Rose v. Com.

• Decision Date: 09 June 2005
• Docket Number: Record No. 041737.
• Citation: 613 S.E.2d 454
• Court: Virginia Supreme Court
• Parties: Harless Fitzgerald ROSE v. COMMONWEALTH of Virginia.

Page 454

613 S.E.2d 454

Harless Fitzgerald ROSE v. COMMONWEALTH of Virginia.

Record No. 041737.

Supreme Court of Virginia.

June 9, 2005.

Stephen J. Kalista; Walter Rivers, Big Stone Gap, for appellant.

Stephen R. McCullough, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

Present: All the Justices.

HASSELL, Chief Justice.

I.

In this appeal of a criminal conviction, we consider whether the Commonwealth was entitled to present evidence of a defendant's prior criminal acts to establish that he was the perpetrator of the charged crimes.

II.

A grand jury in the Circuit Court of the County of Wise and the City of Norton indicted Harless Fitzgerald Rose for the capital murder of Timothy Dale Hughes in the commission of robbery or attempted robbery in violation of Code § 18.2-31, robbery in violation of Code § 18.2-58, and use of a firearm during the commission of a robbery or attempted robbery in violation of Code § 18.2-53.1. During a jury trial, the Commonwealth was permitted, over Rose's objection, to present evidence that he had committed a robbery several months before the capital murder that is the subject of this appeal.

The jury found Rose guilty of the charged offenses. The jury fixed his punishment at life imprisonment for the capital murder offense, 35 years imprisonment for the robbery offense, and three years imprisonment for the use of a firearm while committing the robbery.

The circuit court entered a judgment confirming the jury's verdict, and Rose appealed the judgment to the Court of Appeals. Rose argued in the Court of Appeals, among other things, that the circuit court abused its discretion by permitting the Commonwealth to introduce evidence of his prior criminal conduct during the guilt phase of the trial. The Court of Appeals, in an unpublished opinion, held that the circuit court did not err because this evidence "was sufficiently idiosyncratic and similar to the charged robbery to establish the probability of a common perpetrator and the record supports a finding that the probative value of the evidence of the [prior] robbery outweighed its potential prejudicial effect." Rose v. Commonwealth, Record No. 0995-03-3, 2004 WL 1487106 (July 6, 2004) (unpublished). Rose appeals.

III.

Applying well-established principles of appellate review, we must consider the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth, the prevailing party below. Correll v. Commonwealth, 269 Va. 3, 6, 607 S.E.2d 119, 120 (2005); Zimmerman v. Commonwealth, 266 Va. 384, 386, 585 S.E.2d 538, 539 (2003); Phan v. Commonwealth, 258 Va. 506, 508, 521 S.E.2d 282, 282 (1999).

The prior robbery, which is pertinent to this appeal, occurred on July 18, 2000, about 10:30 p.m., when Linda Couch returned to her home in Coeburn, located in Wise County. Couch was the driver of her car, and Couch's mother was a passenger in the car. Couch parked the car in front of her home and exited from the driver's door. She placed her pocketbook on her shoulder, and she began to walk around the car to help her mother. Suddenly, someone hit her in the back and "knocked" her against the car. Couch stated, "It felt like ... it was really hard; I don't know if it was a fist or not. And they hit me once, and I kept hanging on to my pocketbook, and they hit me again, and had me down on the ground dragging me, and I let my pocketbook go. And my keys flew over in the yard, so they took, took my pocketbook; everything but my keys."

Peggy Wireman, Couch's next-door neighbor, heard Couch's screams for help. Wireman left her home, went outside, and chased the assailant. The assailant, who wore a stocking mask, dark jogging pants and a hooded jacket, eluded Wireman by running up a hill through some dense "really harsh" vegetation that included briars.

Rose was the perpetrator of this crime. His girlfriend at the time, Jessica Amanda Counts Salyers, and two other friends, had helped him plan the robbery. They also helped him leave the scene of the robbery.

The crimes in the present case occurred on October 5, 2000, around 10:30 p.m., after Timothy Hughes, James Brown, and Lucas Hurley, employees of the PayLess Supermarket in Coeburn, closed the store and walked together to a nearby bank where they intended to deposit the store's money. Unbeknownst to the men, Rose had made plans to rob them, and he had been at the store earlier that same evening.

As Hughes, Brown, and Hurley approached the bank's night deposit box, a man "came around the corner," holding a pistol in his right hand. The man wore a ski mask, a dark sweatshirt and sweatpants. The man told Hughes, Brown, and Hurley to "stop and give me the money." Hurley tossed the money to the robber. Hughes "shuffled or moved," and the robber shot Hughes. Hughes fell to the ground, but stood up and began to chase the robber, who was running away. Hurley and Brown "froze."

