Weller v. Com.

• Decision Date: 10 August 1993
• Docket Number: No. 1888-90-1,1888-90-1
• Citation: 16 Va.App. 886,434 S.E.2d 330
• Parties: William Elwood WELLER, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

Page 330

434 S.E.2d 330

16 Va.App. 886

William Elwood WELLER, Jr. v. COMMONWEALTH of Virginia.

No. 1888-90-1.

Court of Appeals of Virginia.

Aug. 10, 1993.

Rehearing En Banc Granted Sept. 23, 1993.

Randolph D. Stowe, Norfolk (Jon M. Babineau, Zoby & Broccoletti, P.C., Wilcox & Stowe, P.C., on briefs), for appellant.

Thomas C. Daniel, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BENTON, KOONTZ ^* and BRAY, JJ.

KOONTZ, Judge.

William Elwood Weller, Jr., appellant, was convicted in a jury trial of capital murder, night-time arson of a dwelling, robbery, and two charges of use of a firearm in the commission of a felony. Weller received three life sentences for capital murder, robbery, and arson; he was sentenced to two and four years, respectively, for the firearm convictions. He contends that the trial court erred in: (1) excluding testimony that would have shown that someone else committed these crimes; (2) refusing to permit the defense to call James Miles as an adverse witness; (3) admitting the victim's statements to her sister the night before her death; and (4) excluding testimony regarding the description of a ring Weller offered to sell three weeks before the murder. Finding no reversible error, we affirm Weller's convictions.

Because Weller does not challenge the sufficiency of the evidence, we restate only those facts necessary to explain our holding. Thelma Baker was eighty-five years old when she was murdered in the early morning hours of March 21, 1989. The cause of death was "smoke inhalation after receiving multiple gunshot wounds." Baker's body was found incinerated in a fire at her home at 942 Oaklette Drive in the City of Chesapeake. She had been shot in her left arm, in the back of her head, and in her neck.

Weller, who had worked for Baker as a handyman for many years, was arrested on April 2, 1989. The police discovered a .22 caliber revolver and five rings in Weller's backpack. Those rings, which were identified at trial as belonging to Baker, were described as a diamond engagement ring, a wedding band, an Eastern Star ring, a turquoise ring and a large white gold diamond ring.

Three .22 caliber bullets were recovered from Baker's body. The bullets were deformed, as a result of impacting something hard. However, the rifling characteristics of one bullet were consistent with those of the .22 caliber revolver found in Weller's possession at the time of his arrest. While incarcerated, Weller told a fellow inmate that he had shot Baker and burned down her house because he was interested in her jewelry.

A key issue at trial was whether Baker had the five rings, which were found in Weller's backpack, at the time of her death.

The day before her death, Baker told her sister, Arron Cannon, during a telephone conversation, that she was going to give her two rings--her engagement and wedding rings--to take to a jeweler to be repaired. Anne Swancey, another sister, testified that Baker always wore her engagement and wedding rings. Baker's hairdresser, Inez Johnson, testified that Baker was wearing her wedding ring, her engagement ring, a turquoise ring and an Eastern Star ring two or three days before she was murdered.

Approximately three weeks before the murder, Weller offered to sell a ring to Pamela Baker. Although Pamela Baker was permitted to testify that Weller had offered to sell her a ring, the trial court did not permit Pamela Baker to testify that Weller described the ring as "antiquish looking ... with a large green stone." On March 22, 1989, the day after Baker's murder, Weller entered an Appomattox jewelry store and requested an appraisal of a large white gold diamond ring, which was identified as Baker's ring. Weller told the jeweler he had found it outside a business with a metal detector. On that day, Weller telephoned a friend, Thomas Mussick, and told him he had found a ring using a metal detector.

At trial, the defense attempted to show that two other men, Kenny Dunbar and James Miles, committed the crimes for which Weller was charged. Weller proffered that the testimony of Charlene Dunbar and Elizabeth Lamore would place the men at the scene of the crime with a .22 caliber weapon and would establish motive. The trial court excluded a substantial portion of the proffered testimony.

I.

Weller contends that the trial court erred in excluding the testimony of Charlene Dunbar and Elizabeth Lamore. He contends that this testimony was relevant and tended to show that Kenny Dunbar and or James Miles committed or may have committed the crimes for which he was charged. The Commonwealth contends that this evidence was largely inadmissible hearsay and irrelevant.

