Jones v. Commonwealth of Virginia, Record No. 0412-06-4 (Va. App. 7/17/2007)
| Decision Date | 17 July 2007 |
| Docket Number | Record No. 0412-06-4. |
| Court | Virginia Court of Appeals |
| Parties | ERIC FITZGERALD JONES v. COMMONWEALTH OF VIRGINIA |
Appeal from the Circuit Court of the City of Alexandria Richard J. Jamborsky, Judge Designate.
Dennis M. Mersberger (Schmergel & Mersberger, PLC, on briefs), for appellant.
Rosemary V. Bourne, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Judges Frank, Clements and Senior Judge Fitzpatrick.
Eric Fitzgerald Jones (appellant) was convicted in a jury trial of second-degree murder, in violation of Code § 18.2-32, and use of a firearm in the commission of murder, in violation of Code § 18.2-53.1. On appeal, he contends the trial court erred in (1) finding the evidence sufficient, as a matter of law, to support his convictions; (2) allowing an expert in the field of firearms and tool mark identification to give an opinion regarding the probable distance a shell casing would be ejected by a Smith & Wesson nine-millimeter pistol; and (3) allowing the expert witness to use a Smith & Wesson nine-millimeter pistol as demonstrative evidence where no weapon was recovered in the case. For the following reasons, we affirm the trial court's judgment and appellant's convictions.
As the parties are fully conversant with the record in this case, and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.
"Under familiar principles of appellate review, we view the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed below." Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d 876, 877 (2003). So viewed, the evidence established that, around 10:30 p.m. on March 8, 2005, Corey Hargrow was fatally shot in the back while standing outside an apartment building in the 700 block of Fayette Street in Alexandria. Hargrow, whose nickname was " ," died before he could communicate to authorities the identity of the person who shot him. The murder weapon was never recovered.
At about 10:30 p.m. that night, Tina Williams, who had known appellant for about nine months, heard a noise outside that drew her to a second-story window of the apartment she was visiting. That apartment was adjacent to a paved walkway known locally as "the cut." When she looked out the window, she saw appellant standing near the end of "the cut" by Fayette Street pointing a gun at Hargrow, who was wearing a black hoodie. As she looked out at appellant, she heard a gunshot and saw appellant lower his arm. She then observed appellant raise his arm again and fire three more gunshots at Hargrow, who had turned and was trying to get away. Williams saw Hargrow slump over and saw appellant run away after firing the shots.
Eva Duncan, who lived two doors down from "the cut," was in her second-story bedroom with her window open on the night of March 8, 2005. She had known appellant for about a year and had talked to him numerous times. Around 10:30 p.m. that night, she heard the sound of an argument. Looking out the window, she saw several people standing in the vicinity of "the cut." Duncan recognized appellant, who was shouting and holding a gun by his side while Hargrow attempted to calm him. The two men were "face to face." Not thinking it was serious, Duncan returned to her bed. "A couple of minutes later," she heard about five gunshots. Returning to the window, she saw all but two of the people scattering. As she continued to watch, she saw Hargrow stumble toward the front door of the house next to "the cut" and saw appellant turn, tuck the gun into the waistband of his pants, and flee the scene.
Claudia Jenkins, who had known appellant for "a couple years," observed appellant and Hargrow arguing during the day of March 8, 2005. Later that night as she was walking home from a friend's house, she passed appellant and Hargrow on "the cut" near Fayette Street and again observed that they were arguing. After walking past them, Jenkins heard a gunshot behind her. She turned and saw appellant pointing a gun at Hargrow. She saw "fire" coming from the gun. She then heard several more shots as she fled.
Melissa Talbert, who lived three doors away from "the cut," was in her second-story bedroom on March 8, 2005, when she heard the sound of arguing through her partially open window around 10:30 p.m. Looking out the window, she saw five or six people standing near "the cut." She recognized the voices of appellant and Hargrow coming from the group. She heard appellant say in a loud voice to the person in the group wearing a hoodie, "[Y]ou are going to make me kill you." Talbert returned to bed. Three to five minutes later she heard gunshots. She returned to the window and saw someone slumped over by the front door of the house next to "the cut" and appellant running away.
