Berkeley v. Com.

• Decision Date: 29 November 1994
• Docket Number: No. 1680-92-1,1680-92-1
• Citation: 19 Va.App. 279,451 S.E.2d 41
• Parties: Stanley Justin BERKELEY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 41

451 S.E.2d 41

19 Va.App. 279

Stanley Justin BERKELEY v. COMMONWEALTH of Virginia.

Record No. 1680-92-1.

Court of Appeals of Virginia.

Nov. 29, 1994.

Stanley E. Sacks, Norfolk (Sacks, Sacks & Imprevento, on brief), for appellant.

Donald R. Curry, Sr. Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: BAKER, BENTON and BRAY, JJ.

JOSEPH E. BAKER, Judge.

Stanley Justin Berkeley (appellant) appeals from a judgment of the Circuit Court of the City of Chesapeake (trial court) that approved a jury verdict convicting him of first degree murder. The same jury convicted appellant of rape and abduction with intent to defile.

This appeal is limited to the first degree murder conviction for violation of Code § 18.2-32. ¹ The dispositive question for our determination is whether the evidence is sufficient to sustain the first degree felony-murder conviction as charged in the final amended indictment. Upon familiar principles, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). For the reasons that follow, we affirm the conviction.

On July 9, 1991, at approximately 6:20 a.m., Melissa Harrington (victim) was abducted by appellant and Andrew J. Chabrol (Chabrol) from the parking lot of the Virginia Beach apartment complex where she resided. Appellant told a deputy sheriff that he drove the car in which victim was forcibly taken to Chabrol's house in Chesapeake, where appellant raped her.

Chabrol had been victim's superior in the Navy office at which they worked. Upon information received by persons who resided in victim's Virginia Beach apartment complex, that same morning the police went to Chabrol's house. Upon being admitted, the police saw appellant seated in the den and observed that Chabrol had fresh lacerations on his chin and a bandage on his knuckles.

Appellant and Chabrol were separately questioned by the police. They gave conflicting statements as to their activities on the night before and the morning of the abduction. Initially, appellant told the police that he and Chabrol had gone to bed prior to midnight on the night before and that neither had left the house on the morning of July 9. Chabrol told the police that they had "stayed up all night playing computer games" and had left the house that morning at 7:00 a.m. to purchase beer. When confronted with Chabrol's statement, appellant changed his story to conform with Chabrol's account, except he claimed that he purchased only juice and Chabrol did not purchase anything. When appellant was told by the police that they were there only "to find Melissa Harrington," appellant denied having seen "any girls in the house."

The police request for permission to search Chabrol's residence was refused. A search warrant was then obtained. On that same day at approximately 2:30 p.m., the police found victim's nude, dead body on the floor of the master bedroom. Her body had been wrapped in a blanket, her face taped from her eyebrows to her chin, her head covered by a plastic bag and a rope ligature was tied around her neck. ² In the kitchen, the police found two garbage bags, one containing various items belonging to victim, the other containing bed linens and a blanket. The bed in the master bedroom had been made with "fresh linens."

Vaginal swabs taken from victim were analyzed and revealed the presence of seminal fluid and spermatozoa. DNA testing of the sperm was consistent with the DNA of appellant and inconsistent with Chabrol and victim's husband. The likelihood of any black male other than appellant being the source of the sperm was .018 percent, or approximately one in 5,000. If white males were included in the computation, the likelihood that the sperm came from anyone, other than appellant, decreased to .0058 percent, or approximately one in 17,000.

The cause of victim's death was "complex asphyxia due to suffocation and strangulation, both ligature and manual."

Upon discovery of victim's body, both Chabrol and appellant were arrested. At 3:45 a.m. on July 10, 1991, at the local jail, appellant made inculpatory statements to Chesapeake Deputy Kevin Knight (Knight). Knight testified that appellant stated that he "was a victim of circumstances," that,

He stated was only here on vacation. He stated during the abduction he could only drive the car in which they picked her up due to his limited ability. He said he f----- her but on the second time he could not bring himself to do it.

Appellant presented no evidence on his behalf. ³

Appellant was indicted and charged by the grand jury with having violated Code § 18.2-31 (capital murder). Upon a motion of the Commonwealth, prior to the trial, that indictment was amended by deleting Code § 18.2-31 and substituting Code § 18.2-32 as the offense alleged to have been committed. Also deleted was the allegation in the original indictment that the killing occurred "during the commission of, or subsequent to, rape."

