COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons ∗ and Frank
Argued at Chesapeake, Virginia
CHRISTOPHER JAMES MOLTZ
MEMORANDUM OPINION ∗∗ BY
v. Record No. 0930-99-1 JUDGE DONALD W. LEMONS
MAY 2, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
Charles E. Haden for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Christopher J. Moltz appeals his conviction for murder,
robbery and conspiracy to commit robbery. On appeal, he
contends that the trial court erred (1) by admitting the
statement of Adam Davis as a declaration against penal interest,
(2) by denying Moltz's motion for a mistrial, (3) by denying
Moltz's motion to strike, and (4) by denying Moltz's motion to
set aside the verdict. Finding no reversible error, we affirm.
∗
Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. BACKGROUND
On the evening of December 17, 1997, three men wearing
black clothes and masks entered a house occupied by James
Kahley, Aaron Melton, James Ritchie and Michael Jackson. The
first man put a gun to Kahley's head and demanded money and
jewelry. Kahley gave him twenty dollars. The second man
carried a chrome gun with a laser site and immediately shot and
killed the occupants' six-month-old Rottweiler. The third man
went upstairs where he confronted Melton and Jackson and
demanded money from Jackson. He shot Jackson in the head after
Jackson told the man that he had no money. Melton wrestled the
assailant to the ground and, in the course of the struggle,
managed to remove part of his mask, exposing his face. The men
left after "three to four minutes." An autopsy revealed that
Jackson died from a gunshot wound to the head.
On December 21, 1997, police questioned Adam Davis ("Adam")
about the murder. Adam told police that he and Moltz had been
"having problems with [Kahley and his roommates]," that Moltz
said he could get someone to rob them and that he and Moltz
asked Frankie Davis, Adam's brother, if he knew someone who
would be interested in participating in a robbery. Adam stated
that Moltz had a map drawn in pencil and used it to explain the
layout of the victims' house to Montusa Pace, Otis Thomas and a
man known as "Nique."
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On December 22, 1997, police obtained a statement from
Frankie implicating Moltz in the robbery. On January 8, 1998,
police showed Melton a photo spread from which he identified
Otis Thomas as the man who shot Jackson. Police recovered a
"laser switch beam" from Frankie's yard and recovered a school
bag from his mother's house that contained bullets. Moltz was
tried before a jury on one count of first degree murder, one
count of conspiracy to rob, three counts of robbery, one count
of burglary and five counts of use of a firearm in the
commission of a felony. He was tried jointly with Adam, Otis
Thomas and Montusa Pace.
At trial, Frankie testified that on the afternoon of
December 17, 1997, Moltz and Adam went to Frankie's home in
Hampton and asked if he or anyone he knew wanted to participate
in a robbery. Frankie stated that he telephoned Montusa Pace,
told him what Moltz and Adam wanted and arranged a meeting.
Pace arrived at the meeting dressed in a ski mask and a "hoody."
Otis Thomas and a third male known as "Nique" accompanied Pace;
all three men wore black clothes. Frankie testified that Adam
and Moltz used a pencil-drawn map to explain the layout of the
victims' house. Between 8:45 and 8:55 p.m. Moltz and Adam led
Pace, Thomas and Nique to the victims' house.
According to Frankie's testimony, Adam returned around
11:30 p.m. and told Frankie that "[s]omething went wrong"
because he had "seen police cars and ambulances everywhere."
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The following morning Adam told Frankie, "Your boy shot somebody
last night." Frankie testified that as Adam was leaving, Pace
arrived with "a crazy look on his face" and said, "[the house
was] nothing like [Adam and Moltz] said it was." Frankie told
the jury that Pace said he shot a Rottweiler and that Thomas
"had to [shoot] somebody." Frankie further testified that Pace
gave him a bag containing a .38 caliber weapon and bullets.
Pace's attorney objected since the .38 caliber handgun was
not evidence in this case. 1 The trial judge sustained the
objection, gave a cautionary instruction to the jury directing
them to ignore testimony concerning the .38 caliber handgun and
stated, "[t]hat evidence is not before the Court, and it's not
relevant in this case, and you're not to consider it." The
Commonwealth's attorney again asked Frankie whether anything
else was in the bag. Frankie told the jury that Pace gave him a
coat, inside of which was a Tech .22 rifle. Pace's attorney
made the same objection and moved for a mistrial based upon the
jury hearing evidence that the court had already ruled
inadmissible. 2 The court denied the motion for a mistrial and
the following exchange occurred:
THE COURT: Ladies and gentlemen, during the
preliminary instructions, I gave you a
guidance that you should not consider any
1
The .38 caliber handgun had been ruled inadmissible on the
first day of the three-day trial.
