Proctor v. Com.

• Decision Date: 01 April 2003
• Docket Number: Record No. 2524-01-2.
• Parties: Eugene Harry PROCTOR, III v. COMMONWEALTH of Virginia, Richmond.
• Court: Virginia Court of Appeals

578 S.E.2d 822

40 Va. App. 233

Eugene Harry PROCTOR, III v. COMMONWEALTH of Virginia, Richmond.

Record No. 2524-01-2.

Court of Appeals of Virginia, Richmond.

April 1, 2003.

Donald M. Haddock, Jr. (George W. Townsend, III; Redmon, Peyton & Braswell, L.L.P.; George W. Townsend, III, P.C., on briefs), Alexandria, for appellant.

Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: CLEMENTS, AGEE¹ and FELTON, JJ.

AGEE, Judge.

A Westmoreland County Circuit Court jury found Eugene H. (a.k.a. "Trey") Proctor, III (Proctor) guilty of murder in the first degree, discharging a firearm in an occupied building and use of a firearm while committing murder. Proctor was sentenced to life imprisonment, ten years imprisonment, and three years imprisonment, respectively. On appeal Proctor alleges the trial court erred by: (1) permitting the Commonwealth to treat its own witness as hostile and impeach him through the use of a prior written statement, (2) admitting improper testimony from the victim's mother, (3) not finding as a matter of law that the evidence was insufficient to support his conviction, (4) allowing the Commonwealth to proceed with a charge under Code § 18.2-279 in addition to the charge of murder under Code § 18.2-32, and (5) denying his motion for a change of venue. For the reasons that follow, we affirm the judgment of the trial court.

I. BACKGROUND

"Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, the prevailing party below, granting to it all reasonable inferences fairly deducible therefrom." Birdsong v. Commonwealth, 37 Va. App. 603, 605, 560 S.E.2d 468, 469 (2002) (citing Juares v. Commonwealth, 26 Va.App. 154, 156, 493 S.E.2d 677, 678 (1997)).

The facts are generally undisputed. On April 23, 2000, police officers responded to the residence of Proctor's parents in Colonial Beach where they found Joseph Simmons ("Simmons") standing by the body of the victim, Crystal Proctor ("Crystal"), Proctor's wife. Simmons was present when Proctor shot Crystal in the neck, at close range, with a single-shot twelve-gauge shotgun.

Earlier in the day Proctor, Crystal, and several of their friends had been drinking alcohol and smoking marijuana. In the early evening Proctor, Crystal, Carl Nave, Michael Bowie and Simmons all went over to Proctor's house. Proctor, Crystal, Nave and Bowie then left the house and attempted to purchase some marijuana from Jeffrey Hunter ("Hunter") who took their money but failed to deliver any marijuana. Proctor, upset by this occurrence, returned to his house to retrieve a gun with which to confront Hunter. Proctor went into the house while Crystal, Nave and Bowie remained in the car. After hearing yelling from inside the home, Crystal, Nave and Bowie entered the house and saw Proctor and his mother struggling over control of a shotgun. Proctor was yelling and screaming about shooting someone, and the others tried to calm him down. After gaining control of the shotgun, Proctor went outside and then re-entered the house without the gun. Proctor (who did not have a driver's license) demanded that Crystal drive him to find Hunter but she refused. Proctor threatened to "blow her head off" if she did not drive him as he demanded.

Nave grabbed Proctor in an effort to calm him down. However, upon being released, Proctor wrestled with his mother over a case containing shells for the shotgun and was able to grab several shells. He loaded the shotgun and threatened to shoot everyone if they touched him again. Everyone then left the house except Simmons, Crystal and Proctor. Simmons testified that Proctor then cocked the shotgun and pointed it at Crystal who was crouched down before him weeping. Proctor kept saying that he would shoot her if she did not give him a ride. Proctor began counting to ten and reiterated that he would shoot Crystal if she did not drive him to find Hunter. When Proctor finished counting to ten, Crystal arose and began to walk out of the room with the shotgun still pointed at her head. Proctor then shot her from about five feet away. Proctor yelled to call 911 and ran out of the house with the gun. He surrendered to police three days later.

II. STANDARD OF REVIEW

The admissibility of evidence is within the broad discretion of the trial court, and this Court reviews a trial court's evidentiary rulings for abuse of discretion. Smallwood v. Commonwealth, 36 Va.App. 483, 487, 553 S.E.2d 140, 142 (2001) (citing Quinones v. Commonwealth, 35 Va.App. 634, 639, 547 S.E.2d 524, 527 (2001)). "The rule is well established in Virginia that `great latitude [will be given] to the discretion of the trial [judge] as to the order in which witnesses may be called and the manner of their examination.'" Whitehead v. Commonwealth, 31 Va.App. 311, 318, 522 S.E.2d 904, 907 (2000) (citing Butler v. Parrocha, 186 Va. 426, 433, 43 S.E.2d 1, 5 (1947)).

