COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Overton
Argued at Richmond, Virginia
MONIQUE LITTLEJOHN
OPINION BY
v. Record No. 1834-95-2 JUDGE JAMES W. BENTON, JR.
MARCH 18, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Kevin M. Schork (Epperly, Follis & Schork,
P.C., on brief), for appellant.
Katherine P. Baldwin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
A jury convicted Monique Littlejohn of (1) one charge of
being an accessory before the fact to capital murder, (2) four
charges of being an accessory before the fact to first degree
murder, (3) two charges of being an accessory before the fact to
malicious wounding, and (4) seven charges of being an accessory
before the fact to the use of a firearm in the commission of a
felony. This Court granted Littlejohn's appeal on the issues
whether the trial judge abused his discretion when he denied
Littlejohn's motion for a change in venue and whether the
evidence was sufficient to uphold the convictions. Because the
evidence was insufficient, we reverse the convictions.
I.
The evidence proved that at approximately 9:30 a.m. on
October 14, 1994, police officers from the City of Richmond went
to 1008 St. James Street, Apartment C, in response to a report of
multiple shootings. Tamika Jones, a minor, had reported to the
police by telephone that Christopher Goins had shot her and her
family. Inside the apartment, the police found two adults and
three children dead from multiple gunshot wounds. The officers
also found three baggies of powder and crack cocaine on James
Randolph, Jones' deceased father, and later learned that Daphne
Jones, Jones' deceased mother, had cocaine in her blood. Jones
and one of her infant siblings had been shot but were alive.
Littlejohn was indicted on fourteen charges of being an accessory
before the fact to Goins' commission of these crimes.
At trial, Jones testified that Goins often visited her
mother and stayed overnight at their apartment with her mother.
Although Jones and her parents knew that Goins sold illegal
drugs, Goins and the Jones family members trusted each other.
Jones also testified that at one point she wanted to leave home
and live with an aunt because of all the drug dealing that
occurred in her family's apartment. Jones testified, however,
that she developed a close relationship with Goins and on one
occasion kept for him $2,400 of proceeds from his drug business.
Three years after Jones met Goins, she began having a sexual
relationship with Goins. She was then twelve years old. She
testified that she became pregnant by Goins in March 1994, when
she was fourteen years old. Jones testified that although Goins
was pleased that she was pregnant, when she told Goins that she
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did not wish to deliver the baby, Goins said he would abide by
her wishes. However, Goins did not give her money for an
abortion as he had promised.
Devon Hicks, Jones' teenage friend, testified that Jones had
confided only in him that she and Goins were sex partners. Hicks
also testified that Jones hid that fact from her mother. No
evidence established whether Jones' mother knew that Goins was
the person who had impregnated her daughter.
Jones learned in 1993 that Littlejohn also had a sexual
relationship with Goins. Littlejohn also had become pregnant by
Goins during the same time period as Jones. In June 1994,
however, Littlejohn underwent an emergency abortion due to a
complication with her pregnancy. That same month, Jones' friends
told Jones that Littlejohn had asked them to beat Jones in order
to cause Jones to abort her baby. When Jones confronted
Littlejohn about these allegations, Littlejohn admitted that they
were true and said that she made the statements only because she
was upset. Later in June, Jones overheard Littlejohn threaten to
use a knife to "cut the baby out" of Jones. Littlejohn told
Jones that if Littlejohn could not have Goins' baby, then neither
could Jones.
Jones also testified that Littlejohn never hit her or shoved
her and that Littlejohn made no threats against her after June
1994. Indeed, when Jones was in the hospital at various times
between July and early October because of her pregnancy,
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Littlejohn visited Jones several times. Littlejohn, who worked
at the hospital where Jones was receiving treatment, spent free
time in Jones' room and on occasion asked if Jones needed things
that Littlejohn could deliver to her. Although Littlejohn acted
as a friend and their dispute seemed to have subsided, Jones did
not believe Littlejohn was sincere. On October 11, 1994,
Littlejohn visited Jones in her hospital room several times
during Littlejohn's work breaks. She told Jones that Goins
"didn't want anything to do with the baby" and that on October 14
she and Goins planned to go to New York, where Goins' ill father
lived, to start a new life. She said Jones needed to find
someone to love her and help her take care of her child.
