Lafon v. Com.

• Decision Date: 30 November 1993
• Docket Number: No. 2244-91-3,2244-91-3
• Citation: 438 S.E.2d 279,17 Va.App. 411
• Court: Virginia Court of Appeals
• Parties: John David LAFON v. COMMONWEALTH of Virginia. Record

Page 279

438 S.E.2d 279

17 Va.App. 411

John David LAFON v. COMMONWEALTH of Virginia.

Record No. 2244-91-3.

Court of Appeals of Virginia.

Nov. 30, 1993.

[17 Va.App. 413] Douglas E. Brinkman (Raphael B. Hartley, III; Frank & Hartley, on brief), for appellant.

Richard B. Smith, Asst. Atty. Gen. (Stephan D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: KOONTZ, ELDER and FITZPATRICK, JJ.

KOONTZ, Judge.

John David Lafon (Lafon) was convicted by jury on counts of first-degree murder, illegal use of a firearm during the commission of a murder and simple abduction in connection with the death of Meredith Anne Mergler (Mergler). On appeal, Lafon contends (1) the trial court erred in admitting testimony regarding Lafon's prior bad acts; (2) the trial court erred in admitting testimony from two lay witnesses that expressed an opinion as to the ultimate fact of Lafon's guilt; (3) the trial court erred in not suppressing uncounseled statements made by Lafon to a police informant; and, (4) the Commonwealth failed to present evidence sufficient to sustain Lafon's conviction for simple abduction. For the reasons that follow, we affirm Lafon's convictions.

Meredith Anne Mergler, a student at Virginia Polytechnic Institute & State University, disappeared sometime during the early morning hours of Sunday, August 30, 1987 after leaving a restaurant in Blacksburg. She had planned to return to her home in Northern Virginia that morning with Ann Ryan, a fellow student. Ryan informed Mergler's family that Mergler failed to meet Ryan that morning and that mutual friends Ryan had contacted could not locate Mergler.

Efforts by Blacksburg Police and a private investigator hired by Mergler's family failed to elicit any information concerning Mergler's disappearance. During the early days of the investigation, Lafon made inquiries to the Giles County Sheriff's office concerning the investigation. Lt. Bill Stables, who knew Lafon as an occasional informant, told Lafon that Blacksburg police had not indicated any connection between the investigation and Giles County.

On October 17, 1988, David Kanode, his father, and Roger Whittaker, a family friend, visited property the Kanode family owned in Giles County. The family had not used the property in several years, but a woman named Lucy Seymour occasionally checked on the property for the Kanodes. She had visited the property last in early August 1987. At that time, only loose boards covered the well on the property. Unknown to either the Kanodes or Seymour, Lafon and William Link had cultivated the property in 1987 and had used the well for irrigation.

While clearing brush from the land, Kanode asked Whittaker to examine the well. Whittaker discovered a concrete slab covering the boards; nonetheless, he could see into the shaft and saw a body floating at the bottom of the well. The three men immediately left the property and contacted the Giles County Sheriff's office.

Deputies recovered from the well a body later identified as Mergler's. An autopsy showed that Mergler's body had been exposed to a high concentrate of lime and water; death had resulted from two shotgun wounds, either of which would have been Forensic tests identified the shell casings as Remington .12 gauge loads. The same weapon fired two and possibly all three of the shells. Lafon owned and hunted with a .12 gauge shotgun at the time of Mergler's disappearance.

fatal. Deputies also recovered a number of Mergler's personal effects from the well along with three shotgun shell casings and three shell wads.

When Lafon learned of the discovery of the body, he told William Link and others that he knew "where we all were that night [be]cause I figured the law would be hounding me about this." Lafon insisted that he and his friends could alibi one another because they had all attended a party and had not left until 2:00 a.m. the morning of Mergler's disappearance. Link reminded Lafon that in fact they (Link and Lafon) had left the party at 11:30 p.m. Link recalled that Lafon had specifically requested that Link note the time, 12:10 a.m., that Lafon had dropped Link at the latter's home.

Lt. Stables testified that he conducted the investigation following the discovery of Mergler's body. He interviewed Lafon as a potential informant, but did not consider Lafon a suspect. In March 1990, Stables interviewed Melinda Link on an unrelated matter and, in accord with his practice at the time, concluded by inquiring about the Mergler homicide. Melinda Link stated that Lafon had killed Mergler and directed Stables to interview Doug Jones, a friend of Lafon's.

