Harry Stephen Caprio v. Commonwealth of Virginia ( 2000 )


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  •                    COURT OF APPEALS OF VIRGINIA
    Present: Judges Willis, Lemons and Frank
    Argued at Chesapeake, Virginia
    HARRY STEPHEN CAPRIO
    MEMORANDUM OPINION * BY
    v.   Record No. 2225-98-1                  JUDGE DONALD W. LEMONS
    MARCH 14, 2000
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
    Johnny E. Morrison, Judge
    Dianne G. Ringer, Senior Assistant Public
    Defender, for appellant.
    Marla Graff Decker, Assistant Attorney
    General (Mark L. Earley, Attorney General;
    Stephen R. McCullough, Assistant Attorney
    General, on brief), for appellee.
    Harry Stephen Caprio appeals his conviction for second
    degree murder.   On appeal, he argues that:   (1) the trial court
    abused its discretion by denying his motion for a mistrial based
    on the court's failure to strike a juror for cause, (2) that the
    rebuttal argument of the Commonwealth's Attorney was improper
    and should have been grounds for a mistrial or a cautionary
    instruction, and (3) that the evidence was insufficient to
    sustain the conviction.     Finding no reversible error, we affirm.
    * Pursuant to Code § 17.1-413, recodifying Code
    § 17-116.010, this opinion is not designated for publication.
    I.   BACKGROUND
    On August 5, 1991, Elizabeth Marie Bickley lived in a house
    in Portsmouth with her tenant, Mike Webb.   Webb was moving out,
    and Tanya Ayers was moving her possessions into the residence.
    Bickley's mother went to the house that morning and noticed that
    Bickley limped from a bruised hip and had a black eye. 1   There
    was a message on Bickley's answering machine from Caprio saying
    that he was "off today" and would "be over this afternoon."
    Bickley and Caprio had been friends since childhood.   That night
    Webb and Ayers observed Caprio and Bickley leave together at
    eight o'clock to buy beer.
    Bickley's body was found at eleven o'clock on August 5,
    1991, in the middle of a road in Portsmouth, a short distance
    from her home.   The cause of death was strangulation, both
    manual and with a plastic wire tie.    Bickley also had received
    extensive blows from a blunt object.   Electrical ties, similar
    to the one found on Bickley, were found in a nearby baseball
    field.
    At trial, Caprio testified that while they were driving,
    Bickley became "upset" because he refused to assist her in
    evicting Webb and she decided to walk home alone.   Caprio
    claimed that after he let Bickley out of his truck, he circled
    the block and when he returned, Bickley was gone.   Friends of
    1
    Neither the bruised hip nor the black eye were caused by
    Caprio.
    - 2 -
    Caprio testified that he came over to their house at about 9:00
    or 10:30 that evening.   At approximately 3:30 on the morning of
    August 6, Caprio returned home and woke his roommate Steven
    Edwards.   He told Edwards that he and Bickley had a dispute,
    that she got out of the truck and that he spent the remainder of
    the evening with friends.
    At trial, Webb testified that he had not seen Bickley alive
    since she left with Caprio the night before.    Tanya Ayers
    testified that Bickley was afraid to go out at night because her
    previous boyfriend, who had just gotten out of jail, had
    threatened her.
    Caprio was a general contractor and kept plastic wire ties
    in his garage and kept smaller ties in his truck.    Jeffrey Ban
    of the Virginia Division of Forensic Science, testified that
    blood consistent with Bickley's DNA was found on the shorts that
    Caprio wore the night of the murder. 2   Dr. Bush of the Medical
    Examiner's Office, testified that Bickley died sometime between
    8:30 p.m. and 12:30 a.m. on the night of August 5th or in the
    early morning hours of August 6th.
    Caprio was indicted for second degree murder.    He pled not
    guilty and was tried by a jury in the Circuit Court of the City
    2
    The Commonwealth admitted into evidence Ban's report which
    stated that the probability of finding another person "is
    approximately one in 4.1 million in the Caucasian Population, 1
    in 85 million in the Black Population, 1 in 10 million in the
    Hispanic Population." Bickley was Caucasian.
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    of Portsmouth.   During voir dire, the trial court asked the
    prospective jurors whether "we have anybody on the panel that
    may be familiar with, been associated with, or know[s] anything
    about or may have been represented by [this Commonwealth's
    Attorney] or anybody in the Commonwealth's Attorney's office?"
