COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Humphreys
Argued at Chesapeake, Virginia
SHERRON MILTON RICKS
OPINION BY
v. Record No. 1961-01-1 JUDGE ROBERT P. FRANK
DECEMBER 10, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Jerome James, Judge
Darell Sayer (Ferrell, Sayer & Nicolo, on
brief), for appellant.
Susan M. Harris, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Sherron Milton Ricks (appellant) was convicted in a bench
trial of murder, in violation of Code § 18.2-32, and use of a
firearm in the commission of murder, in violation of Code
§ 18.2-53.1. On appeal, he contends the trial court erred in
admitting evidence of his flight subsequent to the offense. For
the reasons stated, we affirm.
BACKGROUND
At 8:00 a.m. on September 7, 2000, officers of the Norfolk
Police Department found Desmond Boyd "laying on the ground,"
dead from a gunshot wound to the back of his head. A woman who
lived near the scene heard angry voices and one gunshot at about
2:30 that morning.
At 4:00 that morning, appellant arrived at the residence of
Anthony Batey. He was "out of breath . . . like he had been
running." Appellant said he had been shooting in the air and
running before arriving at Batey's home. While he was there,
appellant sold Batey a .38 weapon for $150. At trial, Batey
identified Commonwealth's Exhibit 1 as the weapon he purchased
from appellant.
On September 12, 2000, Norfolk Police Officer Brian Atwood
recognized a car, a Dodge Stratus, that appellant "would
frequently drive." Atwood knew that appellant "had outstanding
warrants" and that a Norfolk detective "wanted him questioned
for a homicide."
Officer Atwood was in uniform and driving a marked vehicle
when he noticed the Stratus. When he turned around to drive by
the car again, he "noticed that it was moving." The officer
followed the car and eventually saw appellant was the driver.
As the Stratus turned into a parking lot, Officer Atwood
activated his lights. Appellant initially "motion[ed] like he
[was] going to a parking space." However, as the officer exited
his vehicle, appellant "thr[e]w his vehicle in reverse, [came]
back toward [the officer], [threw] it back in drive, [spun]
around the parking lot, and a pursuit initiated from there."
With his lights and siren on, Officer Atwood pursued
appellant, who drove the wrong way down one-way streets, drove
up onto sidewalks, and ran through stop signs and red lights.
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The pursuit lasted seventeen minutes. According to Atwood, the
pursuit "was long enough that we had detective units, we had
called metro-tactical units, traffic units, and everything to
start to block off intersections trying to keep [appellant]
contained in a certain area." When the officers got "out of
their cars, [appellant would] go over the curb driving toward
the police officers." Upon the police coming "up to the side of
[appellant's car], he tried to ram us from side to side."
Appellant's car finally stopped when there was "some type
of failure or something to the vehicle." Appellant was taken
into custody. In a search incident to arrest, Atwood found a
"small bag of marijuana" on appellant.
During the initial police interrogation, appellant denied
any involvement in the shooting of Boyd. When he later asked to
resume the interrogation, appellant explained he and Boyd had
agreed to "rob a weed spot." However, when they got there, they
abandoned their plans because "too many people [were] present."
As they were leaving, they began to argue over some of
appellant's missing property. Appellant believed Boyd had
stolen the items. He told Boyd he was going to keep Boyd's gun,
then in his possession, in exchange for the missing items. As
they talked, "they got angry, [Boyd] got close and they started
to struggle with the gun. [Appellant] said it went off three
times while they were struggling." Appellant told the police
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that, when he realized Boyd was dead, he went to Batey's house
and sold the gun.
At trial, appellant testified he lied in his statement to
the police. He said the detective intimidated him into telling
a false story about "this fight over the gun and the accidental
shooting."
ANALYSIS
Appellant contends the trial court erred in admitting
evidence of his flight on September 12, 2000. Essentially,
appellant argues that, to admit evidence of flight, the
Commonwealth must prove a nexus between the "consciousness of
guilt" and the specific crime charged. Appellant maintains the
"outstanding warrants" and the marijuana found on him were
plausible reasons for his flight that were unrelated to the
murder.
"The admissibility of evidence is within the
broad discretion of the trial court, and a
ruling will not be disturbed on appeal in
the absence of an abuse of discretion."
Blain v. Commonwealth, 7 Va. App. 10, 16,
371 S.E.2d 838, 842 (1988). "Evidence which
'tends to cast any light upon the subject of
the inquiry' is relevant." Cash v.
Commonwealth, 5 Va. App. 506, 510, 364
S.E.2d 769, 771 (1988) (quoting McNeir v.
