Gail v. Commonwealth
| Decision Date | 11 October 2022 |
| Docket Number | 1327-21-2 |
| Parties | DEVRICK RAQUAN GAIL v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
DEVRICK RAQUAN GAIL
v.
COMMONWEALTH OF VIRGINIA
No. 1327-21-2
Court of Appeals of Virginia
October 11, 2022
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Clarence N. Jenkins, Jr., Judge
(Maureen L. White, on brief), for appellant. Appellant submitting on briefs.
(Jason S. Miyares, Attorney General; Matthew P. Dullaghan, Senior Assistant Attorney General, on briefs), for appellee. Appellee submitting on briefs.
Present: Senior Judges Annunziata, Clements and Haley
MEMORANDUM OPINION [*]
PER CURIAM
A jury convicted Devrick Raquan Gail of first-degree murder and use of a firearm in the commission of a felony. Counsel for Gail filed a brief on his behalf accompanied by a motion for leave to withdraw in accordance with Anders v. California, 386 U.S. 738, 744 (1967). A copy of that brief has been furnished to Gail with sufficient time to raise any matter that he chooses. Gail has filed a pro se supplemental opening brief. After examining the briefs and record in this case, we affirm the trial court's judgment. We unanimously hold that oral argument is unnecessary because "the appeal is wholly without merit." Code § 17.1-403(ii)(a); Rule 5A:27(a).
BACKGROUND[1]
"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Poole v. Commonwealth, 73 Va.App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In so doing, we discard any of Gail's conflicting evidence and regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence. Gerald, 295 Va. at 473.
On the morning of January 2, 2018, Davon Daniels and his girlfriend, Alexus Barbee, were in their bedroom watching television when they heard "a very loud knock" at their apartment door. Barbee remained in the bedroom while Daniels answered the door. Barbee overheard Daniels ask, "Who is it?" She then heard a voice respond, "It's me, it's Quan." Barbee recognized the voice as Gail's. She was familiar with Gail's voice because he had visited Daniels and Barbee in their apartment "[e]veryday" for the preceding two months. From the bedroom, Barbee heard Daniels and Gail talking. After a couple of minutes, Barbee heard gunshots, followed by Daniels calling out to her. Barbee ran into the living room and found Daniels alone, face down on the floor. He told her he had been shot and to call 911.
During the recorded 911 call, the 911 dispatcher asked Barbee who had shot Daniels. Barbee spoke with Daniels and asked him, "Who?" Daniels answered, "Quan," and Barbee repeated Quan's name.[2]
Barbee placed the 911 call at 11:22 a.m. Officer M. Bryson reached the apartment at 11:24 a.m.; his body-worn camera recorded his entry into the building and his interaction with Barbee. When Bryson arrived, Daniels was alive and "shaking." Barbee, who was on the floor next to Daniels, related that Daniels had told her "Quan" was the shooter. Bryson's body-worn camera continued to record Barbee as she spoke on the phone and told a third party that "Quan" had shot Daniels.
Firefighters reached the apartment shortly after Bryson. Daniels had a "very faint pulse" when they arrived, but his heart stopped, and by the time he reached a local hospital, he was pronounced dead. An autopsy revealed that Daniels had been shot in the back multiple times, perforating his heart and lung.
Surveillance cameras at Barbee's apartment complex recorded a black Ford Fusion arriving at the parking lot outside her building at approximately 10:42 a.m. on the morning of the murder. After approximately fifteen minutes, Gail and Deondre Wilson exited the black car and entered Barbee's building at 10:58 a.m.
At trial, Wilson identified himself and Gail in the footage. Wilson testified that they entered the building together, but Wilson knocked on his grandmother's first-floor apartment door while Gail approached the stairs. Wilson testified that Daniels's apartment was at the top of the stairs. Wilson saw no one other than Gail in the interior hallway, and the stairwell was open to the first floor. Upon hearing gunfire, Wilson fled from the building and waited outside until he saw Gail
exit behind him. Surveillance footage showed Gail and Wilson walking away briskly in opposite directions; neither man returned to the Ford Fusion. When the police searched the Ford Fusion, they found mail and a rental agreement bearing Gail's name.
