Tolley v. Com., 750381

• Decision Date: 10 October 1975
• Docket Number: No. 750381,750381
• Citation: 216 Va. 341,218 S.E.2d 550
• Court: Virginia Supreme Court
• Parties: James TOLLEY v. COMMONWEALTH of Virginia. Record

Page 550

218 S.E.2d 550

216 Va. 341

James TOLLEY v. COMMONWEALTH of Virginia.

Record No. 750381.

Supreme Court of Virginia.

Oct. 10, 1975.

Mercer Theodore Kissinger, Jr., Norfolk, for plaintiff in error.

Alan Katz, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COCHRAN, Justice.

On June 4, 1974, James Tolley was tried by the court, sitting without a jury, on two indictments charging him with the abduction ¹ and murder of Sandra Harrell Jones. At the conclusion of the Commonwealth's evidence the trial court overruled Tolley's motion to strike the evidence as to abduction but sustained the motion as to murder on the ground that the Commonwealth had failed to prove that the murder had been committed in Southampton County. At the conclusion of all the evidence the trial court found Tolley guilty of abduction as charged. Tolley has appealed the judgment order entered on January 21, 1975, sentencing him to confinement in the State penitentiary for 20 years.

The questions for our determination are whether the evidence was sufficient to prove an abduction under Code § 18.1--38, and, if so, whether the evidence was sufficient to prove that Tolley was an accessory before the fact.

The evidence, which we will consider in the light most favorable to the Commonwealth, is somewhat similar to, but by no means identical with, the evidence that we considered in Turnbull v. Commonwealth, Va., 218 S.E.2d 541, this day decided. The present case was tried before Turnbull, although on appeal Turnbull was argued first. In the trial court some of the same witnesses testified in both cases.

The badly beaten body of Sandra ('Sandy') Harrell Jones was found beside a farm road in Southampton County on May 25, 1973, at about 8:00 a.m. The medical examiner testified that in his opinion Sandra's death was caused by strangulation and that she died between 5:00 p.m. May 24 and 5:00 a.m. May 25.

Mrs. Judy Edwards testified that in May, 1973, Sandra came to work at the Jolly Roger, a restaurant and night club in the Ocean View section of Norfolk, where the witness was employed. Shortly before her death Sandra told Mrs. Edwards that 'Mongoose', one of the Pagans, a motorcycle gang, was trying to get her money, but that she was not going to give him the money. If Mongoose came to look for her, Sandra asked Mrs. Edwards to tell him that she had left. Mrs. Edwards further testified that Sandra expressed fear of Mongoose two or three days before her death, and evaded him by leaving the Jolly Roger by a back door as Mongoose entered through another door.

Sergeant Sidney E. Cherry, of the Norfolk Police Department, testified that he knew Sandra and talked to her at the Jolly Roger on May 21, 1973, at approximately 2:00 a.m.; that Sandra told him that she was afraid of Mongoose and his motorcycle gang, the Pagans; that, at her request, he arranged for another police officer to drive her home; that he talked with her early the next morning; and that Sandra told him that she thought that Mongoose or his gang were going to kill her because 'she would not work any more so they could get her money from her'.

Officer William L. Ross, of the Norfolk Police Department, testified that on May 21, 1973, at approximately 2:00 a.m., at Sergeant Cherry's request, he drove Sandra home from the Jolly Roger; that she expressed fear that Mongoose was 'putting the heat on her for her money that she was making working at the Jolly Roger, and she was trying to stay away from him'; and that she told Ross that she was going to move to another location to stay with friends.

William Gibbs and George Edwards described the circumstances under which they assisted three girls by pulling their 1967 maroon Mustang out of a mud hole in a farm road in Southampton County on May 24, 1973, between 11:00 p.m. and midnight.

Gibbs asserted that the girls 'acted scared' when they came to him for help; that he and Edwards became suspicious and wrote down the license number of the Mustang; that inside the car was a black purse; and that two of the girls were barefooted, one had on shoes, and all of them were wet and muddy.

