Chewning v. Commonwealth

Decision Date11 March 2014
Docket NumberRecord No. 2204-12-4
CourtVirginia Court of Appeals
PartiesEDDIE WAYNE CHEWNING v. COMMONWEALTH OF VIRGINIA

UNPUBLISHED

Present: Judges Kelsey, Alston and Decker

Argued at Alexandria, Virginia

MEMORANDUM OPINION* BY

JUDGE MARLA GRAFF DECKER

FROM THE CIRCUIT COURT OF STAFFORD COUNTY

Charles S. Sharp, Judge

James J. Ilijevich for appellant.

Susan M. Harris, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Eddie Wayne Chewning (the appellant) was tried by a jury and convicted of first-degree murder and use of a firearm in the commission of a felony, in violation of Code §§ 18.2-32 and 18.2-53.1. These convictions were based on his participation as an accessory before the fact to his girlfriend's murder of her mother. The appellant contends that the trial court erred by: (1) admitting records of cellular telephone texting1; (2) permitting the Commonwealth to read aloud numerous text messages between the appellant and his girlfriend; and (3) finding that the evidence was sufficient to prove that the appellant was an accessory before the fact to his girlfriend's crimes. We hold that the trial court did not err with regard to any of these actions. Accordingly, we affirm the convictions.

I. BACKGROUND

On July 5, 2011, seventeen-year-old Ashleigh Dye (Ashleigh) shot and killed her mother, Brenda Dye, in the family's home. At the time of the shooting, the eighteen-year-old appellant had been dating Ashleigh for about four months and was working for Ashleigh's father, Ronald Dye, Sr. (Dye), a brick mason, on a brick restoration job in Alexandria.

On the day of the shooting, the appellant rode to Alexandria as usual with Dye and Dye's son David. At the end of the work day, the appellant rode home with the Dyes but departed quickly. Dye and David went into the residence and found Brenda Dye dead on the bathroom floor. Near her body was a shotgun that belonged to Ashleigh. When sheriff's detectives interviewed Ashleigh, she confessed to shooting her mother and then ransacking the bedrooms to "cover up" the murder before leaving for work.

Detectives also interviewed the appellant. He initially denied knowing anything about the murder. During a second interview, however, the appellant admitted to detectives that Ashleigh had been talking to him about wanting to kill her mother. The detectives obtained a search warrant for the appellant's cell phone records, including his text messages. Based on the content of those text messages, police obtained warrants charging the appellant as an accessory before the fact to the crimes.

In the hour-long interview that followed the appellant's arrest, Detective Michelle Gibbons had "a packet" of the text messages that had been sent between Ashleigh and the appellant on July 5, 2011. The appellant admitted exchanging text messages with Ashleigh on that date. Gibbons confronted the appellant with the specific language of some of the text messages in which he encouraged Ashleigh to kill her mother and referred to their apparent plan. The appellant equivocated about his involvement, claiming first that he told Ashleigh in a telephone call around lunchtime not to kill her mother, but later admitting that "nobody could getthrough to [Ashleigh] but [him]" and that he could have stopped her. The testimony of Gibbons and the video recording of the interview show that when Gibbons asked the appellant "if he had any questions [regarding] the text messages [between him and Ashleigh that were contained in the packet] or if he wanted to explain anything, [the appellant] advised [her] that it was all true."

Ashleigh pleaded guilty to murdering her mother, but the appellant denied his guilt as an accessory before the fact. At his trial, the Commonwealth offered evidence of Ashleigh's romantic relationship with the appellant; letters she wrote to him, including a reference to her plan to "KBM" or "kill bitch mom"; and ultimately, evidence that Ashleigh shot and killed her mother in the family residence on July 5, 2011.

The Commonwealth established the cell phone numbers of the appellant and Ashleigh and sought to admit phone records showing the content of the text message exchanges between them before and after the murder on July 5, 2011. To provide a foundation for the admission of these cell phone and text messaging records, the Commonwealth offered the testimony of Andrea Mattia, an employee of Verizon Wireless. The Commonwealth also offered testimony from Detective Gibbons that she used the records identified by Mattia when she interviewed the appellant about the murder and that he admitted the contents were "all true." The appellant objected to admission of the records on hearsay grounds. After hearing argument from the parties, the trial court admitted the records for the truth of their content.

