COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons
Argued at Salem, Virginia
BENJAMIN SCOT ELLIOT, S/K/A
BENJAMIN SCOT ELLIOTT
OPINION BY
v. Record No. 0995-98-3 JUDGE DONALD W. LEMONS
AUGUST 10, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GILES COUNTY
Colin R. Gibb, Judge
Max Jenkins (Jenkins & Jenkins, on brief),
for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Benjamin Scot Elliott appeals his conviction by a jury of
second degree murder and use of a firearm in the commission of
murder. On appeal, he contends that the evidence was
insufficient to support his convictions and that the trial
court’s admission of hearsay evidence was reversible error. We
disagree and affirm the convictions.
I. BACKGROUND
On the afternoon of February 19, 1997 Elliott loaned his
car to his girlfriend, Misty Dawn Dellinger, the victim. She
was to have returned the car to Elliott by 6:30 that evening
after running errands; however, she did not return until almost
7:30 p.m. after spending the afternoon with her lesbian lover,
Sarah Jackson. Elliott was aware of the relationship between
Dellinger and Jackson and had expressed animosity towards
Jackson.
Scott Minnock visited Elliott’s residence at approximately
5:45 p.m. on the day of the murder. When Dellinger had not
returned on time, Elliott repeatedly told Minnock that Dellinger
was late. Minnock observed Elliott putting a shoulder holster
on and off during this time. He also saw Elliott manipulating a
pistol inside the holster and repeatedly drawing the weapon.
When Dellinger arrived at the residence late, Minnock heard her
tell Elliott that she had been with Jackson that afternoon.
Dellinger initially sat in the living room with Minnock but
went into one of the back bedrooms alone with Elliott. She and
Elliott returned to the living room. Dellinger sat in a chair
and Elliott stood over her. Minnock remained seated watching
television. Minnock stated that he “heard the gun go off,”
looked up and saw Elliott holding a gun “pointed over towards
[Dellinger’s] direction” a few feet from the victim.
Dellinger had fallen “onto the back of the couch.” The
Deputy Chief Medical Examiner testified that she died as a
result of a .44 caliber bullet which had entered her body
through the chin in a “sharply downward” direction, proceeded
into the chest, penetrated the thoracic aorta, and then
penetrated and lodged in the liver. The path of the bullet was
“downward at a sharp angle, and backward.”
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Elliott maintained that the shooting was an accident and
offered the following explanation to Giles County Sheriff’s
Investigator E.M. Blevins:
I loaded the damn pistol like an idiot and I
got in there and I tried the holster. I
kept trying to put the holster on. I don’t
know how to wear it. I kept getting it on
wrong, the snap was underneath and
everything and trying to unsnap it and, you
know, I was playing with it and pulling it
out. Well, I finally, I don’t know if I
ever got it on right or not, but I tried it
three or four different ways and I jerked
the pistol out and when I did, when I jerked
it forward, I don’t know if the shoulder,
the, the holster jerked it, I don’t know
what happened, but the damn gun went off.
Elliott claims he “didn’t pull the trigger back” and stated
that the last word uttered by the victim before she was shot was
“no.”
Richard Roberts, a firearms expert for the Division of
Forensic Science, stated that he examined the murder weapon. It
is a single-action revolver and in order to fire such a weapon,
“you have to cock [the hammer] back and then pull the trigger.”
Roberts explained that a safety feature of the weapon included a
transfer bar that is engaged only when the trigger is pulled.
If the trigger is not pulled, the transfer bar will not engage
and the gun will not fire, even if the hammer is pulled back and
released. Roberts said the gun was “in mechanical operating
conditions with the safety features functioning properly.” The
trigger pull required “approximately four and one-half pounds”
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of pressure which was within “normal factory recommendations”
and considered “safe.” Because “there was a question about the
accidental shooting,” Roberts performed tests “trying to see if
[he] could get it to accidentally fire and . . . be sure the
transfer bar was working properly.” Roberts conceded that it
was possible that the weapon could be cocked by catching it on
the holster or clothing, but further testified that he examined
the holster in question and found that the pistol went “in and
out of the holster with no problem.” Roberts testified, without
objection, that he “could not get it to go off accidentally.”
He said that even if a person cocked the hammer back, the weapon
would not fire “unless the trigger is pulled or pushed to the
back real well.”
Michael Waldron testified that a few months before the
fatal shooting, Dellinger visited his house but declined to stay
overnight and told Waldron that Elliott had threatened to kill
her if she tried to leave him. Additionally, Sarah Jackson
testified that she was with Dellinger on the day she was fatally
shot and that she told Dellinger not to be late because Elliott
would be “mad at her” and that Dellinger said “she wanted to get
a job and to get a car and she wanted to leave [Elliott] and she
wanted me and her to move away together.”
II. SUFFICIENCY OF THE EVIDENCE
Where the sufficiency of the evidence is an issue on
appeal, an appellate court must view the evidence and all
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reasonable inferences fairly deducible therefrom in the light
most favorable to the Commonwealth. See Cheng v. Commonwealth,
240 Va. 26, 42, 393 S.E.2d 599, 608 (1990) (citations omitted).
To establish the crime of second-degree murder, “the
defendant must be shown to have wilfully [sic] or purposefully,
rather than negligently, embarked upon a course of wrongful
conduct likely to cause death or great bodily harm.” Essex v.
