Cirios v. Com., 1340-86-4

Citation7 Va.App. 292, 373 S.E.2d 164
Case DateOctober 18, 1988
CourtCourt of Appeals of Virginia

Page 164

373 S.E.2d 164
7 Va.App. 292
Linda Fay CIRIOS
v.
COMMONWEALTH of Virginia.
Record No. 1340-86-4.
Court of Appeals of Virginia.
Oct. 18, 1988.

[7 Va.App. 294] Albert J. Ahern, Jr., Bailey's Crossroads, for appellant.

H. Elizabeth Shaffer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: DUFF, KEENAN and MOON, JJ.

DUFF, Judge.

Linda Fay Cirios was convicted by a jury of first degree murder as an accessory before the fact in the killing of her estranged husband. On appeal, she raises four issues: (1) whether the trial judge erred when he refused to grant defendant's motion to strike the evidence; (2) whether the trial judge erred when he reversed his prior ruling and admitted into evidence alleged prejudicial hearsay declarations of David Stebar to his wife; (3) whether the trial judge further erred when he failed to grant limiting instruction T and substitute T as requested by the defendant; and (4) whether the trial judge erred when he refused various instructions tendered on behalf of the defendant. Based upon our review of the record, and the argument and authorities presented, we affirm Cirios' conviction.

When viewed in the light most favorable to the Commonwealth, the evidence revealed the following: Linda Cirios, appellant, filed for divorce from her husband, John Cirios, in April 1985. She then moved from the couple's residence in Bowie, Maryland to New Castle, Virginia, where she lived with James Ring, Sr. (defendant in a companion case) and his son, James Ring, Jr.

On December 9, 1985, while deer hunting, Jamie Phillips found the body of John Cirios at the intersection of Routes 659 and 642 in Loudoun County. The body was

Page 165

found approximately ten to twelve miles by road from where the decedent worked at Alban Tractor in Loudoun County. Cirios was dressed in his Alban Tractor uniform and an Alban Tractor manual was found near his body. He died from multiple gunshot wounds to the chest. The evidence indicated Cirios had been dead for not more than five [7 Va.App. 295] days.

John Cirios was last seen alive by three Alban Tractor employees who testified that they saw Cirios at the Alban Tractor plant between 4:00 and 6:00 p.m. on December 4, 1985. Terry Fenton, an employee, testified that he saw Cirios' truck in the parking lot at 2:30 a.m. on December 5, and again at 9:30 a.m. George McKinney, a manager at Alban, testified that he arrived at work at approximately 6 a.m. on December 5, 1985, and that Cirios' pickup truck was in the lot. McKinney found this unusual because Cirios, who was always punctual, did not arrive at work until 8-8:30 a.m. McKinney also noticed frost covering the windows of the truck. Shortly thereafter, McKinney received a phone call from the babysitter of Cirios' daughter. She said that Cirios had not picked up his child the previous evening. The babysitter was upset because Cirios always called if he was going to be late. Sometime between 7:30 and 8 a.m. that morning, McKinney reported Cirios missing.

The defendant first challenges the sufficiency of the evidence, alleging that the trial judge erred in refusing to grant her motion to strike the evidence. "Where the sufficiency of the evidence is challenged on appeal, that evidence must be construed in the light most favorable to the Commonwealth, giving it all reasonable inferences fairly deducible therefrom." Norman v. Commonwealth, 2 Va.App. 518, 520, 346 S.E.2d 44, 45 (1986) (citing Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)). "In so doing, we must '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.' " Id. 2 Va.App. at 520, 346 S.E.2d at 45 (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1738, 68 L.Ed.2d 224 (1981)).

