Rock v. Com.

• Decision Date: 15 March 2005
• Docket Number: Record No. 2107-03-2.
• Citation: 45 Va. App. 254,610 S.E.2d 314
• Parties: John Davis ROCK, III v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

610 S.E.2d 314

45 Va. App. 254

John Davis ROCK, III v. COMMONWEALTH of Virginia.

Record No. 2107-03-2.

Court of Appeals of Virginia, Richmond.

March 15, 2005.

Scot A. Katona (Dillard and Katona, on brief), Tappahannock, for appellant.

Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: BENTON, KELSEY and McCLANAHAN, JJ.

McCLANAHAN, Judge.

John Davis Rock, III appeals his sentencing upon conviction of conspiracy to commit robbery. Rock contends that the trial court erred in allowing the Commonwealth to present to the jury victim impact testimony by the family of Michael Cook, who was murdered during the conspired robbery. For the reasons that follow, we affirm.

I. BACKGROUND

On appeal, we review the evidence in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citation omitted). That principle requires us to "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." Kelly v. Commonwealth, 41 Va.App. 250, 254, 584 S.E.2d 444, 446 (2003) (en banc) (citations omitted).

Four masked intruders, two of whom were carrying assault rifles and one of whom was carrying a handgun, broke into Pamela Gravely's home in Essex County, Virginia. Gravely, Michael Cook, Jill Cossica and Scott Cox were present in the living area of the home, and Gravely's two daughters were in a bedroom. Gravely removed a mask from one of the intruders while the intruder was present in her home. One of the intruders demanded that Gravely, Cook, Cossica and Cox get down on the floor. Another intruder demanded that Gravely's daughters go into the living area with the others. Cook approached one of the intruders who had a gun. The intruder shot Cook, killing him. All four intruders fled.

DNA from the mask Gravely removed from one of the intruders matched that of Andre White. Subsequently, White, Jason Hunt, Michael Williams and Rock were arrested for crimes related to the intrusion into Gravely's home, including attempted robbery, statutory burglary, abduction, and murder. White and Hunt pled guilty to crimes related to the break-in and homicide.

At Rock's trial, both White and Hunt testified that Rock gave them directions to Gravely's home and participated in the planning of the robbery. Gravely testified that Rock visited her home in Essex County several times in the past. The jury convicted Rock of conspiracy to commit robbery, but acquitted him of eight other felony counts relating to the attempted robbery and murder at Gravely's home.

At the sentencing hearing, over Rock's objection, the court permitted the Commonwealth to present victim impact testimony of the murder victim's brother, Eugene Cook, and the mother of the murder victim's children, Sarah Seely. Following the jury's recommendation, the trial court sentenced Rock to six years in the state penitentiary.

II. ANALYSIS

Rock asserts on appeal that the trial court abused its discretion in allowing victim impact testimony by Cook's family during the sentencing phase of his trial because Rock was convicted of conspiracy to commit robbery, but was acquitted of Cook's murder. More specifically, Rock argues that the victims who provided impact testimony at the sentencing phase were not victims within the meaning of Code § 19.2-11.01(B) because they did not suffer as a "direct result" of Rock's conspiracy to commit robbery. Rock argues that any connection between the conspiracy to commit robbery conviction and the murder is "purely speculative." We disagree.

In 1995, in recognition of the concern for the victims and witnesses of crime, the General Assembly enacted the Crime Victim and Witness Rights Act, Code §§ 19.2-11.01-11.4. The purpose of the statute is "to ensure that the full impact of crime is brought to the attention of the courts of the Commonwealth; that crime victims and witnesses are treated with dignity, respect and sensitivity; and that their privacy is protected to the extent permissible under law." Code § 19.2-11.01(A).

Prior to 1998, the statutes addressed victims' rights in the sentencing process only through the use of a pre-sentence or written report containing victim impact statements. See Code § 19.2-11.01(A)(4)(a) ("Victims shall be given the opportunity ... to prepare a written victim impact statement prior to sentencing of a defendant...."); Code § 19.2-264.5; Code § 19.2-299.1 ("[The] presentence report ... shall, with the consent of the victim ... include a Victim Impact Statement."). Such statements generally were available only to the judge. Thomas v. Commonwealth, 263 Va. 216, 235, 559 S.E.2d 652, 663 (2002). The pre-1998 statutes did not provide for oral testimony by the victim during the sentencing proceeding.