Edwards, who substantiated Gibbs' testimony, identified the girls as Linda Grant, Pam Blair and June Reed. He testified that they paid him $30, which he divided with Gibbs, for pulling the car from the mud hole; and that, the following morning, accompanied by another friend, he drove back down the farm road to the mud hole where the Mustang had been stuck, and found four jackets and a blue towel in the mud hole. He then followed car tracks down the road for approximately 400 yards and found the body of Sandra Harrell Jones.

W. P. Twine, an investigator for the State Police, identified photographs that he had taken of the scene before Sandra's body had been removed. He testified that one photograph showed about three tablespoons of blood on the ground immediately below the girl's mouth. He observed that Sandra was barefooted, that her clothes and hair were wet, that sand and mud were in her hair and between her toes, and that there were bruises on the upper part of her back.

James Thorpe, operator of a service station in Hampton, testified that on May 24, 1973, between 6:00 and 8:30 p.m. four girls in an old reddish Mustang came to his station for gasoline. Three of the girls, one of whom he identified as Pam Blair, were on the front seat, and one way lying under cover on the back seat. The driver, who remained in the car while the other two girls on the front seat went to the restroom, asked Thorpe how to get to South Carolina. He thought, although he could not be certain, that the girl on the back seat asked why they did not go on to Florida.

Dr. Charles Springate, the medical examiner, described the multiple contusions and lacerations found on Sandra's body. He acknowledged that bleeding from the laceration inside her mouth could have continued for an indeterminate length of time after her death.

The principal witness for the Commonwealth was William Wood, ² a convicted felon. Wood had formerly been President of the Portsmouth Chapter of the Pagans, of which he said Tolley was also a member. Wood testified that John Turnbull, known as 'Mongoose', was in charge of the Norfolk-Portsmouth-Virginia Beach Chapters of the Pagans and made all final decisions; that there were 35 or 40 members in the Chapters; that strict discipline was maintained; and that Tolley was a Sergeant at Arms whose duties were to maintain order and carry out the instructions of his superiors. Wood testified that girls could not become members of the gang; that the Pagans treated their girls, whom they called their 'old ladies', as 'property'; and that the girls 'do exactly what they tell them to do', and make no decisions for themselves. Tolley's 'old lady' was Pam Blair, Joseph Green's was Linda ('Crazy Linda') Grant, and Turnbull's was Sandra Jones. Tolley worked 'at times' but most of the time only his 'old ladies' worked.

Wood testified that in May, 1973, he was working as an unpaid informer for the State Police and for the State Arson Investigator's office. On May 24, at approximately 5:30 p.m., Turnbull, Green and Tolley came to Wood's apartment, and Turnbull advised him to have an 'airtight' alibi for that night and suggested that if anyone asked Wood about Sandra, he should say that she had left town that week with another girl 'supposedly hitchhiking to Georgia to get a job dancing down there'. Turnbull explained that they were going to 'do away with Sandy and that she had caused enough problems' for them. Wood asked Tolley 'what they planned on doing and he stated to me at this time that they were going to get rid of Sandy . . ..' Wood communicated this information to Jim Smith, an undercover agent of the State Police Narcotics section, and he and Smith notified other officers and looked for Sandra until about 1:00 a.m. the next morning. Later that morning Wood saw Sandra's I.D. card in a pocketbook which Tolley burned behind the service station at Ocean View where Tolley worked. Wood asked Tolley if they had 'killed Sandy over $60.00 that Mongoose supposedly thought she owed him', and Tolley replied that he had not killed her but that the "old ladies' had taken care of it'.

Trooper James Smith, of the State Police, confirmed that Wood had reported to him the threat against Sandra on May 24, that he had enlisted the assistance of other law enforcement agents, and that he and Wood had looked for Sandra throughout the entire night and into the morning.

After the trial court overruled his motion to strike the evidence as to the abduction charge, Tolley proceeded to introduce evidence on his behalf.

Linda Grant, who had been convicted of Sandra's abduction and murder, testified that Tolley did not tell her to take the girl away or do anything with her. Linda described Turnbull as the 'main man' and testified that, upon her return from the trip to Southampton County, Turnbull ordered her to give Sandra's pocketbook to Tolley to destroy. On cross-examination Linda admitted that this was the fifth different statement that she had given, that she was a drug addict and was emotionally upset during the day and night when Sandra was murdered, and that ...