Harris v. Com.

• Citation: 8 Va.App. 424,382 S.E.2d 292
• Decision Date: 18 July 1989
• Docket Number: No. 1351-87-1,1351-87-1
• Parties: Walter C. HARRIS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 292

382 S.E.2d 292

8 Va.App. 424

Walter C. HARRIS v. COMMONWEALTH of Virginia.

Record No. 1351-87-1.

Court of Appeals of Virginia.

July 18, 1989.

Michael F. Fasanaro, Jr. for appellant.

Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: JOSEPH E. BAKER, BARROW and COLE, JJ.

JOSEPH E. BAKER, Judge.

Walter C. Harris (appellant) appeals from a judgment of the Circuit Court of the City of Hampton (trial court) which affirmed his jury convictions for capital murder and use of a firearm in the commission of a felony. He asserts that the trial court erred in denying his motion for a bill of particulars after the Commonwealth was permitted to amend the indictment; erred in admitting hearsay evidence related by four of the Commonwealth's witnesses; and erred in refusing to set aside the jury verdict and grant a new trial.

In 1983 and 1984, the Federal Bureau of Investigation (F.B.I.) was investigating Howard Wornom (victim) for mail fraud. As part of a plea bargain agreement which he made with federal authorities, victim agreed to testify against Earl Powell and to assist in recording conversations between himself and Powell. As a consequence of the investigation, Powell was arrested on September 12, 1984 and subsequently indicted for ten counts of mail fraud, obstruction of justice and perjury. Powell's arrest warrant indicated that victim was a material witness.

On October 18, 1984, victim was shot and killed in front of his residence in Hampton. From inside their home his wife heard shots and responded to his call that he had been shot. Outside she went to victim and asked him whether "he had seen who had shot him," and he replied, "Yes, I saw them." She then asked, "were they black or white?" and victim said, "it was the black." Two officers arrived, followed by an ambulance and several police cars. Three or four minutes later, at 8:50 p.m., victim told Karen O'Keefe, a cardiac technician, "that a black man had shot him." Prior to the ambulance's arrival, victim told Officer Meadows when asked, "what happened?" that a "black man came out and shot him." Victim died at 3:40 a.m. the following morning.

Approximately ten days before the killing appellant had asked George Engle how to contact some white men whom he wanted to do a "hit" on victim. Six to eight weeks after the killing, appellant told Engle, "Cross Earl Powell and he'll get you."

Gaston McNeill, appearing on behalf of the Commonwealth, testified that he also was charged in connection with the murder, that he had not been offered anything in exchange for his testimony, that no promises had been made, and that no one told him it would go any easier on him if he testified.

Before the killing, appellant and McNeill rode to Hampton on several occasions looking for victim. Appellant told McNeill that he had to stop victim from going to court because he was a "snitcher" and that he was going to "snuff" him out. Thereafter, McNeill attempted to avoid appellant; however, he did meet with him again. On at least one occasion in appellant's presence, Calvin Tucker told McNeill that if he, McNeill, opened his mouth he would be killed. McNeill testified that Tucker repeated this threat on occasions when appellant was not present. The same day, McNeill, Tucker and appellant rode to an apartment complex in search of victim. While the others waited, Tucker looked around the area but was unable to locate victim.

On the night of the killing a black man of the same size as Tucker was seen hiding in the bushes near the site of the killing. That same night Tucker was seen walking away from the area of the killing between 8:45 and 9:00 p.m. While Tucker and appellant were both incarcerated, Eddie Frye, at the direction of Tucker, wrote appellant a letter requesting $600. In the letter Tucker told appellant that "they brought me down here to testify against you. The Commonwealth told my lawyer if I testify against you on my appeal he won't bring no evidence against me. I am not going to do you like you did me. I think six hundred dollars will be enough to get the things I need when I'm locked up."

On August 26, 1987, prior to appellant's trial, the Commonwealth was permitted to amend the original capital murder indictment charging appellant as a principal in the second degree. The indictment was amended over appellant's objection by adding the words "or as an accessory before the fact." Throughout the preliminary hearing stage and presentation to the grand jury, appellant had been charged only as a principal in the second degree. As a result of the amendment, defense counsel moved for a bill of particulars, which was denied.

Within minutes after the jury returned its verdict and appellant was formally sentenced, McNeill was brought to court to plead to a simple misdemeanor, his capital murder charge having been reduced, and was sentenced to twelve months in jail. Based on a claim that McNeill had given false testimony at the trial, defense counsel moved for a new trial immediately thereafter; however, when the Commonwealth Attorney represented to the court that no promise had been made to McNeill, appellant's motion for a new trial was denied.

Appellant first asserts that the trial court erred in failing to grant his motion for a bill of particulars, and by permitting the Commonwealth to amend the indictment over his objection.

The indictment returned by the grand jury charged that appellant did, as a principal in the second degree, deliberately, and with premeditation kill Howard Wornom during a killing for hire, in violation of Code §§ 18.2-18 and 18.2-31(8). Prior to the trial, the Commonwealth requested and received the trial court's permission to amend the indictment by adding the words "or an accessory before the fact" between "second degree," and "unlawfully." Appellant immediately moved for a bill of particulars. His motion was denied.

Whether a motion for a bill of particulars should be granted is a matter committed to the exercise of the sound discretion of the trial court. Ward v. Commonwealth, 205 Va. 564, 569, 138 S.E.2d 293, 297 (1964). The indictment sufficiently informed appellant of the charge upon which he was to be tried, and he was neither deprived of any substantial right nor subject to the danger of being tried on a charge for which he had not been indicted. Id.; see also Tasker v. Commonwealth, 202 Va. 1019, 1023-24, 121 S.E.2d 459, 462 (1961). Moreover, under the indictment he could be convicted either as a principal in the first or second degree or as an accessory before the fact. See Code § 18.2-18; Hyman v. Commonwealth, 206 Va. 891, 147 S.E.2d 156 (1966). Because appellant has not shown that the trial court abused its discretion it was not error to deny his motion for a bill of particulars.

Appellant next alleges that the trial court erred by permitting Gaston McNeill to testify to statements made by Calvin Tucker.

There is evidence in the record to support a finding that Calvin Tucker and appellant conspired to kill victim because he intended to testify on behalf of the United States in a prosecution of Earl Powell. Gaston McNeill was a party to some of the early conversations between Tucker and appellant, and he had been with them on at least one occasion when they tried to find victim; however, if McNeill had been a party to the conspiracy there is evidence in the record from which it could be inferred that he withdrew prior to the consummation of its purpose. There is ample evidence in the record to show that Tucker and appellant continued the conspiracy until victim was shot to death on October 18, 1984.

At trial, McNeill testified that Tucker twice threatened to kill him if he revealed his knowledge of the action planned by Tucker and appellant. Appellant does not object to McNeill's recitation of a threat that took place in the presence of appellant; however, he asserts that it was reversible error to permit him to repeat the threats made out of appellant's presence. We disagree. The statement was admissible as one made by a co-conspirator in furtherance of the conspiracy. See Anderson v. Commonwealth, 215 Va. 21, 24, 205 S.E.2d 393, 395 (1974);...