COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Clements
Argued at Alexandria, Virginia
LONNIE L. TWEED, JR., S/K/A
LONNIE LEE TWEED
OPINION BY
v. Record No. 2783-99-2 JUDGE JERE M. H. WILLIS, JR.
AUGUST 14, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
John F. Daffron, Jr., Judge
David B. Hargett (Morrissey & Hershner, PLC,
on brief), for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his convictions of first-degree murder,
attempted robbery, use of a firearm in the commission of murder,
and use of a firearm in the commission of attempted robbery,
Lonnie L. Tweed, Jr., contends that the trial court erred (1) in
allowing a witness to testify as to what Tweed meant when he
said, "Time to get paid," (2) in refusing to instruct the jury
concerning the abolition of parole in the Commonwealth, (3) in
holding the evidence was sufficient to support his convictions,
and (4) in denying his motion for a new trial based on
after-discovered evidence. We hold that the trial court erred
in refusing to instruct the jury on the abolition of parole.
Because it erred further in denying Tweed's motion for a new
trial, we reverse the judgment of the trial court and remand the
case for retrial, if the Commonwealth be so advised.
I. BACKGROUND
On June 26, 1998, James M. Hoover (the victim) was riding
his motorcycle when he was shot and killed. David Sanchez fired
the lethal shots from a car driven by Roger Narragon, in which
Sanchez, Shaun Holmes, Ryan Bennett, and Tweed were passengers.
Bennett testified that the men in the car had been to a
party and were drinking heavily and that he was the only one who
had not consumed LSD. He testified that "Sanchez had a gun
wrapped in a cloth" and Tweed had "wash rags tied together."
Bennett was unsure whether Sanchez had shown the gun to the
others, but he thought everyone knew about it. He further
testified that, as the men were leaving the party, Tweed said,
"Time to get paid." Over objection, Bennett stated that he
understood Tweed's comment to mean "[r]obbery."
After driving around for several hours, the men spotted the
victim at a gas station. Sanchez made a comment about the
victim, and Narragon turned the car around. He made another
U-turn and pulled his car alongside the victim.
Bennett testified that, even though he did not want to
participate in a robbery and was only "along for the ride," he
thought a robbery might occur. He testified that as the car
approached the victim, Tweed told him to "do it," which he
understood to mean "rob the man." Bennett refused. He
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testified that without any further discussion or suggestion,
Sanchez said, "I'll do it," and, leaning across Bennett and
Tweed, shot the victim. The five men left the area without
stopping.
At the conclusion of the evidence, Tweed moved to strike on
the ground that the evidence failed, as a matter of law, to
support convictions for murder, attempted robbery, or the
related firearm charges. The trial court denied the motion, and
the jury found Tweed guilty of all four charges.
During the sentencing phase of the trial, the jury inquired
whether Tweed would be eligible for parole. Over Tweed's
objection, the trial court instructed the jury that they should
"impose such punishment as [they] feel is just under the
evidence and within the instructions of the Court" and that they
should not concern themselves "with what may happen afterwards."
Post-trial but before sentencing, Tweed moved for a new
trial based upon newly discovered evidence. In support of his
motion, he filed his trial attorney's affidavit and a transcript
of Sanchez's testimony in his own trial. The trial court denied
the motion and sentenced Tweed to forty-eight years in prison,
in accordance with the jury verdicts.
II. WITNESS OPINION TESTIMONY
Tweed contends that the trial court erred in allowing
Bennett to testify as to his understanding of Tweed's statement:
"Time to get paid." Bennett testified that the statement meant
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"[r]obbery." Tweed contends that this testimony constituted
inadmissible lay opinion. We disagree.
"The admissibility of evidence is within the broad
discretion of the trial court, and the ruling will not be
disturbed on appeal in the absence of an abuse of discretion."
Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842
(1988). "Evidence which bears upon and is pertinent to matters
in issue, and which tends to prove the offense, is relevant and
should be admitted." Coe v. Commonwealth, 231 Va. 83, 87-88,
340 S.E.2d 820, 823 (1986).
In Cook v. Patterson Drug Co., 185 Va. 516, 39 S.E.2d 304
(1946), the Supreme Court approved the rule that when "words
have a doubtful, ambiguous, or hidden meaning . . . not only may
the person who used the words testify as to his meaning, but all
persons who heard the words spoken may testify as to what they
understood the speaker meant by their use." Id. at 521-22, 39
S.E.2d at 307 (citation omitted).
Bennett's testimony explained that Tweed used the term
"[t]ime to get paid" as part of a peculiar jargon, having a
specialized meaning to the group in the car. This meaning
differed from the usual, conventional use of that term. It
imported a meaning not commonly known. Thus, as a person
familiar with that jargon, Bennett was properly permitted to
explain the term's meaning.
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Bennett's explanation of the meaning and context of Tweed's
ambiguous statement was relevant to the issue of Tweed's motive
and intent when he entered the car with the other men.