III. ANALYSIS

A. Direct Examination of Carl Nave

During the direct examination of Carl Nave, the Commonwealth had him review a written statement he had given to the police before trial. The Commonwealth then sought to elicit testimony from Nave in conformity with the statement. Proctor objected to this testimony, based on the written statement, as inadmissible hearsay.

The trial court stated its assumption that the statement was being used to refresh Nave's memory and was therefore permissible. The Commonwealth, however, denied the statement was to refresh Nave's recollection and represented that the statement was "not in conflict" with Nave's testimony to that point in the trial. The Commonwealth's Attorney then told the trial court she intended "to put it [the prior written statement] in evidence." The court sustained defense counsel's hearsay objection to admission of the statement.

The Commonwealth then requested a bench conference where the admissibility of the written statement was argued. The Commonwealth again admitted that Nave's testimony was "not in conflict with what he said before but it is not as much as he said before." Proctor objected to any use of the statement because Nave "made no prior inconsistent statement and his recollection doesn't need to be refreshed. He has not once said I don't remember." At the end of this discussion, the trial court permitted the Commonwealth to approach Nave "with that document if he's not including all his prior statements." Proctor's objection was overruled. Shortly thereafter, the trial court also permitted the Commonwealth to treat Nave as a hostile witness, to which Proctor objected.

The Supreme Court of Virginia has stated that:

As a general rule, a prior consistent statement of a witness is inadmissible hearsay. Graham v. Danko, 204 Va. 135, 138, 129 S.E.2d 825, 827 (1963); Crowson v. Swan, 164 Va. 82, 94, 178 S.E. 898, 903 (1935); Scott v. Moon, 143 Va. 425, 434, 130 S.E. 241, 243 (1925). To allow such a statement to corroborate and buttress a witness's testimony would be an unsafe practice, one which not only would be subject to all the objections that exist against the admission of hearsay in general but also would tend to foster fraud and the fabrication of testimony. Scott, 143 Va. at 434, 130 S.E. at 243. Indeed, it has been said that "`the repetition of a story does not render it any more trustworthy.'" Id.

Faison v. Hudson, 243 Va. 397, 404, 417 S.E.2d 305, 309 (1992) (citations omitted).

The Commonwealth contends on appeal that Nave's written statement to the police was properly used to refresh his recollection on the witness stand. However, that argument contradicts the Commonwealth's own statements at trial.²

The Commonwealth clearly sought to buttress and augment Nave's oral testimony on the witness stand with his previously recorded consistent written statement. This is inadmissible hearsay, unless it fits within one of the narrow exceptions to the hearsay rule, whether Nave is a hostile witness or not. See Faison,243 Va. at 404-05,417 S.E.2d at 305 (listing the exceptions to the general rule that such consistent statements are inadmissible). However, the hearsay exception for past recollection recorded does not apply here as the record does not reflect Nave forgot anything for which his memory was to be refreshed or supplemented by documentary evidence.³ Charles E. Friend, The Law of Evidence in Virginia § 3-7 (5th ed.1999).⁴

Assuming, therefore, that the trial court erred by permitting the Commonwealth to examine Nave by use of the prior consistent statement, only error that is prejudicial to Proctor warrants reversal of the trial court's verdict. The Commonwealth asserts that if admitting the testimony derived by use of the prior statement was improper, any error in doing so was nonetheless harmless. We agree.

When a trial court errs in allowing the presentation of evidence to the jury, this Court must decide whether that error was harmless. As this issue involves non-constitutional error, if appellant "had a fair trial on the merits and substantial justice has been reached," his convictions will not be reversed. Code § 8.01-678. The Commonwealth has the burden "to prove that the error was non-prejudicial." Beverly v. Commonwealth, 12 Va.App. 160, 163-64, 403 S.E.2d 175, 177 (1991).

Smallwood, 36 Va.App. at 490, 553 S.E.2d at 143. "An error does not affect a verdict if a reviewing court can conclude, without usurping the jury's fact finding function, that, had the error not occurred, the verdict would have been the same." Lavinder v. Commonwealth, 12 Va.App. 1003, 1006, 407 S.E.2d 910, 911 (1991) (en banc). We analyze each case individually to determine whether an error affected the verdict. Id. at 1009, 407 S.E.2d at 913.

Nave's testimony based on the prior written statement centered on Proctor's actions before the shooting. The Commonwealth used the statement to elicit Nave's testimony about Proctor's desire to shoot Hunter...