Holloman v. Commonwealth
| Decision Date | 11 August 2015 |
| Docket Number | Record No. 1319–14–1. |
| Citation | 775 S.E.2d 434,65 Va.App. 147 |
| Court | Virginia Court of Appeals |
| Parties | Shavis Donta HOLLOMAN v. COMMONWEALTH of Virginia. |
Charles E. Haden, Hampton, for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: PETTY, CHAFIN and DECKER, JJ.
Shavis Donta Holloman appeals his convictions for second-degree murder, malicious wounding, attempted robbery, conspiracy to commit robbery, three counts of use of a firearm in the commission of a felony, and gang participation.1 For the reasons that follow, we affirm the convictions.
At trial, the Commonwealth presented evidence regarding two events, each involving a different victim, Thomas Needham and Rhonda Stubbs. Witnesses testified that the appellant, known as “S–Dot,” was a “five[-]star general” in the Nine–Trey Bloods criminal street gang. Prosecution witnesses included Detectives John Baer and Ernest Sales of the City of Hampton Police Department, and Lieutenant R. Whitehead, an assistant watch commander at the Hampton Roads Regional Jail. The Commonwealth also presented testimony from Essie Hawkins–Whitlock, who was not a member of the gang, as well as Latoya Manning and Stephen Hayes, who were gang members.
The Commonwealth presented evidence that the appellant and some fellow gang members attempted to rob Needham on August 22, 2010. The appellant drove several of his gang affiliates to Needham's apartment intending to rob him. Four of his accomplices went to Needham's door while the appellant waited in the car. They decided not to rob Needham at that time, in part because Needham's children were home. When they returned to the car, the appellant “got upset” and, as the local gang leader, insisted that they complete the robbery. During the encounter that followed, a fellow gang member, Jamel Carney, shot and killed Needham.
The prosecution also presented evidence that the appellant shot Stubbs on September 17, 2010. She was leaving a friend's house with her five-year-old son. The appellant was in the same area, once again accompanied by other members of the gang. While there, the appellant encountered a man with whom he “had a conflict,” and the two “exchang[ed] words.” When the man insulted the appellant and intentionally turned away, the appellant opened fire on the street.2 Stubbs, an innocent bystander, was shot. Detective Sales was in the area and saw “the fire coming from the firearms, and [from] the trajectory [he] could see it was coming from where [a] vehicle was located.” Sales immediately stopped the car. The appellant was a passenger and was later identified as the shooter.
The jury convicted the appellant of all of the charges. He received a life sentence plus an additional sixty-three years in prison.
The appellant argues that the trial court erred by: (A) not dismissing the case after the prosecutor failed to comply with the terms of his cooperation and immunity agreement with the Commonwealth; (B) trying the charges relating to Needham jointly with those relating to Stubbs; (C) not striking a particular venireman for cause; (D) allowing a “gang notebook” and related testimony into evidence; and (E) denying the appellant's proposed cautionary jury instructions relating to accomplice testimony.
The appellant challenges the interpretation of a written agreement that he entered into with the Commonwealth. He argues that the trial court erred by not dismissing the charges in accordance with the contract because the Commonwealth violated its terms.
The cooperation and immunity agreement was prepared by the Commonwealth. The first two sentences state:
The Hampton Commonwealth Attorney's Office agrees not to prosecute you for any violation of the criminal laws of the Commonwealth of Virginia based on statements provided pursuant to this agreement for which truthful disclosure is made and the occurrence of which the Attorney for the Commonwealth has full and complete knowledge. This use immunity applies [to] any conversations with the Hampton Police or the Hampton Commonwealth's Attorney's office with respect to knowledge that you have regarding criminal activity.
The document also states that “[t]he information that you provide to the Attorney for the Commonwealth during your cooperation will not be used against you, except as otherwise provided by this agreement.” The appellant and his attorney signed the agreement.
The appellant filed a motion to dismiss the charges against him in accordance with the cooperation and immunity agreement. He argued that the agreement stated that the Commonwealth was not going to prosecute him based on statements that he provided pursuant to the agreement. The Commonwealth responded that the appellant was indicted based on other evidence, not the statements that he made in exchange for the agreement.
The trial court concluded that the agreement was limited to “use immunity” and denied the motion to dismiss. The court also ruled that none of the appellant's statements made as a result of the agreement would be admissible at trial, except for impeachment purposes if the appellant testified.