On March 12, 2005, Dawit Meshesha, who had known appellant for more than three years, encountered appellant on North Henry Street. He thought appellant was "acting real nervous" and asked him what was wrong. In response, appellant said, "I just shot my man." When Meshesha asked him whom he had shot, appellant said it was someone Meshesha did not know, a person "named Bear." When Meshesha asked him what had happened, appellant said, "He got me so heated, that I came back and shot him."
At appellant's trial, Julian J. Mason, Jr., a forensic scientist employed by the Virginia Division of Forensic Science, qualified, without objection, as an expert witness in the field of firearms and tool mark identification. He testified that all four shell casings recovered from the scene of the murder came from the same weapon, a Smith & Wesson nine-millimeter auto-loading pistol. He further testified that all three of the bullets recovered were also fired from a single firearm, a Smith & Wesson nine-millimeter auto-loading pistol.
Over appellant's objection, Mason used an unloaded Smith & Wesson nine-millimeter auto-loading pistol as a demonstrative exhibit as he described the firearm's casing-ejection process. The trial court gave a cautionary instruction to the jury that the firearm used by Mason was not the murder weapon and was being used solely to demonstrate how a Smith & Wesson nine-millimeter auto-loading pistol "works so far as ejecting casings." Mason also testified, over appellant's objection, that, if a Smith & Wesson nine-millimeter auto-loading pistol is held upright when fired, the shell casings generally eject three to five feet away from the pistol.
Testifying on his own behalf, appellant admitted having been with Hargrow, his longtime friend, immediately before the shooting. He testified that a group of men approached them near the end of "the cut" by Fayette Street and that one of the men pointed a gun at them in an apparent robbery attempt. Appellant stated that he turned and ran, hearing gunshots as he fled.
At the conclusion of the trial, the jury found appellant guilty of second-degree murder and use of a firearm in the commission of murder. Imposing the sentences fixed by the jury, the trial court sentenced appellant to ten years in prison on the murder conviction and three years in prison on the use of a firearm conviction.
This appeal followed.
On appeal, appellant contends the evidence was insufficient, as a matter of law, to support his convictions because the testimony of the "witnesses most crucial to the government's case [was] inherently unreliable." We disagree.
In reviewing the sufficiency of the evidence to support a conviction, "we determine whether the evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the reasonable inferences fairly deducible from that evidence support each and every element of the charged offense." Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779 (1999). "In so doing, we must discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom." Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988). We will affirm the conviction "unless it is plainly wrong or without evidence to support it." Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 906 (2001).
We are further mindful that "[c]onflicts in the evidence are resolved by the fact finder, and such conflicts are not revisited on appeal unless 'the evidence is such that reasonable [persons], after weighing the evidence and drawing all just inferences therefrom, could reach but one conclusion.'" Molina v. Commonwealth, 47 Va. App. 338, 369, 624 S.E.2d 83, 98 (quoting City of Bedford v. Zimmerman, 262 Va. 81, 86, 547 S.E.2d 211, 214 (2001)), aff'd, 272 Va. 666, 636 S.E.2d 470 (2006). "Thus, if the evidence is conflicting on a material point, if reasonable persons may draw different conclusions from the evidence, or if a conclusion is dependent on the weight the fact finder gives to the testimony, a judge is not permitted to substitute his or her conclusion for that of the jury . . . ." Jenkins v. Pyles, 269 Va. 383, 388, 611 S.E.2d 404, 407 (2005).
Moreover, "[t]he credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). Hence, "[d]etermining the credibility of witnesses who give conflicting accounts is within the exclusive province of the jury, which has the unique opportunity to observe the demeanor of the...
To continue reading
Request your trial