    No venireperson responded.      After the struck jurors were excused
    and the jury of twelve had been sworn, the Commonwealth's
    Attorney advised the court that he had just realized that he
    went to high school with one of the jurors.      That juror was then
    questioned out of the presence of the other jurors about his
    relationship with the prosecutor.       The following exchange
    occurred:
    THE COURT: . . . . Do you know any of the
    lawyers involved in this case?
    JUROR:   I know the Commonwealth's Attorney.
    THE COURT:   You know [the Commonwealth's
    Attorney]?
    JUROR:   Yes.
    THE COURT:   How is it you know him?
    JUROR:   We played football in school.
    *       *      *       *       *      *      *
    THE COURT:   What year did you graduate?
    JUROR:   '68.
    THE COURT: '68; and since you all
    graduated, have you all socialized together,
    are close friends?
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    JUROR: I've seen him in the community, but
    we don't socialize per se.
    THE COURT: The fact that you all played
    football together, went to the same high
    school, notwithstanding that fact, can you
    be fair and impartial to this trial, sir?
    JUROR:   Oh, yeah.
    THE COURT:     You can?
    JUROR:   Yes, sir.
    THE COURT: Do you have any questions,
    [defense counsel]?
    [DEFENSE COUNSEL]: Yes, sir. [Juror], the
    fact that you know [the Commonwealth's
    Attorney], would that give more credence,
    less credence, or no credence to what he
    said? In other words, would you believe him
    if he said something versus other people?
    JUROR: I believe a man at his word, his
    word is truth; and I believe what a person
    says, if it's the truth, then it will tell.
    In other words, I don't believe a person
    because he's a friend or I know you.
    [DEFENSE COUNSEL]: And the fact that, as
    the Judge will tell you, the jury is to
    consider only the evidence that comes from
    the stand. The lawyers' statements are not
    evidence. They're just statements. They're
    representing their side. The fact that you
    played football with [the Commonwealth's
    Attorney] would not elevate his words to a
    higher standard?
    JUROR:   No.
    [DEFENSE COUNSEL]: And do you feel in your
    heart you can give Mr. Caprio a fair
    hearing?
    JUROR:   Yes.
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    [DEFENSE COUNSEL]: Knowing [the
    Commonwealth's Attorney]?
    JUROR:   Yes.
    [DEFENSE COUNSEL]: Y'all haven't been
    involved in any things as Norcom High School
    alumni, football games or anything like
    that?
    JUROR: No, not lately.
    [DEFENSE COUNSEL]:   Thank you.
    Caprio moved "to have [the juror] taken off."     He stated, "I
    know [the juror's] answers may satisfy the Court, but for the
    record, I would ask that he be taken off.     We have,
    unfortunately, twelve jurors.   We have one who played football
    with [the Commonwealth's Attorney].     I would make a motion, I
    guess it would be for a mistrial."      Defense counsel further
    suggested that "knowing someone is not enough, but he is more
    connected and did not make any mention that he knew [the
    Commonwealth's Attorney] before.    I'm not saying he's trying to
    hide anything.   It may have been the way the question was
    worded.   I'm just making the motion for a mistrial."
    The Commonwealth's Attorney responded that he graduated
    from Norcom High School in 1967 and had not socialized with the
    juror since graduation.    He added, "In fact, I've never really
    socialized with him, even when we went to high school . . . .
    We're talking thirty years ago."
    Defense counsel noted that "the key was, you know, that it
    was after the jury was selected that we knew of this.     We
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    brought to the Court's attention before jury selection or during
    jury selection that there was a person on the jury that we know
    very well.    We brought that up at what I thought was the
    appropriate time.    It's just a little bit late at this point to
    do that."    The trial court denied the defendant's motion.
    The jury found Caprio guilty of second degree murder.      No
    additional evidence was presented to the jury at the sentencing
    phase.    In his rebuttal argument, the Commonwealth's Attorney
    stated:
    Can you imagine what [the victim's] last
    words were? Can you imagine what her last
    words were? I imagine probably they were,
    "Steve, why are you doing this to me?
    Steve, why are you doing this to me? What
    did I do to deserve this kind of beating,
    this kind of death?"