2
For purposes of this appeal, Moltz has adopted the
arguments and objections of Pace's trial counsel.
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evidence that is stricken or that you are
told to disregard as a result of my
sustaining an objection.
Again, we have reference to a .22
caliber weapon – the bullet, I'm sorry.
Yes, .22 caliber bullet. .22 caliber which
I sustained an objection. You've heard
that. You're not to consider it. You are
to disregard that. That's not evidence in
this case.
[DEFENSE COUNSEL]: I believe it was the
rifle, Judge.
THE COURT: All right. .22 caliber rifle.
You are not to consider that. It is not
evidence in this case.
Frankie testified that Pace gave him "some bullets" in a
bag and identified Commonwealth's Exhibit 16 as the "laser
switch beam" that had been given to him by Pace which Frankie
hid in his backyard. Pace told Frankie to hold onto the items
because he did not want them in his house "in case something
went on." Frankie testified that he "switched [the bullets] and
put them in a book bag" which he "put behind some old equipment"
in his "mom's backyard."
After finding Adam, Thomas and Pace guilty of a total of
thirty-one counts, the jury resumed deliberations the following
Monday morning on the charges against Moltz. In the course of
those deliberations, the jury sent the following question to the
judge: "What is the difference in legal terms [between]
burglary and robbery?" The jury deliberated for six more hours
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but was deadlocked. The trial judge gave the jury an "Allen
charge" instruction stating,
As you have been told, your verdict
must be unanimous. If you can possibly
reach a verdict, it is your duty to do so.
You should listen to the views and opinions
of your fellow jurors with fairness, and
candor, and you should give consideration to
what they say.
However, you must decide the case for
yourself, and you should reach an agreement
only if it can be done without sacrificing
your individual judgment.
During the course of your
deliberations, each of you, whether in the
majority or the minority, should not
hesitate to reexamine your own views and
change your opinion if you are convinced it
was wrong.
No juror, however, should give up his
or her honest opinion as to the evidence
solely because of the opinion of his or her
fellow jurors or for the mere purpose of
returning a verdict. If you can reach a
decision without surrendering your
conscientious opinion, it is your duty to do
so.
The jury convicted Moltz of murder, conspiracy to commit robbery
and three counts of robbery. Moltz's subsequent motion to set
aside the jury's verdict was overruled.
II. ADMISSION OF STATEMENT
The Commonwealth concedes that the admission of Adam's
statement to police was error. Adam's statement to police may
have satisfied Virginia evidentiary requirements for
qualification as an exception to the hearsay rule, but
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nonetheless fails to pass constitutional scrutiny. As in Lilly
v. Virginia, 527 U.S. 116, 125 (1999), "[w]e assume, as we must,
that [Adam's] statements were against his penal interest as a
matter of state law, but the question whether the statements
fall within a firmly rooted hearsay exception for Confrontation
Clause purposes is a question of federal law." The Supreme
Court of the United States has "consistently either stated or
assumed that the mere fact that one accomplice's confession
qualified as a statement against his penal interest did not
justify its use as evidence against another person." Id. at
128. "[A]ccomplice's confessions that inculpate a criminal
defendant are not within a firmly rooted exception to the
hearsay rule as that concept has been defined in [the Court's]
Confrontation Clause jurisprudence." Id. at 134.
When a court can be confident- as in the
context of hearsay falling within a firmly
rooted exception--"that the declarant's
truthfulness is so clear from the
surrounding circumstances that the test of
cross-examination would be of marginal
utility," the Sixth Amendment's residual
"trustworthiness" test allows the admission
of the declarant's statements.
Id. at 136 (quoting Idaho v. Wright, 497 U.S. 805, 820 (1990)).
Accordingly, the possibility of admitting an accomplice's
statement under a "residual trustworthiness" test was left open.
We do not consider the question of residual trustworthiness,
however, since the Commonwealth does not argue that it applies
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in this case. Rather, the Commonwealth argues that the error in
admission of Adam's statement was harmless.
III. HARMLESS ERROR
The United States Supreme Court in Lilly remanded the case
to the Supreme Court of Virginia "to assess the effect of
erroneously admitted evidence in light of substantive state
criminal law." Lilly, 527 U.S. at 139. On remand, the Supreme
Court of Virginia recited the standard to be employed in such an
analysis.
The standard that guides our analysis of the
harmless error issue in this case is clear.
Thus, "before a federal constitutional error
can be held harmless, the court must be able
to declare a belief that it was harmless
beyond a reasonable doubt;" otherwise the
conviction under review must be set aside.