Moreover, Bennett's explanation was properly confined to his
understanding of the term as opposed to bare speculation about
what Tweed meant. We find no abuse of the trial court's
discretion in admitting that explanation.
III. JURY QUESTION
During sentencing deliberations, the jury asked the trial
court, "Is parole possible for any or each sentence?" The trial
court replied, "[Y]ou should impose such punishment as you feel
is just under the evidence and within the instructions of the
Court. Do not concern yourself with what may happen
afterwards." Tweed contends that the trial court erred in
refusing to instruct the jury concerning the abolition of
parole. We agree.
This issue is controlled by Fishback v. Commonwealth, 260
Va. 104, 532 S.E.2d 629 (2000). In Fishback, the Court held:
[H]enceforth juries shall be instructed, as
a matter of law, on the abolition of parole
for non-capital felony offenses committed on
or after January 1, 1995 pursuant to Code
§ 53.1-165.1. In addition, because Code
§ 53.1-40.01 is in the nature of a parole
statute, where applicable juries shall also
be instructed on the possibility of
geriatric release pursuant to that statute.
The Court limited Fishback "prospectively to those cases
not yet final on [June 9, 2000]." Id. at 116, 532 S.E.2d at
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634. Because this case was pending when Fishback was decided,
Fishback applies.
IV. SUFFICIENCY OF THE EVIDENCE
When the sufficiency of the evidence is challenged on
appeal, we view the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom. See Higginbotham v. Commonwealth, 216 Va.
349, 352, 218 S.E.2d 534, 537 (1975). Even where the evidence
is entirely circumstantial, the inferences to be drawn lie
within the province of the fact finder and will not be disturbed
on appeal so long as those inferences are reasonable and are
supported by the evidence. See O'Brien v. Commonwealth, 4 Va.
App. 261, 263-64, 356 S.E.2d 449, 450 (1987). "[C]ircumstantial
evidence alone is sufficient to sustain a conviction." Johnson
v. Commonwealth, 2 Va. App. 598, 604-05, 347 S.E.2d 163, 167
(1986). However, "all necessary circumstances proved must be
consistent with guilt and inconsistent with innocence and
exclude every reasonable hypothesis of innocence." Moran v.
Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553 (1987).
Viewed in the light most favorable to the Commonwealth, the
evidence proved that before the men entered the car on the night
of the shooting, Tweed said, "Time to get paid," meaning it was
time to rob someone. Sanchez entered the car carrying a gun
"wrapped in a cloth," and Tweed entered the car carrying "wash
rags tied together." Bennett believed the men were going to
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commit a robbery. He believed Sanchez had shown the other men
his gun. When the men saw the victim, Tweed told Bennett to "do
it," meaning to rob the victim. When Bennett refused, Sanchez
said, "I'll do it." He then shot and killed the victim. Thus,
credible evidence supports the Commonwealth's theory that Tweed
was responsible for the crimes under a concert of action theory.
Concert of action has been defined as "action that has been
planned, arranged, adjusted, agreed on and settled between the
parties acting together pursuant to some design or scheme."
Berkeley v. Commonwealth, 19 Va. App. 279, 283, 451 S.E.2d 41,
43 (1994). "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." Id. In this case, the men shared an
intent to commit robbery when they entered the car. Shooting
the victim was the first act toward consummation of that agreed
act, notwithstanding the men fled before accomplishing the
robbery. Thus, Tweed may be held accountable for the shooting,
the attempted robbery and the related firearm charges.
V. MOTION FOR A NEW TRIAL
"Motions for new trials based upon after-discovered
evidence are addressed to the sound discretion of the trial
judge, are not looked upon with favor, are considered with
special care and caution and are awarded with great reluctance."
Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149
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(1983) (citation omitted). Because such a motion is addressed
to the sound discretion of the trial court, a ruling thereon
will be reversed only upon a showing of an abuse of discretion.
See Mundy v. Commonwealth, 11 Va. App. 461, 481, 390 S.E.2d 525,
536, aff'd on reh'g en banc, 399 S.E.2d 29 (1990).
Because of the need for finality in court
adjudications, four requirements must be met
before a new trial is granted based upon an
allegation of newly-discovered evidence:
(1) the evidence was discovered after trial;
(2) it could not have been obtained prior to
trial through the exercise of reasonable
diligence; (3) it is not merely cumulative,
corroborative or collateral; and (4) is
material, and as such, should produce an
opposite result on the merits at another
trial.
Id. at 480, 390 S.E.2d at 535. The moving party must satisfy
all four requirements to justify a new trial. See Carter v.
Commonwealth, 10 Va. App. 507, 512-13, 393 S.E.2d 639, 642
(1990).