“On appellate review, the trial court's interpretation of the agreement is a matter of law subject to de novo review, while a clearly erroneous standard of review is applied to the trial court's factual findings.” Hood v. Commonwealth, 269 Va. 176, 181, 608 S.E.2d 913, 916 (2005). Cooperation and immunity agreements “are contractual in nature and, thus, are subject to principles of contract law.” Lampkins v. Commonwealth, 44 Va.App. 709, 722, 607 S.E.2d 722, 728 (2005). Further, the reviewing court must interpret the contract as a whole. E.g., Schuiling v. Harris, 286 Va. 187, 193, 747 S.E.2d 833, 836 (2013).
In Gosling v. Commonwealth, 14 Va.App. 158, 164, 415 S.E.2d 870, 873 (1992), this Court described three categories of immunity from prosecution. “Use immunity protects the witness only from ‘the use of the specific testimony compelled from him under the grant of immunity,’ but not from evidence obtained as a result of such testimony.” Id. (quoting Kastigar v. United States, 406 U.S. 441, 450, 92 S.Ct. 1653, 1659, 32 L.Ed.2d 212 (1972) ). In contrast, “transactional immunity accords complete immunity from prosecution to the witness for the offense related to compelled testimony.” Id. A third type of immunity, “[d]erivative use immunity[,] prohibits use against the witness of evidence even indirectly obtained from his testimony.” Id.
In this case, the first sentence of the agreement specifically states that the Commonwealth will not prosecute the defendant “based on statements provided pursuant to this agreement.” The second sentence of the agreement refers to “[t]his use immunity.” Under the principle that the contract is construed as a whole, the agreement expressly provided the appellant with use immunity, not transactional or derivative use immunity. The use immunity provided the appellant protection only from the Commonwealth using the specific statements he made in exchange for the agreement.3 The prosecutor averred that the indictments were not based on those statements. The appellant did not dispute that assertion, nor does he contend that those statements were admitted at trial. Consequently, the cooperation and immunity agreement did not require the trial court to dismiss the charges against the appellant.
The appellant argues that the trial court erred by denying his motion for separate trials. The Commonwealth contends, as one basis for affirmance, that joinder was proper because to prove participation in a gang it had to demonstrate two or more predicate criminal acts, at least one of which was an act of violence.
Rule 3A:10(c) states that “[t]he court may direct that an accused be tried at one time for all offenses then pending against him, if justice does not require separate trials and (i) the offenses meet the requirements of Rule 3A:6(b) or (ii) the accused and the Commonwealth's attorney consent thereto.” Subject to these rules, “[t]he determination as to joinder rests within the sound discretion of the trial court....” Brown v. Commonwealth, 37 Va.App. 507, 514, 559 S.E.2d 415, 419 (2002) ; see also Walker v. Commonwealth, ––– Va. ––––, ––––, 770 S.E.2d 197, 199 (2015). The abuse of discretion standard, “ ” Tynes v. Commonwealth, 49 Va.App. 17, 21, 635 S.E.2d 688, 689 (2006) (citation omitted) (quoting Thomas v. Commonwealth, 44 Va.App. 741, 753, 607 S.E.2d 738, 743, adopted upon reh'g en banc, 45 Va.App. 811, 613 S.E.2d 870 (2005) ).
Where, as here, the defendant did not consent to having his charges tried together, this Court must evaluate whether the requirements of Rule 3A:6(b) were satisfied. “This rule provides the ‘trial court [with] limited discretion to order an accused to be tried for more than one offense at the same time.’ ” Purvis v. Commonwealth, 31 Va.App. 298, 304, 522 S.E.2d 898, 901 (2000) (alteration in original) (quoting Godwin v. Commonwealth, 6 Va.App. 118, 121, 367 S.E.2d 520, 521 (1988) ). Offenses may be tried together “if (1) the offenses are based on ‘the same act or transaction,’ (2) the offenses are based on ‘two or more acts or transactions that are connected,’ or (3) the offenses ‘constitute parts of a common scheme or plan.’ ” Cook v. Commonwealth, 7 Va.App. 225, 228, 372 S.E.2d 780, 782 (1988) (quoting Rule 3A:6(b) ). In reviewing a trial court's pretrial ruling allowing joinder of offenses for trial, the appellate court is not confined to the contents of the pretrial proffers and may rely on evidence presented at trial to affirm the joinder decision. Allen v. Commonwealth, 58...
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