Hopkins v. Com.

Decision Date27 November 1985
Docket NumberNos. 840660,840745,s. 840660
PartiesJerry Wayne HOPKINS v. COMMONWEALTH of Virginia. Jerry Wayne HOPKINS v. COMMONWEALTH of Virginia. Record
CourtVirginia Supreme Court

B. James Jefferson, David A. Melesco (Welch & Jefferson, Rocky Mount, on brief), for appellant in Record No. 840660.

Russell C. Williams, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee in Record No. 840660.

Ward L. Armstrong, R. Morgan Armstrong, Collinsville (Armstrong & Armstrong, on brief), for appellant in Record No. 840745.

John H. McLees, Jr., Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee in Record No. 840745.

Present: All the Justices.

COCHRAN, Justice.

In these appeals, Jerry Wayne Hopkins challenges his conviction in Franklin County of the murder of Rose Marie Kretschman and his conviction in the City of Martinsville of abduction of Kretschman. The convictions arose from a common factual background.

Hopkins was tried in Martinsville under indictments charging him with abducting Kretschman and maliciously wounding Tyrone Griffin on May 1, 1983. In January 1984, a jury found Hopkins guilty of Kretschman's abduction, fixing his punishment at confinement in the penitentiary for 10 years, but found him not guilty of unlawfully wounding Griffin. On January 19, 1984, the trial court sentenced Hopkins in accordance with the verdict. We granted Hopkins an appeal limited to consideration of the sufficiency of the evidence and questions concerning the testimony of a witness who had been exposed to hypnosis prior to trial.

In February 1984, Hopkins, tried by a jury in Franklin County under an indictment charging him with Kretschman's murder on or about May 1, 1983, was found guilty of first-degree murder; his punishment was fixed at life imprisonment. The trial court entered judgment on the verdict on February 6, 1984. We granted Hopkins an appeal limited to the question whether the trial court erred in admitting certain evidence identifying Kretschman as the murder victim.

Tyrone Griffin's testimony was essentially the same in both trials. He and Kretschman, his girlfriend, left his grandmother's house on foot on Sunday, May 1, to go fishing at Lester Lake in a remote area in Martinsville. They carried with them a backpack, a tackle box, two bottles of soft drinks, six or eight empty drink bottles, two rods and reels, a bucket of live bait, and sandwiches for their lunch. On the way, Griffin found a tire weight which he put in the backpack. At the lake, as Griffin and Kretschman ate their sandwiches, Hopkins, whom Griffin had never seen before, approached and conversed with them. Hopkins talked with them several times; once he asked Griffin about the possibility of buying drugs. Hopkins brought Kretschman a soft drink and gave Griffin a drink of corn liquor. Hopkins fished with them in the late afternoon until dark, when he offered them a ride home. Griffin and Kretschman accepted his offer, walked with him to his car parked nearby at the Elvis McBride house, and placed their gear in the back seat of the car. Initially, Kretschman sat in the back seat while Hopkins and Griffin occupied the front seat.

Hopkins drove the car a short distance up Bethel Lane but soon stopped, held a knife to Griffin's neck, and began to back the car down the road. Griffin "jerked the knife away from [his] neck" and struggled with Hopkins. In testifying about the alleged wounding, Griffin said he did not realize until a few minutes later that he had been cut. After Griffin "calmed down," Hopkins ordered Kretschman to get into the front seat. She did so, and Hopkins drove to a nearby dirt road which turned off to the right. Stopping on this roadway, Hopkins ordered Griffin and Kretschman out of the car. He searched them, then began looking in the car for a roll of tape. Griffin and Kretschman ran, but Hopkins caught Kretschman by her hair. He told Griffin, "If you don't come back, I'm going to kill her." When Griffin returned, Hopkins taped his hands together. Hopkins then went back to the car, opened the trunk, pointed to a shovel, and threatened to kill Griffin and bury him with the shovel if he caused any more trouble. Freeing his hands, Griffin again grabbed Kretschman and ran. Hopkins caught Kretschman as before, but this time Griffin continued to run. He called the police from a nearby house.

Hopkins, who did not testify in the murder trial, gave an account in the abduction trial of the events at the lake that was substantially the same as Griffin's, but he denied drinking liquor or offering any to Griffin that afternoon. According to Hopkins, he offered the two a ride into town, and they went with him to his car. He placed his fishing equipment in the trunk, where he had a shovel, and they put their gear in the back seat. All three then sat in the front seat. Hopkins said he let Griffin and Kretschman out at a shopping center, ate at a nearby restaurant, and proceeded to Danville to a movie. Returning to Martinsville about 12:30 a.m., he slept in his car in the parking lot of Regent Industries, where he worked.