Four bullet casings were recovered from the murder scene and submitted for forensic analysis. Subsequent forensic analysis determined that each casing was fired from the same gun, possibly a Glock. The casings were compared to a Glock recovered the next day from another apartment building in the same complex following the police pursuit of an individual named Jamie Phillips, but forensic analysis eliminated that gun as the murder weapon.
At the conclusion of the evidence, the jury convicted Gail of first-degree murder and use of a firearm in the commission of a felony. Gail appeals.
ANALYSIS
A. Opening Brief
Gail challenges the sufficiency of the evidence supporting his convictions, asserting that the evidence failed to prove beyond a reasonable doubt he was the perpetrator. He stresses that Daniels's last words on the 911 tape are unintelligible and that he was likely incoherent from loss of blood and diminished brain function. Further, he maintains that he was not in the building long enough to murder Daniels. Gail emphasizes that Barbee testified that "several minutes elapsed" between the time Wilson opened the door and gunfire erupted and she "could not say whether anyone else . . . entered the apartment." He suggests that, based on the Commonwealth's evidence, he lacked sufficient time to murder Daniels. Moreover, based on the appearance of two men approaching Daniels's apartment building after Gail's entry, Gail theorizes that, "[i]f the two men . . . saw [him], it is a reasonable hypothesis that they used [Gail]'s name to gain entry to Daniels's apartment" and murder him. Thus, Gail contends that
the evidence was insufficient to prove he was the perpetrator because it failed to exclude a reasonable hypothesis that the two men committed the offenses. We disagree.
"When reviewing the sufficiency of the evidence, '[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.'" McGowan v. Commonwealth, 72 Va.App. 513, 521 (2020) (alteration in original) (quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). "In such cases, '[t]he Court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). "Rather, the relevant question is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). "If there is evidentiary support for the conviction, 'the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.'" McGowan, 72 Va.App. at 521 (quoting Chavez v. Commonwealth, 69 Va.App. 149, 161 (2018)).
"At trial, the Commonwealth bears the burden of proving the identity of the accused as the perpetrator beyond a reasonable doubt." Cuffee v. Commonwealth, 61 Va.App. 353, 364 (2013) (quoting Blevins v. Commonwealth, 40 Va.App. 412, 423 (2003)). As with any element of an offense, identity may be proved by direct or circumstantial evidence. Crawley v. Commonwealth, 29 Va.App. 372, 375 (1999). "[C]ircumstantial evidence is competent and is entitled to as much weight as direct evidence[,] provided that the circumstantial evidence is sufficiently convincing to exclude every reasonable hypothesis except that of guilt." Finney v. Commonwealth, 277 Va. 83, 89 (2009) (second alteration in original) (quoting Dowden v. Commonwealth, 260 Va. 459, 468 (2000)). "The statement that circumstantial evidence must exclude every reasonable theory of innocence is simply another way of stating that the
Commonwealth has the burden of proof beyond a reasonable doubt." Vasquez, 291 Va. at 249-50 (quoting Commonwealth v. Hudson, 265 Va. 505, 513 (2003)).
To satisfy its burden of proof, the Commonwealth must exclude "every reasonable hypothesis of innocence, that is, those 'which flow from the evidence itself, and not from the imagination of defendant's counsel.'" Tyler v. Commonwealth, 254 Va. 162, 166 (1997) (quoting Turner v. Commonwealth, 218 Va. 141, 148 (1977)). This "reasonable-hypothesis principle," however, "is not a discrete rule unto itself" and "does not add to the burden of proof placed upon the Commonwealth in a criminal case." Vasquez, 291 Va. at 249-50. The Commonwealth need not "negate what 'could have been' or what was a 'possibility.'" Nelson v. Commonwealth, 281 Va. 212, 218 (2011). Thus, while "a factfinder cannot 'arbitrarily' choose, as between two equally plausible interpretations of a fact, one that incriminates the defendant," an arbitrary choice occurs "only when no rational factfinder could believe the incriminating interpretation of the evidence and disbelieve the exculpatory one." Vasquez, 291 Va. at 250. "When examining an alternate hypothesis of innocence, the question is not whether 'some evidence' supports the hypothesis, but whether a rational factfinder could have found that the incriminating evidence renders the hypothesis of innocence unreasonable." Id. (quoting Hudson, 265 Va. at 513).
Here, Daniels remained conscious after he was shot and was sufficiently coherent to tell Barbee to call 911. As...
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