After the Commonwealth rested its case, and during appellant's argument in support of his motion to strike, the Commonwealth further moved the trial court to permit the indictment to be amended again by adding the phrase "in the commission of rape or abduction." When the Commonwealth agreed that it would "give up any claim ... to concert of action," appellant consented to the amendment without objection and the trial court approved. We have defined "concert of action" as an "action that has been planned, arranged, adjusted, agreed on and settled between the parties acting together pursuant to some design or scheme." Rollston v. Commonwealth, 11 Va.App. 535, 542, 399 S.E.2d 823, 827 (1991) (quoting Black's Law Dictionary 262 (5th ed. 1979)). All participants in such planned enterprises may be held accountable for incidental crimes committed by another participant during the enterprise even though not originally or specifically designed. Id.; see also Brown v. Commonwealth, 130 Va. 733, 738, 107 S.E. 809, 811 (1921).

The amended indictment provided:

The Grand Jury charges that:

On or about July 9, 1991, in the City of Chesapeake Virginia, the accused, STANLEY JUSTIN BERKELEY, did maliciously kill and murder Melissa Harrington, in the commission of rape or abduction, in violation of Section 18.2-32 of the Virginia Code.

Following the trial court's approval of the amended indictment, appellant contended that the evidence failed to show either who killed victim or that appellant was in any way connected to the killing. He further argued that, because the Commonwealth had agreed not to contend that the murder occurred by "concert of action," the record must contain evidence that appellant was either the perpetrator, ⁴ a principal in the second degree, ⁵ or an accessory before the fact. ⁶

Although no evidence identified the actual perpetrator, direct, uncontradicted evidence in the record established that at 6:20 a.m., on July 9, 1991, appellant abducted victim and drove her to Chabrol's house in Chesapeake. No evidence was presented that appellant or victim left that house before the police found her nude, dead body in the master bedroom of that same house. Direct evidence established that, between 6:20 a.m. and approximately 9:30 a.m. on that same day, appellant raped victim. Although no direct evidence proved that appellant strangled victim or that he applied the Taser unit, taped her breathing facilities, or tied the ligature around her neck, sufficient circumstantial evidence was presented from which the fact finder could reasonably infer that the killing occurred within the res gestae of the abduction.

No reasonable hypothesis contained in this record supports even a remote possibility of appellant's innocence.

"Whether the Commonwealth relies upon either direct or circumstantial evidence, it is not required to disprove every remote possibility of innocence, but is, instead, required only to establish guilt of the accused to the exclusion of a reasonable doubt."

Cantrell v. Commonwealth, 7 Va.App. 269, 289, 373 S.E.2d 328, 338 (1988) (quoting Bridgeman v. Commonwealth, 3 Va.App. 523, 526-27, 351 S.E.2d 598, 600 (1986)). Here, every reasonable hypothesis of innocence has been excluded. The abduction, rape, and murder all concurred to form an unbroken chain that links appellant to those crimes beyond a reasonable doubt. See Bishop v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984); Boothe v. Commonwealth, 4 Va.App. 484, 492, 358 S.E.2d 740, 745 (1987).

We need only to decide whether the felony-murder elements were proved beyond a reasonable doubt:

The rule which we adopt, therefore, consistent with the weight of authority elsewhere, is that the felony-murder statute applies where the killing is so closely related to the felony in time, place, and causal connection as to make it a part of the same criminal enterprise.

Haskell v. Commonwealth, 218 Va. 1033, 1043-44, 243 S.E.2d 477, 483 (1978). In Haskell, four defendants unsuccessfully attempted to rob William M. Kantor (Kantor). When nothing of value was found on Kantor, the robbers attempted to abandon the criminal venture and leave the scene. Having been assaulted and battered by one of the robbers, Kantor attempted to foil their escape and was shot and killed by one of the participants in the attempted robbery. Haskell was not the killer. Haskell unsuccessfully argued that the felony-murder doctrine could not be applied because the venture had been concluded and the robbers were attempting to leave the crime scene. He contended that the killing did not occur during the commission of a felony. The Court rejected that argument and found that the killing was so closely related to the felony in "time, place and causal connection" as to make it a part of the same criminal enterprise, and within the res gestae so as to...