    I can't, you can't bring her back. These
    folks out here sobbing and crying, they
    would trade anything if you could bring her
    back. They have no problem walking about,
    walking out the door and going about their
    business if you could bring her back, but
    you can't bring her back; so what is your
    responsibility to this community, to this
    family, and all these people here?
    Defense counsel interjected with, "Judge," and the trial court
    immediately responded, "All right; sustained."    The
    Commonwealth's Attorney continued, "What is your
    responsibility?"    Again, defense counsel interjected, "Judge, I
    would like to be heard at the bench."    The trial court told
    counsel to "[c]ome on up," and there was a discussion at the
    - 7 -
    sidebar.   The Commonwealth's Attorney completed his argument to
    the jury without objection:
    Whatever you imagine her last words to be,
    whatever you imagine them to be, you can
    rest assured there was a plea for her life
    and it was a plea to stop the beating, it
    was a plea for her last breath, and he
    ignored it; so is he due any mercy from you?
    I don't think so. He had his chance to be
    merciful. It's your chance to meet [sic]
    out justice; and if ever a beating and
    murder justified the maximum penalty, this
    one does. This one does.
    The Commonwealth's Attorney ended his argument by asking the
    jury to impose the maximum penalty.
    Once the jury retired to deliberate, defense counsel asked
    the court for permission to put certain previous objections on
    the record.   The relevant objection relating to the
    Commonwealth's Attorney's argument was:
    Judge . . . I timely [objected] to [the
    Commonwealth's Attorney's] second sentencing
    closing when he was talking about
    responsibility. At that point, the Court
    allowed me to approach the bench. I asked
    for a mistrial or a cautionary instruction.
    The Court said he would sustain that
    objection.
    Judge, we would make the motion clear that
    we were asking for a cautionary instruction
    or a mistrial based upon [the Commonwealth's
    Attorney's] comments at any part of the jury
    trial were improper and intended to have
    prejudicial value; and [the Commonwealth's
    Attorney] being the experienced prosecutor
    he is, he knows better than that; and Judge,
    we're putting the objection on the record
    and preserving the objection.
    - 8 -
    II.   PROSPECTIVE JUROR
    Caprio first argues that although the prospective juror may
    not have been subject to automatic exclusion based on the
    relationship with the Commonwealth's Attorney, the failure to
    disclose this relationship on voir dire prevented Caprio from
    the intelligent exercise of his right to exercise a peremptory
    challenge.   This argument was not presented to the trial court
    with the specificity required by Rule 5A:18 and will not be
    considered by us on appeal.    See Helms v. Commonwealth, 
    10 Va. App. 368
    , 372, 
    392 S.E.2d 496
    , 498 (1990); Hogan v.
    Commonwealth, 
    5 Va. App. 36
    , 45, 
    360 S.E.2d 371
    , 376 (1987).
    Caprio's second contention is that the prior relationship
    between the Commonwealth's Attorney and the juror coupled with
    the juror's failure to respond to the voir dire question
    demonstrates the juror's partiality.
    Both the United States Constitution and the Virginia
    Constitution guarantee Caprio's right to an impartial jury.     See
    U.S. Const. amend. VI, XIV; Va. Const. art. I, § 8; see also
    Code § 8.01-358; Rule 3A:14.   The partiality or impartiality of
    an individual juror is an issue of fact that is to be determined
    by the trial court.   See Watkins v. Commonwealth, 
    229 Va. 469
    ,
    480, 
    331 S.E.2d 422
    , 431 (1985), cert. denied, 
    475 U.S. 1099
    ,
    
    106 S. Ct. 1503
    , 
    89 L.Ed.2d 903
     (1986); Brown v. Commonwealth,
    
    28 Va. App. 315
    , 327, 
    504 S.E.2d 399
    , 405 (1998).   Consequently,
    the trial court's decision whether to retain or exclude
    - 9 -
    individual veniremen is given deference on appeal since it is in
    a position to see and hear the juror.    See Wainwright v. Witt,
    
    469 U.S. 412
    , 426, 
    105 S. Ct. 844
    , 853, 
    83 L.Ed.2d 841
     (1985);
    Eaton v. Commonwealth, 
    240 Va. 236
    , 246, 
    397 S.E.2d 385
    , 391
    (1990); Brown, 
    28 Va. App. at 327
    , 
    504 S.E.2d at 405
    .     When
    there is a "mid-trial" challenge to a juror's impartiality, this
    Court will reverse the trial court's decision to seat a
    prospective juror only for an abuse of discretion.     Hunt v.
