Hamilton v. Com., Record No. 090069.

Docket NºRecord No. 090069.
Citation279 Va. 94, 688 S.E.2d 168
Case DateJanuary 15, 2010
CourtSupreme Court of Virginia
688 S.E.2d 168
279 Va. 94
Kelis Allen HAMILTON
v.
COMMONWEALTH of Virginia.
Record No. 090069.
Supreme Court of Virginia.
January 15, 2010.

[688 S.E.2d 170]

Tate C. Love (Black, Noland & Read, on brief), Staunton, for appellant.

Matthew P. Dullaghan, Senior Assistant Attorney General (William C. Mims, Attorney General; Karen Misbach, Assistant Attorney General II, on brief), for appellee.

Present: All the Justices.

OPINION BY Justice CYNTHIA D. KINSER.


Kelis Allen Hamilton was convicted by jury trial in the Circuit Court of Augusta County of three counts of assault and battery by a mob in violation of Code § 18.2-42 and one count of participating in a criminal street gang in violation of Code § 18.2-46.2. Because we conclude that the evidence was sufficient to sustain these convictions, we will affirm the judgment of the Court of Appeals of Virginia.

I. FACTS AND PROCEEDINGS1

The convictions challenged on appeal arose out of a party in August 2006 at Garrett Johnston's 110-acre farm located in Augusta County. The assault and battery convictions involve three separate victims: Zachary Small, Daniel Payne, and Johnston. The conviction for participating in a criminal street gang concerns a gang known as the "Nine Trey Bloods" (the Bloods).

At trial, the Commonwealth called two police officers, Mark Campbell and Christopher Hartless, both of whom qualified as expert witnesses with regard to the Bloods. The

688 S.E.2d 171

experts provided the following information about that gang.

The Bloods wear the color red, while a rival gang known as the "Crips" wear the color blue. The location of the color worn signifies the degree of respect shown to a particular gang. For example, a color worn high on the body, as in a hat, shows great respect. Blood members often wear red hats and many of them wear Boston Red Sox hats because, although black, the hats have the letter "B" in red on the front. In addition, black is a neutral color that, when worn with red, is "used ... to show affiliation." It is a sign of disrespect to wear blue in a Blood member's presence.

The term "Blood-[a]t" is a "Blood war cry" used to call members of the gang to "converge" and "provide whatever ... assistance is required." The term "Dip Set" is a reference to a "rap group" whose members are known to be in the Bloods. Hartless opined that the use of those terms during an assault would likely mean that the incident was "gang-involved, gang-related."

The Bloods have several body marks or tattoos associated with membership. One such mark is a "dog paw" or "Trey burn," which is a grouping of three circular marks, burned onto the skin with a cigarette or some other circular object. Each burn represents a rape, robbery, or murder, and a Blood member has to commit those crimes before he can get the burns. To burn a rival gang member in that manner would indicate enormous disrespect.

Neither expert witness testified as to any prior involvement by Hamilton with the Bloods. Hartless stated that Hamilton did not have any tattoos and, to his knowledge, did not wear any gang-related colors prior to the events at the party. Campbell acknowledged that the number of Blood members without tattoos would be "rather low" but that it would be consistent with a member who had not performed any work for the gang or who was trying to avoid detection by the police. Hartless opined that Hamilton was not involved with the Bloods prior to the party. However, Hartless did opine that a gang assault involving "some people who had never been affiliated with that gang before" could "potential[ly]" be a form of "initiation for one or more of the individuals within that group."

Approximately 400 people attended the party that lasted from ten o'clock in the evening to three o'clock the following morning. Numerous witnesses testified about consuming alcohol at the party, some admitting that they were intoxicated. Likewise, several witnesses stated that a number of small fights erupted during the party in addition to the incidents at issue in this case.

At some point in the evening, Johnston noticed a group of individuals that he assumed were members of the Bloods because they all were wearing red bandanas. According to Johnston, the group was "chilling in one section of [a] tent" that Johnston had erected for the party. Johnston approached the individuals and inquired if they were "Bloods," to which they responded, "Yes."