Chapman v. California, 386 U.S. 18, 24
(1967). This standard requires a
determination of "whether there is a
reasonable possibility that the evidence
complained of might have contributed to the
conviction." Id. at 23. In making that
determination, the reviewing court is to
consider a host of factors, including the
importance of the tainted evidence in the
prosecution's case, whether that evidence
was cumulative, the presence or absence of
evidence corroborating or contradicting the
tainted evidence on material points, and the
overall strength of the prosecution's case.
Delaware v. Van Arsdall, 475 U.S. 673, 684
(1986); see also Harrington v. California,
395 U.S. 250, 254 (1969); Schneble v.
Florida, 405 U.S. 427, 432 (1972)
(erroneously admitted evidence harmless
where it was merely cumulative of other
overwhelming evidence of guilt).
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Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209
(1999).
Here, Adam's statement was entirely cumulative of Frankie's
statement which had already been received in evidence without
objection from Moltz. Frankie's testimony established that:
(1) Moltz and Adam came to Frankie's house looking for someone
to rob the victims because "[Moltz and Adam] were beefin' with
the guys over some girls"; (2) that Moltz had a map of the
victims' house drawn out in pencil; (3) that Frankie contacted
Pace, Thomas and Nique to commit the robbery; (4) that Adam had
the map and showed it to Pace and Thomas; (5) that Moltz and
Adam spoke with Pace, Thomas and Nique about the layout of the
house and the robbery; (6) that Moltz and Adam drove to the
victims' house and pointed it out to Pace and his cohorts; and
(7) that Pace came over to Frankie's house the day after the
murder and gave him a bag containing a laser site and bullets.
In comparison, Adam's oral and written confessions to the
police established that: (1) he and Moltz had been in a dispute
with the victims; (2) Moltz initiated the conversation about the
robbery; (3) Moltz said that "he could have someone else [commit
the robbery] for him"; (4) Moltz asked Frankie if he knew
somebody who wanted to participate in a robbery; and (5) he and
Moltz had a map drawn in pencil of the victims' house, and Moltz
used it to explain the robbery to Pace.
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Unlike Lilly where there was no independent corroboration
of who was the "trigger man" and the accomplice testimony was
clearly harmful on this crucial question, here, the admission of
Adam's oral and written confessions provided no further evidence
than that which had already been established by Frankie's
testimony at trial. Although error, we hold that the admission
of Adam's statement was harmless beyond a reasonable doubt.
III. MOTION FOR MISTRIAL
"Whether improper evidence is so prejudicial as to require
a mistrial is a question of fact to be resolved by the trial
court in each particular case." Beavers v. Commonwealth, 245
Va. 268, 280, 427 S.E.2d 411, 420 (1993); see Lewis v.
Commonwealth, 211 Va. 80, 83, 175 S.E.2d 236, 238 (1970).
"[W]hether a trial court should grant a mistrial is a matter
resting within its discretion, and absent a showing of abuse of
discretion, the court's ruling will not be disturbed on appeal."
Cheng v. Commonwealth, 240 Va. 26, 40, 393 S.E.2d 599, 607
(1990). The judgment "will not be reversed for the improper
admission of evidence that a court subsequently directs a jury
to disregard because juries are presumed to follow prompt,
explicit, and curative instructions." Beavers, 245 Va. at 280,
427 S.E.2d at 420. Only if a manifest probability existed as a
matter of law that the improper evidence prejudiced Moltz by
remaining on the minds of the jury and influencing their verdict
despite the instruction to disregard it, will the trial court's
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decision be reversed. See Bennett v. Commonwealth, 29 Va. App.
261, 273-74, 511 S.E.2d 439, 445 (1999). "'Whether a manifest
probability exists that . . . improper evidence prejudiced the
accused despite [a court's] cautionary instruction depends upon
the nature of the incompetent evidence when considered in
relation to the nature of the charges, the other evidence in the
case, and [the] manner in which the prejudicial evidence was
presented.'" Id. at 274, 511 S.E.2d at 445 (quoting Mills v.
Commonwealth, 24 Va. App. 415, 420-21, 482 S.E.2d 860, 862-63
(1997)). "Additionally, a court's failure to take any action in
response to an improper question is relevant to determining
prejudice because the jury may infer from such inaction that the
court approved of the impropriety." Bennett, 29 Va. App. at
274-75, 511 S.E.2d at 445. "The number of references to an
error is also relevant to our consideration of whether prejudice
influenced the jury." Id. at 275, 511 S.E.2d at 445.