Hicks, Jones' teenage friend who lived across from Jones'
apartment, testified that on the morning of October 14, between
8:00 a.m. and 8:30 a.m., he saw Goins and Stefan Winston on the
porch leading to Jones' apartment. He also saw Barry Scott at
Jones' door. Hicks, who knew Winston was involved in drugs, told
Winston that Hicks' brother wanted to see Winston. Hicks then
returned to his apartment and prepared for school. When Hicks
was leaving for school, Jones called to him from her window and
urged him to go to school. At that time, Goins was talking to
one of Hicks' schoolmates and asked her if she wanted a ride to
school.
Sherwyn Green testified that at 8:30 a.m. on the morning of
October 14, he drove a friend, who was a cocaine dealer, to the
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Jones' apartment. The cocaine dealer intended to sell cocaine to
people in the apartment. When Green and the cocaine dealer
arrived at the street in front of the apartment, they saw Goins
and Winston talking outside the Jones' apartment building. Green
testified that he and the cocaine dealer did not leave Green's
car. Instead, they "wait[ed] for [Goins and Winston] to leave
because [the cocaine dealer] didn't want to go up there while
[Goins] was going up there because it would create a conflict."
Green feared a conflict because his friend, the cocaine dealer,
and Goins "both . . . were trying to sell drugs" to people in
Jones' apartment. Green had been in Jones' apartment previously
when his friend, the cocaine dealer, sold cocaine there. While
Green and the cocaine dealer waited in Green's automobile, Goins
went inside Jones' apartment. After Goins stayed in the
apartment for a while and Winston remained outside, Green and the
cocaine dealer drove to a nearby store three blocks away.
Jones testified that on the morning of October 14, between
6:00 a.m. and 9:00 a.m., Barry Scott entered the apartment and
visited her family. Scott entered the bedroom where Jones was
playing with her four infant siblings. Scott talked to her and
looked at the ultrasound "picture" that she had obtained while in
the hospital. Scott left the apartment but returned ten minutes
later with Goins. While Goins was in the apartment, Scott
returned to the bedroom where Jones was and obtained the
ultrasound "picture." He took the ultrasound "picture" into the
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living room and showed it to Goins. Goins responded, "I don't
want to see that. Take it back to her. Why are you showing me
that . . . ?" When Scott returned the ultrasound "picture" to
Jones, she admonished him for showing it to Goins and said, "I
didn't want him to see it."
In the ensuing thirty or forty minutes, Jones heard her
mother, her father, Scott, and Goins talking and laughing in the
living room. When Jones went to the bathroom, she saw Goins
sitting on the sofa. Although she made eye contact with Goins,
they did not speak. Jones returned to her bedroom and heard more
talking and laughing for fifteen minutes. Then she "started
hearing shots." She heard her brother crying, her mother scream,
shots, and footsteps of one person walking to the bedrooms. She
then saw Goins standing at the door with a gun. After Goins shot
her multiple times, she did not hear anything. Jones testified
that she remained still and pretended to be dead. After a while,
she got up and called the police.
Green testified that after he and the cocaine dealer drove
to the nearby store, they made calls on the telephone. They also
purchased sandwiches and waited for calls to be returned to them.
While they were waiting, Green saw Littlejohn arrive in her
automobile. As Littlejohn sat in the automobile, they observed
Winston walking along Baker Street. Shortly thereafter, Goins
arrived, walking along another street. Goins spoke to Winston
and then entered Littlejohn's automobile. Littlejohn drove away
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with Goins as her passenger. Winston walked away.
The police met Littlejohn while she was on her way to work
on the afternoon of October 14. When the police told her of the
shootings, Littlejohn went with the police for questioning.
Littlejohn falsely told the police that she had not seen Goins
that day, that she had recently moved to get away from Goins, and
that Goins did not know where she lived. When the police
searched Littlejohn's apartment, with her permission, they found
men's clothing and various handgun publications, including a
manual for the operation of a Glock .45 caliber automatic. The
police also saw a safe, which Littlejohn falsely told them was in
the apartment before she began her occupancy. Later, the police
found inside the safe Littlejohn's social security card, birth
certificate, car title, and an identification card bearing a
photograph of Goins with the name, "Derrick Readon," an alias
used by Goins. Upon searching Littlejohn's car, the police found
Littlejohn's driver's license and another identification card
bearing a photograph of Goins with the name, "Derrick Readon."
After the police questioned Littlejohn, they released her.