Greer-Hale Chinchilla Ranch, 194 Va. 623,
629, 74 S.E.2d 165, 169 (1953) (internal
quotations omitted)).
Summerlin v. Commonwealth, 37 Va. App. 288, 293, 557 S.E.2d 731,
734 (2002).
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"Flight following the commission of a crime is evidence of
guilt, and the jury may be so instructed." Clagett v.
Commonwealth, 252 Va. 79, 93, 472 S.E.2d 263, 271 (1996).
Evidence of flight from authorities that occurred days, or even
months, after a crime is admissible, as "[a]ny flight at a time
when it may be to avoid arrest, prosecution, or confinement tends
to show a consciousness of guilt." Langhorne v. Commonwealth, 13
Va. App. 97, 103, 409 S.E.2d 476, 480 (1991).
We agree with appellant that, in order to show a
"consciousness of guilt," a nexus must exist between the flight
and the alleged offense. See Jarrell v. Commonwealth, 132 Va.
551, 569, 110 S.E. 430, 436 (1922) (finding the trial court
properly refused an instruction on flight as all the evidence
indicated Jarrell left the county to join the army, pursuant to
plans made prior to the homicide). The evidence must establish
appellant had some knowledge that he might be a suspect in the
killing.
This knowledge can be proven in a number of ways. For
example, if a defendant fails to appear for trial or flees from
the police after a capias had been issued for his failure to
appear, then knowledge may be presumed. See, e.g., Langhorne,
13 Va. App. at 101-02, 409 S.E.2d at 479. Yet, introduction of
evidence of flight does not depend upon issuance of a warrant.
See Schlimme v. Commonwealth, 16 Va. App. 15, 18, 427 S.E.2d
431, 433-34 (1993) (ruling that leaving the scene of a homicide,
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prior to discovery of the crime by the police, is legitimate
evidence of flight). 1
In Schlimme, the defendant argued a flight instruction
should not be given "because the Commonwealth did not show that
he had any knowledge of the charges against him at the time he
fled." Id. at 19, 427 S.E.2d at 434. This Court rejected that
argument because appellant admitted he was involved in the
shooting and because the nature of the crime was such "that the
murderer would have known that the crime would be discovered
soon after its commission." Id.
As in Schlimme, appellant here admitted to the police that
he was involved in the shooting, placing himself at the scene of
the murder. 2 He knew the victim was dead. He knew the body
would be discovered, given the area where the shooting occurred.
He knew the police would conduct an investigation and suspicion
would be directed at him. Thus, the evidence revealed that
appellant had knowledge of the potential murder charge against
him at the time he sped away from the officer. 3 A nexus existed
1
In Schlimme, appellant did not object to the admissibility
of flight evidence, only to an instruction on flight.
2
Although appellant recanted his statement to the police
when he testified at trial, we must examine the evidence in the
light most favorable to the party prevailing below. See Martin
v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
3
During oral argument, appellant argued the trial court did
not know about the confession when ruling on admission of the
flight evidence. However, we consider the entire record on
appeal, not just the evidence before the court at the time of the
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between appellant's flight from the police and the present
offense.
While appellant argues his flight could have been the
result of the outstanding warrants or his possession of
marijuana, these potential multiple causes for the flight do not
obviate the "consciousness of guilt" nexus with the murder.
See, e.g., Leonard v. Commonwealth, 39 Va. App. 134, 571 S.E.2d
306 (2002) (affirming the admission of flight evidence where
Leonard had several charges pending). Although some evidence
incidentally disclosed appellant may have been guilty of other
crimes, the evidence still proved consciousness of guilt related
to this homicide. As this Court said in Langhorne, "[An
appellant] cannot avoid the inferences which the fact finder may
draw from his actions because other charges were pending against
him and he may also have been evading those charges." 13
Va. App. at 103, 409 S.E.2d at 480. As the First Circuit
explained in discussing use of an alias as evidence of guilt:
Certainly we find little to commend
defendant's broad proposal to bar "alias"
evidence whenever a defendant has committed
more than one crime. Under it, the more
crimes a person commits using an alias, the
less able the prosecutor would be to use the
alias as evidence. Such a rule would ignore
ruling. See Wells v. Commonwealth, 6 Va. App. 541, 548, 371
S.E.2d 19, 23 (1988) ("'If the evidence given on the trial was
sufficient, as we think it was, to sustain the introduction of
the . . . evidence, it is immaterial that there was an inadequacy
of evidence when application was made for its return.'" (quoting
Carroll v. United States, 267 U.S. 132, 162 (1925) (ellipsis in
original))).
