Fultz v. Commonwealth

• Decision Date: 23 May 2023
• Docket Number: 0189-22-3
• Parties: JAMES EDWARD FULTZ, IV v. COMMONWEALTH OF VIRGINIA
• Court: Virginia Court of Appeals

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JAMES EDWARD FULTZ, IV v. COMMONWEALTH OF VIRGINIA

No. 0189-22-3

Court of Appeals of Virginia

May 23, 2023

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James J. Reynolds Judge

Samantha Offutt Thames, Senior Appellate Counsel (Virginia Indigent Defense Commission, on briefs), for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Humphreys, O'Brien and Chaney Argued at Lexington, Virginia

MEMORANDUM OPINION ^[*]

ROBERT J. HUMPHREYS JUDGE

After a jury trial in the City of Danville Circuit Court, James Edward Fultz, IV, appeals his convictions of first-degree murder and robbery. Fultz argues that the circuit court erred in three ways: (1) in not dismissing a juror for cause, (2) in finding the evidence sufficient to establish premeditation as required for the first-degree murder charge, and (3) in finding the evidence sufficient to establish the temporal correlation between the violence or intimidation and the intent to steal to support the robbery conviction.

BACKGROUND

I. Voir Dire of the Jury

Fultz elected to be tried by a jury. During voir dire of the jury pool, defense counsel asked if anyone worked in law enforcement. Prospective juror number 10 ("Juror 10") answered that he works at the juvenile detention home. Defense counsel and Juror 10 acknowledged that they recognized each other from encounters at the juvenile detention home. Defense counsel asked, "Do you think that that would affect your ability to be fair and impartial here today?" Juror 10 replied, "Not really, I don't think so." Defense counsel continued, "You kind of waved your head there. Are you uncertain?" Juror 10 answered, "I'm uncertain but it shouldn't, no." Juror 10 was sent back to the jury room.

As voir dire continued, defense counsel made a motion to strike Juror 10 for cause. The court asked Juror 10 to return for more questioning. Defense counsel asked Juror 10 about the length of his employment at the juvenile detention home, and Juror 10 replied that he had worked there for twenty-five years. Defense counsel continued,

And in that role, in that job, I think I asked you earlier, would that possibly affect your ability to make a fair and impartial decision here today, and you kind of shrugged or shook your head, and then I asked you, I followed up and you said you were uncertain, so I'll repeat the question, given that you've worked at the detention facility for some time and, and that's been your career, and you've had exposure to a lot of different circumstances there, do you believe that that may affect your ability to be fair and impartial in this jury today?

Juror 10 responded, "I'm still uncertain right now. I don't, you know, I don't want to say yes or no for sure." Asked why he feels uncertain, Juror 10 replied that he has encountered both the prosecutor and defense counsel through his employment.

The circuit court then stated that Juror 10 deals with pretrial and posttrial incarcerated juveniles. The court asked, "tell me how, as you understand the process of being a juror, tell me what you think your role is here in terms of evaluating the, the evidence." Juror 10 replied, "To seek the truth, basically. Seek the truth." Then the court asked Juror 10 how his experience in the criminal justice system would affect him in sitting as a juror. Juror 10 responded, "From my experience, you know, in dealing with juveniles, those cases and everything, I might tend to be a little more judgmental on, on that part far as you know, whether the kid's guilty or innocent, and it might affect the, the case here. I'm not sure."

The prosecutor followed up, "When you say you may be more judgmental, I'm not quite sure . . . what you mean by that." The record indicates there was no audible response. The prosecutor said,

Let me ask you this, this way, can you set aside, I mean, whatever contact you may have had with juveniles, set aside their story, set aside their case, and set aside whatever you may know in reference to the system and just base your verdict on the evidence and the law you hear today?

To which Juror 10 responded, "I could, yes." Juror 10 was then excused to the jury room.

Defense counsel argued that Juror 10 should be struck for cause because "he said that he would be judgmental." "I think that shows that he may have some prejudice towards my client's case from the outset, and he's been candid about that." The circuit court stated, "being judgmental doesn't mean he's inclined to be judgmental in favor of the Commonwealth." Defense counsel replied, "[T]he way I took what he expressed was to mean that he would be judgmental in favor of the Commonwealth . . . ."

