Abney v. Commonwealth

• Decision Date: 04 March 2008
• Docket Number: Record No. 1366-06-4.
• Citation: 657 S.E.2d 796,51 Va. App. 337
• Court: Virginia Court of Appeals
• Parties: Wilbert ABNEY, Jr. v. COMMONWEALTH of Virginia.

657 S.E.2d 796

51 Va. App. 337

Wilbert ABNEY, Jr. v. COMMONWEALTH of Virginia.

Record No. 1366-06-4.

Court of Appeals of Virginia, Alexandria.

March 4, 2008.

Dawn M. Butorac, Assistant Public Defender (Whitney E. Minter, Assistant Public Defender; Office of the Public Defender, on brief), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FITZPATRICK, S.J., McCLANAHAN and PETTY, JJ.

McCLANAHAN, Judge.

A jury convicted Wilbert Abney, Jr., of first-degree murder (Code § 18.2-32). On appeal, Abney contends the trial court committed reversible error in admitting certain evidence in violation of the hearsay rule and/or his Sixth Amendment right to confront witnesses. For the following reasons, we affirm Abney's conviction.

I. BACKGROUND

On appeal, we review the evidence in the light most favorable to the Commonwealth, as the prevailing party at trial. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom." Kelly v. Commonwealth, 41 Va.App. 250, 254, 584 S.E.2d 444, 446 (2003) (en banc) (internal quotation marks and citations omitted).

It is undisputed that Abney killed his wife, Mona, by strangling her with a belt wrapped around her neck. The issue at trial was whether Abney murdered her or killed her by accident.

Abney's wife was found dead in a hotel room in Fairfax County in January 1978. Her body was on the floor, unclothed from the waist down, with multiple abrasions on the neck. Police suspected her death was a homicide, involving sexual assault. Dr. James Beyer, a medical examiner, conducted an autopsy and concluded the cause of death was "asphyxiation secondary to strangulation (ligature)," as stated in his autopsy report. During the autopsy, Dr. Beyer took vaginal swabs from the victim, which revealed the presence of semen in the victim's vaginal area. At that time, however, DNA analysis on the semen (which would later be conducted and identify Abney as the donor) was not available to the police. Throughout this initial investigation, Abney represented to police that his wife had traveled alone to Fairfax County for an overnight shopping trip and that he was at their home in Richmond at the time of her death. He also claimed he had not engaged in sexual intercourse with his wife in several weeks due to her recent gynecological problems. Though Abney was a suspect, the police eventually closed the investigation of the case as an unsolved homicide.

Shortly after Mona's death, Abney filed a claim for benefits under a large life insurance policy on her. Abney had made an application for the policy less than two months prior to her death. When the insurance company refused to pay, Abney sued the company. The case was dismissed on the ground that the policy never went into effect due to questions regarding Mona's health in the application process. In defending the case, the company obtained an affidavit from L. Davis, who was Abney's girlfriend around the time of his wife's death. Davis' affidavit, which she executed in November 1978, set forth details of her relationship with Abney. She also testified about their relationship at a hearing in the case.

In 2004, twenty-six years after Mona's death, the cold case unit of the Fairfax County Police Department re-opened the homicide case. At that time, DNA analysis was available, and was conducted on both the semen sample that had been retained from the original investigation and a current buccal sample from Abney. The DNA analysis resulted in a match of the DNA profile of both samples.

During Abney's first meeting with Fairfax County Police Detectives Steven Milefsky and Robert Murphy, in September 2004, Abney stated he could not remember if he and his wife had engaged in sexual intercourse around the time of her death. In April 2005, the detectives met again with Abney and advised him of the results of the DNA analysis. He then finally admitted that he had sex with his wife shortly before her death and that he lied about it to the police during the initial investigation and during his testimony in the trial on his claim to the life insurance benefits. However, he still denied he had been in his wife's hotel room or had anything to do with her death.

Detectives Milefsky and Murphy then met with Abney in May 2005, at which time he admitted to killing his wife, but claimed it was an accident. According to Abney at this meeting, Mona called and asked him to come to her hotel room. When he arrived, she wanted to engage in "what [Abney] described as kinky sexual intercourse, that she would be choked while [they were] having sex, and her preference was even further that she wanted him to be behind her" while engaged in the act. Abney also told the detectives that, because he was not able to use his hands to choke her when they had sexual intercourse in that manner, he choked her with his belt. In the past, she would "tap him on the leg if it got too tight." This time, however, "she just went limp" and died. Abney gave the same explanation for his wife's death during his testimony at trial, adding that they were engaged in what is known as "erotic asphyxiation" at the time of her death.

