Dorothea Chisom Martin v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia
DOROTHEA CHISOM MARTIN
MEMORANDUM OPINION * BY
v. Record No. 1296-99-3 JUDGE RUDOLPH BUMGARDNER, III
AUGUST 22, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
George E. Honts, III, Judge
Christopher K. Kowalczuk for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
A jury convicted Dorothea Chisom Martin of conspiracy to
murder her husband, James Martin. On appeal, she contends the
trial court erred in admitting statements of her co-conspirator
and in ruling the evidence was sufficient to convict her.
Finding no error, we affirm.
Conspiracy is "'an agreement between two or more persons by
some concerted action to commit an offense.'" Cartwright v.
Commonwealth, 223 Va. 368, 372, 288 S.E.2d 491, 493 (1982)
(citation omitted). The hearsay statements of a co-conspirator
can be used as substantive evidence against the defendant if the
Commonwealth first establishes that a conspiracy existed from
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
other evidence. "Once the Commonwealth has made out a prima
facie case of conspiracy by circumstantial evidence, an
out-of-court statement of a conspirator is admissible to prove
the conspiracy." Roger D. Groot, Criminal Offense and Defenses
in Virginia 104 (4th ed. 1999) (citing Poole v. Commonwealth, 7
Va. App. 510, 375 S.E.2d 371 (1988)). The defendant concedes
that the burden to establish prima facie proof of a conspiracy
is proof by a preponderance of the evidence.
At trial, the co-conspirator, Thomas "Butch" Gray, invoked
his Fifth Amendment right and refused to testify. After the
trial court ruled the Commonwealth had established a prima facie
case of conspiracy by other evidence, it admitted Gray's prior
out-of-court statements as evidence against the defendant.
Gray's statements admit that he and the defendant conspired to
murder the defendant's husband. If the trial court properly
admitted the statements, they provided sufficient evidence to
permit a conviction.
The defendant and James Martin were involved in an
acrimonious and prolonged divorce that began in 1995. In 1997
Gray told Martin that he had been having an affair with the
defendant, and later he told Martin that he and the defendant
had plotted to murder him. Gray gave Martin tape recordings of
Gray and the defendant talking about sex and even having sexual
relations. He showed Martin a rifle with a silencer and said,
"this was made for you." In July 1998, a jury convicted and
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sentenced Gray to three years in the penitentiary for conspiracy
to murder Martin. The defendant was not charged at that point.
While waiting for the judge to impose sentence, Gray
continued plotting to kill Martin. Gray confided in another
inmate housed in his cellblock, who feigned interest, but
informed the Sheriff of Gray's intentions. The Sheriff
instructed the inmate to offer to put Gray in touch with a hired
killer, "Jack Brisco," and to furnish Gray a telephone number
for the fictitious hired killer. The inmate gave Gray that
information, and Gray acted on it. The telephone number would
actually connect to the Sheriff, who pretended to be "Jack
Brisco" whenever Gray called that number. After a series of
calls, while thinking he was dealing with a hired killer, Gray
arranged to have Martin killed. He arranged for the hired
killer first to get Martin to recant his testimony in hopes the
trial judge would not impose the jury sentence and then to make
the murder look like a suicide. Gray furnished a map of
Martin's house and sent a payment of $50 on August 7 and of $450
the following week.
Despite Gray's conviction in July 1998, the defendant
maintained continual contact by telephone and mail.
Investigators found nineteen letters in Gray's cell written by
the defendant. One dated July 14, 1998 stated that he would
have to "read between the lines" because she would not write
much in a letter that he could use against her. The day Gray
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first contacted his hired killer, she wrote that she could be in
jail above him the following week. In letters dated August 5
and 6, 1998, the defendant professed her love for Gray, noted
that she received the bills he wanted her to pay, and asked him
to destroy her letters. Just before Gray mailed $450 to his
hired killer, the defendant mailed him $450 with a note saying
"hope this helps" and "Would you do the same for me?"
The defendant received several hundred telephone calls from
Gray. Gray placed numerous calls to her place of work, the
Fincastle post office. A postal employee testified that Gray
called the defendant "almost daily." During July and August
1998, the post office received a large number of hang-up collect
calls, but during one such call, the employee recognized Gray's
voice "rambling on for a quick moment." Telephone records for
Gray's cellblock showed that 270 collect calls were placed to
the post office, but none were accepted.
The cellblock records showed that 316 calls were placed to
the defendant's home between July 7 and August 19, 1998. Of
those, 114 were completed. Many of the calls to the defendant's
home coincided with calls from the cellblock to the hired
killer's telephone number.
Around 8:40 p.m. on August 18, 1998, State Police Agent
Michael Bass went to the defendant's home pretending to be the
killer Gray had hired. Agent Bass advised the defendant that
Gray had sent him and that Martin "was going to be done
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tonight." He explained that he expected her to give him a gun
or $300 to purchase one. The defendant denied knowing of any
plot to kill Martin. The agent asked if it was all right that
Martin "was going to be killed tonight." The defendant
responded that it was not all right, but she never called the
police or warned Martin after the agent left.