The appellant also objected to the Commonwealth's decision to have the prosecutor and Detective Gibbons read aloud to the jury a portion of the text messages contained in the cell phone records exhibit, arguing that reading them would be prejudicial. Additionally, he noted that the text messages appeared to contain some misspellings, contractions, and abbreviations and argued that it would be error to allow Gibbons or the prosecutor to interpret those items. The trial court overruled the objection, stating no evidence suggested that allowing the exhibit tobe read aloud would "lend[] some super credence or some potential prejudice" to the exhibit and that the appellant could address in closing argument the interpretation of any contractions or abbreviations that he contended were inaccurate.

Detective Gibbons read the portion of the text messages sent from Ashleigh's phone to the appellant's phone, while the prosecutor read the text messages sent from the appellant's phone to Ashleigh's phone. The messages covered the time from before the murder through the period after the appellant returned from work, retrieved his truck from the Dye residence, and drove to meet Ashleigh at her place of employment.

Ashleigh testified at trial that she killed her mother, in part, because the appellant told her to do so. According to Ashleigh, they discussed various ways she could commit the murder. Ashleigh confirmed that she and the appellant texted each other on the day of the murder about their plan. She testified that the appellant's encouragement and advice "enabled" her to kill her mother and that without the appellant's "advice, instigation, or help," she would not have gone through with the plan. Ashleigh said that although she had mentioned wanting to kill her mother to other boyfriends, the appellant was the only one who actually told her to go through with it.

The jury found the appellant guilty of the charged offenses as an accessory before the fact. He was sentenced to thirty-five years with ten years suspended for the murder and three years for the firearm offense. This appeal followed.

II. ANALYSIS

The appellant challenges the admissibility of the text messages he exchanged with Ashleigh, the reading aloud of a portion of that text message exchange, and the sufficiency of the evidence to prove he was an accessory before the fact to Ashleigh's crimes. We affirm his convictions for the reasons that follow.

A. ADMISSIBILITY OF CELL PHONE RECORDS

The standard of review on appeal is well settled. "[T]he determination of the admissibility of relevant evidence is within the sound discretion of the trial court subject to the test of abuse of that discretion." Beck v. Commonwealth, 253 Va. 373, 384-85, 484 S.E.2d 898, 905 (1997). "'Only when reasonable jurists could not differ can we say an abuse of discretion has occurred.'" Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009) (quoting Thomas v. Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743 (2005)).

"The measure of the burden of proof with respect to factual questions underlying the admissibility of [such] evidence is proof by a preponderance of the evidence." Witt v. Commonwealth, 215 Va. 670, 674, 212 S.E.2d 293, 296 (1975). Once this threshold for proving admissibility has been met, the evidence should be admitted, and any gaps in the evidence are relevant to the trier of fact's assessment of its weight rather than its admissibility. See Kettler & Scott v. Earth Tech. Cos., 248 Va. 450, 459, 449 S.E.2d 782, 786 (1994).

The admissibility of the Verizon Wireless records and text messages was thoroughly addressed at trial. The appellant objected to the admission of the records on hearsay grounds. The Commonwealth contended that two hearsay exceptions supported admission of the documents. The prosecutor asserted that the records themselves were kept in the ordinary course of business and were admissible under the business records hearsay exception. As to the text message content within the records, the Commonwealth argued that the appellant's texts were admissible under the hearsay exception for admissions of a party opponent. The prosecutor further suggested that Ashleigh's texts were not hearsay because they were offered merely to show their effect on the listener rather than to prove the truth of their content. Alternatively, the Commonwealth argued that Ashleigh's statements were adoptive admissions of the appellant because he told Detective Gibbons that the text messages in the packet were all true. Theappellant countered that the Commonwealth failed to prove first-level admissibility under the business records exception as well as second-level admissibility under the party or adoptive admissions exceptions.

The trial court ruled that the underlying records were admissible under the business records exception, finding that Mattia was a custodian of records and that the records were "kept regularly and ha[d] all of the earmarks of trustworthiness." Regarding the admissibility of the text message content, the trial court found that the appellant, when confronted with the text messaging...

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