Ferguson v. Com., 0736-87-4

• Decision Date: 10 April 1990
• Docket Number: No. 0736-87-4,0736-87-4
• Parties: Leon Pat FERGUSON v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 782

390 S.E.2d 782

10 Va.App. 189

Leon Pat FERGUSON v. COMMONWEALTH of Virginia.

Record No. 0736-87-4.

Court of Appeals of Virginia.

April 10, 1990.

R. Ramsey Maupin, Arlington, for appellant.

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

Present: KOONTZ, C.J., and BENTON and DUFF, JJ.

DUFF, Judge.

Leon Pat Ferguson appeals his convictions of (1) three counts of robbery; (2) two counts of abduction; (3) seven counts of use of a firearm in the commission of a felony; (4) one count of entering a bank while armed with the intent to commit larceny; and (5) one count of capital murder committed while armed with a deadly weapon. The jury fixed his punishment at life imprisonment on the capital murder charge and various terms in the penitentiary on each of the other convictions. After receipt of a pre-sentence report, Ferguson was sentenced in accordance with the verdicts. This appeal is from that judgment.

The sole issue presented on brief and in argument is whether the trial court committed reversible error in admitting the testimony of one Adrian Johns that Ernest Russell, an alleged accomplice, told her that "they had to kill somebody because the man was in their way." At the outset, however, we are faced with a motion to dismiss the appeal because transcripts of the proceedings of March 18, March 19, and May 8, 1987, were not timely filed and, thus, are not part of the record. Finding that we are unable to review the entire record and that such a review is necessary to address adequately all issues raised by the merits, we grant the motion to dismiss. A brief review of the facts and the procedural background relating to the transcripts will serve to illustrate the basis of our holding.

On November 22, 1985, the Shirlington branch of the First Virginia Bank was robbed by two black males. Shirley Rose, one of three bank tellers working that day, saw one of these individuals walk past the front of the bank three times. Becoming suspicious, she activated the bank's cameras when she saw the two men enter. She testified that the shorter man, later identified as Ernest Russell, Jr., walked toward her and the other tellers, ordered them to move away from their counters and lie face down on the floor. Russell then took money and coins from the teller stations, at one point demanding, "Where is the money, bitch, or else we are going to kill somebody?"

Shirley Rose, a customer named Leo Fayette, and a passerby, Ed Walker, all identified the other man as Leon Pat Ferguson. He approached the assistant manager, Orzillo Pulliam and a customer, General Maurice Saylor, who were seated at Pulliam's desk. Ferguson put a gun to Pulliam's head, dragged both Saylor and Pulliam across the floor and handcuffed them to a nearby file cabinet. Pulliam described the gun as a chrome pistol; Saylor described it as a gray-bluish metal revolver having a dull chrome color.

Ferguson proceeded to the entrance of the bank to keep a lookout. About that time Leo Fayette, a former police officer and firefighter, entered the bank and was confronted by appellant, with a gun, who pushed him over against the wall near the entrance. Ferguson had something sheer, like black nylon, over his face. When he grabbed Fayette's arm, Fayette looked directly into his face for two or three seconds. ¹ Moments later a woman walked into the bank and received the same treatment.

When Robert Jennings, an elderly man, entered the bank and saw that a robbery was in progress, he attempted to dissuade Ferguson, saying, "Why are you guys doing this? You don't have to be doing this. I have done nothing to you. Leave me alone." A struggle then ensued between Jennings and Ferguson, the latter shooting Jennings once in the neck and once in the body. Both were fatal wounds.

Outside the bank Ed Walker was looking through a window and concluded that a robbery was in progress. He returned to his truck which was parked nearby. He saw Ferguson, carrying a gun, and a shorter man, carrying a white bag in his hand, leave the bank and walk to a Lincoln Continental Mark IV automobile which was parked some distance away. Walker then fled the scene and called the police.

Adrian Johns was called as a Commonwealth's witness. She and Ernest Russell lived at 433 Quincy Street in Arlington, Virginia. Russell had previously told her that "he robbed banks for his hustle." The morning of the robbery Russell had left for work wearing a "Guess" jacket she had lent him. Russell returned home around noon, and Adrian heard him putting money and change in a jar. Over objection Johns was permitted to testify that Russell had told her "they had to kill somebody because the man was in their way." Johns further testified that she noticed that Russell's car, a Lincoln Continental, was not in the front of the house but was parked in the rear.

