Brown v. Com. of Va.

• Decision Date: 22 May 2018
• Docket Number: Record No. 0434-17-2
• Citation: 68 Va.App. 746,813 S.E.2d 557
• Parties: Russell Ervin BROWN, III v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

68 Va.App. 746

813 S.E.2d 557

Russell Ervin BROWN, III

v.COMMONWEALTH of Virginia

Record No. 0434-17-2

Court of Appeals of Virginia, Richmond.

MAY 22, 2018

Matthew L. Engle(Bernadette M. Donovan; Douglas A. Ramseur ; Seth T. Shelley; Shameka L. Hall; Jacqueline M. Reiner, Richmond; Donovan & Engle, PLLC; Office of the Capital Defender, Central Region; Jacqueline M. Reiner, PLLC, on briefs), for appellant.

Eugene Murphy, Senior Assistant Attorney General(Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Huff, Judges Russell and Malveaux

OPINION BY CHIEF JUDGE GLEN A. HUFF

Russell Ervin Brown, III, ("appellant") appeals his convictions of capital murder and attempted capital murder, in violation of Code§ 18.2-31; attempted murder, in violation of Code§ 18.2-32; and three counts of use of a firearm in the commission of a felony, in violation of Code§ 18.2-53.1.Following a jury trial, the Circuit Court of Dinwiddie County("trial court") sentenced appellant to the jury’s recommended sentence of two life sentences for the capital murder and attempted capital murder charges, ten years for the attempted murder charge, and a total of thirteen years for the firearm charges.On appeal, appellant raises seven assignments of error:

1.The trial court erred in denying [appellant’s]Motion for Grand Jury Information for the Preceding Five Years.

2.The trial court erred in denying [appellant’s]motions for change of venue.

3.The trial court erred in limiting questioning and denying [appellant’s]motion to strike prospective jurors Delores Palmer and Aaron Whitworth for cause.

4.The trial court erred in denying [appellant’s]motion to strike the capital murder charge.

5.The trial court erred in denying a second-degree murder instruction.

6.The trial court erred in admitting testimony about an alleged statement made by [appellant] during his arraignment.

7.The trial court erred in denying [appellant’s]Motion to Set Aside the Verdict.

For the following reasons, this Court affirms appellant’s convictions.

I.BACKGROUND

On appeal, "we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial."Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296(2007)(en banc )(quotingJackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598(2004) ).So viewed, the evidence is as follows.

The Shooting

On March 7, 2013, appellant shot and killed Virginia State Trooper Junius Alvin Walker on the shoulder of Interstate 85 in Dinwiddie County.Appellant had pulled his car onto the shoulder because it "had been running hot."Walker activated his police cruiser’s blue lights and pulled over beside appellant’s car, at which point appellant—without provocation—fired numerous shots into the cruiser at Walker, killing him.

As Walker’s cruiser rolled toward the woods beside the interstate, appellant followed and continued firing his rifle into it.

Thomas Hales, a delivery truck driver, was heading south on Interstate 85 at the time of the shooting.Noticing the state police cruiser resting at the edge of the woods and finding it unusual, Hales pulled his truck onto the shoulder and backed toward appellant’s car and the cruiser.He saw Walker sitting in the cruiser’s front seat "kind of slumped over" and was unsure if Walker was alive."[J]ust a few seconds" after Hales stepped out of his truck to investigate the scene, he observed appellant—dressed in camouflage and holding a rifle—abruptly stand up opposite him on the cruiser’s passenger side.Hales fled back to his truck, and just as he made it into the driver’s seat, appellant fired multiple rounds at the truck, blowing out its passenger window and the windshield in front of the driver’s seat.Hales returned to the interstate as quickly as he could, took the next exit, and called 911 to report the encounter.

Meanwhile, Virginia State Police TrooperSamuel Moss came upon the scene.He saw the conspicuous collection of appellant’s car, Walker’s police cruiser partially in the woods, and Hales’ delivery truck parked off the interstate.He could hear the gunfire as he pulled his cruiser onto the shoulder.As Moss parked, Hales’ box truck began to pull away from the scene.Moss later testified that he"had no clue what was going on" when he arrived because "[t]here was no 911 call or anything like that.It was literally something [he] just came up on."At this point, appellant turned his attention from Hales’ truck to Moss and began firing at Moss.Moss exited and took cover at the cruiser’s rear, where he exchanged gunfire with appellant.

