Langhorne v. Com.

• Decision Date: 17 September 1991
• Docket Number: No. 0305-90-2,0305-90-2
• Citation: Langhorne v. Com., 409 S.E.2d 476, 13 Va.App. 97 (Va. App. 1991)
• Court: Virginia Court of Appeals
• Parties: Aaron Tyler LANGHORNE v. COMMONWEALTH of Virginia. Record

Page 476

409 S.E.2d 476

13 Va.App. 97

Aaron Tyler LANGHORNE v.COMMONWEALTH of Virginia.

Record No. 0305-90-2.

Court of Appeals of Virginia.

Sept. 17, 1991.

Craig S. Cooley, Richmond, for appellant.

Virginia B. Theisen, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, BENTON and COLEMAN, JJ.

COLEMAN, Judge.

Aaron Tyler Langhorne was convicted of distributing heroin in violation of Code§ 18.2-248 and conspiring to distribute heroin in violation of Code§§ 18.2-256 and 18.2-248.The trial court sentenced Langhorne in accordance with the jury verdicts to thirty years imprisonment and a $20,000 fine.Langhorne claims the trial court erred by: (1) admitting evidence that he failed to appear for trial when the case was originally scheduled; (2) admitting evidence that he attempted to flee from the police when they came to arrest him for not appearing at trial; (3) granting a jury instruction on flight; (4) admitting evidence that the police seized a pager from his residence when they arrested him; (5) refusing to admit his wife's handwriting sample and by refusing to admit an incriminating statement which she allegedly made; (6) overruling a Batson challenge to the Commonwealth's peremptory strike of juror Moseley; and (7) refusing to strike the evidence as insufficient to support his conviction.We hold that his contentions are without merit, and we affirm the convictions.

On November 16, 1988, Robert Sutton, an informant who had been working with the Richmond City Police, encountered Aaron Langhorne and his wife, Ardes, and told them he was interested in making a wholesale purchase of heroin.Sutton had known the Langhornes since the 1970's.Sutton told the Langhornes his money to buy drugs was at his home.Ardes drove him there.When they arrived, Sutton told Ardes he would not have the money available until that evening, and they arranged to meet later.Detective Randy Davis, an undercover agent who worked with Sutton, came to Sutton's home in anticipation of the arranged meeting to provide him with money for the drug buy.After Sutton agreed to a price set by Ardes Langhorne, Detective Davis gave her $400.In return, Aaron Langhorne gave Sutton a plastic wrapper containing tin foil packets of heroin and quinine, a common drug-cutting agent.After the drug sale, Aaron Langhorne gave Sutton a slip of paper with the telephone number to his pager, and he assigned Sutton the code number "50" so Sutton could "keep in touch."Detective Davis testified that Aaron Langhorne wrote the number on the piece of paper.Sutton did not state who wrote the number, but only that Aaron Langhorne gave him the paper.Sutton testified that when he called the pager number and gave his code, Aaron Langhorne returned his call.

After Detective Davis had finished his undercover assignment and the Richmond grand jury had returned indictments, a Chesterfield County investigator arrested Langhorne and his wife on April 6, 1989, at their home.The investigator seized two pagers from the nightstand in the Langhornes' bedroom; one of these pagers had the corresponding phone number which Langhorne had given to Sutton.The pagers were admitted into evidence over Langhorne's objection that they were irrelevant and prejudicial.

Langhorne was first scheduled to be tried on these charges on July 6, 1989.He failed to appear for trial.A capias was issued for his arrest.He remained at large until arrested again on November 30, 1989.Langhorne was tried on February 12, 1990.Over Langhorne's objection, the jury was told that Langhorne had failed to appear for his July 6, 1989, trial.The Commonwealth offered the evidence to prove flight from prosecution on the theory that it showed consciousness of guilt.Additionally, an officer of the Richmond City Police Department testified that on November 30, 1989, he stopped the operator of an automobile for a traffic violation.Aaron Langhorne, who was the front seat passenger, first gave the officer a false name and then jumped from the vehicle and attempted to flee.Langhorne objected that the evidence was prejudicial and outweighed any probative value to prove flight, particularly since the flight was remote in time and not necessarily related to the commission of these crimes.Langhorne argues that because he had multiple charges pending against him and was on Richmond's top ten most wanted list, the jury could not clearly infer that he was attempting to escape because of his "consciousness of guilt" for these crimes.

