COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Frank and Humphreys
Argued at Richmond, Virginia
ANTOINE WILKERSON
OPINION BY
v. Record No. 2404-99-2 JUDGE ROBERT J. HUMPHREYS
NOVEMBER 21, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
David M. Gammino; William T. Linka
(Boatwright & Linka, on brief), for
appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Antoine Wilkerson appeals his convictions after a jury trial
of first degree murder and robbery, claiming that the trial court
erred by 1) refusing to allow Wilkerson to introduce evidence of
inconsistent statements made by a Commonwealth witness; 2)
allowing the Commonwealth to introduce hearsay statements
pertaining to a conspiracy, before the Commonwealth had
independently established a conspiracy; 3) finding the evidence
sufficient to convict Wilkerson of robbery; and 4) finding the
evidence sufficient to convict Wilkerson of murder. Wilkerson
further contends that the trial court erred in setting aside the
jury's conviction of Wilkerson for accessory after the fact to
first degree murder, and failing to set aside the conviction for
first degree murder. 1 We disagree and, for the reasons that
follow, affirm Wilkerson's convictions.
BACKGROUND
On the evening of December 8, 1997, between approximately
9:00 p.m. and 9:30 p.m., Carol Goring Smith was shot and killed as
she returned home from work and began to walk up the stairway
toward her second floor apartment at the Woods Edge Apartment
Complex. Another tenant of the apartment building, Ms. Cozzette
Dushon Brown, who lived in the apartment located at the top of the
stairway, was cooking in her kitchen when she heard scuffling
noises outside her doorway, as if someone had fallen down the
steps. She also heard a "fade-away scream" that sounded like it
came from a woman. Brown went to her bedroom window and looked
outside. At that point, she saw a light-colored car back out of
the parking lot to the apartment building. She also saw Smith's
car, a burgundy, four-door Chrysler Concord, back out of the
parking lot, and the two cars drove away.
Ms. Brown's boyfriend was also in her apartment and witnessed
the same events. He immediately went to the doorway of the
apartment and went outside to the breezeway to see what had
happened. He then came back and called the police. While he was
1
The jury also convicted Wilkerson of accessory after the
fact to robbery. This verdict was, likewise, set aside by the
trial court. However, this conviction and action of the trial
court in setting it aside have not been raised by Wilkerson as
issues on this appeal.
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on the phone with the police, Brown went to the doorway and looked
outside. She saw Smith lying at the bottom of the stairway with
blood "all down in the floor."
Detective Daryl L. Street ("Detective Street") of the
Richmond Police Department was called to investigate and arrived
on the scene at approximately 10:32 p.m. The scene was secure,
and Smith's body had already been transported to MCV hospital.
Detective Street observed that Patrick Smith, Smith's husband, was
not present at the scene at that time. However, he returned to
the scene at approximately 12:15-12:30 a.m.
On December 12, 1997, at approximately 11:00 p.m., Officer
Steve Hines of the Richmond Police Department witnessed Smith's
Chrysler "come through [his] radar at about 57 or 58 miles per
hour in a 35 zone." Officer Hines chased the vehicle in his squad
car until it hit some gravel and dirt and came to rest on the rear
of a parked Cadillac. Although Officer Hines couldn't keep his
eyes on the vehicle at all times due to the dust and gravel in the
air, he observed Chi-Lief Brisbon get out of the passenger side of
the vehicle as he approached the car. He saw no one else leave
the car, and found no one else inside the car.
Since he had received a radio transmission stating that the
Chrysler was linked to a violent crime, Hines apprehended Brisbon
and placed him under arrest. Although there was no one else found
in the car, Brisbon remained adamant that he had not been driving
the car, but that another individual had been driving the car.
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However, Brisbon was ultimately charged with, and pled guilty to,
the unauthorized use of the vehicle.