"In Virginia, evidence that a crime was actually committed by someone other than the accused is admissible for the purpose of generating a reasonable doubt of the guilt of the accused." Charles E. Friend, The Law of Evidence in Virginia § 150 (3d ed. 1988). However, "[t]he evidence introduced must point directly to guilt of a third party." Id. Thus, "where there is a trend of facts and circumstances tending clearly to point out some other person as the guilty party, the [defendant] may introduce any legal evidence which is available tending to prove that another person committed the crime with which he is charged." Id. (quoting Karnes v. Commonwealth, 125 Va. 758, 766, 99 S.E. 562, 565 (1919)). The admissibility of circumstantial evidence tending to prove the guilt of a third person is left to the discretion of the trial court. Id.

Although circumstantial evidence tending to prove the guilt of a third party is to be liberally received, id., the evidence must be legally admissible. That is, the evidence must be relevant and material, and may not be hearsay. Because the evidence in question was not legally admissible, we find no error in the trial court's ruling excluding this evidence.

Weller proffered the testimony of Charlene Dunbar and Elizabeth Lamore. Based upon this proffer, the trial court refused to permit the witnesses to testify to the following: James Miles owned a .22 caliber gun; James Miles and Kenny Dunbar said they had seen the fire on Oaklette Drive; James Miles said he heard gunshots and screams from Baker's house and saw a man running from Baker's house, and reported this to the police three or four days after the fire; James Miles had lived in Baker's neighborhood fifteen years ago and he had said that he wanted to buy a house there; James Miles said he knew the lady who lived in the burning house was rich and elderly; and James Miles spent extravagantly after the incident. However, the trial court permitted Charlene Dunbar to testify that Kenny Dunbar owned a .22 caliber gun and that she saw this weapon in his vehicle when she, Kenny Dunbar, and James Miles went to watch the fire at Baker's home.

Hearsay is testimony consisting of " 'a narration by one person of matters told him by another,' " which is offered to prove the truth of its content. Evans-Smith v. Commonwealth, 5 Va.App. 188, 197, 361 S.E.2d 436, 441 (1987) (quoting Williams v. Morris, 200 Va. 413, 417, 105 S.E.2d 829, 832 (1958)). "The party seeking to have hearsay declarations 'admitted as an exception to the general rule must clearly show that they are within the exception.' " Jones v. Commonwealth, 11 Va.App. 75, 88, 396 S.E.2d 844, 851 (1990) (quoting Doe v. Thomas, 227 Va. 466, 472, 318 S.E.2d 382, 386 (1984)). The testimony relating what Kenny Dunbar and James Miles told the witnesses on the night of the crime is hearsay evidence. Weller points to no exception to the hearsay rule that would permit introduction of such testimony. Therefore, that testimony was properly excluded.

The remaining evidence, that James Miles owned a .22 caliber gun, spent extravagantly after the incident, had lived in Baker's neighborhood fifteen years ago, and reported his observations to the police several days after the crime is not relevant to any matter at issue. "Evidence is relevant in the trial of a case if it has any tendency to establish a fact which is properly at issue." Wise v. Commonwealth, 6 Va.App. 178, 187, 367 S.E.2d 197, 202-03 (1988). The proffered evidence does not tend to prove the proposition for which it was offered--that Miles or Dunbar committed the crimes. There was no evidence tying Miles' weapon, spending habits, or prior residence in Baker's neighborhood to these crimes. The Commonwealth's expert excluded Miles' weapon as the murder weapon. Although defense counsel stated that Elizabeth Lamore would testify that Miles spent extravagantly after the murder, no connection was made between the crimes and Miles' spending habits. Furthermore, the fact that Miles used to live in Baker's neighborhood does not tend to show that he would murder her and burn down her house when he indicated that he wanted to buy a house in Baker's neighborhood. Even considering this evidence together, see Wynn v. Commonwealth, 5 Va.App. 283, 291, 362 S.E.2d 193, 198 (1987), it does not tend to show that Miles or Dunbar committed the crimes in question.

Therefore, because the excluded evidence constituted inadmissible hearsay and was irrelevant, we find that the trial court properly exercised its discretion in excluding the evidence.

II.

Weller also contends that the trial court erred in refusing to permit him to call James Miles as an adverse witness for the defense. Weller claims that Miles was an adverse witness because he refused to talk to defense counsel and may have committed the crimes. When Weller asked the court for leave to call Miles as an adverse witness, the court stated that it would not permit Weller to proceed against Miles as an adverse witness based solely on these grounds. The court indicated that Weller could call Miles to the stand and, if the witness proved to be adverse, the court would give defense counsel "additional latitude." However, Weller did not call Miles as a witness.

C...