COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Frank
Argued at Alexandria, Virginia
DORELL PERCELL TAYLOR
OPINION BY
v. Record No. 1118-99-2 JUDGE ROBERT P. FRANK
SEPTEMBER 26, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Steven D. Benjamin (Betty Layne DesPortes;
Benjamin & DesPortes, P.C., on briefs), for
appellant.
John H. McLees, Jr., Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
Dorell Percell Taylor (appellant) appeals his convictions, by
a jury, of first degree murder and use of a firearm in the
commission of murder. On appeal, he contends the trial court
erred in: 1) requiring defense counsel to call a witness on
behalf of the defense, which was contrary to counsel's judgment;
2) admitting the hearsay statement of the victim; and 3) finding
the evidence sufficient to support the convictions. We disagree
and affirm the trial court's judgment.
I. BACKGROUND
On April 8, 1997, Richmond Police Officer John Sheppard
found Martin Scott, Jr. (victim), lying in a fetal position in
the back of a truck. As Officer Sheppard approached the victim,
he noticed the victim was covered in blood with an obvious
gunshot wound to the mouth and head. A lot of blood was present
in the bed of the truck. Officer Sheppard testified that when he
saw the victim, he knew the victim was going to die. Officer
Sheppard identified himself and told the victim he was going to
die. The victim was able to uncurl slightly but did not reply.
Officer Sheppard again told the victim he was going to die and,
this time, asked the victim who shot him. The victim replied
almost immediately by saying either the name "Dorell" or the name
"Torell." Officer Sheppard could not tell which name was spoken
because the victim's mouth was full of blood. The victim was
gurgling and struggling to breathe. When asked where "Dorell" or
"Torell" lived, the victim gestured with his hand in a southerly
direction. When Officer Sheppard asked the victim if he was
gesturing toward Rosewood Avenue, the victim nodded his head
affirmatively. Officer Sheppard testified that, at this point,
it appeared the victim could no longer speak. The victim died
after paramedics took him to the hospital.
Frank James Ford owned the truck in which the victim was
found. Ford testified he loaned his truck to appellant on April
7, 1997, for a couple of hours in exchange for drugs.
Veronica Blunt, the victim's neighbor and friend, was
upstairs in the victim's house on April 7, 1997. In addition to
the victim, Mario Rogers and a man named Russ also were in the
house. As Blunt came down the stairs, she heard a man demanding
cocaine and money. As she neared the bottom of the steps, she
saw appellant, who had a gun, standing in front of the victim.
She also saw appellant point the gun twice at the victim. Blunt
then fled the victim's house for her own home. Upon realizing
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the doors to her home were locked, she climbed a clothesline pole
in order to reach her upstairs back porch. As she climbed, she
heard gunshots and heard the victim run out his back door calling
out. She then heard the victim at her front door screaming for
help. Blunt finally got into her house, calmed her elderly
mother, and then went to the front door, but the victim was no
longer there. Blunt ran to her bedroom window, looked out, and
saw the victim lying in the truck. She called 911. When the
police arrived, Blunt told them the victim had awoken her by his
calls for help. She also told a police detective that she could
not identify the victim and she stated she could not identify the
shooter when the police showed her a photo spread. Later, Blunt
told appellant's former attorney that she could not identify the
person who shot the victim, and she told the Commonwealth's
attorney she could not identify the murderer. Blunt testified
she did not provide the police with information about the
shooting because she was afraid appellant would kill her.
Police investigators found blood and bullet marks throughout
the victim's house and garage. Blood also was found on the stoop
of Blunt's house.
During his defense, appellant presented two witnesses who
testified they heard gunshots at the victim's house and then saw
Mario Rogers, not appellant, running from the house. Antonio
Williams, a friend of appellant and a convicted felon, testified,
that after hearing shots fired from the victim's house, he saw a
man named "Mario" leave the house with a gun. Elliott Haynes,
also a convicted felon, testified he heard shots coming from the
victim's house and saw Mario Rogers running out of the house.
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During the trial, the defense attorney informed the court
that she and appellant were having a difference of opinion as to
whether Mario Rogers should be called as a witness for the
defense. The trial court directly questioned appellant about his
desire to call Rogers as a witness. Appellant indicated he knew
his attorney did not want to call Rogers to testify but that he
wanted to call Rogers as a witness. The trial court then
instructed appellant's attorney to call the witness. Defense
counsel responded, "Yes, sir," and called Rogers as the defense's
next witness.
Rogers testified he was in the victim's house the night the
victim was shot but did not see the shooter. Rogers denied
having a gun the night the victim was killed and stated he did
not kill the victim. Rogers testified he was with the victim
earlier in the day when appellant asked the victim for money. The
victim gave appellant $75, and appellant left the house. A few
hours later, when appellant returned to the house and demanded
more money, the victim replied he did not have the money.
Appellant told Rogers not to be there when he returned. Rogers
tried to exit through the front door, but saw appellant going to
the truck. Rogers stated that he went out the back door and
appellant re-entered the house through the front door. As Rogers
fled the house, he heard shots being fired and saw appellant
leave the house with a gun.
II. ANALYSIS
Appellant first contends the trial court erred in requiring
his trial counsel to call a witness on behalf of the defense,
despite counsel's opinion that the witness should not be called.
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At trial, defense counsel informed the trial court that she
and appellant had a difference of opinion about whether to call
Mario Rogers as a witness for the defense and was at a loss as to
whose rights were superior. The trial court asked appellant if he
wanted to call Rogers, and appellant answered in the affirmative.
The trial court also asked appellant if his counsel had advised
him that Rogers should not be called as a witness. Appellant
indicated his counsel had advised him not to call Rogers, but,
despite his attorney's opinion, he wanted to call Rogers. The
trial court then instructed defense counsel to call Mario Rogers.