Jones at first refused to discuss the matter with Stables, but after a friend assured Jones that he could trust Stables, Jones obtained a tape recorder and met with Lafon, recording their conversation. Jones gave a letter to Stables detailing Lafon's statements along with the tape of their conversation. Jones then agreed to tape future conversations he had with Lafon. Jones thereafter taped several conversations he had with Lafon and one conversation Jones had with Lafon's counsel in which they discussed the murder and the well on the Kanode property. The trial judge overruled Lafon's motion in limine to exclude the tapes and other evidence derived from these conversations. The tapes of Jones's conversations with Lafon were played during the trial.

At trial, Jerry Martin, over Lafon's objection that the evidence lacked relevance and unfairly prejudiced his character, recalled an incident in which he, Lafon, Doug Jones and William Link drove to Blacksburg in June 1986 after Lafon said he knew where they could find a woman in Blacksburg. Arriving in Blacksburg, the group drove to a residential area of apartments where many Virginia Tech co-eds lived. Lafon asked Jones and one of the other men if they would "grab the girl," but they refused to do so. Lafon then said that he would "get her," and directed one of the other men to cruise the area. Lafon spotted a young woman and engaged her in a brief conversation, but made no attempt to accost her. After he and the other men drove away, Lafon commented that they would have to kill any woman they picked up.

Doug Jones testified that sometime during the spring of 1988, prior to Jones's first contact with Stables, Lafon visited Jones at the store where Jones worked. Asking to speak to him privately, Lafon told Jones, "I did it, Douglas, I did it ... I've put something in a well I can't let anybody find." Jones asked Lafon what he meant, and Lafon said, "What we had always talked about before, going to Blacksburg to pick up a girl and take her to the mountains, rape her and bury her there." Lafon then asked Jones to describe how to construct a concrete form to cover the top of the well. Jones described the method for making a concrete form and then asked Lafon what he would do if someone discovered the body. Lafon replied, "[T]hey couldn't find out because he (Lafon) had put lime down in the well to dissolve the body and keep the smell down." In 1987, Lafon worked for the Virginia Lime Company and had access to the quick lime which the company produced.

Upon learning of the discovery of Mergler's body, Jones confided in Sherry Roberts, a co-worker, that he believed Lafon had committed the murder. Jones stated several times during his testimony, without objection from Lafon, that he believed Lafon had committed the murder. Only during redirect During cross-examination, Lafon attempted to show that Jones had only recently fabricated the story of Lafon's admissions. Over Lafon's objection, the trial judge permitted Roberts to testify concerning her conversation with Jones as prior consistent statements.

examination, when Jones recounted a statement made to police regarding Lafon's capability to commit such crimes, did Lafon object to Jones's stating an opinion as to Lafon's guilt.

Lafon did not testify but presented witnesses to impeach the credibility of the Commonwealth's witnesses. Lafon's wife presented alibi testimony, stating that Lafon had returned home intoxicated at 12:15 a.m. on the morning of Mergler's disappearance.

I. THE PRIOR BAD ACTS ISSUE

Lafon argues that the testimony of Jerry Martin and certain statements made by Lafon during taped conversations with Doug Jones contained improper statements of prior bad acts committed by Lafon. As a general rule, evidence that shows or tends to show crimes or other bad acts committed by the accused is incompetent and inadmissible for the purpose of proving that the accused committed or likely committed the particular crime charged. Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). Evidence of other specific, similar bad acts does not logically support the inference that an accused has a propensity to commit bad acts of this nature and, therefore, the accused probably committed the bad act with which he or she stands charged. Spence v. Commonwealth, 12 Va.App. 1040, 1045, 407 S.E.2d 916, 918 (1991); Sutphin v. Commonwealth, 1 Va.App. 241, 245, 337 S.E.2d 897, 899 (1985).

Well established exceptions to the general rule of exclusion of other bad acts evidence apply where the evidence is relevant to show some element of the crime charged. To be admissible as an exception, evidence of other bad acts must be relevant to an issue or element in the present case. Sutphin, 1 Va.App. at 245, 337 S.E.2d at 899. In Sutphin, we enumerated the most common issues and elements for which evidence of prior crimes and bad acts are potentially relevant:

(1) to prove motive to commit the crime charged; (2) to establish guilty knowledge or to negate good faith; (3) to negate the possibility of mistake or accident; (4) to show the conduct and feeling of the accused toward his victim, or to establish their prior relations; (5) to prove opportunity; (6) to prove identity of the accused as the one who committed the crime where the prior criminal acts are so...