COURT OF APPEALS OF VIRGINIA
Present: Judge Annunziata, Senior Judges Willis and Bray*
Argued at Alexandria, Virginia
MICHAEL WAYNE HASH
MEMORANDUM OPINION ** BY
v. Record No. 1290-01-4 JUDGE RICHARD S. BRAY
SEPTEMBER 3, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CULPEPER COUNTY
John R. Cullen, Judge
Michael T. Hemenway; Richard A. Davis, for
appellant.
Susan M. Harris, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
A jury convicted Michael Wayne Hash (defendant) of capital
murder in violation of Code § 18.2-31. On appeal, defendant
complains the trial court erroneously (1) failed to instruct on
the Commonwealth's burden to prove beyond a reasonable doubt he
was the "triggerman" or "principal in the first degree," (2)
instructed the jury on the definition of "[w]illful, deliberate,
and premeditated," (3) refused to investigate allegations of
juror misconduct, and (4) overruled his motion to "set aside the
* Senior Judges Willis and Bray participated in the hearing
and decision of this case prior to the effective date of their
retirement on August 31, 2002 and thereafter by designation as a
senior judge pursuant to Code § 17.1-401.
** Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
verdict" as a result of "prosecutorial misconduct." Defendant
also challenges the sufficiency of the evidence to support the
conviction. Finding no reversible error, we affirm the trial
court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal. In accordance with well established
principles, we review the evidence in the light most favorable to
the party prevailing below, the Commonwealth in this instance.
Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721
(1988).
I. BACKGROUND
Prior to trial, defendant moved for discovery pursuant to
Rule 3A:11, seeking disclosure by the Commonwealth of "all
information of an exculpatory, mitigating or otherwise favorable
nature" and "all evidence affecting the credibility of any
prosecution witness, including . . . any plea negotiations,
promise, or threat (direct or implied) made to any potential
prosecution witness by or on behalf of the Commonwealth or any
officer or agency thereof." Responding, the Commonwealth provided
statements of potential witnesses to police and other materials
and declared an "open file policy" to defendant's counsel.
Trial commenced on February 6, 2001. The Commonwealth's
evidence established that Thelma B. Scroggins (victim) had been
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murdered on July 13, 1996, killed by "[f]our gunshot wounds,"
"three" to "the left side of [her] face" and one "to the back of
the head." The medical examiner described the wounds and noted
"slight burning directly around the skin surface" indicated
contact with the "[gun] barrel" at "close range." A "firearms
examiner" determined the four bullets recovered from the victim's
body were ".22 caliber," "fired from a firearm having a barrel
rifled with four lands and grooves," "most likely . . . a rifle."
Testifying in behalf of the Commonwealth, Alesia Shelton
(Shelton), defendant's cousin, recalled a discussion on the
evening of July 13, 1996, between defendant and Jason Kloby
(Kloby), a codefendant, during which the two referenced the "mail
lady" and agreed "she should have never messed with them," and
they should "make her suffer," "pour[] hot water on her," or "tie
her up," and "do it tonight." Four weeks after the murder,
Shelton witnessed another conversation between defendant and Kloby
"at the church across the street from [the victim's] house."
Kloby then admitted "he shot [the victim]," "handed the gun to
[defendant] and . . . [defendant] shot her." Reacting to Kloby's
admissions, defendant "nodded his head" and, "laughing"
"sarcastic[ally]," said, "Yes-yeah."
Eric Weakley, also a codefendant, testified that at "about
eight or nine o'clock" on the evening of the murder, he
accompanied defendant and Kloby to the victim's house. Defendant
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"knocked" at the door and, when she answered, defendant "asked if
he could have a cup of sugar." The victim responded, "yeah,
sure," "turned around," and defendant entered the home and "hit
her broad side around th[e] side of the ear" with "[h]is fist,"
causing her to fall "to the ground." Kloby and defendant then
"kick[ed] . . . and hit" the victim in the "face," "stomach" and
"ribs," and Weakley and defendant "carried [her] back to her
bedroom" and "propped her up" "on a door jamb." After deciding
"[w]ho was going to shoot [the victim] first," defendant shot her
"[t]wice in the ["left"] side of the head," and Kloby "fired a
shot" "[a]round the same place." When the victim's "leg moved
like . . . a convulsion or some type of spasm," Kloby "fired one
shot in the back of the head," "the last shot." Defendant then
"got in the car and left," and Weakley and Kloby fled in the
victim's truck.