As the gunfight raged on, Moss recognized he needed a more powerful weapon than his sidearm in order to hold his position.He crept back to the driver’s seat to release the trunk, then returned to his position at the left rear tire from which he was able to retrieve his M4 rifle from the trunk.Moss then fired at appellant, who had taken cover inside the passenger cabin of Walker’s cruiser.Appellant responded by diving from the cruiser onto the ground and returning fire from a prone position.¹Appellant used the surrounding brush as cover as the altercation continued, "hiding behind [the brush], popping out, shooting, going back for cover."

Eventually, appellant ran toward the front of Walker’s car into the woods and ceased firing.Moss could not see where appellant went, but remained in position scanning for him because Moss "didn’t want him to come across the wood line and get a better angle on me."Backup officers arrived on the scene shortly thereafter.The gunfight ultimately had lasted "several minutes," which was far longer than the "five or six seconds" Moss’s training taught him to expect.Moss later testified that "the shots just kept coming" and that he wondered "[h]ow much [ammunition] has he got over there?"Appellant fired no fewer than twenty-nine rounds during the exchange.

Appellant fled into the woods after the gunfight, where he abandoned his rifle and clothing.Immediately opposite the roadside scene, just through a stand of woods, was a small towing business’ unfenced rear salvage lot containing several wrecked vehicles.Appellant located a sedan there with missing windows and hid in its rear passenger floorboard area.

Dinwiddie County Sheriff’s Office InvestigatorCharles Lucy was familiar with the area and heard over the radio that appellant had retreated into the woods, so he responded to the towing business in order to intercept appellant.Lucy located the sedan and approached to "clear" it for his safety.²As he did so, he observed appellant lying naked on the rear floorboard.Lucy called for backup and ordered appellant to put his hands up.Appellant yelled "don’t kill me," and responding backup officers arrested him.Lucy later testified that appellant’s nudity made it less likely that law enforcement officers would fire on him.Lucy stated that because appellant wore no clothing and had visible hands, he was "able to maintain cover on [appellant] ... which made [him] relax a bit."Lucy clarified that had appellant been clothed, the situation "would have been very, very high elevated" because he knew he was responding to "an officer-involved shooting."

Following appellant’s arrest, Virginia State Police TrooperWalter Craig transported him to a state police office where officers instructed him to "sit there and be quiet."Without any prompting, appellant volunteered various statements about his actions that day that Craig later recounted at trial:

He stated that he sat in his car for a while, watching traffic go by; and while he was sitting in his car, he was talking to his father,³ and a police car pulled up beside him on the shoulder, with no lights.

He also stated that he knows procedure, and police are supposed to pull behind you with lights on and call for backup.He stated that he didn’t see lights, and he saw the black officer’s face and that he looked like a dead man and didn’t know it.[Appellant] stated that as he saw the officer’s face, he didn’t know what happened, and he turned into a demon, and he picked up his rifle and shot him, and the police car kept rolling in the grass.And he got out of his car; and after the car crashed, he kept shooting him.

He stated that he tried to get his gun, but he couldn’t get his gun because he knew the type of holster and safety that was used.[Appellant] stated that a truck stopped, and he shot at him too, but he hoped that the truck driver was okay, as the truck left.

[Appellant] stated that a white police [officer] showed up, and he shot at him too.He stated that his father told him to leave, and he ran through the woods and the water.He took off his clothes, and his Browns hat, and dropped them in the woods.He stated that he saw a junk car, and he laid down in it, and he said that a white officer shined a light in his face, and his father told him to put his hands up and tell the truth.

Grand Jury

A Dinwiddie County grand jury indicted appellant for the capital murder of Walker, attempted capital murder of Moss, attempted murder of Hales, and three counts of using a firearm in the commission of a felony.Appellant pled not guilty to all charges.

In a July 14, 2015 motion, appellant sought disclosure of "all grand juror information for the preceding five years" in order to prepare a potential Sixth Amendment fair cross-section challenge to the Dinwiddie County grand jury selection process.Counsel for appellant contended that the previous five years of data were necessary in order to "arrive at statistically-sound calculations."During a hearing on October 7, 2015, the trial court asked the Commonwealth whether it agreed that "the Defense is entitled to the jury list for the term in which this case is scheduled to be tried."The Commonwealth conceded that good cause existed for granting appellant access to the grand jury list for the 2016 term.The...