    Commonwealth, 
    25 Va. App. 395
    , 399, 
    488 S.E.2d 672
    , 674 (1997).
    Furthermore, we will not overturn "'the denial of a motion for a
    mistrial . . . unless there exists a manifest probability that
    [the ruling] was prejudicial.'"    Taylor v. Commonwealth, 
    25 Va. App. 12
    , 17, 
    486 S.E.2d 108
    , 110 (1997) (quoting Bottoms v.
    Commonwealth, 
    22 Va. App. 378
    , 385, 
    470 S.E.2d 153
    , 157 (1996)).
    The record indicates that the juror was unaffected by his
    prior relationship with the Commonwealth's Attorney.
    Furthermore, while under oath, the juror answered non-leading
    questions in his own words and repeatedly assured the court of
    his ability to remain impartial.    See Educational Books, Inc. v.
    Commonwealth, 
    3 Va. App. 384
    , 389, 
    349 S.E.2d 903
    , 907 (1986)
    ("The evidence used to show the requisite qualifications for
    impartial jury service must emanate from the juror herself,
    unsuggested by leading questions posed to her."); Hunt, 
    25 Va. App. at 399
    , 
    488 S.E.2d at 674
     (trial court properly refused to
    remove juror when juror revealed during the trial that she knew
    - 10 -
    members of the victim's family, but that this would not affect
    the juror's ability to provide the defendant with a fair trial).
    The passage of over thirty years and the weak nature of the
    connection between the juror and the Commonwealth's Attorney
    account for both the juror and Commonwealth's Attorney's failure
    to immediately recall the other.     There was no manifest
    probability that Caprio was prejudiced by the court's denial of
    his motion for a mistrial.
    III.   THE COMMONWEALTH'S ATTORNEY'S REBUTTAL ARGUMENT
    Caprio next contends that the Commonwealth's Attorney's
    statements were improper.     Based upon the timing of the
    objection and defense counsel's later explanation offered for
    the record, the issue we are limited to review on appeal is the
    propriety of the Commonwealth's Attorney's comments about the
    jury's responsibility to the community and to the victim's
    family. 3   See Humbert v. Commonwealth, 
    29 Va. App. 783
    , 791-92,
    
    514 S.E.2d 804
    , 808 (1999) (limiting appeal of denial of motion
    for mistrial to that which was specifically preserved in the
    trial court); Rule 5A:18.
    Due to the nature and timing of the penalty phase of a
    bifurcated trial, the Supreme Court of Virginia has consistently
    3
    Caprio does not, however, specify which statements he
    finds objectionable. Furthermore, at trial, Caprio never
    suggested what made the Commonwealth's Attorney's comments
    improper. Caprio did object, however, and is now limited to the
    specific objection he raised at trial.
    - 11 -
    acknowledged the appropriateness of a deterrence argument to
    persuade a jury to assign a greater sentence to a guilty
    defendant.   See, e.g., Wilkins v. Commonwealth, 
    253 Va. 156
    , 
    482 S.E.2d 837
     (1997) (Commonwealth's attorney's comments that jury
    had the "opportunity as the conscience of this community to deal
    with this person" and that the jury could "send the message to
    [the defendant] . . . that we will not tolerate the sale and
    purchase of drugs in this county" was proper at the penalty
    phase of trial); Hutchins v. Commonwealth, 
    220 Va. 17
    , 20, 
    255 S.E.2d 459
    , 461 (1979) (stating that the court did not disagree
    with the Attorney General's observation "that it is proper for a
    prosecutor to ask a jury to fix a punishment in a particular
    case that will deter others from committing like offenses").
    The Commonwealth's Attorney's comments with respect to the
    jury's responsibility to the community were, therefore, entirely
    proper.   Neither a cautionary instruction nor a mistrial should
    have been granted based on this portion of his argument.
    Furthermore, references to the jury's duty to the victim's
    family were also proper since the Commonwealth's Attorney was
    only asking the jury to consider the loss to the family when
    assigning punishment.   See George v. Commonwealth, 
    242 Va. 264
    ,
    281-82, 
    411 S.E.2d 12
    , 22-23 (1991), cert. denied, 
    503 U.S. 973
    ,
    
    112 S. Ct. 1591
    , 
    118 L.Ed.2d 308
     (1992).