Paul Carter (Carter) recounted "[p]robably two or three"
conversations with defendant, while the two shared a "cell block"
at the Charlottesville Regional Jail, when defendant admitted he
and "two other dudes" "shot" an "old lady twice" with a ".22
[caliber]" firearm and "took [her] vehicle." Defendant explained
to Carter his "cousin" was "trying to tell on him," and, although
"the other two dudes" "already gave statements on him," he "could
[not] get convicted without a gun."
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Denying involvement in the murder, defendant claimed he was
with his "best friend," William Blithe, Jr., at the time of the
offense. Defendant admitted a "waving acquaintance" with the
victim, his "mail lady," and that he, Weakley and Kloby had, on
several occasions, discussed robbing "somebody" "in the area" "who
wasn't going to put up much of a fight," and "assumed" they were
"talking about an old lady." However, defendant insisted he
didn't "want to have anything to do with it."
Defendant objected to jury instructions proposed by the
Commonwealth that embraced first-degree and second-degree murder,
arguing "the Commonwealth's evidence . . . is that he pulled the
trigger twice," and "[t]he defense evidence is that he wasn't
there and . . . didn't do it." Thus, "no theory . . . of the
case . . . would support an instruction on a lesser charge."
Instead, defendant successfully urged the court to submit the
issue to the jury only on "capital murder or not guilty."
Instructions submitted to the jury, without objection,
included:
Instruction No. 3
The defendant is charged with the crime
of capital murder. The Commonwealth must
prove beyond a reasonable doubt each of the
following elements of that crime:
(1) That defendant killed Thelma B.
Scroggins; and
(2) That the killing was willful,
deliberate and premeditated; and
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(3) That the killing occurred during
the commission of robbery; . . . .
Instruction No. 4
"Willful, deliberate, and premeditated"
means a specific intent to attempt to kill,
adopted at some time before an attempted
killing, but which need not exist for any
particular length of time.
(Emphasis added).
Following conviction by the jury, together with a recommended
sentence of life imprisonment, defendant filed a motion to set
aside the verdict. In support of the motion, he presented
evidence of an indictment charging Eric Weakley with
"second-degree murder" and, over the Commonwealth's objection, the
affidavits of four jurors affirming, in pertinent part, that
[d]uring the jury deliberations and in
reaching the guilty verdict, the members of
the jury did not all agree that the
defendant, Michael W. Hash, was the actual
shooter of the victim, Thelma Scroggins.
During a subsequent hearing on the motion, defendant also
contended the Commonwealth was required to prove him the
"triggerman" or the "principal in the first degree to the murder."
Thus, although such instruction was not offered either by
defendant or the Commonwealth, defendant argued the court had "an
affirmative duty" to admonish the jury on a "principle of law
. . . vital to a[n] [accused]." Turning to the Eric Weakley
indictment, defendant maintained the prosecutor failed to disclose
"an understanding, albeit not necessarily reduced to writing,"
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with Weakley, that Weakley would receive "a reduced charge or some
other significant benefit in exchange for his agreement to testify
. . . against the defendant." With respect to the affidavits,
defendant asserted that the evidence "clearly" established the
jury "did not agree unanimously . . . he shot the victim" and
"either misunderstood" or "chose to disregard" the instructions,
resulting in an "injustice."
Countering, the Commonwealth reminded the court that the
competing "theor[ies] of the case" were "either the defendant shot
and killed [the victim] or he wasn't there," not "that he was
there, but he didn't pull the trigger or . . . there but . . . did
not participate in the killing." Thus, "there was no evidence to
support a requirement for a triggerman rule . . . instruction."