In 1998, the General Assembly expanded the permissible scope of the Act by establishing the victim's right to present victim impact oral testimony during the sentencing proceeding. Code §§ 19.2-11.01(A)(4)(c) and 19.2-295.3; see also Thomas, 263 Va. at 235,

559 S.E.2d at 662-63. Code § 19.2-11.01(A)(4)(c) provides that "[o]n motion of the attorney for the Commonwealth, victims shall be given the opportunity, pursuant to §§ 19.2-264.4 and 19.2-295.3, to testify prior to sentencing of a defendant regarding the impact of the offense." (Emphasis added). Code § 19.2-295.3¹ states:

In cases of trial by jury or by the court, upon a finding that the defendant is guilty of a felony, the court shall permit the victim, as defined in § 19.2-11.01, upon motion of the attorney for the Commonwealth, to testify in the presence of the accused regarding the impact of the offense upon the victim.

(Emphasis added). Whereas "[t]he written statements were generally available only to the judge in the sentencing process, these amendments allowed the victim testimony to be presented to and considered by the jury in its sentencing deliberations." Thomas, 263 Va. at 235, 559 S.E.2d at 663. Under these amendments, victims who wish to offer impact testimony at the sentencing hearing of a defendant found guilty of a felony have a statutorily protected right to testify in the presence of the jury.

The pertinent language of Code §§ 19.2-11.01(A)(4)(c) and 19.2-295.3 is mandatory. By explicitly providing that victims shall be allowed to testify regarding the impact of the offense on them when the defendant is found guilty of a felony, Code § 19.2-295.3 establishes the victim's right to testify without interference. However, those persons given this right must meet the definition of "victim" as defined in Code § 19.2-11.01(B). Thomas, 263 Va. at 235, 559 S.E.2d at 663. Code § 19.2-11.01(B) defines a "victim" as:

(i) a person who suffered physical, psychological or economic harm as a direct result of the commission of a felony, ...

(ii) a spouse or child of such a person, ... or (v) a spouse, parent, sibling or legal guardian of such a person who is physically or mentally incapacitated or was the victim of a homicide....

(Emphasis added). Once it is determined that the persons who offer their impact testimony are "victims" within the meaning of the statute, the court shall permit the victims to testify regarding the impact of the offense. See Code § 19.2-295.3.

At Rock's trial on all nine charges, he was acquitted of the murder charge, but was convicted of the conspiracy to commit robbery charge. The trial court recognized that the jury heard the evidence on all nine charges, and the court made the factual finding that the evidence showed that the murder occurred as a direct consequence of the conspiracy to commit robbery when it made its evidentiary ruling:

Certainly the jury has every detail about what happened. They heard it for three days, exactly what happened in the robbery of this trailer. There is hardly a detail left that they have not heard.

They considered that in coming to their verdict in this case. And I know of no practical way at this point to put limitation on what is a direct consequence of that conspiracy, which is that a man died as a result of it.

(Emphasis added). This factual finding was a prerequisite to the court's determination that Eugene Cook and Sarah Seely satisfied the legal definition of victim under Code § 19.2-11.01(B) and that, therefore, their victim impact testimony was admissible. See Claytor v. Anthony, 27 Va. (6 Rand.) 285, 299-300 (1828) (inquiry involved a preliminary determination of fact by the judge in order that he or she may determine whether the evidence is admissible); see also Rabeiro v. Commonwealth, 10 Va.App. 61, 64, 389 S.E.2d 731, 732 (1990)

("Factual determinations which are necessary predicates to rulings on the admissibility of evidence and the purposes for which it is admitted are for the trial judge [to decide].").

Determination of the admissibility of evidence lies within the broad discretion of the trial court. See Blain v. Commonwealth, 7 Va.App. 10, 16, 371 S.E.2d 838, 842 (1988)

. The trial court's ruling regarding the admissibility of evidence will not be disturbed on appeal absent a clear abuse of discretion. See Commonwealth v. Shifflett, 257 Va. 34, 44, 510 S.E.2d 232, 236-37 (1999). "Given the `broad discretion' of a trial judge over evidentiary matters, we apply a deferential abuse-of-discretion standard of appellate review." Seaton v. Commonwealth, 42 Va.App. 739, 752, 595 S.E.2d 9, 15 (2004) (citations omitted); see Valentine v. Commonwealth, 28 Va.App. 239, 244, 503 S.E.2d 798, 800 (1998); Herbin v. Commonwealth, 28 Va.App. 173, 185, 503 S.E.2d 226, 232 (1998). "We review the trial court's factual findings only to determine if they are plainly wrong or devoid of supporting evidence." Campbell v. Commonwealth, 39 Va.App. 180, 186, 571 S.E.2d 906, 909 (2002).

We cannot say that the trial court was plainly wrong or...