Neither Aaron Langhorne nor his wife, Ardes, testified at his trial.The court was advised in camera that Ardes Langhorne had admitted to the police that she had been the one to write down the pager number for Sutton, contrary to the testimony of Detective Davis.The court was told that she had provided the police a handwriting sample for comparative analysis.¹Aaron Langhorne offered a separate handwriting sample of his wife into evidence for the jury to compare to the writing furnished Sutton.The trial court refused to allow the officer to testify that Ardes Langhorne admitted to him that she had written the pager number.The trial court based its ruling on the fact that Ardes Langhorne had not been called as a witness and, thus, the evidence was not relevant to impeach her credibility, nor was it admissible on some theory of an exception to the hearsay rule for an unavailable witness.The court refused to admit her handwriting sample for the jury to compare and refused to admit the results of the laboratory analysis which were inconclusive as to whether her exemplar matched the writing.

I.EVIDENCE OF FLIGHT

A.Failure to Appear for Trial

No reported Virginia cases have decided whether evidence that an accused failed to appear for trial is admissible to prove flight to avoid prosecution and, thus, is relevant as a circumstance tending to prove consciousness of guilt.Langhorne contends the trial court erred by allowing the jury to learn that he had failed to appear for his trial.He points out that failure to appear for trial amounted to evidence of another offense, a violation of Code§ 18.2-248(B), and such evidence did nothing to prove any element of the charges against him.

As a general rule, only under limited circumstances may evidence of other offenses by an accused be admitted to prove the offense at bar.Spencer v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d 609, 616, cert. denied, 498 U.S. 908, 111 S.Ct. 281, 112 L.Ed.2d 235(1990).Many jurisdictions, however, have held that failure to appear for a scheduled trial is evidence of flight and is, therefore, admissible.SeeUnited States v. Crosby, 917 F.2d 362, 368(8th Cir.1990);United States v. Ritch, 583 F.2d 1179, 1181(1st Cir.), cert. denied, 439 U.S. 970, 99 S.Ct. 463, 58 L.Ed.2d 430(1978);United States v. Accardi, 342 F.2d 697, 700(2d Cir.), cert. denied, 382 U.S. 954, 86 S.Ct. 426, 15 L.Ed.2d 359(1965);Hanks v. United States, 388 F.2d 171, 175(10th Cir.), cert. denied, 393 U.S. 863, 89 S.Ct. 144, 21 L.Ed.2d 131(1968);State v. Roderick, 9 Ariz.App. 19, 22, 448 P.2d 891, 894(1968);Smith v. State, 695 P.2d 1360, 1363(Okla.Crim.1985);E. Cleary, McCormick on Evidence§ 271 (2d ed. 1972);29 Am.Jur.2dEvidence§ 285(1967);1 C. Torcia, Wharton's Criminal Evidence§ 154 (14th ed.1985).We adopt this majority position.

Evidence of flight is "a circumstance proper to be laid before the jury as having a tendency to prove [a defendant's] guilt."Allen v. United States, 164 U.S. 492, 499, 17 S.Ct. 154, 156, 41 L.Ed. 528(1896).Although flight to avoid prosecution is evidence of another offense, it is nevertheless admissible to show a consciousness of guilt.SeeBowie v. Commonwealth, 184 Va. 381, 392, 35 S.E.2d 345, 350(1945);Jenkins v. Commonwealth, 132 Va. 692, 696, 111 S.E. 101, 102(1922);Hope v. Commonwealth, 10 Va.App. 381, 386, 392 S.E.2d 830, 834(1990).At the request of the Commonwealth's attorney, the trial court took judicial notice of its records, which indicated that Langhorne failed to appear at his original trial.The court did not err in doing so or in receiving the evidence as proof of flight.

B.Fleeing to Avoid Detection, Apprehension, or Arrest

Langhorne also objected to the evidence that he attempted to flee on November 20, 1989, when the police stopped the automobile in which he was riding.He claims that the remoteness in time of this incident to the occurrence of the crime and the fact that he had other charges pending against him, render the evidence irrelevant and, therefore, inadmissible.We disagree.

Admittedly, the Supreme Court has expressed doubt as to the probative value of flight evidence.SeeWong Sun v. United States, 371 U.S. 471, 483 n. 10, 83 S.Ct. 407, 415 n. 10, 9 L.Ed.2d 441(1963)("We have consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime").Nevertheless, "it is today universally conceded that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself."United States v. Ballard, 423 F.2d 127, 133(5th Cir.1970).

Due to the fact that flight evidence is sometimes ambiguous, courts at times assert that such evidence is of questionable probative value unless the inferences of guilt that accompany the particular facts associated with it are strong....A court will generally scrutinize the facts of each case to determine whether the jury should be given an opportunity to draw on [sic] inference of guilt from the defendant's flight.

United States v. Martinez, 681 F.2d 1248, 1257(10th Cir.1982)(surveying cases where flight evidence was held inadmissible because of particular facts which tended to detract from the probative value of such evidence).

"The flight need not...