prior agreement between
the parties. Instruction 11 as modified and Instruction 12
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permitted the jury to find Tice guilty of capital murder without
finding that he was an active participant or immediate
perpetrator in the murder. Instruction 11 as modified was not
an accurate statement of the law, and the trial judge erred in
overruling Tice's objection to it. Such error was not harmless
because the instruction permitted the jury to convict Tice of
capital murder by finding that he acted in concert to rape
Michelle but without finding that he was an active participant
in the murder.
Third-Party Admissions and Confessions
Because we reverse the conviction on the error in giving
Jury Instruction 11 as modified, on remand the admissibility of
Ballard's two confessions and his letter to Karen will
inevitably arise upon retrial.
Tice's defense was that Ballard alone committed the rape
and murder. Tice also sought to use Ballard's confessions and
letter to Karen to discredit his own confession. Tice asserts
that Ballard's confessions and letter were essential to the
theory of his defense and that the trial judge erred in limiting
his direct examination of Ballard. Tice also asserts that the
trial judge erred in denying the admission into evidence of the
confessions and letter to Karen because it was for the jury to
decide their credibility.
A statement against a declarant's penal interest at the
time made is admissible under the declaration against interest
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exception to the hearsay prohibition. Morris v. Commonwealth,
229 Va. 145, 147, 326 S.E.2d 693, 694 (1985). However, before
such a statement is admitted the party offering it must prove
that the declarant is unavailable and that the declaration was
reliable. Ellison v. Commonwealth, 219 Va. 404, 408, 247 S.E.2d
685, 688 (1978).
Ballard's two confessions were statements against his penal
interest because in them he admitted that he alone committed the
crimes. The trial judge found that the confessions were
reliable and permitted Tice's attorney to question Ballard
extensively about his confessions to the police. Ballard
admitted that he had confessed to killing Michelle, but
explained that the statements were not made under oath. At the
conclusion of Ballard's testimony the trial judge denied
admission into evidence of the written confessions. Since
Ballard testified extensively concerning the content of his
confessions and did not invoke his privilege under the Fifth
Amendment, he was not unavailable, which was required for the
written confessions to be admitted into evidence. The trial
judge did not err in sustaining the Commonwealth's objection to
the admission into evidence of Ballard's two written
confessions.
After defense counsel completed his questions of Ballard
concerning his confessions, he asked Ballard if he had written a
letter to Karen. Relying upon Morris, the attorney for the
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Commonwealth objected to any testimony regarding the letter
because there was no third party to the statement. The trial
judge sustained the objection. Tice argues that the letter to
Karen was also admissible. As noted above, Ballard was
available to testify and Tice has failed to satisfy the
"unavailability" requirement for the admission of the letter
into evidence as a declaration against his penal interest.
"In Virginia, evidence that a crime was
actually committed by someone other than the
accused is admissible for the purpose of
generating a reasonable doubt of the guilt
of the accused." Evidence tending to show
that someone other than the defendant
committed the crime generally raises a
factual question for the jury. A defendant
is entitled to present his version of the
facts along with that of the prosecution so
the jury may decide where the truth lies.
Oliva v. Commonwealth, 19 Va. App. 523, 526-27, 452 S.E.2d 877,
880 (1995) (citations omitted). "[T]he admissibility of
circumstantial evidence tending to prove that a third party
committed the crime is left to the sound discretion of the trial
judge." Id. at 527, 452 S.E.2d at 880.
Ballard admitted in the letter to Karen that he murdered
Michelle. Since Tice's defense was that Ballard alone committed
the rape and murder, the contents of the letter pointed directly
to the guilt of a third party and was a factual question for the
jury to decide. Tice should have been permitted to question
Ballard whether he admitted to Karen that he committed the
crimes.
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For the foregoing reasons, Tice's convictions for capital
murder and rape are reversed. The case is remanded for retrial
if the Commonwealth be so advised.
Reversed and remanded.
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