A few days later, after Littlejohn's apartment had already
been searched by the police, Littlejohn's mother found a .45
caliber cartridge underneath Littlejohn's bed and informed the
police. Firearms experts concluded that the unspent cartridge
had been loaded at some time into the same magazine that had held
the bullets used to kill Jones' family. The evidence proved that
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Jones and the people in the apartment had all been shot with .45
caliber ammunition shot from a gun of a type made only by Glock.
On November 17, 1994, Littlejohn and Goins were arrested in
New York. At that time, Littlejohn was charged with obtaining a
drug without a prescription, a charge unrelated to this case.
Renita Phifer testified that she was incarcerated in the
same prison in New York with Littlejohn. She talked with
Littlejohn after Littlejohn learned in a telephone conversation
that "Barry" talked to the police about Goins and Littlejohn.
Phifer said Littlejohn became upset and confided in her. She
testified that Littlejohn said "they were really out to get her."
She also testified that Littlejohn told her that the police had
found a gun which had been discarded and that Littlejohn was
worried because she did not know if her fingerprints were on the
gun. She further testified that Littlejohn told her "Barry" said
that Goins had killed people and that Littlejohn "knew about it."
Phifer testified that Littlejohn said that there were rumors
that she had threatened Jones and her family. When she asked
Littlejohn if the rumors were true, Littlejohn "smirk[ed]" and
nodded affirmatively.
Phifer testified that Littlejohn was angry about the "other
girl" and had several "run-ins" with her because the girl was
"saying she was carrying [Littlejohn's] 'husband's' baby."
Phifer testified that Littlejohn said that she had waited in her
car parked near the Jones' apartment for Goins on October 14, and
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that she and Goins left together. Phifer also testified that
Littlejohn said "one little mistake had ruined her whole life."
Phifer did not know the nature of Littlejohn's "mistake."
At the close of the Commonwealth's case, Littlejohn moved to
strike the evidence on the ground that no proof of a plan or
shared intent had been established. The trial judge denied the
motion. The jury convicted Littlejohn of all of the charges
against her. The trial judge imposed the jury's recommended
sentence of one hundred and eighty-eight years, and the judge
suspended ten years.
II.
Before trial, the trial judge denied Littlejohn's motion for
a change in venue. This Court granted Littlejohn's petition for
appeal on this issue. However, Littlejohn failed to submit a
written argument on the issue in her brief. That issue was
therefore waived. See Rule 5A:20(c); Roach v. Commonwealth, 251
Va. 324, 335, 468 S.E.2d 98, 104, cert. denied, U.S. , 117
S. Ct. 365, 136 L. Ed. 2d 256 (1996).
III.
Littlejohn argues that the evidence was insufficient to
prove beyond a reasonable doubt that she was an accessory before
the fact to the charged offenses. We agree.
An accessory before the fact "is one not present at the
commission of the offense, but who is in some way concerned
therein, . . . before[hand] . . . , as [a] contriver, instigator
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or adviser." Hitt v. Commonwealth, 131 Va. 752, 759, 109 S.E.
597, 600 (1921).
This definition mandates that in the trial of
an accessory before the fact the Commonwealth
establish the following elements beyond a
reasonable doubt: the commission of the
crime by the principal, the accessory's
absence at the commission of the offense, and
that before the commission of the crime, the
accessory was "in some way concerned therein
. . . as [a] contriver, instigator or
advisor."
McGhee v. Commonwealth, 221 Va. 422, 425-26, 270 S.E.2d 729, 731
(1980) (citations and footnotes omitted).
The Commonwealth, therefore, must prove beyond a reasonable
doubt that "the accused . . . either [knew] or [had] reason to
know of the principal's criminal intention and . . . [that the
accused] intend[ed] to encourage, incite, or aid the principal's
commission of the crime." Id. at 427, 270 S.E.2d at 732.
Although the Commonwealth may meet its burden of proof through
circumstantial evidence, see Dickerson v. City of Richmond, 2 Va.
App. 473, 477, 346 S.E.2d 333, 335 (1986), "[u]nder familiar
principles, such proof is insufficient if it creates merely a
suspicion of guilt; the . . . evidence must be consistent with
guilt and exclude every reasonable hypothesis that the accused is
innocent of the charged offense." Id.
Viewed in the light most favorable to the Commonwealth, the
evidence proved that Littlejohn was angry with Jones because
Jones was pregnant with Goins' child and that Littlejohn had
threatened to harm Jones four months before the murders.