The defendant, Hamilton, admitted at trial that he attended the party. He claimed that he wore a red and black hat, a black and gold shirt, and blue jeans. Hamilton conceded the hat could have been a Boston Red Sox hat. Another party guest, Christopher R. McLaughlin, testified that Hamilton was wearing both a red cap and a red shirt. According to McLaughlin, Hamilton approached him and stated, "You're a Blood and you don't even know it." McLaughlin assumed Hamilton made that statement because McLaughlin was wearing a red baseball cap and a red shirt. McLaughlin responded that he was not "gang-related" and walked away.

According to Johnston, the Bloods were involved in a "big fight" that "blew up" at approximately three o'clock in the morning. Zachary Small, who was wearing a dark blue shirt, knocked over a bottle, began to pick it up and, noticing that it was empty, let it fall to the ground again. When Small stood up, a "big guy" standing there hit Small in the face. Believing his jaw was broken, Small stated, "Hold on man.... It ain't like that." Small heard someone say, "You made it like that" and then someone struck him from the side. Small was battered several more times and eventually "knocked out." Small told

688 S.E.2d 172

police that during the assault, he heard someone say, "We ain't wearing red for nothing." After the party, Small discovered that he had suffered cigarette burns on his back. Detective Campbell opined that the burn marks on Small's back could have been the start of a "Trey burn" or a sign of retaliation for disrespect to the Bloods.

McLaughlin witnessed the assault on Small. McLaughlin testified that there was "a scuffle, something about knocking over a drink or something." As he began to walk the other direction, McLaughlin turned and saw "12 kids over top of ... Zach" kicking and beating him. McLaughlin stated that "[a]ll you could see was red" and that he heard someone saying, "You don't think we're wearing red for nothing." McLaughlin did not remember seeing Hamilton in the group of people assaulting Small.

Donald Stouffer, however, did see Hamilton. Although Stouffer did not witness the assault itself, he saw Hamilton standing over Small while Small was lying on the ground. According to Stouffer, Hamilton was doing something with his hands around the middle of Small's back but was not rendering assistance to Small. After seeing a picture of the cigarette burns on Small's back, Stouffer assumed Hamilton was putting out a cigarette on Small's back. Stouffer also heard "a big guy," weighing around 400 pounds, yelling "We're not wearing red for the hell of it."

Matthew Howdyshell witnessed the end of the assault on Small. Howdyshell saw Small lying on the ground, trying to get up, and then falling to the ground again. When Small fell to the ground, somebody came up to him yelling "Dip Set" while also kicking him. The man kicking Small was wearing a red shirt.

A witness who testified on behalf of Hamilton, Whitney Randolph, identified Marty Scott2 as the person who initially assaulted and battered Small. She stated that a fight broke out on top of the hill when Small kicked over a bottle. According to Randolph, Scott asked Small why he had done so and when Small walked off, Scott hit him. Randolph further stated that as Small was lying on the ground, "three or four people jumped on him."

Hamilton testified on direct examination to seeing "a group of guys all rushing a White male." According to Hamilton, he assisted the host of the party in breaking up that fight. Hamilton stated that he did not know the victim of that particular assault, and it is unclear from his testimony whether that incident was the assault on Small. On cross-examination, however, Hamilton admitted that he recognized Small as the victim of an attack but only after Small was already lying on the ground. Hamilton described the assault that he purportedly helped bring to an end as the "first fight" and stated that the "next fight [was] the last one, which was the big fight ... on top of the hill."3 Hamilton provided these details about the "big fight":

I noticed a—a group of guys just running up on the hill.... And the next thing I know, it was like a group of guys just all started arguing back and forth, and I seen [sic] two White males get hit with a tiki torch. And the next thing you know, it was just like a big commotion, a fight just broke out. And at that time, I seen [sic] [Jakari] Hart pull out a nickel-plated pistol and started firing it in the air.

Daniel Payne was one of the individuals struck with a tiki torch. Payne heard what he thought were fireworks. He proceeded up a hill to ask what was going on when someone struck him on the side of his face with a tiki torch, which broke. Payne then "went after" the man who hit him, but "froze up" when another individual pointed a gun into his chest and pulled the trigger. Payne heard the gun click but it did not fire. Payne could not identify either of those individuals and also did not remember whether he saw Hamilton at the party. Hamilton, however, admitted seeing Scott snatch the pistol out of Hart's hand and, according to Hamilton, Scott then pointed the gun in the chest of one of the individuals who was hit with the tiki torch.

