Turner v. Commonwealth of Va..

• Decision Date: 26 July 2011
• Docket Number: Record No. 1809–10–1.
• Citation: 712 S.E.2d 28,58 Va.App. 567
• Parties: Mario Lamar TURNERv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

58 Va.App. 567

712 S.E.2d 28

Mario Lamar TURNER

v.COMMONWEALTH of Virginia.

Record No. 1809–10–1.

Court of Appeals of Virginia, Chesapeake.

July 26, 2011.

Charles E. Haden, Hampton for appellant.Virginia B. Theisen, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: FRANK, HUMPHREYS and HALEY, JJ.HUMPHREYS, Judge.

Mario Lamar Turner (“Turner”) was convicted in a bench trial in the Circuit Court of the City of Newport News (“circuit court”) of aggravated malicious wounding, in violation of Code § 18.2–51.2, and use of a firearm during the commission of a felony, in violation of Code § 18.2–53.1. Turner was sentenced to forty years in prison with thirty-three years suspended for aggravated malicious wounding, and to three years in prison for use of a firearm. On appeal, Turner contends that the trial court erred in permitting Assistant Public Defender Brian Keeley (“Keeley”), Turner's defense counsel at the preliminary hearing, to testify as a witness against Turner at his trial. For the following reasons, we disagree and affirm.

I. BACKGROUND

“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth.’ ” Holloway v. Commonwealth, 57 Va.App. 658, 663, 705 S.E.2d 510, 512 (2011) (en banc) (quoting Pryor v. Commonwealth, 48 Va.App. 1, 4, 628 S.E.2d 47, 48 (2006)). “ ‘Viewing the record through this evidentiary prism 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 to be drawn therefrom.’ ” Id. (quoting Cooper v. Commonwealth, 54 Va.App. 558, 562, 680 S.E.2d 361, 363 (2009)). So viewed, the evidence is as follows.

In 2009, Darnell D. Robinson (“Robinson”) was a high school student at Warwick High School where he and his friends played football for the high school team. On the evening of September 12, 2009, Robinson was standing in the area of 722 22nd Street in Newport News with some friends discussing football when he was shot in his chest, arm, knee, and lower back. Robinson testified at trial that prior to the shooting, Turner approached the group as they were standing there, and spoke with Eric Poindexter (“Poindexter”), one of Robinson's friends. Ellis Butler, another friend of Robinson, testified that Turner then reached into his pocket, pulled out a gun, and shot Robinson several times.

On September 12, 2009, Newport News Police Officer Calhoun responded to the report of a shooting at approximately 9:17 in the evening in the area of 22nd Street and Marshall Avenue in Newport News. He observed a crowd down the street in front of 722 22nd Street, and proceeded down to that area. When he arrived, he found approximately ten people standing around Robinson who was lying on the ground bleeding with puncture wounds to his chest and underneath his right pectoral, and with blood on his knee. Robinson provided Officer Calhoun with his name, and Officer Calhoun accompanied Robinson to the hospital where he collected Robinson's personal items. Dr. Trinity Pilkington treated Robinson for the gunshot wounds that he suffered to his knee, clavicle, forearm, and sacrum.

Around 11:00 p.m. on September 12, 2009, Newport News Police Officer William Soule went to 1008 Fabus Drive in response to another call that shots had been fired. The location was approximately half-a-mile to a mile from where Robinson was shot, and was Turner's grandmother's home. When he arrived, Officer Soule found an unidentified male hiding under a tarp that covered a barbeque grill in the backyard. Officer Soule also found a cellular telephone on the deck of the house that kept ringing. Upon finding the phone, Officer Soule discovered a “trap door” in which he found a Ruger 9–millimeter pistol and an 1895 Russian revolver. Neither weapon was loaded, but the revolver had an odor that indicated to Officer Soule that it had been recently fired. Another officer arrived at the scene at 11:30 p.m., and collected several shell casings from the street and lawn in front of 1006 Fabus Drive.

On the following morning, September 13, 2009, Newport News Police Officer Brown recovered a bullet on the ground and a casing across the street from where Robinson had been shot. Juliana Price, a forensic scientist, testified that the casing and bullet collected by Officer Brown were fired from the 9–millimeter pistol found at Turner's grandmother's home.

