Schwartz v. Com.

• Decision Date: 19 April 2005
• Docket Number: Record No. 0577-03-4.
• Citation: 611 S.E.2d 631,45 Va. App. 407
• Parties: Clara Jane SCHWARTZ v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

611 S.E.2d 631

45 Va. App. 407

Clara Jane SCHWARTZ v.COMMONWEALTH of Virginia.

Record No. 0577-03-4.

Court of Appeals of Virginia, Alexandria.

April 19, 2005.

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James G. Connell, III, Richmond (Corinne J. Magee; Devine & Connell, P.L.C.; The Magee Law Firm, on briefs), for appellant.

Virginia B. Theisen, Assistant Attorney General(Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FRANK and CLEMENTS, JJ., and WILLIS, S.J.

CLEMENTS, Judge.

Clara Jane Schwartz(appellant) was convicted in a jury trial of murder in violation of Code§ 18.2-32, conspiracy to commit murder in violation of Code§ 18.2-22, and two counts of solicitation to commit murder in violation of Code§ 18.2-29.On appeal, appellant contends the trial court erred in (1) finding that her statutory right to a speedy trial was not violated, (2) submitting the charges of murder and conspiracy to commit murder to the jury although essential elements of those charges were not alleged with particularity in the indictment, (3) concluding that the double jeopardy doctrine did not bar her conviction for both murder and conspiracy to commit murder under the circumstances of this case, (4) determining that Wharton's Rule did not bar her conviction for both murder and conspiracy to commit murder under the circumstances of this case, and (5) excluding the testimony of Dr. Michael L. Deem regarding the mental health of Kyle Hulbert, the principal in the first degree in the murder, and quashing appellant's subpoena duces tecum seeking certain of Dr. Deem's interview notes and Loudoun County Mental Health Center's treatment notes.Finding no error, we affirm the trial court's judgment and appellant's convictions.

I.BACKGROUND

The facts pertinent to this appeal are not in dispute.In accordance with familiar principles of appellate review, "[w]e consider those facts in the light most favorable to the Commonwealth,"the party that prevailed below.Rose v. Commonwealth,265 Va. 430, 432, 578 S.E.2d 758, 759(2003).

Appellant was the youngest child of the victim, Dr. Robert Schwartz.During her senior year in high school, appellant became friends with Katherine Inglis.Appellant told Inglis that her father was "continually doing stuff to her like try[ing] to poison her."During the summer and fall of 2001, appellant told Inglis that her father was "poisoning meat she would eat,""hitting her on occasion," and "pulling her under the water in their pool."She also told Inglis that "she wished he was dead" and that "she would inherit a third of a million dollars from her father" when he died.Inglis never saw any bruises or other evidence of physical abuse by appellant's father during the time she knew appellant.

In August 2001, appellant, who attended James Madison University (JMU), began dating Patrick House.Appellant complained to House that her father had attempted to molest and kill her.Appellant also made statements to House about her desire for her father's death and requested that he kill him.She gave House a book that contained information about poisoning and told him that she wanted her father's killing to "look natural" so it would "not be able to be traced back to her."She also told House that she would inherit money from her father when he died but "was concerned [he] was trying to cut her out of [his] will."

In September 2001, appellant went out to dinner with House and Inglis.During the meal, appellant said that her steak had been poisoned and speculated that her father had "gotten in touch with the cook."Later, appellant asked House "when [he] planned on killing her father," to which House responded, "When the time was right, it would happen."

Later in September 2001, appellant met Kyle Hulbert at a Renaissance Fair in Maryland.Hulbert quickly became close friends with appellant, Inglis, and Inglis's boyfriend, Michael Pfohl.Appellant told Hulbert that "she had been suffering from mental and emotional abuse from her father," her father made "death threats" to her, and her father"had poisoned her [food] on several occasions."Appellant told Hulbert that appellant and her father"were going to the Virgin Islands for Christmas vacation" and that her father"was planning on making sure she did not come back."

In November 2001, Hulbert, Inglis, and Pfohl drove to James Madison University to spend the weekend with appellant.Appellant complained to Hulbert about "how her father had abused her and poisoned her" and showed him "some of her journals" in which she had documented those events.At the end of the weekend, appellant said to Inglis, "Maybe Kyle can help me with my father."She also told Inglis that she would be able to take a semester off "if her father died while she was in college."

