Com. v. Hudson, Record No. 021891.

• Docket Nº: Record No. 021891.
• Citation: 265 Va. 505, 578 S.E.2d 781
• Case Date: April 17, 2003
• Court: Supreme Court of Virginia

578 S.E.2d 781
265 Va. 505

COMMONWEALTH of Virginia
v.
Louis Scott HUDSON

Record No. 021891.

Supreme Court of Virginia.

April 17, 2003.

578 S.E.2d 782

Virginia B. Theisen, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellant

Timothy S. Coyne (Fowler, Griffin, Coyne & Patton, on brief), Winchester, for appellee.

Present HASSELL, C.J., LACY, KEENAN, KOONTZ, KINSER, and LEMONS, JJ., and COMPTON, S.J.

OPINION BY Justice DONALD W. LEMONS.

A jury found Louis Scott Hudson ("Hudson") guilty of the second-degree murder of his wife, Mary Donovan Hudson, known as "Mimi," and use of a firearm in the commission of the murder. In an unpublished opinion, the Court of Appeals reversed the judgment and dismissed the indictments. Hudson v. Commonwealth, No. 0917-01-4,2002 WL 1554484, 2002 Va.App. LEXIS 389 (Va.Ct.App. July 16, 2002). For the reasons stated, we will reverse the judgment of the Court of Appeals and reinstate the trial court's judgment.

I. Facts and Proceedings Below

Hudson was indicted for first-degree murder of his wife and for using a firearm in the commission of murder. At trial, the court denied Hudson's motion to strike the evidence but permitted the case to proceed on charges of second-degree murder and use of a firearm in the commission of murder. The jury returned verdicts of guilty to both charges submitted. The trial court imposed the sentence set by the jury of seventeen years for murder and three years for use of a firearm and suspended five years of the sentence for murder.

Hudson and Mimi had been living together for about six to eight years prior to marrying in July 1999, three months before her death. There was no evidence of abuse between the two. In fact, evidence was presented that they had a good relationship.

Mimi had been declared incompetent in 1972 and was estimated to have the mental age of a twelve-year old. Mimi took prescription medicine and pain killers for chronic back pain, and at the time of her death, she had an infection in her right elbow. The infection in her elbow caused Mimi a "great deal of pain," and she was having "difficulty bending it and lifting, or holding anything." Just a few weeks prior to her death, Mimi had "overdosed" on Darvocet, a mild prescription pain-killer. Mimi's physician testified that she did not understand how to properly take the medicine, would not wait for it to work, and took excessive amounts. Evidence was presented that Darvocet can intensify the effects of alcohol.

Neither Mimi nor Hudson worked during the time they lived together. Mimi's allowance from her family trust fund supported the couple financially. Upon her death, none of the proceeds of the trust benefited Hudson.

Mimi loved horses and spent much of her time riding, and on the morning of September 20, 1999, she went on a fox hunt. After the hunt, she attended her father's memorial service. Her father had been sick for about 18 months, battling Parkinson's disease and

578 S.E.2d 783

colon cancer and had died several days previously. Evidence was presented that Mimi was unhappy with the property distribution from her father's estate; however, there was evidence that Mimi was in good spirits after the fox hunt, had bought a new dress for the memorial service, and was excited about the family heirloom ring she had received from her father's estate

During the luncheon following the memorial service, Mimi and Hudson consumed alcohol. When they returned home, they continued to drink. At the time of Mimi's death, her blood alcohol content was between .22 and .24, and Darvocet was present in her system.

David G. Donovan, the victim's twin brother, testified that Mimi did not like guns and did not like to handle them, but Hudson kept guns in the house. Evidence, however, was presented that on one occasion prior to the date of her death Mimi had fired a .22 revolver. Neighbors testified that on the night of September 20, between 5:00 p.m. and 6:00 p.m., they heard two or three high-powered rifle shots from the direction of Hudson's residence.

Wesley A. Thompson ("Thompson"), a friend of Mimi's, testified that about 7:45 p.m. on the night of September 20, Mimi called him to talk about her father's death. During the call, Hudson interrupted the conversation with obscenities and asked Thompson why he was talking to Mimi. Thompson then hung up the telephone.