A few seconds later, Brown and Hurley heard a pistol discharge. They ran towards Hughes, who had been shot a second time. Hurley tried to help Hughes walk back to the bank. Hughes was unable to do so. Hurley and Brown contacted the Sheriff's Department, and Hughes later died of gunshot wounds to his chest and abdomen.

Several persons were in the vicinity of the PayLess Supermarket and observed someone run through yards and "up the gravel road." Deputy Sheriff Ernie Caldwell, an employee of the Wise County Sheriff's Department, used a bloodhound to track the scent of the robber that night. The trail that the bloodhound was able to detect indicated that the robber ran through an area that "was overgrown with brush and vines and thorns."

When Jessica Salyers was romantically involved with Rose, they were addicted to Oxycontin. They sold illegal drugs and engaged in other criminal acts to support their addiction.

The day after the robbery, Rose went to Salyers' home that she shared with her mother. When Salyers got into a car that Rose was driving, she noticed that he had "scratches on his face . . . really bad scratches." Rose also had scratches on his arm. Salyers stated, "[the scratches] were, they had been made recent. They were fresh. They were really, really bad. Not like a cat scratch; it was all over. It was on his nose, his cheeks, on his chin, his neck. And they wasn't as bad on his arms, but they were pretty bad." However, a deputy sheriff who saw Rose on the night of the murder testified that he did not see any scratches on Rose's face.

Rose gave Salyers between 30 to 60 Dilaudid pills, a controlled medication. Rose and Salyers spent the night in a hotel room, and they ingested "a bunch" of pills. Rose "had a roll, a wad of money." Rose had also purchased new clothes and shoes. When Salyers asked Rose where he obtained the money, he lied by responding that he was working in the coal mines and that he "was making pretty good money." Rose was actually unemployed.

Some time before Rose robbed the employees of PayLess Supermarket and killed Hughes, Rose made statements to Salyers about committing "a robbery of the supermarket." Salyers stated that Rose "commented that [there were] no cops that escorted the person with the money bag."

One night after the murder, Kelly N. Sexton was at a party. Rose, Jessica Salyers, and others were present, and they were ingesting Oxycontin. Sexton overheard Rose say "something about killing something, or he has killed something."

Patrick R. Sexton had a conversation with Rose before Hughes was robbed and murdered. Rose asked Sexton if Sexton had a "handgun" or shotgun because Rose "was having some trouble with some boys . . . in Coeburn." Kenneth Miller, an acquaintance of Rose, saw Rose within a week after the murder. Rose had scratches on his face, and Miller asked Rose, "[D]id your girlfriend scratch you up or something hit you?" Rose replied, "no," and that "he got [them] running through a briar patch.... he was running through the briar patch, running from the law."

Rose discussed the murder and robbery of Timothy Hughes with numerous persons who were inmates with him when he was in jail awaiting trial. Rose told Otis B. Luther that Rose shot Hughes the second time because Hughes "hollered" Rose's name. Rose told Joshua E.T. Spears that Rose shot Hughes because Hughes was able to identify Rose.

Spears also testified that Rose stated that after he shot and robbed Hughes, Rose ran by the house where the assailant's mask was eventually found. Captain Michael Holbrook, the chief investigator for the Wise County Sheriff's Department, recovered a dark-colored ski mask from the residence of Kenneth Richardson. Spears testified that when he was incarcerated with Rose, Rose said he "ran up by a coach's house." According to Richardson, some of the students in Wise County called him "Coach." Ricky A. Church, another person who was incarcerated in jail with Rose, stated that when Rose learned that the mask had been found, Rose stated: "Well, if they got the mask, then they got me."

Rose told George D. Hobbs, another inmate in the Wise County Jail, that "none of this shit would have happened here today if the guy had just gave him the money." Rose also told Hobbs that "[i]f they've got the ski mask, they've got my ass." Rose admitted to Charles Hodge, who was an inmate with Rose when he was incarcerated in the Lee County Jail, that Rose "killed someone making a night deposit, then threw the weapon in the river."

James Stidham met with Rose sometime after the murder. Rose identified himself as "Robbie." Rose told Stidham that Rose "wouldn't a killed him if he wouldn't have identified him or chased him." Rose showed Stidham a "medium-sized revolver."

Chris Fisher, the store manager of the PayLess Supermarket, testified that the amount of the deposit that the robber stole totaled $13,485.18: "[S]ilver and currency was $4,478.00, food stamps was $548.00, office checks was...