At trial, Robinson testified that “Lamonte [Williams], Stan, ‘Beal,’ Josh [Butler],” and some other individuals were present the night he was shot. Robinson recalled that Turner was also present that night and spoke with Poindexter, but Turner was alone and probably there fifteen to twenty minutes before the shooting took place. Robinson also stated that he did not know Turner personally on the night of the shooting but that he knew of him. In addition, Robinson stated that he did not see the person that shot him, nor did he remember seeing anyone with a gun on that night.

Josh Butler (“Butler”), a fellow football player, testified that on the night Robinson was shot, someone walked by the group and greeted them, but he could not remember what the individual was wearing. Butler then acknowledged that he gave a statement to Newport News Police Detective Best regarding the shooting and that it was recorded. Butler then reviewed the transcript pages, but testified that his recollection was only “partially” refreshed. He testified that he still did not remember what the individual was wearing when he approached the group, did not recall if he saw someone with a gun, and did not recall whether he saw Robinson being shot. However, he testified that the individual did not do anything unusual after he approached the group. The circuit court asked Butler if the transcript refreshed his memory with regard to what he told the police detective. Butler replied that he remembered having the conversation with the police detective, but the transcript only refreshed his memory as to the actual day the event happened. The circuit court then asked, “Okay. So you don't remember anything even though you gave a full statement to the police officer?” Butler answered, “I remember hearing the shots and I remember running.” The circuit court asked, “Okay. But nothing else in that statement refreshes your memory?” Butler replied, “No, sir.”

Donnell Staton (“Staton”), another football player and friend of Robinson's, testified that he was with Robinson on the night of September 12, 2009, and that he did not see Robinson being shot. The Commonwealth asked him if he recalled talking to Detective Best and giving her a recorded statement about what happened that night, and Staton replied that he did. The Commonwealth then asked him to read the transcript of the statement he gave, and if it refreshed his memory of that night. Staton replied that it did, and testified that he never saw someone shoot Robinson, but that he heard the shooting. He further testified that he saw another individual in the area wearing a “White T, [and] a pair of jeans” walk up to the group and talk to Poindexter. However, he did not know who the person was nor could he identify the person that he saw. The circuit court then asked Staton if the transcript refreshed his memory. Staton replied that it did, but he could not picture the person. Staton then testified that he saw “some guy with the white t” with a gun, but he did not see the gun fired. He further stated that the “white t” man was the same man that approached the group and had words with Poindexter.

The Commonwealth then called Poindexter to the stand to testify. Poindexter testified that he was with Robinson on the evening of September 12, 2009, and that he was on the same football team. He testified they were sitting talking near 22nd Street, he heard some shots just as they were about to leave, and they all ducked. He further stated that he did not see anyone with a gun that evening and that all he specifically remembered was hearing shots and everyone running. Poindexter identified Turner as his cousin, but stated he did not see Turner in the area of 22nd Street that evening, nor did Poindexter remember if anyone approached him that night.

The Commonwealth established that Poindexter remembered testifying at the preliminary hearing, and handed him a copy of the transcripts in order to refresh his memory. Poindexter responded that after reading the transcript, he still did not remember talking to Detective Best and giving her his statement. The Commonwealth then handed Poindexter a copy of the transcribed statement he gave to Detective Best. Poindexter read it, and replied that he was unable to recall what happened on that evening. Upon closer direct examination, Poindexter testified as follows:

[Commonwealth] Well, after having read that statement and your preliminary hearing transcript, do you recall what happened that evening?

[Poindexter] No. [Commonwealth] Let me get this straight, you have no memory of what happened that evening?

[Poindexter] Yeah. We were standing on the corner and a “fire” happened and we just ran.

[Commonwealth] Okay. But it's your testimony that you no longer remember whether or not you saw someone shoot Mr. Robinson?

[Poindexter] Can you say it again?

[Commonwealth] Okay. You no longer remember whether or not you saw someone shoot Mr. Robinson?

[Poindexter] No.

[Commonwealth] Okay. You no longer remember whether or not you saw a gun that evening?

[Poindexter] No.

[Commonwealth] Okay. You no longer remember whether or not you saw anyone else in the area that evening other than the football players?

[Poindexter] No.

[Commonwealth] Okay. And after reading that preliminary hearing transcript and after reading the statement that you gave to Detective Best you still don't remember what happened that evening?

[Poindexter] No.

The...