Defense counsel responded, "Yes, sir," and did not object to the
trial court's directive that she call Rogers as a witness.
We find that appellant is procedurally barred from raising
this issue on appeal because his counsel did not object to the
trial court's directive to call Rogers as a witness, and,
therefore, did not properly preserve the issue for appeal. See
Rule 5A:18.
Appellant next contends the trial court erred in admitting
the victim's hearsay statement as a dying declaration.
Under this exception, dying declarations
are admissible evidence in homicide cases if
they were made when the declarant was "under
a sense of impending death, and without any
expectation or hope of recovery. Whether so
made or not, is a preliminary question to be
determined by the court on all the
circumstances of the case." Bull v. The
Commonwealth, 55 Va. (14 Gratt.) 613, 620
(1857). The fact that the declarant was
conscious of his condition "may be
established otherwise than by the statements
of the decedent: as by the character and
nature of the wound, his appearance and
conduct, etc." Hill v. The Commonwealth, 43
Va. (2 Gratt.) 594, 608 (1845).
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Clark v. Commonwealth, 235 Va. 287, 291, 367 S.E.2d 483, 485
(1988).
While the victim did not state he was dying, he had been shot
in the mouth and head. In fact, the officer testified that when
he saw the victim's wound he knew the victim was going to die.
The victim was lying in a fetal position and was covered in blood.
When the officer approached and began talking to him, he was able
to uncurl slightly but never stretched completely out. He also
did not sit up. The officer told the victim he was going to die.
The bed of the truck contained a lot of blood. The victim was
gurgling and struggling to breathe and his mouth was full of
blood. He was unable to speak clearly because of his wound and
the blood in his mouth. When the officer asked him where "Dorell"
or "Torell" lived, the victim was no longer able to speak.
Instead, he waved his hand in a southerly direction. When the
officer asked him if he meant toward Rosewood, the victim did not
speak but nodded his head.
We hold that the evidence supports the trial court's finding
that the victim was under a sense of impending death when he spoke
because he had been shot in his mouth and head, he was lying in a
fetal position, his clothing was covered in blood, the truck had a
lot of blood in it, the officer told him he was going to die, he
was struggling to breathe, he was unable to sit up or stretch out,
and his mouth was full of blood. Further, after answering the
officer's initial question, he was not able to speak. He motioned
and nodded his head. We find this evidence supports the trial
court's conclusion that the victim was conscious of his condition.
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Appellant argues that for the dying declaration exception to
apply there must be some evidence of the victim's subjective
belief that his death is imminent. Appellant relies on Hall v.
Commonwealth, 12 Va. App. 198, 204, 403 S.E.2d 362, 365 (1991)
(declarant, who was shot on Christmas Eve, "repeatedly told his
wife that he would not see Christmas," told her she and his child
would have to carry on without him, asked to talk to a minister,
and told the minister he wanted to be saved); Batten v.
Commonwealth, 190 Va. 235, 239, 56 S.E.2d 231, 233 (1949)
(declarant said he was dying and would not live until the morning
and then asked his sister to take care of his mother); Thomas v.
Commonwealth, 183 Va. 501, 507, 32 S.E.2d 711, 714 (1945)
(declarant said he was dying, "'this will be the last of me,'" and
"'this is the end'"); Mitchell v. Commonwealth, 178 Va. 407, 414,
17 S.E.2d 370, 372-73 (1941) (after a doctor told the declarant he
would not get well, the declarant also said he did not think he
would get well); Waller v. Commonwealth, 178 Va. 294, 306, 16
S.E.2d 808, 813 (1941) (declarant said he was going to die and was
not going to live); and O'Boyle v. Commonwealth, 100 Va. 785, 793,
40 S.E. 121, 124 (1901) (when someone asked the declarant if she
realized her condition, declarant said she did). Appellant argues
the victim did not respond to the officer's statement that he was
going to die and did not evince any awareness that he had a fatal
wound.
While Hill involved statements made by the declarant, such as
"it will soon be over with me," Hill, 43 Va. at 609, the Supreme
Court of Virginia, in Clark, reiterated the Hill standard that
imminent death may be established by "'the character and nature of
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the wound, his appearance and conduct.'" Clark, 235 Va. at 291,
367 S.E.2d at 485. The cases appellant relies upon are consistent
with Hill, but the facts of this case also fall within the Hill
standard. Hill and the cases cited by appellant require the
declarant to be under a sense of impending death and set forth the
mode of proving the declarant's sense of impending death. Hill
allows circumstantial evidence to prove the requirement. The
other cases involve the declarant's statements as the mode of
proving the requirement. We find no conflict between the cases.
Finally, appellant contends the evidence was insufficient to
support his convictions.
When a defendant challenges on appeal
the sufficiency of the evidence to sustain
his conviction, it is the duty of an
appellate court to examine the evidence that
tends to support the conviction and to permit
the conviction to stand unless the conviction
is plainly wrong or without evidentiary
support.
Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72
(1998) (citations omitted).
"The credibility of a witness, the weight accorded the
testimony, and the inferences to be drawn from proven facts are
matters solely for the fact finder's determination." Crawley v.
Commonwealth, 29 Va. App. 372, 375, 512 S.E.2d 169, 170 (1999)
(citing Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473,
476 (1989)).
In this case, the testimony by Blunt and Rogers and the
victim's dying declaration established that appellant was the
person who shot the victim. The trial court was entitled to
reject the testimony of Haynes and Williams. We, therefore, find
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the trial court did not err in finding the evidence sufficient to
support the convictions.
For these reasons, we affirm the judgment of the trial court.
Affirmed.
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