Epperly v. Com.

Decision Date09 September 1982
Docket NumberNo. 810626,810626
PartiesStephen Matteson EPPERLY v. COMMONWEALTH of Virginia. Record
CourtVirginia Supreme Court

Max Jenkins, Radford, R. Keith Neely, Christiansburg, for appellant.

James E. Kulp, Senior Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.

RUSSELL, Justice.

The defendant, Stephen Epperly, was tried by a jury, convicted of the first degree murder of Gina Hall, and sentenced to life imprisonment. The victim's body was never found. The evidence was entirely circumstantial, both as to proof of the corpus delicti and as to the element of premeditation. The defendant's appeal raises questions concerning the sufficiency of the evidence to prove these elements, the admission of evidence concerning the victim's good character, the admission of evidence of experiments conducted with a tracking dog, and certain additional assignments of error. We affirm the conviction.

The facts are undisputed. After the court denied his motion to strike the Commonwealth's evidence, the defendant presented no evidence and rested. We review the evidence in the light most favorable to the Commonwealth.

THE FACTS

Gina Hall disappeared the night of June 28, 1980. She was last seen leaving the Marriott Hotel in Blacksburg with the defendant. She was last heard from that same night when she called her sister and said she was at a lake house with the defendant.

In June 1980, Gina Hall, eighteen, was a freshman at Radford University. She lived in Radford with her older sister, Dlana, a graduate student, while both took summer courses. A number of witnesses testified to Gina's excellent reputation. She was described as "very beautiful," well dressed, pleasant, soft-spoken, and popular with her peers as well as with older people. She had close family ties. She particularly loved and respected her father, who said she was "a very, very good child." Gina was athletic and loved dancing. She was a church-goer, used alcohol very sparingly, and did Nevertheless, Gina was modest and self-conscious in her dress and in her physical relationships. This modesty was the result of an accident she had in early childhood. When Gina was two years old her pajamas caught fire from a gas stove and she was badly burned. She had many skin grafts at the University of Virginia Hospital and had permanent scars on her right side, abdomen, upper right arm, and right thigh. Gina dressed modestly because she was self-conscious about her scars. She covered herself with towels at the beach until she actually entered the surf. Dlana testified with reference to these scars, "She could not have handled the emotional stress of having a [physical] relationship with somebody and she never put herself in that situation." When Gina was ten, she had to return to the hospital for additional abdominal skin grafts because of the grafted skin's inability to stretch as she grew. She told her stepmother and sister that she was afraid that if she ever became pregnant her skin would be unable to stretch any further. Dlana testified that most of Gina's dates were "just friends," usually boys with whom she played tennis. She never "dated any slouch."

not use drugs or tobacco. She had no serious psychological or physical problems and had never been away from home without permission. She was described as "a very happy person--never depressed."

Gina was about five feet tall and weighed about 107 pounds. When she drove Dlana's car she had to move the seat so far forward that Dlana, who was four inches taller, could not get behind the wheel unless it was moved back again. The defendant is about six feet tall.

Both girls had been taking summer mid-term exams during the week of June 22-28, 1980. Gina finished her last exam on Saturday, June 28. She was in a "great mood" and wanted to go dancing at the Marriott in Blacksburg. Dlana was too tired to go, but lent Gina her brown Chevrolet for the evening. Gina left about 10:00 p.m., wearing a white jacket and white high-waisted long trousers over a purple body suit with matching shoes. She wore an ankle bracelet of gold interlocked hearts. This was the only time that Dlana recalled in which Gina went out socially by herself. Dlana did not know whether Gina expected to meet anyone she knew at the Marriott. Dlana never saw her again.

Dlana had been asleep for some time when she was awakened by a call from Gina whose voice sounded "very uneasy [or] out of character--very nervous." The court excluded the content of this conversation on the ground of hearsay, although the jury later learned the defendant's version of it through the defendant's statement to the police, which was admitted. The conversation lasted about two minutes. Dlana estimated the time at about 1:00 a.m. Gina has not been heard from since.

