Person v. Commonwealth, Record No. 0456-11-2

CitationRecord No. 0456-11-2
Case DateJune 05, 2012
CourtCourt of Appeals of Virginia


Record No. 0456-11-2


Dated: June 5, 2012

Present: Judges Elder, Alston and Senior Judge Coleman
Argued at Richmond, Virginia

JUNE 5, 2012

Frederick G. Rockwell, III, Judge

Alexander L. Taylor, Jr. (Law Office of Alex Taylor, on briefs), for appellant.

Susan M. Harris, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Dejon T. Person ("appellant") appeals his convictions for first-degree murder, robbery, malicious wounding, and three corresponding counts of using a firearm in the commission of each felony offense. Appellant contends that the trial court erred in three respects: 1) the trial court erred in denying his motion to set aside the verdict after the Commonwealth committed a Brady violation; 2) the trial court erred in denying his motion to strike when the Commonwealth failed to prove that he took personal property as an element of robbery; and 3) the trial court erred in failing to instruct the jury on unlawful wounding. For the reasons that follow, we affirm in part and reverse in part. We affirm the trial court's decisions on the first two assignments of error but find that the trial court erred in failing to instruct the jury on unlawful wounding and consequently remand for a new trial on the malicious wounding and use of a firearm in the commission of a malicious wounding charges only, if the Commonwealth be so advised.

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When considering the sufficiency of the evidence following a jury verdict, we must determine "'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We will not set aside the trial court's judgment "unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it." Code § 8.01-680.

Viewing the evidence in the light most favorable to the Commonwealth, the evidence indicated that appellant's cousin, Gary Harrison, called an acquaintance, Robert Cooks, on April 21, 2010, to arrange a marijuana purchase. Harrison was one of Robert's regular customers, and Harrison requested that Robert arrange this purchase with his dealing partner, Clifford Cox. Harrison told Robert that he wanted to purchase an ounce of "Exotic" - a high grade of marijuana - and a quarter pound of regular grade marijuana. Harrison and Robert agreed to meet at an apartment complex near Robert's residence. Both Harrison and Robert understood that Robert would ride with Clifford and that Harrison would probably bring his girlfriend, Tyjiah Clayton. Harrison never mentioned that he would bring his cousin, appellant, and neither Robert nor Clifford had ever met appellant before that day.

When Robert and Clifford arrived at the meeting point, Harrison was already there waiting in his car. Robert later gave conflicting testimony at trial regarding whether he saw anyone sitting in the passenger seat of Harrison's car. He stated on direct examination that he

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saw no one when he first approached the meeting point but then affirmed on direct examination that he had previously testified to seeing Harrison's girlfriend in the passenger seat. After both Clifford and Harrison parked their cars, Robert noticed appellant sitting in the backseat of Harrison's car, behind Harrison, wearing a black baseball cap. Harrison then exited his car and got into the backseat of Clifford's car, behind Robert. With a digital scale, Clifford weighed the high grade marijuana so Harrison could see that it weighed an ounce. After weighing it, Clifford put the marijuana back into a tall, orange pill bottle.

Harrison then announced that appellant wanted to see for himself that the marijuana weighed an ounce. Harrison exited Clifford's car and returned to his, and appellant took Harrison's place behind Robert in the backseat. Clifford began to re-weigh the marijuana from the pill bottle. Before Clifford finished, appellant pulled a gun from his pants, pointed it at Clifford, and said, "Do you have money, too?" Robert was unarmed, but swatted at appellant's gun, a .9 millimeter Sig Sauer. The two struggled until appellant started shooting, and a shot struck Robert in the hand that he was using to try to push appellant's gun away. At that point, Robert got out of Clifford's car and tried to push the backseat door closed to stop appellant from getting out.

Robert ran from the car toward the nearby woods. When he reached the woods, he noticed that he had a gunshot wound in his thigh. However, he could not recollect when he received that wound, nor did he remember hearing any gunshots as he was running toward the woods. A few minutes later, a Chesterfield County police officer intercepted Robert.

In the meantime, Chesterfield County Police Officer Michael Lasorsa was dispatched to the apartment complex for a "shooting call." When he pulled into the parking lot, Officer Lasorsa heard several residents yelling that the shooter was in the area and still shooting. Officer Lasorsa parked his patrol car, blocking the entrance to the parking lot, and discovered a

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nineteen-year-old black male, Clifford, sitting in the driver's seat of a green Infinity. His head was tilted back, and he was still. Because Officer Lasorsa could not detect a pulse anywhere on Clifford, he concluded that Clifford was dead and covered his body with a sheet. The medical examiner later determined that Clifford had been shot eight times.

A forensics investigator recovered seven .9 millimeter Lugar caliber cartridge casings outside and around Clifford's car and seven more inside the car. Although the police never recovered the gun that appellant eventually admitted to using, they did determine that all fourteen shell casings were from bullets fired from that gun. The police did, however, recover a black revolver from the backseat of the car, stuffed in between the seats. Through additional investigation and analysis, police later determined that the revolver belonged to Clifford.

Using cell phone records obtained from Robert, police identified Harrison as a suspect in the shooting. Police arrested Harrison in the City of Richmond a few days later. Almost two weeks later, U.S. Marshals found appellant in Pennsylvania and arrested him on multiple charges.

Two months prior to his trial, appellant filed a motion for discovery with the trial court. The Commonwealth filed a response to the discovery motion with an attached "summary of all known exculpatory materials." This summary included in pertinent part:

Robert Cooks: Mr. Cooks has not been charged with any crime. That was decided the day of the shooting. Mr. Cooks is a juvenile and has no felony convictions or misdemeanor convictions. On June 7, 2010, it was learned that he has a pending Grand Larceny case under advisement until his 18th birthday at which time it will be dismissed if he has no new charges or problems. Mr. Cooks stated that [Clifford] had a gun on his lap at the time of the drug deal but he never saw him pick it up or fire it.
* * * * * * *

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Witnesses at the scene said there was a front seat passenger in Mr. Harrison's car. Mr. Harrison denied this to the police.

A grand jury indicted appellant for first-degree murder in violation of Code § 18.2-32 relating to Clifford's death, malicious wounding in violation of Code § 18.2-51 relating to the shooting of Robert, robbery in violation of Code § 18.2-58, and three corresponding counts of using a firearm in commission of murder, malicious wounding, and robbery in violation of Code § 18.2-53.1.

Appellant was tried before a jury over the course of two days. Robert testified for the Commonwealth consistently with the events as described above. Although Robert admitted he had a pending charge of grand larceny "under advisement" in the juvenile district court, he testified that neither the prosecutor nor the police had promised favorable treatment in exchange for his testimony. On cross-examination, Robert conceded that appellant did not take the marijuana from his hands or from Clifford's hands. Robert also admitted that appellant did not take any money or other property that was in Clifford's car. He further testified that Clifford had a gun sitting on his left thigh while the transaction was taking place in Clifford's car. After cross-examination exposed Robert's prior inconsistent statements about when and how he was shot in the leg, Robert admitted that he understood only from experts that the gunshot to his thigh entered from the front, not from the back as he had previously stated.

Detective Michael Morgott then testified about the Chesterfield County Police Department's investigation of the shooting as described above. In addition, Detective Morgott testified that he was told there was a third person in the car with Harrison and appellant but that no one in the police department was able to prove that this person was Harrison's girlfriend, Tyjiah Clayton. On re-direct, Detective Morgott confirmed that he had interviewed Ms. Clayton and that she maintained, as...

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