    - 12 -
    IV.    SUFFICIENCY OF THE EVIDENCE
    Since the Commonwealth's case involved circumstantial
    evidence, Caprio claims that his conviction should be reversed
    because the Commonwealth failed to exclude his reasonable
    hypotheses of innocence.    We disagree.
    When the sufficiency of the evidence is challenged on
    appeal, this Court considers the evidence "in the light most
    favorable to the Commonwealth," affording it "all reasonable
    inferences" fairly deducible from the evidence.       Higginbotham v.
    Commonwealth, 
    216 Va. 349
    , 352, 
    218 S.E.2d 534
    , 537 (1975);
    Iglesias v. Commonwealth, 
    7 Va. App. 93
    , 109, 
    372 S.E.2d 170
    ,
    179 (1988) (en banc).     The decision of the trier of fact will
    not be disturbed on appeal unless plainly wrong or without
    evidence to support it.     See Wright v. Commonwealth, 
    224 Va. 502
    , 505, 
    297 S.E.2d 711
    , 713 (1982).      Determination of witness
    credibility and the weight to be afforded testimony are matters
    for the trier of fact.     See Swanson v. Commonwealth, 
    8 Va. App. 376
    , 378-79, 
    382 S.E.2d 258
    , 259 (1989).
    Viewed in the light most favorable to the Commonwealth, the
    evidence proved that Bickley was limping the night of the murder
    and was afraid to go outside alone because her ex-boyfriend
    recently had been released from prison.     She was also afraid of
    the dark.   Webb, her tenant, was in the process of moving his
    possessions out of her house on the night of the murder.
    Bickley was last seen alive at eight o'clock that night driving
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    off with Caprio in his truck to get beer.   At eleven o'clock,
    Bickley's beaten body was found near a convenience store and
    near her home.   She died by strangulation both manually and by
    use of a plastic wire tie, between 8:30 p.m. and 12:30 a.m.
    Caprio possessed similar tie-straps in his garage and in his
    truck.   Bickley's blood was found on the shorts Caprio wore the
    night of the murder.
    When Caprio made a statement to the police, he told them
    that Bickley had gotten out of his truck and simply disappeared.
    According to Caprio, after they left the store, Bickley acted as
    if she was angry about something and kept telling him that "she
    wanted out" of the truck.   He also told the police that she was
    drunk, but when she was drunk she would not bother anyone.
    Caprio denied that they had a fight while she was in the truck
    and denied any knowledge of the murder.   At trial, however,
    Caprio testified that a fight occurred en route to the store
    because he would not help her evict Webb from her home.
    According to Caprio, Bickley became angry and belligerent and
    got out of his truck.   Furthermore, when Caprio originally told
    Bickley's mother about that night, he did not mention anything
    about Bickley discussing an argument with Webb.
    Whether an hypothesis of innocence is reasonable is a
    question of fact, to be decided by the trier of fact.     See
    Cantrell v. Commonwealth, 
    7 Va. App. 269
    , 290, 
    373 S.E.2d 328
    ,
    339 (1988), cert. denied, 
    496 U.S. 911
    , 
    110 S. Ct. 2600
    , 110
    - 14 -
    L.Ed.2d 280 (1990).   The Commonwealth need only exclude
    reasonable hypotheses of innocence that flow from the evidence,
    not those imagined by the defendant or his attorney.     See
    Hamilton v. Commonwealth, 
    16 Va. App. 751
    , 755, 
    433 S.E.2d 27
    ,
    29 (1993).   The jury was entitled to reject the portions of
    Caprio's testimony that were not worthy of belief.
    Caprio's hypothesis of innocence is implausible and
    inconsistent.   In essence, Caprio argues that Bickley, who was
    too scared to go outside alone, got out of his truck in the
    middle of the street because he would not help her evict a
    tenant who was already packing his possessions to leave and
    that, despite her limp, she was able to walk off and disappear
    in the short time it took him to circle the block.    Bickley was
    last seen alive with Caprio.   She was strangled manually and
    with a plastic wire tie.   Similar ties were found in Caprio's
    garage and truck.   Bickley suffered extensive blows from a blunt
    object.   Her blood was found on the shorts worn by Caprio that
    night.    The evidence is sufficient to sustain the verdict, and
    the conviction is affirmed.
    Affirmed.
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