Defendant alleges that none of the evidence connects her to the crime. However, "[c]ircumstantial evidence is as acceptable to prove guilt as direct evidence, and in some cases, such as proof of intent or knowledge, it is practically the only method of proof." Parks, 221 Va. at 498, 270 S.E.2d at 759 (citing Turner v. Commonwealth, 218 Va. 141, 145-46, 235 S.E.2d 357, 360 (1977)). The circumstantial evidence relevant to Linda Cirios' involvement in the crime was as follows:

[7 Va.App. 296] Linda Cheverton, a friend of the defendant and Ring, Sr., testified that the defendant told her: (1) that John Cirios was going to be shot during deer season on his way home from work; (2) that the killing was going to look like a hunting accident; (3) that the killing was necessary so she could get her daughter back and have the money from the decedent's insurance policies; (4) that it was her idea to kill Cirios; that on another occasion she stated she was going to kill him and yet on a different occasion that she was going to get another man to kill him; and (5) that after the killing, Cheverton could move into the decedent's house in Bowie until it was sold and only have to pay the utilities. Cheverton further testified that these conversations took place on several occasions.

Ralph Brown, Jr., who lived at the Ring household in late May or early June of 1985, testified about a conversation he had overheard between the defendant and Ring, Sr. The conversation consisted of Ring, Sr., telling the defendant that he could leave Virginia, kill John Cirios, come back and arrange it so that witnesses would say he had never left.

At trial, the personnel manager at Alban Tractor testified that at the time of Cirios' death, he had insurance policies with his employer having a face value of $260,000. The defendant was the primary beneficiary on all policies, with the exception that the daughter was the beneficiary on the contributory portion.

Page 166

John Cirios' former attorney testified that the defendant was very angry, loud, and abusive during a meeting in his office to discuss granting temporary custody of the couple's daughter to the husband. He also testified that on August 7, 1985, when temporary custody of the daughter was officially awarded to John Cirios, the defendant was heard screaming in the courtroom and had to be gaveled to order by the judge.

Ginger Harrison testified that she was at the Ring home on November 25, 1985, and that she overheard the defendant say to Ring, Jr.: "[J]immy, you know we don't need a lot of people around here because of the things that are going on."

Carol Mintz, a former neighbor in Maryland, testified that the defendant called her on the telephone a few weeks after she moved to New Castle. The defendant solicited Mintz' help in locating John Cirios and her daughter. During the conversation, the [7 Va.App. 297] defendant became very upset and told Mintz: "[T]ell that son of a bitch I am going to blow his f------ head off." Mintz testified that on December 3, 1985, John Cirios told her that he was going to meet with Linda Cirios the next day. On December 5, 1985, Linda Cirios told Mintz that she had never met Cirios because of car trouble. The defendant told Officer Jaskot of the Loudoun County Sheriff's Department that she called Cirios at Alban Tractor at approximately 4:30 p.m. and spoke with him until approximately 5:15 p.m.

Derick Rock testified that he lent Stebar (defendant in a companion case) a .22 caliber revolver. Stebar had told Rock that he "wanted a quieter gun, one which wouldn't make much noise." Stebar's former wife testified that on October 27, 1985, she and Stebar went target practicing on Potts Mountain, near New Castle, with the revolver he had borrowed from Rock.

Five .22 caliber bullets were removed from Cirios' body at the autopsy. Julian Mason, a forensic scientist in the field of firearms, testified that these bullets could have been fired from the revolver that Rock lent Stebar. He testified that they had the same general characteristics and that it is not unusual when dealing with .22 caliber firearms and bullets to be unable to positively determine whether a bullet was fired from a particular firearm. He explained that the bullets do not pick up good microscopic markings suitable for identification, and that when they do pick up these markings, they are very easily wiped off when the bullet comes in contact with some object.

Accounting for his whereabouts on December 4, 1985, Stebar told Deputy Gibson that he was with Ring, Sr. in Roanoke in the morning. He stated that they had gone to various places, including two bars, Bernie's and Snuggeries, and then went to the Pizza Hut in Salem between 5 and 6 p.m. Stebar said Ring, Sr. called home to New Castle from the Pizza Hut. Stebar stated that they both arrived at the Ring residence in New Castle at approximately 10 p.m. for about fifteen minutes when they left to "spotlight" deer. They returned after midnight.

Gail Jones, a friend of Ring, Jr. testified that she was at the Pizza...

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