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Although the evidence proved that Littlejohn harbored animosity
toward Jones four months before the murders, no evidence linked
that animosity to Goins' killing of five people in the apartment
or his shooting of Jones and her sibling. No evidence proved
that Littlejohn was with Goins and Scott before they went to the
apartment. Furthermore, no evidence proved that Littlejohn knew
beforehand that Goins intended to kill or shoot the people in the
apartment. The fact that Littlejohn had animosity toward Jones
does not, without more, permit an inference that, before the
fact, she contrived, instigated, or advised in Goins' rampage in
the apartment. Indeed, no evidence in this record proved that
when Goins entered the apartment he did so with the intent to
commit murder.
Unlike McGhee, where the evidence proved that the accused
repeatedly encouraged the assailant to commit the murders, see
221 Va. at 427-28, 270 S.E.2d at 733, here no such facts were
proved. The evidence that Littlejohn was angry with Jones four
months before the murders does not support an inference, beyond a
reasonable doubt, that Littlejohn encouraged Goins to commit
murder, that she knew of Goins' intention when he entered the
apartment, or that Littlejohn intended to aid in Goins'
commission of the murders.
Other evidence at trial proved that after Goins went into
the apartment, Littlejohn arrived at a store three blocks away
from the apartment and waited for Goins in her automobile.
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Although the jury could have reasonably concluded that Littlejohn
was waiting at the store for Goins to arrive, no evidence proved
and no inference arises from the evidence that Littlejohn knew
that Goins was in the Jones' apartment, that Goins went there
intending to kill anyone, or that Littlejohn's presence at the
store was for the purpose of aiding him in so doing. See
Moehring v. Commonwealth, 223 Va. 564, 568, 290 S.E.2d 891, 892
(1982) ("Under such circumstances, it is difficult to regard
[her] as a 'lookout,' or an accessory before the fact."). The
jury had no evidentiary basis to infer that Littlejohn knew that
Goins would commit murder before he met her. The evidence does
not exclude the hypothesis that Littlejohn was waiting for Goins
after having agreed merely to meet him at that time and place.
"'[W]here a fact is equally susceptible of two interpretations
one of which is consistent with the innocence of the accused,
[the trier of fact] cannot arbitrarily adopt that interpretation
which incriminates [the accused].'" Corbett v. Commonwealth, 210
Va. 304, 307, 171 S.E.2d 251, 253 (1969) (citation omitted).
Other evidence adduced at trial, but which does not prove
Littlejohn's involvement before the crimes were committed, was
the evidence that when the police questioned Littlejohn after the
murders and informed her of Goins' involvement, Littlejohn lied
concerning her relationship with Goins. However, "such
suspicious conduct does not constitute evidence sufficient to
support a finding of guilt beyond a reasonable doubt." Bishop v.
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Commonwealth, 227 Va. 164, 170, 313 S.E.2d 390, 393 (1984).
"The giving by the accused of an unclear or
unreasonable or false explanation of his
conduct or account of his doings are matters
for the jury to consider, but they do not
shift from the Commonwealth the ultimate
burden of proving by the facts or the
circumstances, or both, that beyond all
reasonable doubt the defendant committed the
crime charged against him."
Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74, 78 (1977)
(citation omitted).
Although the police found in Littlejohn's apartment an
unused cartridge matching the bullets used in the murders and a
manual describing the operation of a gun similar to the one used
in the murders, that proof only engenders a suspicion. Likewise,
the evidence proved that Littlejohn talked to Phifer about events
that occurred after the murders. None of these circumstances
proved or supported an inference that before the murders,
Littlejohn knew that Goins intended to commit the murders or in
any way aided, encouraged, or incited him to do so.
Moreover, the evidence did not exclude the hypothesis that
Goins committed the murders for reasons completely unrelated to
Littlejohn. See McGhee, 221 Va. at 427, 270 S.E.2d at 732 ("The
evidence must . . . establish that the accessory before the fact
shared the criminal intent of the principal."). In fact, no
evidence in this record proved the catalyst for the shootings.
The evidence proved that before Goins went to the Jones'
apartment, in a neighborhood where he was well known, he was
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openly socializing with Scott and Winston on the street in front
of the apartment. He also talked with a teenage girl. No
evidence tended to prove that he sought to hide his presence at
the apartment or was concerned about being seen there. Thus,
evidence exists that supports a reasonable inference that the
murders were not planned in advance of Goins' arrival in the
Jones' apartment.