While Brisbon was in custody for this matter, Detective
Street interviewed him regarding his knowledge of the Chrysler and
Smith's murder. During the first interview, which took place in
December of 1997, Brisbon denied having any knowledge about the
Chrysler and Smith, and continued to contend that another person
had been driving the car; specifically, "Nard," a/k/a Kenardo
Foster. Brisbon told Detective Street that Foster could tell him
everything about the car. Upon investigating the car, a print
belonging to Foster was lifted from the interior of the driver's
side window.
During a second interview, which also took place in December
of 1997, Brisbon gave the same statement and again contended that
Foster could tell Detective Street everything about the car.
However, in April of 1999, after Brisbon had been incarcerated for
another murder, Brisbon spoke to Detective Street a third time.
It was during this interview that Brisbon told Detective Street
that he was involved with Smith's murder. He named Foster,
Wilkerson and Patrick Smith as the other individuals involved.
On December 14, 1998, a grand jury indicted Wilkerson for
capital murder in the course of a robbery, carjacking, use of a
firearm in the commission of a murder, possession of a firearm as
a convicted felon, capital murder for hire, and robbery. No
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indictment charging Wilkerson with accessory after the fact to
murder or robbery was returned by the grand jury.
The first witness to testify at trial was Mark DeLoatch, a
tenant who lived in an apartment located at the opposite end of
the building from Smith's apartment. DeLoatch testified that he
had witnessed the murder. However, DeLoatch did not come forward
to the police until Detective Street came to interview apartment
tenants in December of 1997.
DeLoatch testified that during the interview, he informed
Detective Street that on the evening of December 8, 1997, after he
had come home from work, he was walking his dog on the lawn in
front of the building. He noticed two young black males standing
in front of the stairwell to Smith's apartment, talking for about
15 or 20 minutes. One of the males was shorter than the other
one. At some point, the shorter male went to his car and then
came back. DeLoatch identified Wilkerson as the "shorter male" at
trial.
DeLoatch next saw Smith pull into the parking lot and park
under a street lamp. He saw Smith get out of the car, pick up a
bag of groceries and her other belongings, and walk toward her
apartment. As she approached the stairway to her apartment,
DeLoatch heard elevated voices. He then testified he heard Smith
yell "something to the effect of no, no, no . . . please don't."
Next, DeLoatch heard a gunshot and saw Smith's body collapse.
DeLoatch observed that it was the taller male who held the gun and
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shot Smith. Then he watched the shorter male walk to a car, which
was a "smaller vehicle . . . a Honda Civic or some form of
hatchback or Escort." The taller male followed the shorter male
to the parking lot, and got into Smith's car. The shorter male in
the smaller car backed out and waited for the taller male to get
into Smith's car. At that point, both cars left the parking lot,
with the light car being followed by Smith's car.
Detective Street testified that after his interviews with
Brisbon and DeLoatch, as well as further investigation, he
eventually determined that Wilkerson was the owner of a light
blue, two-door, Honda Civic, matching the description of the car
that witnesses saw in the parking lot on the night of Smith's
murder.
Street testified that after he apprehended and Mirandized
him, Wilkerson admitted knowing Foster. Wilkerson told Detective
Street that he had picked Foster up and they were together all day
on the day of the murder. He said they went to a Southside
residence to see another individual called "Scar" and that while
they were there, Scar gave Foster a black steel revolver.
Wilkerson first told Detective Street that Foster then asked
him to take him over to the apartments where Smith lived to pick
up his girlfriend's car. Wilkerson said he took Foster there in
his car, a light blue Honda Civic. Once they arrived, he said he
dropped Foster off and left immediately.
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Later, he changed his story and told Street that after
driving Foster to the apartment complex, he had stopped for a
moment and gotten out of the car to check that his trunk light was
off. Wilkerson's story changed a third time when he indicated
that, after he dropped Foster off at Smith's apartment complex, he
saw a burgundy car arrive. He saw a woman, that he didn't know,
get out of the vehicle and go to the trunk to get some groceries.
Wilkerson said it was then that he left the parking lot. When he
got to the stoplight, he stated he saw the burgundy vehicle fly
past him and wasn't sure whether it was Foster driving it or not.