While acknowledging that Weakley was indicted for second-degree
murder, not capital murder, the Commonwealth contended the
decision "to bring before a jury a lower charge" against Weakley
followed trial of defendant and was not previously "contemplated,"
rendering disclosure unnecessary.
At the conclusion of the hearing, the court refused to summon
the jury and inquire further into the verdict, finding "the
alleged action by the jurors occurred within the confines of the
jury room" and declined to set aside the verdict for the remaining
reasons assigned by defendant. Defendant appeals to this Court.
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II. FAILURE TO GIVE JURY INSTRUCTION
Defendant first contends the trial court had "an
affirmative duty" to instruct the jury on the Commonwealth's
burden to prove beyond a reasonable doubt he was the
"triggerman" or "principal in the first degree to the murder."
We disagree.
Under the . . . "triggerman" rule, only the
actual perpetrator of a crime delineated in
Code § 18.2-31 may be convicted of capital
murder and subjected to the penalty of
execution, except in the case of murder for
hire. One who is present, aiding and
abetting the actual murder, but who does not
actually fire the fatal shot, is a principal
in the second degree and may be convicted of
no greater offense than first-degree murder.
Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280
(1986) (citations omitted); Tice v. Commonwealth, 38 Va. App.
332, 339, 563 S.E.2d 412, 416 (2002). However, "[t]here may be
more than one principal in the first degree." Hancock v.
Commonwealth, 12 Va. App. 774, 781, 407 S.E.2d 301, 305. Thus,
the Supreme Court of Virginia "adhere[s] to the view that where
two or more persons take a direct part in inflicting fatal
injuries, each joint participant is an 'immediate perpetrator'
for the purposes of the capital murder statutes." Strickler v.
Commonwealth, 241 Va. 482, 495, 404 S.E.2d 227, 235 (1991);
Tice, 38 Va. App. at 339, 563 S.E.2d at 416. See also Coppola
v. Commonwealth, 220 Va. 243, 257 S.E.2d 797 (1979) (holding an
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accused "jointly participat[ing] in [a] fatal beating" subject
to conviction and punishment for capital murder).
Here, defendant's argument in support of a "triggerman"
instruction is "premised upon the theory that the killing was
accomplished by a sole perpetrator." Strickler, 241 Va. at 495,
404 S.E.2d at 235. Viewed accordingly, the record provides no
support for the instruction. The Commonwealth's evidence, if
believed, proved defendant and Kloby acted jointly to murder the
victim, each firing two shots directly into her head. Defendant
denied involvement in the offense, relying upon an alibi
defense. Under such circumstances, "Instruction No. 3" properly
informed the jury on the issues before the court, without
implicating the extraneous triggerman principle.
III. ERRONEOUS INSTRUCTION
Defendant next contends the trial court erroneously
instructed the jury on the meaning of "[w]illful, deliberate and
premeditated."
"Instruction No. 4" defined "[w]illful, deliberate and
premeditated" as "a specific intent to attempt to kill, adopted at
some time before an attempted killing . . . ." (Emphasis added).
Defendant did not object to the instruction at trial but
complains on appeal the jury was "misinformed and mislead" on
"an essential element" of the offense, "result[ing] in a
miscarriage of justice" that merits appellant relief. The
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Commonwealth concedes the instruction erroneously referenced "an
attempted killing" but asserts Rule 5A:18 as a procedural bar to
our consideration of the issue.
Rule 5A:18 provides, in relevant part:
[n]o ruling of the trial court . . . will be
considered as a basis for reversal unless
the objection was stated together with the
grounds therefor at the time of the ruling,
except for good cause shown or to enable the
Court of Appeals to attain the ends of
justice.
"'Under Rule 5A:18 we do not notice the trial errors for which
no timely objection was made except in extraordinary situations
when necessary to enable us to attain the ends of justice.'"
Phoung v. Commonwealth, 15 Va. App. 457, 463, 424 S.E.2d 712,
716 (1992) (citation omitted).
