Hammer v. Commonwealth

• Decision Date: 18 January 2022
• Docket Number: Record No. 1033-20-3,Record No. 0819-20-3
• Citation: 74 Va.App. 225,867 S.E.2d 505
• Parties: Gregory Leon HAMMER v. COMMONWEALTH of Virginia Gregory Leon Hammer v. Commonwealth of Virginia
• Court: Virginia Court of Appeals

74 Va.App. 225

867 S.E.2d 505

Gregory Leon HAMMER

v.COMMONWEALTH of Virginia

Gregory Leon Hammer

v.Commonwealth of Virginia

Record No. 0819-20-3

Record No. 1033-20-3

Court of Appeals of Virginia.

JANUARY 18, 2022

A. Gene Hart, Jr. (A. Gene Hart, Jr., P.C., on briefs), Harrisonburg, for appellant.

Timothy J. Huffstutter, Assistant Attorney General (Mark R. Herring,¹ Attorney General, on briefs), for appellee.

Present: Judges Humphreys, AtLee and Raphael

OPINION BY JUDGE STUART A. RAPHAEL

Appellant Gregory Leon Hammer appeals his convictions in the Circuit Court of the City of Waynesboro for abduction, felony eluding, and driving after being declared a habitual offender. Hammer asserts that the trial judge improperly allowed the prosecution to pursue the abduction charge after orally allowing a nolle pros. We find that Hammer failed to preserve that objection and reject his claim that the oral nolle pros deprived the court of jurisdiction to permit the abduction charge to be reinstated. We also reject Hammer's claim that the trial court should have found the police officer's defendant-identification testimony "inherently incredible."

Hammer also appeals the decision of the Circuit Court of Rockingham County to revoke Hammer's probation (and to reimpose the sentence on Hammer's earlier convictions in that court) on account of the Waynesboro convictions. Because the Waynesboro court did not err in imposing the convictions, the Rockingham court did not err in finding Hammer in violation of the terms of his supervised probation.

So we affirm both judgments.

I. BACKGROUND

In May 2012, the Circuit Court of Rockingham County convicted Hammer on charges of grand larceny, felony eluding, reckless driving, driving as a habitual offender, two counts of resisting arrest, and possession of a Schedule I or II controlled substance. The sentencing order imposed twenty years and eighteen months of incarceration, with seventeen years and nineteen months suspended, conditioned on Hammer's successfully completing supervised probation upon his release.

The events giving rise to the Waynesboro convictions occurred six years later, while Hammer was still on supervised probation in Rockingham County. Consistent with the standard of review when a criminal appellant challenges the sufficiency of the evidence, we recite the evidence below "in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court." Commonwealth v. Cady , ––– Va. ––––, ––––, 863 S.E.2d 858 (2021) (citation omitted).

On the evening of November 27, 2018, Officer Brandon Mawyer was patrolling in his police cruiser in the City of Waynesboro when he received a "be on the lookout" alert for a "possibly-abducted female ... named Morgan Hammer." The alert said that Morgan may have been abducted by Hammer—her husband—and "that they may be en route to their apartment" in Waynesboro.

Mawyer was familiar with Hammer and his wife. He had seen Hammer "up close and personal" while working on other matters. He had examined photographs of Hammer, including pictures of Hammer's tattoos. Mawyer had also spoken to both spouses during a traffic stop. Knowing where they lived, Mawyer drove to the Hammers’ apartment in Waynesboro, but the lights were off and no one was home.

Believing that Hammer might be returning home from Rockingham County, Mawyer drove to the Waynesboro city limits on Route 340. He pulled into a driveway on the side of the road and waited there with his lights off, the rear of his patrol car facing north towards Rockingham County, to minimize the chance of being spotted by someone approaching from that direction. Although it was nighttime, the road was illuminated by a streetlight not more than five feet from where Mawyer positioned his car. The road was illuminated even more by a second streetlight a little farther away. A photograph showing the illuminated road was introduced into evidence as the Commonwealth's Exhibit 2. With that lighting—and his patrol car facing south, towards Waynesboro—Mawyer had a clear and unobstructed view of the road from his driver's side window.

Within about a minute, Mawyer spotted a car approaching rapidly from behind. Mawyer activated his radar and clocked the vehicle doing sixty-three miles an hour in the thirty-five-mile-an-hour zone.

As the vehicle passed him, Mawyer saw Hammer behind the wheel and Morgan in the passenger seat, looking out the window towards him. Hammer leaned forward—looking around Morgan to see into Mawyer's patrol car—and "actually made eye contact" with Mawyer. Mawyer recognized both immediately. Mawyer also saw the distinctive tattoo on Hammer's hand as Hammer held the steering wheel.