Wilkerson claimed he then went to his girlfriend's house. He said
he didn't know a murder had taken place until he saw it the next
day on the news and started piecing it together.
Wilkerson's story changed again later. This time, Wilkerson
told Street that when he and Foster arrived, they waited in the
Honda for awhile. They saw Smith pull up, get her groceries, and
start walking toward the staircase. Foster said "look at that
car, it's phatt" and said "let's go get the keys." Foster then
stepped from the Honda as Smith was walking toward the breezeway,
and walked in the same direction. Wilkerson stated that he asked
Smith if he could help her with her groceries and she declined.
As she walked towards the breezeway, Wilkerson stepped out of his
car, went toward the back of the car and walked about 4-5 steps
toward where Foster and Smith were. He claimed he did this to see
if Foster was able to get the car, and because he wanted to find
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out if he could leave or if he needed to wait for Foster. The
next thing he knew he saw a flash and heard a scream, and saw the
bag of groceries falling. Wilkerson told Street that Foster had
shot Smith. Wilkerson stated he then left the complex and thought
Foster was right behind him but he wasn't. He then met back up
with Foster behind the residence of Vanessa Taylor, the mother of
Wilkerson's child.
At first, he claimed that it was only him and Foster there
and that Foster was driving Smith's Chrysler. This story changed
also, and Wilkerson claimed that others were there. Specifically,
Chi-Lief Brisbon, "Rob" and "Smoke."
In addition, Detective Street testified that he had observed
Foster to be about 6' 1" to 6' 2" in height. He observed
Wilkerson to be 5' 7" to 5' 8".
Counsel for Wilkerson asked several questions of Detective
Street, based upon a transcript of an interview with Brisbon, in
an attempt to introduce prior inconsistent statements to impeach
the credibility of Brisbon. The trial court sustained the
objection of the Commonwealth to these questions, holding that
Wilkerson had failed to lay the proper foundation for introduction
of the evidence. Specifically, the trial court stated to counsel
"you have to warn the witness that you have evidence that is going
to impeach him, the place, and time, and who is present, and did
you make this statement. If he says no then you can say look at
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the transcript and then its up to the jury to decide what is the
truth, or neither."
Brisbon also testified during the trial. Brisbon explained
to the jury that he had come to Richmond from New Jersey about a
week before Thanksgiving in 1997. A few days after he arrived, he
met Foster at the place he was staying. Brisbon testified that
Foster told him he had a "job" for him to do and said that he
would explain it to him at a later time.
During this testimony, Wilkerson's counsel objected to the
testimony concerning Brisbon's conversations with Foster on the
grounds of hearsay, as well as on the basis that Foster was a
"co-defendant" and not subject to cross-examination by Wilkerson.
The trial court held that the statements were admissible "in a
conspiracy" or in showing that "they're principals in planning any
kind of crime" and overruled counsel's objection.
Brisbon went on to testify that he and Foster met again and
it was then that Foster told Brisbon he wanted his help with a
murder. Foster explained to Brisbon that he needed him "to watch
the lady, watch how she moves, you know, when she come home, when
she leave, we going to shoot her, take her car, and make it look
like it was a carjacking." Foster also told Brisbon that he
wanted him to shoot the lady. Foster explained that there would
be other people involved who would watch Brisbon's back and let
him know if the police came. Foster claimed that a "guy was going
to pay [them] for doing it" and stated that they would be "getting
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paid . . . from insurance." He also told Brisbon that he should
take the car to New Jersey after the murder and get rid of it so
that they could split the money.
Brisbon testified that the day before the murder, he was
sitting in a car listening to music and smoking marijuana with
Wilkerson. Wilkerson told him at that time that Foster would come
to see Brisbon the next day. Brisbon stated that Wilkerson was
"referring to the murder" when he made this statement. In
addition, Brisbon stated that before the murder, he heard
Wilkerson and Foster talking and saying "little things" about
insurance and Patrick Smith.
On the night of the murder, however, Brisbon did not
participate because he was in the custody of "Deputy Andrews."