After the weekend, appellant and Hulbert began to exchange instant messages and speak by telephone almost daily.During one instant message session, Hulbert responded to appellant's claim that her father had tried to kill her by saying appellant's father was lucky Hulbert did not know where he lived.Hulbert then asked appellant for permission to kill her father.Appellant told him to wait, saying they would talk more about it in person.Appellant further informed Hulbert that House also wanted to kill her father and that, if Hulbert did it, he should ensure it could not be traced back to her.Appellant then gave Hulbert general directions to her father's house, which was located in a rural area of Loudoun County.

On Thanksgiving weekend, appellant arranged for Hulbert to camp clandestinely in the woods near her father's house.Inglis and Pfohl dropped Hulbert off after dark.The next day, Hulbert went to the house to see appellant.During the brief visit, he met appellant's father and older sister and showed them a sword he had with him.

Soon thereafter, Hulbert asked appellant to send him money for gas so Pfohl could drive him and for gloves and a "do-rag" to "prevent him from leaving hairs at the scene" when he killed her father.On December 6, 2001, appellant wrote Hulbert a check for $60 and sent it to him via overnight mail.

On the evening of December 8, 2001, Inglis and Pfohl dropped Hulbert off near appellant's father's property.Hulbert, who had his sword strapped to his side, proceeded on foot to appellant's father's house.When appellant's father answered the door, Hulbert entered the house and killed him, stabbing him over thirty times with the sword.The next day, Hulbert told appellant on the telephone that he had killed her father.

A neighbor, learning appellant's father had not reported to work, discovered his body on December 10, 2001.Loudoun County InvestigatorGreg Locke traveled to James Madison University to inform appellant of her father's death.When asked about her friends, appellant provided information to the investigator about Hulbert, House, Pfohl, and Inglis, among others.Hulbert was arrested the following day.

After initially saying she thought Hulbert was only "venting" or "kidding" when he said he was going to kill her father, appellant told Investigator Locke, "I want to go straight.In my heart of hearts, I knew that [Hulbert] was going there to kill [my father]."Appellant was arrested on February 1, 2002, for the murder of her father and held continuously in custody thereafter.After being taken to jail, appellant told her cellmate that the plan was for Hulbert to kill her father"because if anything came up he would take the blame because he had mental issues."

After a preliminary hearing on March 21, 2002, the juvenile and domestic relations district court found probable cause and certified appellant's murder charge to the circuit court for consideration by a grand jury.On March 29, 2002, the grand jury returned a four-count indictment charging appellant with murder, conspiracy to commit a felony, and two counts of solicitation to commit a felony.Specifically, count one of the indictment alleged that, "[o]n or about the 8th day of December, 2001, in the County of Loudoun[appellant] ... did feloniously, willfully and deliberately, and with premeditation, kill and murder [her father] ... in violation of [Code § ] 18.2-32."Count two alleged that, "during the period from on or about November 2001 to on or about December 2001, [appellant] did feloniously and unlawfully conspire, confederate or combine with ... Kyle Hulbert, et. al [sic] ... to commit a felony within this Commonwealth, in violation of [Code § ] 18.2-22."Count three alleged that, "during the period of November 2001[appellant] did feloniously and unlawfully command, entreat, or otherwise attempt to persuade another person to commit a felony, in violation of [Code §] 18.2-29."Finally, the fourth count alleged that, "during the period from on or about June 2001 to on or about November 2001, [appellant] did feloniously and unlawfully command, entreat, or otherwise attempt to persuade another person to commit a felony, in violation of [Code §] 18.2-29."

By order entered April 5, 2002, the trial court set the case for trial by jury commencing August 5, 2002.

On June 14, 2002, appellant filed a motion seeking a bill of particulars as to counts two, three, and four of the indictment.With respect to count two, appellant sought to have the Commonwealth identify "the person(s), if any, referenced by the phrase `et. al [sic]'" and "where and when the alleged agreement took place."With respect to counts three and four, appellant sought to have the Commonwealth identify the date and location of the alleged solicitation, "the person who was the object of the alleged solicitation," and "the felony which was the subject of the alleged solicitation."

In response, the Commonwealth identified Hulbert and House as the recipients of the respective solicitations in counts three and four and identified murder and conspiracy to commit murder as the...