At the beginning of the second day of a three-day trial,
the Commonwealth's attorney, in an attempt to elicit Frankie's
testimony with respect to specific items contained in the bag
given to him by Pace without leading the witness, asked general
questions about the contents of the bag. In his responses,
Frankie mentioned that the bag contained a Tech .22 rifle and a
.38 caliber handgun. 3 Frankie's testimony, however, did not link
3
Although the record indicates the jury may have seen one
of the weapons the day before, it is inconclusive in that
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the Tech .22 rifle or the .38 caliber handgun to the robbery and
shooting. Furthermore, defense counsel immediately objected,
and the trial court immediately sustained each objection. That
testimony was not further developed or explored, leaving the
jury to have heard of each weapon only once. Having evaluated
the effect of the testimony and considered its impact, the trial
court judge determined that a curative instruction was the
appropriate corrective means.
Upon review of the record, we hold that the curative
instruction was clear that the weapons were not evidence in the
case and were not to be considered by the jury. Because of the
vast weight of evidence against Moltz and his codefendants, the
manner in which the guns were mentioned by Frankie and the
clarity and decisiveness of the trial court judge's curative
instruction, we do not find that a manifest probability existed
that the jury's verdict was affected by hearing about the
existence of these weapons. Accordingly, we cannot say that the
trial court abused its discretion.
IV. MOTION TO STRIKE
On appeal, when considering sufficiency of the evidence,
this Court considers all the evidence and any reasonable
inferences fairly deducible from it in the light most favorable
to the Commonwealth. See Higginbotham v. Commonwealth, 216 Va.
respect and a deliberate effort was made by the trial court to
prevent the jury from seeing them.
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349, 352, 218 S.E.2d 534, 537 (1975). The credibility of a
witness, the weight accorded the testimony and the inferences to
be drawn from proven facts are matters to be determined by the
fact finder. See Long v. Commonwealth, 8 Va. App. 194, 199, 379
S.E.2d 473, 476 (1989). A trial court's judgment is not to be
disturbed on appeal unless it is plainly wrong or without
evidence to support it. See Code § 8.01-680.
Moltz was found guilty of conspiracy to commit robbery and
as an accessory before the fact to the murder of Jackson and
accessory before the fact to three robberies. Kahley testified
that he and his friends had been involved in a dispute with
Moltz and Adam. Frankie testified that Moltz approached him
about participating in the robbery and that Pace was contacted.
Moltz obtained a map of the house for the purpose of robbing the
victims, showed it to Pace, Thomas and Nique and accompanied
Adam in the car that led Pace, Thomas and Nique to the house.
Kahley described the downstairs assailant as being dressed in
black and using a gun with a laser site. Melton identified
Thomas in a photo spread and at trial as the gunman who shot
Jackson. Frankie testified that Pace, Thomas and Nique wore
black clothes, that the following day Pace gave Frankie a bag
containing a laser site and bullets, and informed him that the
robbery had gone wrong and that a person and dog had been shot.
When acting in concert, all participants "may be held
accountable for incidental crimes committed by another
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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). When Jackson responded that
he had no money, Thomas shot him in the head. This shooting
occurred during an armed robbery that Moltz planned. Even if he
did not anticipate someone being shot, "[a]n incidental and
probable consequence of the use of a firearm in the commission
of a robbery is that someone will get killed." Jones v.
Commonwealth, 15 Va. App. 384, 389, 424 S.E.2d 563, 566 (1992);
see Carter v. Commonwealth, 232 Va. 122, 126, 348 S.E.2d 265,
268 (1986). Accordingly, the evidence was sufficient to support
the convictions.
V. MOTION TO SET ASIDE THE VERDICT
An "Allen charge" is appropriate "'[w]hen jurors have
announced their inability to agree.'" Joseph v. Commonwealth,
249 Va. 78, 97, 452 S.E.2d 862, 868 (1995) (quoting Petcosky v.
Brown, 197 Va. 240, 252, 89 S.E.2d 4, 13 (1955)). An "Allen
charge" is given to explain the importance of the jury reaching
an agreement and their duty to do so if they can without
surrendering their individual consciences. See Poindexter v.
Commonwealth, 213 Va. 212, 215, 191 S.E.2d 200, 203 (1972).
The Commonwealth correctly notes that the "Allen charge"
given here did not ask the jurors to deviate from their
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individual consciences to come to a verdict. 4 The motion to set
aside the verdict was properly denied.
VI. CONCLUSION
For the reasons stated, we affirm the convictions.
Affirmed.
4
We also note that the fact that the jury may have
compromised by convicting Moltz of some charges and acquitting
him of others is not a basis for upsetting the verdict. See
Reed v. Commonwealth, 239 Va. 594, 597, 391 S.E.2d 75, 76
(1990); see also, Dunn v. United States, 284 U.S. 390, 394
(1932).
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