However, Brisbon saw Wilkerson and Foster, at about 11:00 p.m. to
11:30 p.m. that night. Brisbon testified that they were behind
Taylor's house, sitting in the stolen Chrysler. Wilkerson was in
the passenger seat of the car, Foster was in the driver seat and
Patrick Smith was in the back seat. Wilkerson called Brisbon over
to the car and said "what happened to you." It was then that
Brisbon saw "money change from Patrick Smith's hand to Kenardo's
hand."
Contrary to this, Natasha Brown, Wilkerson's girlfriend,
testified that, although Wilkerson did not pick her up from work
that evening as he usually did, he came home that night at
10:20 p.m. and did not leave again.
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An employee of American General Life Insurance Company
testified that a life insurance policy was taken out on behalf of
Smith on May 1, 1994 for a face amount of $25,000. Patrick Smith
signed a "claimant statement" requesting assignment of the
proceeds the day after Smith was murdered. He received $20,837.07
(the face amount minus funeral and burial expenses) on January 6,
1998.
After all the evidence was received, the jury was instructed
on the following offenses: (1) capital murder for hire (and the
lesser-included offense of first degree murder); (2) use of a
firearm in the commission of capital murder; (3) first degree
murder while committing robbery; (4) use of a firearm in the
commission of murder; (5) robbery; (6) accessory after the fact to
murder; and (7) accessory after the fact to robbery. The
instructions on accessory after the fact to murder and robbery
were offered by Wilkerson although he was never charged with
accessory after the fact of murder or robbery.
The jury found Wilkerson guilty of robbery, the
lesser-included offense of first degree murder, accessory after
the fact to murder and accessory after the fact to robbery. The
jury acquitted Wilkerson of the firearm charges and also found him
not guilty of committing capital murder while committing robbery.
After the jury was dismissed, the court considered final
motions. Wilkerson made a motion to set aside the verdicts "as
being contrary to the law and evidence." Essentially, he argued
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that since the jury found Wilkerson guilty of robbery and murder,
it was inconsistent for the jury to also find him guilty of
accessory after the fact of these offenses. As a result, he asked
the trial court to set aside the convictions for robbery and
murder and confirm only the lesser convictions for accessory after
the fact. The trial court agreed that the verdicts were
inconsistent, but set aside the accessory after the fact
convictions and upheld the convictions for murder and robbery. As
a result, Wilkerson was sentenced to 7 years for the robbery
conviction and 60 years for the murder conviction.
ANALYSIS
It is fundamental that on appeal "we review the evidence in
the light most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom." Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997).
A. Inconsistent Statements
On appeal, Wilkerson first argues that the trial court erred
in refusing to allow him to introduce evidence of inconsistent
statements made by Brisbon. As noted above, Wilkerson attempted
to admit the alleged inconsistencies through the testimony of
Detective Street.
We agree with the Commonwealth that when taking exception to
the court's ruling in this regard, Wilkerson failed to make the
statements or evidence he was attempting to introduce part of the
record on appeal. "[W]hen a party's evidence has been ruled
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inadmissible, the party must proffer or avouch the evidence for
the record in order to preserve the ruling for appeal; otherwise,
the appellate court has no basis to decide whether the evidence
was admissible." Zelenak v. Commonwealth, 25 Va. App. 295, 302,
487 S.E.2d 873, 876 (1997) (citation omitted).
B. Hearsay Statements
Wilkerson next argues that the trial court erred in allowing
the Commonwealth to introduce hearsay statements pertaining to a
conspiracy, before the Commonwealth had independently established
a conspiracy. Specifically, Wilkerson points to Brisbon's
testimony regarding statements made to him by Foster concerning
the robbery and murder.
"The general rule is that there must be evidence
establishing a prima facie case of conspiracy before the
declarations of a co-conspirator, made out of the defendant's
presence, may be admitted into evidence." Floyd v.
Commonwealth, 219 Va. 575, 581-82, 249 S.E.2d 171, 175 (1978).