Whether we apply the bar of Rule 5A:18
or invoke the ends of justice exception, we
must evaluate the nature and effect of the
error to determine whether a clear
miscarriage of justice occurred. We must
determine whether the error clearly had an
effect upon the outcome of the case. The
error must involve substantial rights.
Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 11
(1989). "We have held that a clear miscarriage of justice has
occurred when the error is 'clear, substantial and material.'"
Phoung, 15 Va. App. at 464, 424 S.E.2d at 716 (citation
omitted). "An error that is not important enough to affect the
outcome of the trial is not 'material' but, rather is harmless
error." Id. at 465, 424 S.E.2d at 716.
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Here, defendant did not dispute the victim was murdered but
simply denied involvement in the crime. The erroneous
instruction did not relate to a finding that defendant killed
her but, rather, to the issue of whether defendant committed the
offense with the requisite intent. Eric Weakley, a participant
in the crime, testified defendant shot the victim "[t]wice in
the ["left"] side of the head," evidence corroborated by
witnesses Shelton and Carter. Thus, the evidence clearly
established the specific intent requisite to capital murder.
Under such circumstances, the erroneous jury clearly did not
"affect the outcome of the trial" and, therefore, was not
material and provided no support for the "ends of justice"
exception to Rule 5A:18.
IV. REFUSAL TO INVESTIGATE
Defendant contends the court erroneously failed to conduct an
evidentiary hearing to investigate the jury's deliberations and
related verdict. Relying upon the four affidavits, defendant
maintains the jury did not agree he was the "triggerman" or
"principal in the first degree to the murder" and, therefore,
"either misunderstood the instructions of the court," "chose to
disregard [the] instructions," or were "misled or misinformed by
the instructions."
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In Jenkins v. Commonwealth, 244 Va. 445, 423 S.E.2d 360
(1992), the Supreme Court of Virginia affirmed a trial court's
refusal to make a similar inquiry of jurors, reasoning that
"Virginia has been more careful than most
states to protect the inviolability and
secrecy of jurors' deliberations. We have
adhered strictly to the general rule that
the testimony of jurors should not be
received to impeach their verdict,
especially on the ground of their own
misconduct." "Generally, we have limited
findings of prejudicial juror misconduct to
activities of jurors that occur outside the
jury room."
Id. at 460, 423 S.E.2d at 370 (citations omitted) (emphasis
added). Thus, "[w]hether a trial court should examine jurors is a
matter addressed to the court's sound discretion, and, absent an
abuse of discretion, its decision will not be disturbed on
appeal." Bradshaw v. Commonwealth, 228 Va. 484, 491, 323 S.E.2d
567, 571 (1984) (citation omitted).
Here, the matters subject of the affidavits clearly occurred
"within the confines of the jury room." Jenkins, 244 Va. at 460,
423 S.E.2d at 370. Defendant has not alleged extraneous evidence
or other improprieties tainted the deliberations, and the
affidavits suggest no such misconduct either by the four jurors or
others. Accordingly, the court properly declined to summon the
jury and pursue further inquiry.
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V. EXCULPATORY EVIDENCE
Defendant maintains the prosecutor wrongfully failed to
disclose plea agreements between the Commonwealth and Shelton,
Eric Weakley and Carter and, further, a statement of Felton
Weakley, Eric Weakley's brother, to police. Defendant alleges
"prosecutorial misconduct" requires reversal of the conviction.
We disagree.
"The suppression of exculpatory evidence upon request
violates due process where the evidence is material either to
guilt or punishment . . . ." MacKenzie v. Commonwealth, 8
Va. App. 236, 243, 380 S.E.2d 173, 177 (1989) (citations
omitted). However,
failure to disclose [such] evidence requires
reversal only if the evidence was
"material," and evidence is "material" only
if there is a reasonable probability that
had the evidence been [timely] disclosed to
the defense, the result of the proceeding
would have been different. A reasonable
probability is a probability sufficient to
undermine confidence in the outcome.
Id. at 244, 380 S.E.2d at 177 (first emphasis added).
"[S]peculation and . . . 'conjecture'" will not support
reasonable probability. Id. at 245, 380 S.E.2d at 178.