Bill King, twenty-seven, was a very close friend of the defendant, having known him since both were small children. King and the defendant planned to go to the Blacksburg Marriott for a "night out" on Saturday, June 28. King picked the defendant up in King's car about 10:00 p.m. They drove first to the home of King's mother and stepfather, Mr. and Mrs. Ronald Davis, on Claytor Lake, to see that it was secure. The Davises were away on vacation and had asked King to check the house occasionally since some vandalism had been occurring in the area. Finding the house in good order, King and the defendant drove to Blacksburg. They arrived at the Marriott about 11:00 p.m. and joined three friends, one of whom knew Gina.

Gina arrived at the Marriott at the same time. Although neither King nor the defendant knew her, the defendant danced with her four or five times. Later he asked King if he could borrow his car and the key to the house on the lake. King told him he was welcome to use the house, but that he couldn't let him have the car. The defendant asked Gina if they could take her car and she agreed. King testified, "She seemed to be confused as to what car was going and exactly who was going. I think when she came out she thought maybe I ...." Gina and the defendant left in the Chevrolet.

Later that night Robin Robinson and Bill King decided to go to the lake house for a swim. When they arrived at the house at 4:00 a.m., they observed that the brown Chevrolet was parked in the driveway, and that there were no lights on in the house. Wishing to be discreet, King entered the house from the upper level, slammed the doors, and turned on the kitchen light. The defendant was in the den on a lower level. He called up the stairs, "Bill, is that you?" King did not see him, but called back, "I've got somebody with me and we're going down to the dock and go swimming." The defendant replied, "Well, we've got to leave." King said, "Well, that's o.k., you don't have to leave. Hang around .... We're just going swimming." The defendant said, "[S]he's got to be getting back." Robin looked down the stairs and saw the defendant, in trousers but shirtless, wiping his shoulders with a towel. Neither she nor King heard or saw any sign of Gina.

King and Robin went to the dock, where King remained while Robin went swimming for 15 or 20 minutes. While they were there, the defendant came out to the glass doors facing the lake, flashed the outside lights momentarily and called, "Bill, I'll see you later; we're leaving." There were no lights on indoors and neither King nor Robin heard or saw anyone else. They did not hear the car start and it was out of their view.

About five minutes later, King and Robin re-entered the house through the glass doors. Just inside, King, who was barefooted, stepped in a wet spot in the carpet. King pulled some cushions onto the floor, which he and Robin lay upon. Again, he noticed that his "foot was in something wet." He mentioned it to Robin; he thought it was water, and assumed that the defendant and Gina had been swimming and might have left wet clothing or towels there.

King drove Robin home about 10:00 a.m., Sunday, June 29. He picked up his four-year-old son, who had been visiting his grandmother, and returned to the Davis house on the lake about noon to take the child swimming. Shortly thereafter, the defendant arrived, alone, in his own car, followed by two other friends. King took the boy swimming while the others pitched horseshoes. The defendant was always welcome to use the house and was fully familiar with it. Nevertheless, he came down to the dock to ask King if he might go inside to get a drink. King told him to help himself. He thought the defendant remained inside an unusually long time and when he reappeared asked him, "Did you fall in a hole or something up there?" The defendant answered, "Well, I couldn't find an opener."

Some time before 7:00 a.m. on Sunday, June 29, a Pulaski County Deputy Sheriff, William Patton, observed the brown Chevrolet parked along the side of the Hazel Hollow Road, near a point where a railroad trestle crosses the New River into the City of Radford. The trunk was open. He was not concerned at the time since fishermen frequently park there, near the riverbank. He returned after midnight, in the early morning hours of June 30. The car was still there. Its trunk was still open and the driver's window was down. He checked the registration by radio. He was told it belonged to a party named Hall in Coeburn, Virginia, and was not reported stolen. He took no further action.

When Gina failed to appear by Sunday evening, Dlana called two friends, Robert Lent and Craig Runyan, who went in search of the car. They found it early Monday afternoon where Deputy Patton had seen it, near the trestle on Hazel Hollow Road. Runyan stayed with the car while Lent went into Radford to summon the police. Runyan noticed that there were empty plastic glasses, matches, and other trash in the car and that the door pull was ripped off on the...

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