Commonwealth, 228 Va. 273, 280-81, 322 S.E.2d 216, 220 (1984).
Whether a shooting is intentional or accidental is “a matter
peculiarly within the province of a jury to determine.” Compton
v. Commonwealth, 219 Va. 716, 731, 250 S.E.2d 749, 758 (1979).
Every unlawful homicide is presumed to be murder in the second
degree. See Painter v. Commonwealth, 210 Va. 360, 364, 171
S.E.2d 166, 169 (1969).
Malice is the element that distinguishes murder from
manslaughter. See Essex, 228 Va. at 280, 322 S.E.2d at 219-20.
The trier of fact may infer malice from the deliberate use of a
deadly weapon unless the evidence raises a reasonable doubt
whether malice existed. See Morris v. Commonwealth, 17 Va. App.
575, 578, 439 S.E.2d 867, 870 (1994). Killing with malice but
without premeditation and deliberation is murder in the second
degree. See Perricllia v. Commonwealth, 229 Va. 85, 91, 326
S.E.2d 679, 683 (1985).
The fact finder believed the Commonwealth’s evidence,
including its theory of the case, and rejected Elliott’s
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evidence that the shooting was accidental. “The weight which
should be given to evidence and whether the testimony of a
witness is credible are questions which the fact finder must
decide.” Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351
S.E.2d 598, 601 (1986). The Commonwealth’s evidence was
competent, was not inherently incredible, and was sufficient to
prove beyond a reasonable doubt that Elliott was guilty of
second degree murder and use of a firearm in the commission of
murder.
III. HEARSAY
Elliott maintains that the trial judge erred by admitting
hearsay statements of Michael Waldron and Sarah Jackson into
evidence. Hearsay is “primarily testimony which consists [of] a
narration by one person of matters told him by another.”
Williams v. Morris, 200 Va. 413, 417, 105 S.E.2d 829, 832
(1958). However, “[i]f 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.” Speller v. Commonwealth, 2 Va. App. 437, 446, 345 S.E.2d
542, 548 (1986) (citations omitted). Of course, hearsay
evidence is admissible nonetheless if it falls within one of the
recognized exceptions to the rule of exclusion.
One of the exceptions to the rule of exclusion of hearsay
evidence is the “state-of-mind” exception. In order to be
admissible, the evidence must be relevant, must refer to a
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presently existing state of mind, and must have no obvious
indication of fabrication or contrivance. Charles E. Friend,
The Law of Evidence in Virginia § 18-16 (4th ed. 1993).
With regard to relevance of the declarations of a homicide
victim we have said,
[t]he state of mind of a homicide victim is
relevant and material only in cases where
the defense contends that the death was the
result of suicide, accident, or
self-defense. In those instances, the state
of mind must have been communicated to the
accused.
* * * * * * *
For the state of mind of the victim to
be relevant to prove the state of mind of
the accused, some nexus must exist which
inferentially implicates the accused, such
as by showing previous threats made by the
defendant towards the victim, narrations of
past incidents of violence on the part of
the defendant or general verbalizations of
fear of the defendant.
Hanson v. Commonwealth, 14 Va. App. 173, 188-89, 416 S.E.2d 14,
23 (1992) (citations omitted) (internal quotations omitted).
Elliott did not contend that Dellinger’s death involved
self-defense or suicide; rather, he claimed her death was an
accident. The Commonwealth contended that it was murder.
Elliott testified that his relationship with Dellinger was
“fabulous.” Elliott’s state of mind was a critical issue in the
case.
The testimony of Michael Waldron that Dellinger told him
that Elliott had threatened to kill her if she tried to leave
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him is admissible under the state of mind exception to the rule
of exclusion. In this instance the state of mind of the victim
is relevant to prove the state of mind of the accused and the
nature of their relationship. It is devoid of any obvious
indication of fabrication or contrivance and the nexus to the
defendant is obvious -- it relates a conversation between the
defendant and victim which demonstrated the nature of their
relationship and provided a motive for murder.
The testimony of Sarah Jackson that she told Dellinger that
“she should go home because she had to be home at six thirty
. . . and she didn’t need to be late, [Elliott] would get mad at
her,” followed by Dellinger’s response “that she wanted to get a
job and to get a car and she wanted to leave [Elliott] and she
wanted me and her to move away together,” is also admissible
under the state of mind exception to the rule of exclusion.
Jackson’s recitation of what she said to Elliott is not offered
for the truth of the matter stated; rather, it is offered to
prove that her statement was made as a catalyst for Dellinger’s
response. The relevance of Dellinger’s response depends upon
nexus to the defendant. Dellinger’s response establishes her
state of mind, namely, her intention to leave Elliott. The
testimony of Michael Waldron proves Elliott’s state of mind in
response to Dellinger’s intention to leave him. The testimony
of Sarah Jackson is corroborative in nature. The nexus to the
defendant is his prior threat to Dellinger relating to the
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subject of any intent she may have to leave him. Also, the
evidence rebuts Elliott’s characterization of the relationship
as “fabulous” and provides a motive for murder.
VI. CONCLUSION
Finding no error, we affirm Elliott’s convictions.
Affirmed.
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