Guided by such principles, we address defendant's arguments
seriatim.
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A. PLEA AGREEMENTS
At trial, Shelton, Eric Weakley and Carter testified no
offers, promises, or understandings with the Commonwealth existed
with respect to their testimony against defendant. Although
codefendant Weakley later entered into an agreement with the
Commonwealth resulting in a guilty plea to a lesser offense, the
attendant prosecutorial decision followed trial and conviction of
defendant. Thus, defendant's claim is grounded in "speculation"
and "conjecture" and unworthy of consideration.
B. FELTON WEAKLEY STATEMENT
For the first time on appeal, defendant complains that
disclosure of a "report" memorializing a September 27, 2000
interview with Felton Weakley, provided to defendant on "the
last day [he] could conceivably use it for post trial motions,"
resulted in "extreme[] prejudic[e]" to him. Defendant contends
the report, which "provided exculpatory information and could
reasonably lead to additional exculpatory information," was
untimely filed and of no utility in his defense. Assuming,
without deciding, that the delayed disclosure constituted
"misconduct," the material is not "exculpatory" in nature.
The report recounts a statement by Felton Weakley that Eric
Weakley "occasionally" overnighted at his apartment. However,
Felton Weakley "did not know if Eric came . . . the night of the
murder" and "could not remember a time when Eric Weakley may have
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arrived with blood on him or appearing . . . nervous or
frightened." Thus, the document neither provides evidence that
tends to exonerate defendant nor suggests the existence of such
evidence. Defendant, therefore, failed to prove a reasonable
probability that, had the report been disclosed, the result of
the proceeding would have been different. See id.
VI. SUFFICIENCY OF THE EVIDENCE
Finally, defendant challenges the sufficiency of the
evidence to support the conviction, complaining "the conclusions
of the fact finder on issues of witness credibility should be
reversed because the testimony of the Commonwealth's witnesses
was in . . . direct conflict" and, "in the case of Eric
Weakley," was "inherently incredible." He further contends the
juror affidavits make "it . . . painfully clear that the fact
finders did not find the Commonwealth's witnessess' testimony
credible." Again, we disagree.
In reviewing the sufficiency of the evidence, we consider
the record "in the light most favorable to the Commonwealth,
giving it all reasonable inferences fairly deducible therefrom."
Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859,
866 (1998) (citation omitted).
[T]he fact finder is not required to
accept entirely either the Commonwealth's or
the defendant's account of the facts.
Similarly, the fact finder is not required
to believe all aspects of a defendant's
statement or testimony; the judge or jury
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may reject that which it finds implausible,
but accept other parts which it finds
believable.
Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24
(1993) (citations omitted). Thus, "[t]he conclusions of the
fact finder on issues of witness credibility 'may only be
disturbed on appeal if this Court finds that [the witness']
. . . testimony was "inherently incredible, or so contrary to
human experience as to render it unworthy of belief."'" Moyer
v. Commonwealth, 33 Va. App. 8, 28, 531 S.E.2d 580, 590 (2000)
(en banc) (citations omitted). The judgment of the trial court
will not be disturbed unless plainly wrong or unsupported by the
evidence. See Code § 8.01-680.
Viewed accordingly, Eric Weakley's testimony established
that, he, defendant and Kloby entered the victim's residence, and
defendant shot the victim "[t]wice in the ["left"] side of the
head." Weakley's recollection of the offense was corroborated in
substantial detail by the testimony of Shelton, Carter and other
evidence. The fact finder heard and considered the testimony,
including evidence that discredited the Commonwealth's
witnesses. When considered with the entire record, we are
unable to find such evidence either "inherently incredible" or
"unworthy of belief." Moyer, 33 Va. App. at 28, 531 S.E.2d at
590. Further, although defendant denied participating in the
murder, the evidence proved otherwise, and the jury was entitled
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to disbelieve him and conclude that "he lied to conceal his
guilt." Dunbar v. Commonwealth, 29 Va. App. 387, 394, 512
S.E.2d 823, 827 (1999).
Accordingly, we affirm the conviction.
Affirmed.
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