The record further contains evidence that Rhonda Carroll, Russell's cousin, also lived at 433 Quincy Street, and was at home when Russell returned the day of the robbery. Russell was not alone; Leon Ferguson was with him and was wearing a sports jacket.

Russell later asked Adrian Johns not to wear the jacket she had lent him the day of the robbery because their next door neighbor was a retired police officer. Approximately one week after the robbery Russell also told Adrian to "get rid" of the Mark IV car, which she did.

A search warrant was executed on Russell's home on March 31, 1986. A revolver and bullets were seized from his bedroom. At trial, Leo Fayette identified the gun as the same type pointed at him during the robbery. Also seized were two pairs of light colored surgical rubber gloves and a portion of a lady's stocking, identified by Fayette as similar to the one he saw on Ferguson's face during the robbery. Expert testimony showed there were no inconsistencies between the bullets taken from Jennings' body and those test fired from the gun seized in the search of Russell's bedroom.

A fingerprint taken from the handcuffs Ferguson had used to confine Mr. Pulliam and General Saylor during the robbery was identified by two fingerprint experts as having come from Ferguson's left ring finger.

Finally, in July 1986, in a conversation with Detective Stephen Carter, Ferguson asked him, "Why did it take you eight months to find me?"

The case was tried before a jury on March 16, 17, 18, and 19, 1987, with verdicts of guilty being returned on the latter date. A pre-sentence report was ordered and on May 8, 1987, the court imposed the sentences recommended by the jury. The written order exemplifying the sentencing proceedings of May 8, prepared by the clerk, was entered by the trial court on June 2, 1987. That order contained, inter alia, the following provision:

... and it is further ordered that upon the timely filing of the transcript of the trial herein, the same shall become a part of the record pursuant to Rule 5:9(a) of the Rules of the Supreme Court of Virginia....

On June 11, 1987, Ferguson filed a "Notice of Appeal" in the circuit court and certified that a copy had been mailed that date to opposing counsel and to the Clerk of the Court of Appeals in Richmond. The Notice of Appeal, pursuant to Rule 5A:6(b), contained the following statement by Ferguson:

A transcript of the hearing held on December 3, 1986, February 4, 1987, and March 16, 17, 18, and 19, 1987 and other incidents of the trial shall be filed and made a part of the record.

Rule 5A:8, provides that "the transcript of any proceeding is a part of the record when it is filed in the office of the clerk of the trial court within 60 days after entry of a judgment. The judge of the trial court may extend this time for good cause shown." The trial transcripts for March 18, March 19, and May 8, 1987, were filed with the clerk of the trial court on August 4, 1987, more than sixty days after entry of the final order on June 2, 1987. No extension of time was applied for or granted. The transcripts of March 16 and March 17 were timely filed.

On August 15, 1988, appellant's counsel wrote to the Clerk of this Court asking that the letter be accepted "as Appellant's written statement as the Appendix pursuant to Rule 5A:25." As to witness testimony, only that of Adrian Johns (transcript pages 416 through 443) and Rhonda Carroll (transcript pages 448 through 454) was designated. The Attorney General responded by filing the Commonwealth's "Designation of the Contents of the Appendix" on August 18, 1988. After listing the testimony of Detective Carter, Julian J. Mason, W.F. Cloyed and Deborah Davis by asterisks, the designation concluded, "By designating the asterisked portions of the March 18, 1987 transcript, the Commonwealth does not concede that this transcript was timely filed. See Motion to Dismiss, filed this day." The March 18, 1987 volume of the transcript contained the testimony of Detective Carter, who executed the search warrant, the testimony of all of the Commonwealth's forensic experts, and the testimony in chief of all defense witnesses.

Assuming, but not deciding, that the statement attributed to Adrian Johns was inadmissible hearsay, the Attorney General contends that its admission was harmless error. A harmless error analysis, as mandated by United States v. Hasting, 461 U.S. 499, 510, 103 S.Ct. 1974, 1981, 76 L.Ed.2d 96 (1983), requires us to review the entire record which is not before us. We must decide, therefore, whether, under the circumstances of this case, the appellant was required to furnish a complete record of the proceedings. The Commonwealth contends it was the appellant's responsibility and that the trial testimony of Detective Carter, Julian J. Mason, Willard Cloyed and Deborah Davis, all contained in the transcript of March 18, 1987, is necessary to make a meaningful harmless error analysis. Ferguson argues that the only error he assigned was the hearsay testimony of Adrian Johns, which is contained...