In support of his motion for a new trial, Tweed placed in
evidence the affidavit of his trial counsel, John B. Boatwright,
III, setting forth as follows:
1. I represented Mr. Tweed from the time
his [sic] was charged with these offenses up
to and including the time of the execution
of this affidavit.
2. At all times, it was made clear to me
that Davis Sanchez was effectively "off
limits" and that I would not be allowed to
call him as a witness or interview him prior
to any possible testimony.
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3. I had no idea what Sanchez's version of
the relevant events was until after he
testified in his own defense during his own
trial.
4. As far as I know, the version of events
given by Sanchez in his on [sic] defense in
his own trial at his own trial was simply
not in existence anywhere that I could
locate it prior to the commencement of
Tweed's trial in April of 1999.
Tweed also placed in evidence the testimony of Denis C.
Englisby, who represented David Sanchez with respect to charges
brought against Sanchez arising out of the incident underlying
the charges upon which Tweed was convicted. Mr. Englisby
testified, in relevant part, as follows:
Q: When did Mr. Sanchez's trial take place?
A. I think sometime in April, I'm not sure.
Q. Well let me ask you this: Was it before
or after Mr. Tweed's trial?
A. It was, I believe, before Mr. Tweed's
trial. I'm not sure . . . .
* * * * * * *
Q. Would you allow today Mr. Sanchez to
testify about anything relating to his
involvement in this case?
A. No.
Q. Would you have allowed it anytime prior
to today?
A. No.
Q. Were you present during the entire
Sanchez trial?
A. Yes.
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Q. Did Mr. Sanchez testify in his own
defense in that case?
A. Yes.
Q. Did he testify in relationship to the
events that led up to the killing of Mr.
Hoover?
A. Yes.
The record in this case shows that Tweed was tried on April 14
and 15, 1999. Tweed further placed in evidence a transcript of
Sanchez's testimony given at his trial, which the transcript
shows was conducted June 29, 1999.
Sanchez testified that on the night in question he had been
drinking and had consumed LSD. He further testified, in
pertinent part:
Okay. Well we came across the -- I don't
know the name of the bridge, but it's a
bridge that connects Hopewell and Chester --
came across that, and we were on Route 10,
and then we came upon the East Coast, and we
just kept going. And then we turned around,
for what reason, I don't know. The music
was on. I don't know. The driver turned
around. And then when we got to the --
* * * * * * *
Then when we got -- we turned around, there
was a stoplight there, and we waited for it,
and it turned green, and then we turned back
around. And then when we was heading
towards, westbound towards Richmond, we came
across -- well, to me when we got up beside
the motorcycle, what I seen was I had a
hallucination due to the LSD, so what I seen
was when we pulled up beside it, it was a
demon on flames, and it was laughing and it
was calling my name. And Your Honor, I just
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leaned out the window and started shooting
at that.
And then we just kept going and went
through Colonial Heights, and then on our
way back home to Theresa's house, we came
through Prince George County.
In support of his motion for a new trial, Tweed argued that
the decision in his case came down to a choice between his
testimony and Bennett's. He argued:
[O]bviously, you have to assume that [the
jury] credited Bennett enough to reach a
final finding of guilt. Would Mr. Sanchez
have caused them to do otherwise? We
suggest there is a very strong likelihood of
that because he is the only person, as the
shooter, who can say -- you know, could have
said or could say ever what it was that made
him do what he did and that would have been
a correct and a material conflict with what
Mr. Bennett said.
Denying Tweed's motion for a new trial, the trial court
said:
I don't know . . . what affect, if any,
Sanchez' testimony may have had if it were
presented before the jury. It's not, as
been characterized, the bombshell and the
question, is it likely to have produced a
different result? I can't really say that
from the discussions made.
This ruling was error.
The record of the motion for a new trial establishes beyond
question that Sanchez's trial took place more than two months
after Tweed's. Prior to Sanchez's trial, his attorney denied
access to him and refused information as to what he would say.
The record discloses no other avenue by which Tweed's counsel
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could have gained access to Sanchez's account prior to Tweed's
trial. Thus, the record establishes that the substance of
Sanchez's account was in fact discovered after Tweed's trial and
that it could not have been discovered prior to his trial
through the exercise of reasonable diligence.
Sanchez's account was not merely cumulative, corroborative
or collateral. It neither added to nor corroborated any other
evidence in Tweed's trial. It addressed directly an issue
central to Tweed's trial, why Sanchez shot and killed Hoover.
The Commonwealth's concert of action theory of Tweed's
guilt was based upon his initiation of and participation in the
events leading up to Sanchez shooting Hoover. Sanchez testified
that he shot Hoover for reasons independent of anything Tweed
said or did. If believed, Sanchez's account exonerates Tweed.
Therefore, it is material.
The trial court erred in denying Tweed's motion for a new
trial.
The judgment of the trial court is reversed, and this case
is remanded for retrial in accordance with the views herein
expressed, if the Commonwealth be so advised.
Reversed and remanded.
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