On June 14, 1983, the remains of a human body were found in Franklin County on property formerly belonging to Hopkins's grandfather and still in his family. In the murder trial, Dr. David W. Oxley, chief medical examiner for western Virginia, testified that the remains were those of Kretschman. He based his testimony on an identification made by Dr. A.W. Kagey and summarized in the autopsy report. Kagey, a Roanoke dentist, identified the remains by comparing the teeth with Kretschman's dental records provided by her dentist.

Elvis McBride testified that she had permitted Hopkins to park his car in the driveway at her house for two weeks. He slept in the car. When she and her family returned home from church about 9:00 p.m. on Sunday, May 1, Hopkins's car was there but she did not see Hopkins. Soon thereafter, while she was inside the house, she heard the car start and drive away.

George Preston Carter testified that Griffin telephoned the police Sunday night, May 1, from Carter's house on Williams Street near Bethel Lane. In the abduction trial, Carter estimated that Griffin made the call between 9:00 and 9:30 p.m.; in the murder trial he estimated a slightly later time. The police received the call at 9:20 and found Griffin near the scene when they arrived minutes later.

Police officers talked to Hopkins early Monday morning, May 2, at Regent Industries. They then went to the scene of the alleged abduction, where they saw a man dressed like Hopkins running through the woods. One of the officers positively identified the man as Hopkins. Co-workers said Hopkins had borrowed a car and left work that morning immediately after the police had talked to him. Hopkins was arrested at work later that day.

Witnesses said Hopkins was wearing blue shorts, a striped shirt, and high-top tennis shoes on May 1. They said he always carried a knife on his belt and another in his car. In the abduction trial, Hopkins denied wearing the clothes described, saying he had on green cut-off shorts and low-top tennis shoes.

Officers searched Hopkins's car following his arrest on May 2. In the trunk they found a tire weight, a shovel, a tackle box, and a rod and reel. From the interior they recovered a bottle of grain alcohol which was almost empty, Price Breaker cigarettes, articles of clothing, the contents of the ash tray, and hair and debris vacuumed from the car.

At the site where the body was found, investigators discovered a cigarette filter, four matches, empty drink bottles, a backpack, two fishing rods, tennis shoes, and clothing. A roll of tape found about 100 feet from the body was determined to be a kind of tape with limited distribution to local industries, one of which was located in the building where Hopkins worked. The tape was identical to tape previously seen in Hopkins's possession.

Laboratory analysis showed that the cigarette filter found near the victim's remains was a kind of filter found in Price Breaker cigarettes, in 13% of all cigarettes sold, and in 4% of all cigarette brands. Examinations of hair samples revealed that head hairs consistent with Hopkins's hair were on clothing found with the remains. Furthermore, samples of pubic hair taken from a portion of a woman's panty found with the remains were consistent with a hair swept from Hopkins's car and a hair removed from a jacket found in the car. No hairs similar to samples taken from Griffin were found either in the car or with the victim's remains.

Hopkins testified in the abduction trial that he drove Griffin and Kretschman to town and let them out near a group of stores. Two employees of the drugstore at that location testified in both trials that Griffin was in the store that Sunday between 6:30 and 7:30 p.m. Griffin denied being there at that time. Another defense witness testified that Griffin told her Hopkins left him and Kretschman at the drugstore about 8:15 p.m. on that date. In the abduction trial, a defense witness testified to having heard Griffin say he had taken Kretschman to the property belonging to Hopkins's grandparents two days after she disappeared.

I. The Murder Trial--Record No. 840660.

In the trial of the murder charge, Hopkins objected to admission of Kagey's dental identification evidence through the medical examiner's testimony or the autopsy report. 1 The trial court ruled that the identification was admissible under Code § 19.2-188. 2 Expressions of opinion, however, are not admissible merely because they are included in a medical examiner's report; only statements of fact are admissible under this statutory exception to the rule excluding hearsay evidence. Bond v. Commonwealth, 226 Va. 534, 537, 311 S.E.2d 769, 771 (1984); Ward v. Commonwealth, 216 Va. 177, 178, 217 S.E.2d 810, 811 (1975). The trial court erred, therefore, in admitting the...

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