COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia
GARNET NELSON PRICE
v. Record No. 0868-94-3 MEMORANDUM OPINION *
BY JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA JANUARY 11, 1996
FROM THE CIRCUIT COURT OF PULASKI COUNTY
A. Dow Owens, Judge
(Michael Morchower; Lauren A. Caudill; Morchower,
Luxton and Whaley, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General
(James S. Gilmore, III, Attorney General,
on brief), for appellee.
Garnet Nelson Price was convicted in a jury trial for
unlawfully, feloniously, and maliciously murdering Lester Dale
Harris, and unlawfully and feloniously using a firearm while
committing murder. Price contends that the trial court erred by
admitting hearsay testimony and by refusing to grant a cautionary
instruction regarding accomplice testimony. We conclude that the
trial court did not err and affirm the defendant's convictions.
I. Contested Statement Was Not Hearsay
At trial, Alfred Martin Albert testified that the defendant
had previously threatened that there were some people who would
"take care of Bobby [Johnston]," to which Lee Johnston responded,
"Bobby had better not get hurt." The defendant claims that
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
although his own statement was an admission, Johnston's response
constituted inadmissible hearsay. He asserts that the
Commonwealth offered the statement to prove the truth of the
matter asserted and that the statement did not fall under one of
the exceptions to the hearsay rule. See Hanson V. Commonwealth,
14 Va. App. 173, 187, 416 S.E.2d 14, 22 (1992). We disagree.
Johnston's statement was offered not to prove the truth of
its content, but to establish the context for the defendant's
threat and his attitude toward the victim and toward Bobby
Johnston. See Speller v. Commonwealth, 2 Va. App. 437, 446, 345
S.E.2d 542, 548 (1986); C. Friend, The Law of Evidence in
Virginia § 225 (3d ed. 1988) ("If the declaration is offered
solely to show that it was uttered, without regard to the truth
or falsity of its content, the declaration is not excluded by the
hearsay rule."). Therefore, the statement was not hearsay.
II. Jury Instruction 11A
The defendant contends that the evidence, when viewed in the
light most favorable to him, proved that Albert was an accomplice
to Harris' murder. He asserts, therefore, that the trial court
erred by refusing to give Instruction 11A, which "warn[ed] the
jury of the danger in convicting the defendant upon [accomplice]
testimony." Brown v. Commonwealth, 8 Va. App. 474, 477, 382 S.E.
296, 298 (1989). The Commonwealth claims that because the
evidence did not show that Albert and the defendant acted
together voluntarily or with common intent, Albert was not an
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accomplice and the trial court correctly refused the instruction.
Zirkle v. Commonwealth, 189 Va. 862, 876, 55 S.E.2d 24, 32
(1949).
"The general test to determine whether or not a witness is
an accomplice is to determine whether he could be indicted for
the same offense." Guthrie v. Commonwealth, 171 Va. 461, 469,
198 S.E.2d 481, 484 (1938). Here, Albert testified that on the
night of the murder he hit the victim, threatened the victim with
a beer bottle, and "told [the victim that he would] kill him."
Furthermore, Albert was present when the murder took place,
helped the defendant place the victim's body in a river, and
helped the defendant dispose of the gun and shells. Moreover,
the defendant testified that Albert was the person who murdered
Harris. Thus, on this evidence, Albert could have been indicted
as an accomplice in the murder of Lester Dale Harris.
Nevertheless, although the evidence supports a finding that
Albert was an accomplice, the trial court did not err by refusing
to give the cautionary instruction regarding accomplice
testimony. A trial court shall not give the cautionary
instruction when the accomplice's testimony "is corroborated in
material facts which tend to connect the [defendant] with the
crime, [in a manner] sufficient to warrant the jury in crediting
the truth of the accomplice's testimony." Dillard v.
Commonwealth, 216 Va. 820, 823, 224 S.E.2d 137, 140 (1976).
"This rule applies even though the corroborative evidence falls
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short of constituting `independent evidence which supports the
alleged ultimate fact that the [defendant] committed the offense
charged.'" Id. at 823-24, 224 S.E.2d at 140.
Both Lee Johnston and John Sutphin tended to corroborate
Albert's testimony that the defendant committed the murder. They
testified that on the night of the murder, the defendant
threatened to kill Harris. Moreover, the defendant's own
testimony placed him at the scene of the murder, established that
he told Albert to dispose of the gun and shells, and proved that
he first shot the victim. Cardwell v. Commonwealth, 248 Va. 501,
512, 450 S.E.2d 146, 153 (1994) (holding that "an accomplice's
testimony can be corroborated by an accused's admissions"), cert.
denied, 115 S.Ct. 1826 (1995); Clark v. Commonwealth, 219 Va.
237, 243, 247 S.E.2d 376, 379 (1978); Russell v. Commonwealth,
216 Va. 833, 837, 223 S.E.2d 877, 879-80 (1976). The defendant
testified that "the gun went off" while he struggled with the
victim, and that the victim "pitched backwards and . . . went
right down over the bank." Although the defendant claims that he
shot Harris accidentally, his testimony corroborates Albert's
testimony that the defendant willfully and maliciously shot
Harris. See Clark, 219 Va. at 243, 247 S.E.2d at 379 (holding
that the defendant's testimony corroborated the accomplice
testimony even though the defendant offered an innocent
explanation).
The trial court did not err by admitting Albert's testimony
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regarding Lee Johnston's statement to the defendant, or by
refusing to give Instruction 11A. Accordingly, we affirm the
defendant's convictions.
Affirmed.
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