Moreover, the evidence raises the possibility that something
that occurred in the apartment caused Goins to react
spontaneously. The evidence proved that after Goins entered the
apartment, he was laughing and talking with Jones' parents. The
evidence proved that in the past Goins sold illegal drugs to
Jones' mother and was known as a drug dealer by people in and
around the low income housing complex where the Joneses lived.
Goins often stayed overnight in the Jones' apartment, a place
where drug activity occurred. The evidence also proved that when
Goins murdered the Jones family, Jones' mother had cocaine in her
body and Jones' father had three bags of cocaine on his person.
Furthermore, the evidence proved that while Goins was in the
apartment, another cocaine dealer was in the vicinity of the
Jones' apartment waiting for Goins to leave so that he could sell
cocaine to Jones' parents without creating a conflict with Goins.
The evidence proved that this other cocaine dealer, tired of
waiting, went three blocks away to a store, made telephone calls,
and received messages on a pager while Goins was in the
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apartment. The conclusion is inescapable that drug activity was
inexorably linked to the events that occurred in the apartment.
The evidence also established that Goins became perturbed in
the apartment when his friend showed him an ultrasound picture of
Jones' fetus. Evidence in the record also proved that Jones had
attempted to hide from her mother her sexual relationship with
Goins. Indeed, Jones did not testify whether she had informed
her parents that Goins had impregnated her. The evidence did
prove that when Goins and Jones saw each other, they did not
speak. Thus, the evidence raises the possibility that Goins went
on a rampage as a result of being confronted with the ultrasound
"picture." The evidence also proved, however, that after Goins
saw the ultrasound "picture" Goins continued laughing and talking
with Jones' parents for almost an hour before he began shooting
the people in the apartment.
Simply put, the evidence in this record fails to establish
why Goins went on his murderous rampage. The record leaves that
to speculation, including the possibility that he planned the
murders before he entered the apartment.
Because no direct evidence tends to prove that Littlejohn
knew that Goins intended to commit the murders and the shootings
and that she encouraged him, the Commonwealth argues that the
jury could have inferred that whatever the catalyst for Goins'
actions may have been, Littlejohn had prior knowledge and shared
his intent because of her animosity toward Jones. However, that
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inference could only have arisen if the jury "engage[d] in
speculation and conjecture." Wright v. Commonwealth, 217 Va.
669, 670, 232 S.E.2d 733, 734 (1977).
"[E]vidence is not sufficient to support a
conviction if it engenders only a suspicion
or even a probability of guilt. Conviction
cannot rest upon conjecture. The evidence
must be such that it excludes every
reasonable hypothesis of innocence."
Hyde, 217 Va. at 955, 234 S.E.2d at 78 (citation omitted). When,
from the circumstantial evidence, "it is just as likely, if not
more likely," that a "reasonable hypothesis of innocence"
explains the accused's conduct, the evidence cannot be said to
rise to the level of proof beyond a reasonable doubt. Haywood v.
Commonwealth, 20 Va. App. 562, 567-68, 458 S.E.2d 606, 609
(1995).
In summary, nothing about Littlejohn's conduct provides a
basis from which the jury could have inferred beyond a reasonable
doubt that, before Goins committed the murders, Littlejohn shared
in Goins' intent. No evidence proved or tended to prove that
Littlejohn knew Goins' whereabouts or purposes prior to meeting
him. Most critically, no evidence was admitted from which the
jury could have drawn an inference, to the exclusion of an
equally reasonable contrary inference, that Littlejohn knew Goins
was going to commit the murders or that she intended to assist
Goins in committing the murders.
In addition, the evidence proved that Goins was known as a
drug dealer, that his relationship with the adults in the
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apartment was tied to his drug dealing, and that drugs were found
on and in the bodies of the dead adults. The evidence also
proved that another seller of cocaine was outside the apartment
and dared not enter lest he and Goins met and had a conflict.
Thus, the evidence also did not exclude the hypothesis that the
killings and Goins' motive were drug related, unknown to
Littlejohn, and completely unrelated to her attitude toward
Jones.
Therefore, the evidence failed to prove beyond a reasonable
doubt that Littlejohn "share[d] the criminal intent of the
principal." McGhee, 221 Va. at 427, 270 S.E.2d at 732.
Suspicion, no matter how strong, is not enough. See Bishop, 227
Va. at 170, 313 S.E.2d at 393. Convictions cannot rest upon
speculation and conjecture. See Smith v. Commonwealth, 192 Va.
453, 461, 65 S.E.2d 528, 533 (1951). Accordingly, we reverse the
convictions.
Reversed.
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