Mawyer activated his emergency lights and siren and commenced pursuit. Hammer fled, accelerating to speeds over 100 mph, driving the wrong way on a divided highway and forcing an oncoming car off the road to avoid a head-on collision. Because Mawyer had positively identified Hammer, and to reduce the risk of an accident, Mawyer slowed down and turned off his emergency equipment, continuing to follow at a safe distance. After entering Augusta County, Hammer briefly "crash[ed]" and continued to drive erratically, on and off the road. An Augusta sheriff's deputy joined the pursuit.

After running out of gas, Hammer's car came to a stop in Fishersville. Mawyer observed for about ten seconds as Hammer exited his car, ran down the embankment, climbed over a barbed-wire fence, and disappeared into the woods behind. Hammer was wearing a black leather jacket. Because he could not see Morgan, Mawyer rushed to the Hammers’ car, finding her alive on the passenger floorboard. Mawyer then ran after Hammer, but by then Hammer had escaped into the woods beyond.

Mawyer returned to check on Morgan. She was "scared," telling Mawyer that she'd been abducted. She also gave a written statement about what had happened.

The next morning, Mawyer received a be-on-the-lookout alert for a car stolen in Fishersville, "fairly close" to where Hammer had fled on foot. Mawyer and another officer drove to the Hammers’ apartment, finding the stolen car parked across the street. After obtaining a search warrant, the officers found Hammer inside the apartment. They also found the key to the stolen car and the black leather jacket that Mawyer had seen Hammer wearing when he escaped.

Hammer was indicted by a Waynesboro grand jury on charges of abduction, felony eluding, and driving after being declared a habitual offender. He elected to represent himself at trial, with backup counsel appointed in case Hammer changed his mind.

On the morning of trial, Morgan failed to appear, having been subpoenaed and despite an outstanding capias for a prior failure to appear. Hammer said that he "hope[d]" his wife would "show up," but he predicted that "the victim" would not, no matter how long the case might be continued. When the trial judge said he would not continue the abduction charge, the prosecutor orally moved to nolle pros it. The Commonwealth proffered that it had made various efforts to locate Morgan and secure her attendance, without success. Hammer objected, asking that the court instead dismiss the abduction charge "outright." The trial judge orally granted the Commonwealth's motion, finding that the Commonwealth had made every reasonable effort to secure Morgan's testimony.

But Morgan arrived a few minutes afterwards, thirty-five minutes late to court. With Morgan now present, the Commonwealth asked for leave to withdraw the oral nolle pros or to set the abduction charge separately for trial.

The court declined to reschedule trial on the abduction charge and allowed the prosecution instead to withdraw the nolle pros request. After the judge asked, "Anything else?[,]" Hammer said nothing. Nor did he object after a brief recess, before the jury was brought in. The court's oral nolle pros rulings were never memorialized and are not mentioned in the conviction order.

Officer Mawyer testified at trial to the events recounted above. The prosecution then called Morgan to the stand. But she claimed to have a poor memory and to not recall what had happened. When asked to read the contents of her written statement, given at 3:15 a.m. the morning of the incident, she refused to read it aloud. The prosecutor proffered that Morgan had been "threatened by associates of Mr. Hammer that if she testifies against him today, she will be killed." Morgan was evasive when responding to questions about that, repeating "I don't want to be here." She ultimately denied that her husband had threatened to kill her for testifying and further denied that Hammer had told her what to say. The prosecution called a victim-witness assistant, however, who testified that Morgan admitted, shortly before being called to the stand, that she feared Hammer because he had been "writing letters to people, threatening ... to kill her."

Morgan's original, contemporaneous statement was admitted into evidence as her prior-recorded recollection. Morgan wrote that she had gotten into the car that evening to go with Hammer to the store and that he "kept driving when [she] told him to stop." She told Hammer she "wanted to get out of the car, but he kept speeding and wouldn't let [her] out." Once the police started following them, Hammer told Morgan "to hold on[,] we're going for a ride." She "told him to stop and pull over but he refused." Hammer "kept speeding until we wrecked the car in a ditch and the car ran out of gas." The Commonwealth also introduced multiple letters from Hammer to Morgan, and transcripts of messages that he sent her from jail, telling her what to say at trial to exonerate him.

Hammer did not move to strike the Commonwealth's evidence. In his defense, Hammer called Morgan back to the witness stand. Morgan denied telling the victim-witness assistant that she feared Hammer or that he had threatened her life if she testified. Morgan claimed that her written statement to the police was a lie,...