The circuit court pointed out that Juror 10's responses to the Commonwealth's leading questions don't necessarily "make the grade" in rehabilitating the juror. However, the court denied defense counsel's motion to strike, stating,

[N]ot being sure about being able to set aside, I don't think is grounds to be struck for cause. If you say I can't be fair, that's grounds for cause. . . . I think [Juror 10] is, is being candid. I don't think that he has expressed anything that the Court views as bias either towards or against either side and based on how I view his demeanor . . . and in response to the questions I asked him I believe he can be fair and . . . I don't believe there's a basis to strike him for cause . . . .

Defense counsel used a peremptory strike to exclude Juror 10 from the jury pool.

II. Evidence at Trial

On Sunday, January 10, 2021, late in the afternoon, Fultz visited Rhonda Graham at her home, located at 503 Gay Street in Danville, Virginia.^[1] Elbert McCain showed up while Fultz was there. Graham and McCain walked to a store to buy beer. Fultz was still at the house when Graham and McCain returned about thirty minutes later. Then, Delando Rodgers also arrived at Graham's house. According to Fultz, these associates wanted him to find some drugs from local dealers he knew. Rodgers found a phone number for a taxicab company, and Fultz called for a cab. Soon thereafter, Graham heard a horn honk, looked out the window, and saw a cab. She told Fultz his cab had arrived. Prior to leaving Graham's house, Fultz asked Graham if she had a pair of sweatpants he could put on. He left the house by himself, wearing a beige jacket and sweatpants pulled over his blue jeans. Graham testified that Fultz did not return to the house that evening.

James Calloway was working as a dispatcher for Yellow Cab taxicab company on the evening of January 10. That evening Calloway answered a call to the Yellow Cab phone number, and the caller requested a pickup at 503 Gay Street. Calloway called cab driver Wendy Harris on her cell phone and dispatched her to 503 Gay Street.

About thirty minutes to one hour after dispatching Wendy, Calloway answered a call coming from Wendy's phone. Over the phone, Calloway heard a male voice talking to Wendy- it was the same male voice he spoke with earlier in the evening, requesting a cab at 503 Gay Street. Calloway heard the man say he wasn't "trying to do nothing crazy . . . or trying to hurt no one." The man also said he was waiting for people to "bring the money out the house." Calloway heard Wendy respond, "Why did you try to take my keys then . . . ?" The man said, "So you won't go nowhere." The phone call ended.

Calloway tried to call Wendy back several times. About five minutes later, his call was answered. No one was talking to Calloway, but he could hear Wendy and the same male voice talking. He heard Wendy say, "don't be hanging up my phone," and the man said, "she tripping, she tripping." Calloway called Wendy's name over the phone, but Wendy did not speak to him. The phone call ended. Calloway tried to call back, but no one answered. Calloway left his home in a cab to find out what was going on. About ten minutes after his last call to Wendy ended, Calloway spotted Wendy's cab at the intersection of Gay Street and Valley Street.^[2] Calloway pulled up beside Wendy's cab and noticed her head was leaning against the glass of the driver's side door. Calloway drove a short distance away and called 911.

At 8:56 p.m. Officer J.C. Thornton of the Danville Police Department received a dispatch to 503 Gay Street. When he arrived, he found the Yellow Cab van and he could see that the driver of the van was slumped over in the seat and had multiple injuries. He opened the driver's door and checked the victim for a pulse; she had no pulse.

Officer G.B. Mayhew also arrived on the scene and spoke with Calloway who was waiting nearby in his car for the police to arrive. Sergeant S.C. Bray then approached 503 Gay Street and spoke with Graham, McCain, and Rodgers. A K-9 unit arrived on the scene. The dog tracked from the van to the porch of 503 Gay Street two times but did not alert on the front door, which would be expected to follow a scent of someone who entered through the door.

Around midnight, police contacted Shelby Holbert, Fultz's girlfriend. Police met Holbert at a business parking lot in Danville. An officer placed his cell phone in Holbert's vehicle, and several officers followed Holbert in a vehicle as she drove to meet Fultz. Holbert picked up Fultz, and the officers listened to Holbert and Fultz's conversation using another cell phone in their vehicle. An officer recorded the conversation with a body camera. Over the cell phone, the officers heard Fultz say, two to three times, "I killed someone tonight." Holbert drove a little farther and then pulled her car over to the side of the road. The interior lights came on; Fultz exited the passenger side of the vehicle and ran. Several officers chased Fultz on foot...