Tice v. Com., Record No. 1397-00-1.
| Decision Date | 21 May 2002 |
| Docket Number | Record No. 1397-00-1. |
| Citation | 563 S.E.2d 412,38 Va. App. 332 |
| Court | Virginia Court of Appeals |
| Parties | Derek Elliott TICE, v. COMMONWEALTH of Virginia. |
James O. Broccoletti (Jeffrey R. Russell, Norfolk; Zoby & Broccoletti, P.C., on briefs), for appellant.
Paul C. Galanides, Assistant Attorney General (Randolph A. Beales, Acting Attorney General; Shelly R. James, Assistant Attorney General, on brief), for appellee.
Present: FITZPATRICK, C.J., ANNUNZIATA, J., and COLEMAN, Senior Judge.
Derek Elliott Tice was convicted of rape and capital murder. Tice contends on appeal that the trial court erred by giving an instruction over his objection which allowed the jury to find him guilty of capital murder based upon the theory that he acted in concert with others to rape or kill the victim but without finding that he was an active or immediate killer and by refusing to admit certain evidence that another person confessed to the crimes. We agree that the court erred by giving an instruction that allowed the jury to find Tice guilty of capital murder without finding that he was an active or immediate killer of the victim. Accordingly, we reverse and remand for a new trial if the Commonwealth be so advised. Because the evidentiary issue is likely to arise again on retrial, we address that issue.
On July 8, 1997, William Bosko returned home from a naval deployment to find his wife, Michelle Moore-Bosko, dead in their bedroom. There were no signs of a struggle, and the apartment was neat. Michelle had died as a result of three penetrating stab wounds to her chest and manual strangulation. She had been raped and had sustained several other non-lethal stab wounds.
Daniel Williams lived with his wife and Joseph Dick in the apartment across from the Boskos. Dick testified that on the evening of Michelle's death he, Tice, Williams and others were together at Williams' apartment when Williams said, "He wanted to see what color [Michelle's] panties were." The group discussed going to Michelle's apartment. Williams had visited the Boskos frequently, sometimes at unusual hours asking to use the phone. They knocked on the Boskos' door but Michelle would not let them inside her apartment. Dick testified that they remained outside the apartment in the parking lot talking with one another when Omar Ballard joined the group. Dick testified that he did not know Ballard and only learned his name at a later date. Ballard knew Michelle through another friend who lived at the apartment complex. Dick testified that on the second attempt to gain entry into the Boskos' apartment the men tricked Michelle into opening the door and they "rushed" into the apartment and grabbed her. Dick testified that they took Michelle directly to the bedroom where Williams first raped her while the other men held her down. Dick testified that next the defendant Tice and then the other men took turns raping her. Dick testified that after raping Michelle one of the men went to the kitchen, found a knife and each person then stabbed her.
Based upon Dick's admissions, the police questioned the defendant Tice. Confronted with Dick's admissions, Tice gave a detailed confession in which he admitted he had raped and stabbed Michelle. While Tice's confession corresponded in significant detail to Dick's confession and trial testimony, Tice never mentioned in his confession that Omar Ballard had joined the group. Also, none of the latent fingerprints found at the scene matched Tice's fingerprints. A blanket found on Michelle, fingernail clippings and PERK kit evidence were submitted for DNA analysis. Robert Scanlon, a forensic scientist, testified that Tice was eliminated as the source of the DNA from the semen stain found on the blanket, the fingernail clippings, and of the DNA from Michelle's vaginal swabs of the PERK kit. Scanlon testified, however, that Omar Ballard could not be eliminated as the source of the DNA found on the blanket, Michelle's fingernail clippings and vaginal swabs.
Ballard, who was called as a witness by the defense, testified that he was not involved in the murder and rape. However, he acknowledged that he had previously given two statements to the police in which he admitted that he alone raped and murdered Michelle. The trial court allowed defense counsel considerable latitude in asking Ballard about his two prior confessions. Nevertheless, Ballard repeatedly testified that he did not rape or murder Michelle, and he attempted to explain his two confessions by saying he "was not under oath" when he gave these statements. The trial judge permitted Ballard's testimony that he did not rape or murder Michelle and permitted extensive examination about his two prior out-of-court admissions that he alone had raped and murdered Michelle. However, the trial judge refused to admit, over defense counsel's objection, Ballard's two confessions. The two confessions contained some details from Ballard showing that he knew that Michelle had been sexually assaulted, strangled, and stabbed multiple times with a knife from the kichen.
Defense counsel also attempted to ask Ballard about a letter he allegedly had written to a person named Karen in which Ballard made reference to having killed Michelle. The trial judge sustained the Commonwealth's objection to any testimony related to the letter. Defense counsel proffered the letter as part of the record. The trial judge disallowed defense counsel's questioning of Ballard about' the letter and disallowed the proffered letter into evidence.
The trial court charged the jury with Instruction 11, which provided in pertinent part:
The trial court also instructed the jury on a person's criminal responsibility for concert of action in Instruction 12 and for being a principal in the first and second degree in Instruction 14. Instruction 12 told the jury:
If there is concert of action with the resulting crime one of its incidental probable consequences, then whether such crime was originally contemplated or not, all who participate in any way in bringing it about are equally answerable and bound by the acts of every other person connected with the consummation of such resulting crime.
Instruction 14 stated:
On appeal, appellant asserts that the language in Instruction 11 "or someone acting in concert with him" impermissibly lowered the standard of proof for capital murder. He contends that this language, when considered with Instruction 12, allowed the jury to find him guilty of capital murder if he acted in concert with others to rape Michelle and as a consequence of the rape the others killed her without his direct participation. The Commonwealth argues that Tice failed to state this ground when he objected to Instruction 11 and that he is procedurally barred pursuant to Rule 5A:18 from raising this issue on appeal.
"The primary function of Rule 5A:18 is to alert the trial judge to possible error so that the judge may consider the issue intelligently and take any corrective actions necessary to avoid unnecessary appeals, reversals and mistrials." Martin v. Commonwealth, 13 Va.App. 524, 530, 414 S.E.2d 401, 404 (1992) (en banc). During consideration of the instruction, Tice objected to the addition of the language "or someone acting in concert with him"...
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