688 S.E.2d 173

Hart, who accompanied Hamilton to the party, said he began firing his gun into the air while Hamilton was standing next to him. Hart testified that he handed the gun to Scott, and Hamilton tried to retrieve the gun from Scott, at Hart's...

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63 practice notes
  • Kelley v. Commonwealth, Record No. 1063-17-4
    • United States
    • Virginia Court of Appeals of Virginia
    • January 8, 2019
    ...the evidence in the light most favorable to the Commonwealth, "as the prevailing party in the trial court." Hamilton v. Commonwealth, 279 Va. 94, 103, 688 S.E.2d 168 (2010). "In doing so, the Court ‘ "discard[s] all evidence of the accused that conflicts with that of the Commonwealth and re......
  • Holloway v. Commonwealth of Va.., Record No. 0828–08–1.
    • United States
    • Virginia Court of Appeals of Virginia
    • February 15, 2011
    ...S.E.2d at 407 (citation omitted). Consequently, “we do not substitute our judgment for that of the fact finder,” Hamilton v. Commonwealth, 279 Va. 94, 105, 688 S.E.2d 168, 175 (2010), “even if our opinion were to differ,” Ferguson v. Commonwealth, 51 Va.App. 427, 435, 658 S.E.2d 692, 696 (2......
  • Romero v. Commonwealth, Record No. 0050-13-4
    • United States
    • Virginia Court of Appeals of Virginia
    • March 25, 2014
    ...appellate court must consider all the evidence admitted at trial that is contained in the record." Id.; see also Hamilton v. Commonwealth, 279 Va. 94, 103, 688 S.E.2d 168, 173 (2010).A. THE EVIDENCE AT TRIAL A medical test in November 2010 revealed that appellant's daughter, D.M., was pregn......
  • Rams v. Commonwealth, Record No. 1453-17-4
    • United States
    • Virginia Court of Appeals of Virginia
    • February 26, 2019
    ...the weight to be given their testimony, and 70 Va.App. 27the inferences to be drawn from proven facts." Hamilton v. Commonwealth, 279 Va. 94, 105, 688 S.E.2d 168 (2010) (quoting Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312 (1998) ). When expert witnesses give conflicting opinion......
  • Request a trial to view additional results
65 cases
  • Kelley v. Commonwealth, Record No. 1063-17-4
    • United States
    • Virginia Court of Appeals of Virginia
    • January 8, 2019
    ...the evidence in the light most favorable to the Commonwealth, "as the prevailing party in the trial court." Hamilton v. Commonwealth, 279 Va. 94, 103, 688 S.E.2d 168 (2010). "In doing so, the Court ‘ "discard[s] all evidence of the accused that conflicts with that of the Commonwealth and re......
  • Holloway v. Commonwealth of Va.., Record No. 0828–08–1.
    • United States
    • Virginia Court of Appeals of Virginia
    • February 15, 2011
    ...S.E.2d at 407 (citation omitted). Consequently, “we do not substitute our judgment for that of the fact finder,” Hamilton v. Commonwealth, 279 Va. 94, 105, 688 S.E.2d 168, 175 (2010), “even if our opinion were to differ,” Ferguson v. Commonwealth, 51 Va.App. 427, 435, 658 S.E.2d 692, 696 (2......
  • Romero v. Commonwealth, Record No. 0050-13-4
    • United States
    • Virginia Court of Appeals of Virginia
    • March 25, 2014
    ...appellate court must consider all the evidence admitted at trial that is contained in the record." Id.; see also Hamilton v. Commonwealth, 279 Va. 94, 103, 688 S.E.2d 168, 173 (2010).A. THE EVIDENCE AT TRIAL A medical test in November 2010 revealed that appellant's daughter, D.M., was pregn......
  • Rams v. Commonwealth, Record No. 1453-17-4
    • United States
    • Virginia Court of Appeals of Virginia
    • February 26, 2019
    ...the weight to be given their testimony, and 70 Va.App. 27the inferences to be drawn from proven facts." Hamilton v. Commonwealth, 279 Va. 94, 105, 688 S.E.2d 168 (2010) (quoting Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312 (1998) ). When expert witnesses give conflicting opinion......
  • Request a trial to view additional results

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