The purpose for this threshold requirement is to insure against
"the risk that a co-conspirator may be making calculated
statements to divert attention[,] by implicating others for his
or another's wrongdoing . . . ." Jones v. Commonwealth, 11 Va.
App. 75, 82, 396 S.E.2d 844, 848 (1990). In addition, in these
situations, "the trier-of-fact typically will not have an
opportunity to hear the declarant cross-examined, or view the
declarant's demeanor or the evidence first hand." Id. Thus, "a
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co-conspirator's declarations, like hearsay statements
generally, are inadmissible absent some indicia of reliability."
Id.
"A criminal conspiracy is merely an agreement between two
or more persons to commit a crime . . . ." Simpson v.
Commonwealth, 227 Va. 557, 567, 318 S.E.2d 386, 392 (1984).
Prima facie evidence was defined in Babbit v. Miller, 192 Va.
372, 379, 64 S.E.2d 718, 722 (1951), as "evidence which on its
first appearance is sufficient to raise a presumption of fact or
establish the fact in question unless rebutted." Here, there
was no prima facie evidence of the existence of an agreement
between Foster, Brisbon and Wilkerson prior to Brisbon's
testimony regarding his conversations with Foster.
"Ideally, it is always more orderly to
present sufficient evidence to establish the
prima facie existence of the conspiracy and
to identify the conspirators before
presenting detailed evidence as to the
substantive offenses and the acts and
declarations of the conspirators . . . . As
a practical matter, the proof is often
'sprawling' and at certain stages of the
trial may appear to present a hodgepodge of
acts and statements by various persons. In
the final analysis, however, it is always
necessary that the evidence be connected and
enmeshed so as to present a logical sequence
of evidence linking the defendant with the
charges against him. The very nature of
such cases requires that broad discretion be
vested in the trial court with respect to
the order of proof."
Floyd, 219 Va. at 582, 249 S.E.2d at 175 (citations omitted).
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Thus, while Brisbon's testimony should not have been admitted
pursuant to the conspiracy exception to the hearsay rule until a
conspiracy was established, Brisbon's later testimony, which
consisted of his firsthand knowledge of certain facts, did
establish a criminal conspiracy between Foster, Brisbon,
Wilkerson and Patrick Smith.
"The order of presentation of evidence . . . is usually a
matter left to the discretion of the trial court and, absent an
abuse of discretion, will not be disturbed." Cirios v.
Commonwealth, 7 Va. App. 292, 300, 373 S.E.2d 164, 168 (1988)
(citations omitted). "[S]tatements, otherwise inadmissible as
hearsay, may be 'conditionally admitted subject to being
"connected up" by subsequent independent proof of concert of
action.'" . . . [Thus,] [w]hen the record shows facts from which
the existence of a conspiracy could reasonably be inferred, the
case will not be reversed because proof of the conspiracy came at
the wrong time." Floyd, 219 Va. at 582, 249 S.E.2d at 175
(citations omitted). Accordingly, under these circumstances, we
find, while the trial court erred in this regard, such error was
harmless for the reasons noted. See Galbraith v. Commonwealth, 18
Va. App. 734, 742, 446 S.E.2d 633, 638 (1994); Lavinder v.
Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)
(en banc).
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C. Sufficiency of the Evidence
Wilkerson next argues that the trial court erred in finding
the evidence sufficient to convict him of robbery and
first-degree murder.
Where the sufficiency of the evidence is
challenged after conviction, it is our duty
to consider it in the light most favorable to
the Commonwealth and give it all reasonable
inferences fairly deducible therefrom. We
should affirm the judgment unless it appears
from the evidence that the judgment is
plainly wrong or without evidence to support
it.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). "If there is evidence to support the conviction, an
appellate court is not permitted to substitute its own judgment
for that of the finder of fact, even if the appellate court might
have reached a different conclusion." Commonwealth v. Presley,
256 Va. 465, 466, 507 S.E.2d 72, 72 (1998).
Moreover, "[t]he credibility of the witnesses and the
weight accorded the evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as
it is presented." Sandoval v. Commonwealth, 20 Va. App. 133,
138, 455 S.E.2d 730, 732 (1995) (citations omitted). "In its
role of judging witness credibility, the fact finder is entitled
to disbelieve the self-serving testimony of the accused and to
conclude that the accused is lying to conceal his guilt."