Abney was indicted on the charge of first-degree murder. His jury trial was in March 2006. The Commonwealth prosecuted its case against Abney on the theory that his motive for murdering his wife was to collect proceeds from the large life insurance policy on her, and to enable him to pursue his obsessive relationship with his girlfriend at that time, L. Davis.

At trial, Abney objected to, inter alia, the Commonwealth's introduction of: (i) Davis' testimony in the form of past recollection recorded, consisting of her recitation of portions of her affidavit given during the 1978 litigation over the subject life insurance policy; (ii) the autopsy report and accompanying expert testimony based on the report; and (iii) a request for analysis and two certificates of analysis offered to establish the chain of custody of the vaginal swabs taken during the victim's autopsy. The trial court overruled Abney's objections and admitted the evidence.

The jury convicted Abney of first-degree murder as charged. This appeal followed in which Abney challenges the trial court's evidentiary rulings.

II. ANALYSIS

"Decisions regarding the admissibility of evidence `lie within the trial court's sound discretion and will not be disturbed on appeal absent an abuse of discretion.'" Michels v. Commonwealth, 47 Va.App. 461, 465, 624 S.E.2d 675, 678 (2006) (quoting Breeden v. Commonwealth, 43 Va.App. 169, 184, 596 S.E.2d 563, 570 (2004)). "Only when reasonable jurists could not differ can we say an abuse of discretion has occurred." Tynes v. Commonwealth, 49 Va.App. 17, 21, 635 S.E.2d 688, 689 (2006) (citation and internal quotation marks omitted). However, to the extent the trial court makes an error of law in the admission of evidence, "an abuse of discretion occurs." Bass v. Commonwealth, 31 Va.App. 373, 382, 523 S.E.2d 534, 539 (2000). Furthermore, such evidentiary issues presenting a "question of law" are "reviewed de novo by this Court." Michels, 47 Va.App. at 465, 624 S.E.2d at 678 (whether certificates from governmental agency were "testimonial hearsay" implicating the Confrontation Clause was subject to de novo review).

A. Davis' Affidavit

Davis reviewed her 1978 affidavit arising from the litigation involving the subject life insurance policy, and the transcript of her testimony in that case, to refresh her memory in preparation for her testimony at Abney's criminal trial. Having done so, Davis, based on her independent recollection, testified at trial to a number of details regarding her relationship with Abney during the period of December 1977 through February 1978 (a period both before and after the time of Mona's death). There were other details in her affidavit, however, which she could not independently recall after reviewing the affidavit. Consequently, the Commonwealth introduced Davis' recitation of those portions of her affidavit. The Commonwealth based the introduction of this part of her testimony on the "past recollection recorded" exception to the hearsay rule. See Scott v. Greater Richmond Transit Co., 241 Va. 300, 305, 402 S.E.2d 214, 218 (1991) ("When a witness reads a record of past recollection to a jury, he merely is telling the jury what he knew and recorded at a prior time, but has since forgotten.").

Abney contends this testimony did not qualify under the "past recollection recorded" hearsay exception. Alternatively, Abney argues the testimony consisted of "testimonial hearsay" prohibited under the Confrontation Clause of the Sixth Amendment, as interpreted in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

(i)

"The general rule of past recollection recorded allows, over a hearsay objection, a witness with no independent recollection of an incident to testify directly from [some form of written document] if certain requirements are met." Bailey v. Commonwealth, 20 Va.App. 236, 240, 456 S.E.2d 144, 146 (1995). The foundational requirements for this hearsay exception are as follows:

"(1) the witness must have had firsthand knowledge of the event; (2) the written statement must be an original memorandum made at or near the time of the event, when the witness had a clear and accurate memory of it; (3) the witness must lack a present recollection of the event; and (4) the witness must vouch for the accuracy of the written memorandum."

Id. at 240-41, 456 S.E.2d at 146 (quoting James v. Commonwealth, 8 Va.App. 98, 102, 379 S.E.2d 378, 380-81 (1989)). Furthermore, "`it is not essential that...