Anne H. Hudson, Hudson's mother, testified that Hudson called her at approximately 7:30 p.m. and said that Mimi had shot and killed herself. Obviously, the timing of the telephone calls is in dispute because Mimi could not have been dead at 7:30 and alive and speaking with Thompson on the telephone at 7:45. Hudson's parents estimated that they arrived at Hudson and Mimi's house about five minutes after Hudson's call and saw Mimi's body, but that Hudson was not there. Hudson's father then returned to his house and called the police at 7:52 p.m.

The police arrived at Hudson and Mimi's house at 7:57 p.m. They observed Mimi's body on the living room couch, with a .22 caliber revolver lying across her right palm in a manner described by an officer as looking "like it was backwards." There were bloody handprints on the back cushion of the couch, on Mimi's jeans, and on her forearm. The officers did not see any blood on Mimi's hands. Outside of the house, the garden hose was turned on "full blast" despite the fact that it was raining heavily that night.

Around 9:00 p.m. that night, Hudson's brother, Steven Hudson ("Steven"), saw Hudson sitting in his car in their parents' driveway. Steven took Hudson inside to "sober up," while Hudson's father called the police. Hudson's father saw no blood on Hudson when he came in the house. At 9:17 p.m., the police arrived at Hudson's parents' house. When they entered the house, Hudson was sitting on the couch with a cup of coffee in his hand, and he appeared extremely intoxicated. Hudson's father told the police that he wanted Hudson out of his house. The police arrested Hudson for being drunk in public and took him into custody. At the time of his arrest, Hudson's blood alcohol content was .215. Although he did not tell the police when they arrived at his house, Hudson's father had removed a .270 caliber rifle from Hudson's car and taken it into the house prior to the arrival of police.

After being transported to the jail, Hudson was searched, and a .22 caliber bullet was found in his coat pocket. At 6:30 a.m. on September 21, Hudson was advised of his Miranda rights, and he gave a statement. According to Hudson, Mimi was unhappy after her father's memorial service because she felt that she deserved more money and property from her father's estate. He stated that while they were in the house, Mimi picked up the .22 caliber revolver that Hudson kept either on the couch or in a drawer adjacent to the couch, and started playing with it. Hudson told her, "[p]lease don't do that[,]" and said that "[e]verything will be okay." He said that while he was in the bathroom he heard a shot. He stated that when he returned, he saw Mimi slumping over on the couch. He said he never went near the body. He did not remember calling anyone after the shooting, including his mother, and he did not know why he did not

578 S.E.2d 784

call the 911 emergency number. He said that he left his house after the shooting, but cannot account for his whereabouts or actions from the time of Mimi's shooting until 9:00 p.m., when he arrived at his parents' house. Regarding the .22 caliber bullet found in his coat pocket, Hudson said he must have picked it up when he picked up loose change from his dresser

On November 18, 1999, the Virginia State Police interviewed Hudson with his attorney present. Hudson made reference to a trust established for Mimi's benefit. He again stated that he and Mimi had been drinking at home after the memorial service and that Mimi was upset because her brother, as trustee of the trust, would not allow her to purchase a pick-up truck and a trailer. He stated that Mimi then began playing with the.22 caliber revolver. After Hudson went into the bathroom, Mimi announced that she was going to shoot herself. Hudson replied not to worry about it, referring to the trust. He then heard a shot, and when he came out he saw that Mimi had shot herself. Hudson said he saw a little bit of blood around one of Mimi's eyes. During the interview, Hudson said he never went near the body, but later he said he did not recall going near the body or touching it. He denied handling any firearms that night; he stated that his most recent handling of a firearm was two days prior to Mimi's death. Again, he could not account for his whereabouts between the time of the shooting and the time he arrived at his parents' house. Hudson did not remember any telephone calls being made or received that night, either by Mimi or him, including the telephone call to Thompson.

During trial, the medical examiner, Dr. Carolyn Revercomb ("Revercomb"), who conducted the autopsy on Mimi, testified that Mimi had a contact range wound to her head through her left ear. The bullet traveled from the left ear up towards the right and towards the back of her head....