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Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d
233, 235 (1998) (citation omitted).
"[E]very principal in the second degree and every accessory
before the fact may be indicted, tried, convicted and punished
in all respects as if a principal in the first degree . . . ."
Charlton v. Commonwealth, 32 Va. App. 47, 50, 526 S.E.2d 289,
290 (2000) (citing Code § 18.2-18) (emphasis in original).
Given the evidence of Brisbon and the four inconsistent
statements of Wilkerson which corroborate in some measure the
testimony of Brisbon, viewing the evidence in the light we must,
we find that the finder of fact could conclude beyond a
reasonable doubt that Wilkerson was a principal in the second
degree and therefore, was guilty of committing the charged
offenses.
D. Accessory After the Fact
Finally, Wilkerson contends on appeal that the trial court
erred in setting aside the jury's conviction of Wilkerson for
accessory after the fact of first degree murder, and failing to
set aside the conviction for first degree murder.2 We disagree.
2
On appeal, Wilkerson also argues that the jury's
conviction of Wilkerson for both murder and accessory after the
fact of murder, violates his Fifth Amendment right against
double jeopardy. However, Wilkerson never raised this argument
before the trial court and raises it for the first time on
appeal. Accordingly, we do not address this issue. See Swann
v. Commonwealth, 247 Va. 222, 441 S.E.2d 195 (1994).
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We have previously held that inconsistent verdicts rendered
by a jury do not constitute reversible error. See, e.g., Akers
v. Commonwealth, 31 Va. App. 521, 529, 525 S.E.2d 13, 17 (2000);
Tyler v. Commonwealth, 21 Va. App. 702, 707-09, 467 S.E.2d 294,
296-97 (1996); Wolfe v. Commonwealth, 6 Va. App. 640, 647-48,
371 S.E.2d 314, 318 (1988). The issue of inconsistent verdicts
implicates no constitutional guarantee. See Wolfe, 6 Va. App.
at 648, 371 S.E.2d at 318. Where a jury renders inconsistent
verdicts, "a search of the trial record in an attempt to
reconcile such inconsistency is neither appropriate nor
required." Id. at 650, 371 S.E.2d at 319. "As long as the
evidence supports both verdicts, they 'will be upheld, despite
the apparent inconsistency.'" Akers, 31 Va. App. at 529, 525
S.E.2d at 17 (quoting Pugliese v. Commonwealth, 16 Va. App. 82,
96, 428 S.E.2d 16, 26 (1993)). Here, the evidence clearly
cannot support both a verdict of guilty as a principal to murder
and a verdict of guilty of accessory after the fact to the same
murder.
While we have not previously considered the situation
presented here, in doing so, we note that the Supreme Court of
Virginia has recently held that "[w]hile convicting an accused
of being an accessory after the fact requires proof that the
accused provided assistance to a person with knowledge that the
person was guilty of a completed felony, no such proof is
required to convict an accused of murder. Thus, the crime of
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being an accessory after the fact contains an element that the
crime of murder, the charged offense in the present case, does
not contain. Therefore, the crime of being an accessory after
the fact is not a lesser-included offense of the crime of
murder." Commonwealth v. Dalton, 259 Va. 249, 253-54, 524
S.E.2d 860, 862-63 (2000). "Therefore, [the Court held] that,
before a defendant can be tried and convicted of being an
accessory after the fact, he must be charged with that offense.
Unless such a charge is specifically made, neither the
Commonwealth nor an accused is entitled to an
accessory-after-the-fact instruction." Id. at 254, 524 S.E.2d
at 863.
Wilkerson was never charged with accessory after the fact.
It was therefore error to instruct the jury that they could
convict him of accessory after the fact as a lesser-included
offense of murder. Thus, we hold that the trial court was
correct in rectifying this error by setting aside this
conviction.
Affirmed.
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