Cobb v. Commonwealth, Record No. 1526-12-1

CitationRecord No. 1526-12-1
Case DateOctober 22, 2013
CourtCourt of Appeals of Virginia


Record No. 1526-12-1


OCTOBER 22, 2013


Present: Judges Alston, McCullough and Senior Judge Clements
Argued at Chesapeake, Virginia


Marjorie A. Taylor Arrington, Judge

Afshin Farashahi (Afshin Farashahi, P.C., on briefs), for appellant.

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

In a jury trial, Deon Christopher Cobb (appellant) was found guilty of murder, attempted robbery, conspiracy to commit robbery, and two counts of using a firearm in the commission of a felony. On appeal, appellant argues the trial court erred in admitting into evidence records of text messages sent to and received by a particular cellular telephone number. He contends the records were inadmissible hearsay and violated the best evidence rule. Appellant also contends the evidence was insufficient to support his convictions. We find no error and affirm the trial court's decision and appellant's convictions.

As the parties are fully conversant with the record in this case, and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.

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"'When the sufficiency of the evidence is challenged on appeal, we determine whether the evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the reasonable inferences fairly deducible from that evidence support each and every element of the charged offense.'" Slade v. Commonwealth, 43 Va. App. 61, 69, 596 S.E.2d 90, 94 (2004) (quoting Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779 (1999)).

At about 9:30 p.m. on September 14, 2010, Richard Emerle was in a room at the Budget Lodge Motel in Chesapeake with Conell Darden and another individual. After receiving a telephone call, Darden advised that he was expecting someone named "Cobb" to arrive at the door of the motel room. Emerle was seated beside the door. Emerle answered a knock at the door and admitted appellant, whom Emerle did not know. Appellant and Darden had a brief conversation. As appellant prepared to leave, Emerle got up to open the door for him. Appellant said, "That's okay. I got it." When appellant turned the door handle, thus unlocking the door, the door was pushed open from the outside. Two gunmen appeared.

One of the gunmen entered the room and demanded money. Initially, Darden said he did not have any money. When the gunman persisted in his demand, Darden pointed at a dresser drawer and said it was inside. As the gunman turned toward the dresser Darden tried to tackle him. The gun fired, striking Darden in the chest. The gunman and the other armed individual fled from the scene.

The police arrived at the motel room at 9:37 p.m. in response to 911 calls placed by Emerle and appellant. Darden was transported to the hospital for emergency medical treatment, but he died from the gunshot wound he had suffered to his chest.

When the police arrived, appellant was still in the vicinity of the motel room where Darden was shot. During his investigation at the scene, Detective James Thomas examined the cellular

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telephone that belonged to appellant. At 10:58 p.m. on September 14, 2010, appellant's phone received a text message stating, "[W]ipe that draw off 4 me." Presumably, the "draw" referred to in the message was the dresser drawer where Darden indicated the cash was stored. The message was sent from a device assigned the number 419-0926. As Exhibit 23, the Commonwealth introduced a photograph of appellant's telephone displaying that message.

Video taken by a surveillance camera at the motel showed appellant interacting with two men outside the room where the shooting occurred. When appellant reached the door of the room, he raised his arm. Then, he knocked on the door and was admitted inside.

When initially questioned by the police, appellant said that Tony Tucker had dropped him off at the motel alone and that he was surprised when the gunmen appeared at the door of the motel room.1 However, after being confronted by the surveillance video and the presence of the text message about the "draw" on his phone, appellant admitted that Anthony Saunders was the shooter. Appellant claimed that he had not been in contact with Saunders recently.

The device assigned the number 419-0926 was a cellular telephone registered to Saunders' thirteen-year-old son. Saunders often used that phone to communicate by text message with his girlfriend, Shannon Walker, and others.

Records of Verizon Wireless telephone company, the service provider for 419-0926, demonstrated that on September 13, 2010, there were eight calls between appellant's phone and 419-0926. There were thirteen calls between the two phone numbers on September 14, 2010, and one call on September 15, 2010.

The Commonwealth also introduced, as Exhibit 21, text messaging detail records of Verizon Wireless relating to 419-0926. Monica Harper, the records custodian for Verizon Wireless, testified regarding text messages sent from 419-0926 on September 14 through September 15, 2010.

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Messages conveyed that the user of 419-0926 was planning to obtain some money and was trying to recruit someone to do a "sting" with him. There were messages from the evening before the shooting that the user of 419-0926 was at "deon's" home. After the shooting of Darden occurred, the user of 419-0926 sent text messages to Walker expressing desperation and affection, and also that he was about to throw away his phone and go into hiding. On the day after the shooting, the user of 419-0926 sent text messages to Walker stating that no one could identify him and that "nobody knew me but Deon." He further instructed someone to call "Deon's phone" to see who answered. The user of 419-0926 later indicated in a text message that the police had "Deon's" phone and that "Deon" might have talked to the police.

Saunders was not arrested until about six months after Darden's killing. Detective Thomas testified at a pretrial motions hearing that the police did not recover Saunders' telephone. In a separate trial, Saunders was convicted of the murder of Darden, attempted robbery, conspiracy, and two counts of using a firearm in the commission of a felony.


Appellant filed a pretrial motion in limine to exclude evidence of cell phone text messages received by or recorded on his telephone, as well as any documentary evidence relating to such text messages. In his motion, appellant contended the evidence was inadmissible hearsay and was barred by the best evidence rule. At a hearing upon his motion, conducted on August 16, 2011, Detective Thomas testified regarding the contents of two text messages he retrieved from appellant's phone and photographed, one of which was the message regarding the "draw." Initially, appellant argued that "the two text messages that Detective Thomas testified about are the specific items of evidence that we're asking the Court to exclude." He argued the messages were hearsay and did not fall within the exception to the hearsay rule regarding statements made by co-conspirators. The Commonwealth countered that the text messages were admissible under either

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the co-conspirator or declaration against penal interest exception to the hearsay rule. The prosecutor then said she was unsure of whether, at trial, she would try to introduce appellant's telephone displaying the messages or the photographs of the messages displayed on the telephone. Defense counsel then refocused her argument, stating, "I don't have any problem with the pictures being used in lieu of the cell phone. It was only the other records independently obtained from the phone company that we would have objected to." The trial court asked, "So you're not objecting to the photographs?" Defense counsel said she was not. At a subsequent hearing, the trial court overruled the motion in limine, citing the declaration against penal interest exception to the hearsay rule.

At trial, the Commonwealth sought to introduce Exhibit 21, the Verizon Wireless records of text messages made and received by 419-0926 on September 14 and 15, 2010. Harper testified that Exhibit 21 was an accurate copy of the company's records reflecting those messages. Appellant objected to Exhibit 21, stating that the issue addressed at the pretrial hearing was the admissibility of the "two specific text messages," and "not the remainder of the text messages that the Commonwealth is intending here to offer again today." Appellant argued the Commonwealth had not laid an adequate foundation through Harper for admission of the documents as business records. He further contended the records were not admissible under either the co-conspirator statement or declaration against penal interest exception to the hearsay rule and that the best evidence rule barred admission of the records. The trial court agreed that the Commonwealth had not established an adequate foundation through Harper, but that that could be remedied since Harper was still available as a...

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