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the substantial possibility that the
defendant is using the alias to evade
detection for all of his crimes, including
the one charged.
United States v. Boyle, 675 F.2d 430, 432-33 (1st Cir. 1982).
Appellant relies on United States v. Myers, 550 F.2d 1036
(5th Cir. 1977), to support his position that inadequate
evidence of a nexus between his flight and the murder was
presented by the Commonwealth. Myers used a four-pronged test
to determine that the evidence of flight was more prejudicial
than probative and, therefore, should be excluded. Id. at 1049.
However, this case is distinguishable on its facts. 4
Myers never admitted knowledge of the Florida robbery on
which he was tried, id. at 1039, and nothing at trial proved he
knew he was a suspect when he allegedly fled, id. at 1048. The
appellate court also found the testimony did not support an
inference that Myers fled from police. Id. at 1049-50. Here,
appellant admitted he was at the scene and claimed he
accidentally shot the victim while arguing over the gun.
Clearly, he had knowledge of the crime. He does not argue the
evidence was insufficient to prove flight occurred.
We conclude that, while appellant's flight might have been
attributable to several causes, "consciousness of guilt" could
be inferred by the trial court if any one of those causes was
4
We make no ruling on the applicability of the Fifth
Circuit's four-prong test to Virginia cases involving evidence
of flight.
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the instant offense. Myers is not applicable to the facts of
this case. See Leonard, 39 Va. App. at 151, 571 S.E.2d at ___;
Langhorne, 13 Va. App. at 102, 409 S.E.2d at 480.
Appellant also argues the trial court erred in allowing
Officer Atwood to testify regarding the details of his flight,
including his violations of the traffic code. At oral argument
he contended this evidence was more prejudicial than probative.
However, he did not object to the officer's testimony on this
ground at trial.
Generally, in order to preserve an argument for appeal, a
specific objection must be made at trial, giving the trial court
an opportunity to correct any error that may occur. See Clark
v. Commonwealth, 30 Va. App. 406, 411-12, 517 S.E.2d 260, 262
(1999) (explaining that, by preserving one sufficiency argument,
an appellant does not preserve additional sufficiency issues for
appeal); Redman v. Commonwealth, 25 Va. App. 215, 220, 487 S.E.2d
269, 272 (1997) (noting that, if a trial court could have
corrected the error, but no objection was made, then appellate
courts should not consider the issue except in rare instances).
Therefore, we will not consider appellant's argument regarding
the details of his flight. See Rule 5A:18.
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We find the trial court did not abuse its discretion in
admitting the evidence of appellant's flight. We affirm the
convictions.
Affirmed.
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Benton, J., concurring.
When the police officer testified concerning Sherron Milton
Ricks's refusal to stop his vehicle after the officer activated
his emergency lights, Ricks's attorney objected to "the
relevance" of the testimony of flight. It has long been the rule
that in appropriate circumstances, evidence of flight is a
circumstance that the trier of fact may consider as proof of
consciousness of guilt. Jenkins v. Commonwealth, 132 Va. 692,
696, 111 S.E. 101, 103 (1922). Thus, at first blush, the general
rule appears to suggest the objection was unwarranted. Ricks's
attorney argued, however, that the evidence was "maybe flight
from something he did that evening[, but] . . . not evidence of
flight from anything that happened on the 7th," which was the
date of the homicide. Thus, Ricks's attorney asserted the
evidence was too tenuous to establish a link between Ricks's
flight on September 12 and consciousness of guilt of the homicide
of Desmond Boyd for which Ricks was on trial.
Analytically, evidence of flight is a basis from which a
trier of fact may infer guilt by conduct, id.; United States v.
Myers, 550 F.2d 1036, 1049 (5th Cir. 1977), "but it should be
cautiously considered, because it may be attributable to a number
of other reasons other than consciousness of guilt" for the crime
charged. Jenkins, 132 Va. at 696, 111 S.E. at 103. See United
States v. Beahm, 664 F.2d 414, 419-20 (4th Cir. 1981) (holding
that "an inference [of guilt from flight] would be completely
unfounded where a defendant flees after 'commencement of an
investigation' unrelated to the crime charged, or of which the
defendant was unaware"). "If the evidence is insufficient 'to
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support a chain of unbroken inferences from the defendant's
behavior to the defendant's guilt of the crime charged,' a flight
instruction is invalid and inappropriate." Schlimme v.
Commonwealth, 16 Va. App. 15, 28, 427 S.E.2d 431, 439 (1993)
(Benton, J., dissenting) (citation omitted).
No evidence tended to prove that an arrest warrant had been
issued for the homicide or that Ricks knew he was being
investigated for the homicide. On the other hand, the evidence
proved that when Ricks failed to heed the signal to stop, the
police "had outstanding warrants" for Ricks's arrest for other
crimes. The officer had attempted to arrest Ricks on those
outstanding warrants several days earlier, when he "stopped some
people . . . out in front of [Ricks's] residence . . . to see if
he was . . . one of the people." When the officer detained those
people, Ricks "was not . . . [in the group but his] brother was
there." This evidence tends to prove Ricks was aware the police
officers were seeking to arrest him on those outstanding
warrants. Thus, when Ricks fled as the officer sought to detain
him in his automobile, Ricks had not been accused of the
homicide. Furthermore, the evidence proved the officer arrested
Ricks only for those other offenses, not for homicide.
In my view, the difficulty with admitting this evidence of
"flight" in the homicide prosecution is that it has only slight
probative value in proving consciousness of guilt concerning the
homicide and that this slight probative value is outweighed by
the prejudice it could engender. The Supreme Court has
"consistently doubted the probative value in criminal trials of
evidence that the accused fled the scene of an actual or supposed
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crime." Wong Sun v. United States, 371 U.S. 471, 483 n.10
(1963). See also Schlimme, 16 Va. App. at 30 n.4, 427 S.E.2d at
440 n.4 (Benton, J., dissenting) (noting "it is widely
acknowledged that evidence of flight . . . is 'only marginally
probative as to the ultimate issue of guilt or innocence'"). The
evidence of flight in this case was prejudicial to Ricks because
it allowed the trier of fact to infer consciousness of guilt for
this homicide when the evidence strongly suggests other impetus
for the conduct. Cumbee v. Commonwealth, 219 Va. 1132, 1137-38,
254 S.E.2d 112, 116 (1979). Ricks was further prejudiced because
the admission of this evidence placed upon him
an unconscionable burden of offering not
only an innocent explanation for his
departure but guilty ones as well in order
to dispel the inference to which the
government would apparently be entitled that
an investigation calling upon [Ricks] could
have but one purpose, namely, his
apprehension for the crime for which he is
ultimately charged.
Beahm, 664 F.2d at 420. I would hold the evidence was
inadmissible for these reasons.
The issue then becomes whether the admission of the evidence
"was harmless on this record." Cumbee, 219 Va. at 1138, 254
S.E.2d at 116. See also United States v. Obi, 239 F.3d 662, 666
(4th Cir. 2001). I believe it was.
The evidence at trial proved that after the pursuit the
officer arrested Ricks on charges unrelated to the homicide.
While in custody on those charges, Ricks waived his Miranda
rights and spoke to other officers who were investigating the
homicide. After initially denying involvement in the homicide,
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Ricks admitted being with Boyd for the purpose of committing
robberies. He explained that he and Boyd argued, that they
struggled over Boyd's gun, and that Boyd suffered three gunshot
wounds during the struggle for the gun. Ricks also told the
officer he later sold the gun to Anthony Batey. After a
stenographer prepared a written version of the recorded
statements, Ricks signed the written confession.
Other evidence corroborated Ricks's confession. Batey
testified that Ricks sold him the gun. The evidence also proved
the police recovered the gun with Batey's assistance and sent it
for forensic testing. The forensic examiner testified that the
bullet, which had been recovered from Boyd's body, was fired from
the gun the police recovered.
Ricks testified and denied that he killed Boyd. He said
that he had consumed alcohol and marijuana the day the police
arrested him and that he had given a false confession after the
police intimidated and threatened him. He also testified that he
sold a different gun to Batey than exhibited at trial.
From the circumstances surrounding the arrest and
interrogation, the trial judge found no credible evidence that
Ricks was under the influence of any substance when he confessed
to the killing. He also found that the confession was voluntary
and credible, that Ricks's trial testimony was not believable,
and that the evidence was sufficient to prove beyond a reasonable
doubt Ricks committed murder using the firearm.
Although the trial judge admitted in evidence the
circumstances surrounding the arrest, the prosecutor did not
again comment upon the issue of flight during trial or argument.
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The significant and overwhelming fact supporting the conviction
was Ricks's confession. I believe "we can say, 'with fair
assurance, after pondering all that happened without stripping
the erroneous action from the whole,' that it plainly appears
that [Ricks] has had a fair trial and the verdict and judgment
were not substantially affected by . . . [the error]." Clay v.
Commonwealth, 262 Va. 253, 261, 546 S.E.2d 728, 732 (2001).
Thus, the error was harmless.
For these reasons, I concur in the judgment affirming the
convictions.
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