At 1:12 a.m., a second state police agent, Doug Orebaugh,
went to the defendant's house. He posed as an investigator and
told her about discovering a plot to murder her husband. The
defendant denied that anyone had come to see her that evening.
She twice denied sending Gray cash in jail asking, "where would
I get $450?" After Orebaugh told her police found evidence in
Gray's cell that she had sent him $450, the defendant admitted
sending that amount but claimed Gray needed it to pay taxes and
rent. Asked if she would advise the police if she learned of a
plot to kill Martin, she responded, "oh, God, yes."
The evidence supports the trial court's finding that the
Commonwealth proved a prima facie case of conspiracy independent
of the out-of-court statements of the co-conspirator, Butch
Gray. Gray thought he hired someone to kill Martin and sent
$500 as advance payment. Evidence linked the defendant to
Gray's actions in hiring the assassin. The defendant sent Gray
$450 cash right before he sent the $450 payment. The defendant
sent Gray love letters in jail and received hundreds of
telephone calls from him after he was convicted of conspiracy to
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murder her husband. Many of the calls to the defendant's home
coincided with Gray's calls to the hired killer.
The defendant acknowledged only a two-day relationship with
Gray and claimed she fell in love with him after he was arrested
in February 1998. Recorded conversations between them showed
intimate relations in 1997. The defendant and Gray talked about
the gun and silencer. During one of the many recordings of
conversations between Gray and the defendant, she said, "I want
to hear that bullet hit. Yee ha." Then Gray explained that you
do not want to do it too fast because there should be "a lot of
pain and suffering."
The defendant denied that anyone had visited her the night
the agent posed as a hired killer. She did not call the police
or Martin about the plot, even though she later proclaimed she
would. The defendant denied owning any guns but then admitted
Gray had given her two. The silencer found in Gray's residence
fit both guns.
Excluding the out-of-court statements by the
co-conspirator, the evidence and the reasonable inferences
arising from it established the conspiracy to murder by a
preponderance of the evidence. "'A common purpose and plan may
be inferred from a collocation of circumstances.'" Amato v.
Commonwealth, 3 Va. App. 544, 552, 352 S.E.2d 4, 9 (1987)
(citation omitted). The Commonwealth may prove the existence of
the conspiracy through circumstantial evidence and need not
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prove an explicit agreement. See Stevens v. Commonwealth, 14
Va. App. 238, 241, 415 S.E.2d 881, 883 (1992); Harris v. United
States, 433 F.2d 333, 335 (4th Cir. 1970) ("The existence of an
unlawful and inherently covert agreement can be inferred from
the overt conduct of the parties.").
Some of the evidence that supported the finding of a
prima facie case of conspiracy was admitted after the trial
court ruled. Nonetheless, that evidence can be considered in
evaluating whether the evidence supported such a finding. "The
order of presentation of evidence . . . is usually a matter left
to the discretion of the trial court and, absent an abuse of
discretion, will not be disturbed" on appeal. Floyd v.
Commonwealth, 219 Va. 575, 582, 249 S.E.2d 171, 175 (1978). The
trial court did not err in permitting the jury to consider
Gray's extensive statements implicating the defendant.
When a defendant challenges the sufficiency of the
evidence, we examine the evidence that tends to support the
conviction and allow it to stand unless it is plainly wrong or
unsupported by the evidence. Where the evidence supports the
conviction, "an appellate court is not permitted to substitute
its own judgment for that of the fact-finder, even if the
appellate court might have reached a different conclusion."
Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72
(1998) (citations omitted). We also view the evidence and all
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reasonable inferences fairly deducible therefrom in the light
most favorable to the Commonwealth. See id.Gray showed Martin a rifle with a silencer and said, "this
was made for you." Gray said that the defendant wanted Martin
killed and had ordered the plans for the silencer so that Gray
could build it. He told Martin the defendant advised him to
shoot Martin when he took his walk near the airport. The
defendant and a friend had been scouting Martin's habits for
months.
An inmate housed in Gray's cellblock testified that each
time Gray spoke with the hired killer, he would call someone
whom Gray identified as the defendant. On August 18, after
speaking with "Jack Brisco," Gray called the defendant, and the
inmate overheard him tell her the money arrived and her "divorce
problems were going to be taken care of." He overheard Gray
tell someone that "they were going to kill James Martin and make
it look like an accident." Gray told the inmate that he was
going to receive $450 from the Fincastle post office. The next
day, the money arrived with a handwritten note from the
defendant.
Gray told the police that he and the defendant had a plot
to kill her husband using a "silencer." Recorded conversations
revealed discussions between the defendant and Gray about the
gun and silencer. Gray told the defendant that if she wanted
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someone to "set up" Martin, he would find someone to do it. She
responded, "I know."
The defendant's explanation for incriminating evidence
against her was questionable. When drawing reasonable
inferences from the facts, the fact finder "was entitled to
weigh the defendant's contradictory statements," Toler v.
Commonwealth, 188 Va. 774, 781, 51 S.E.2d 210, 213 (1949), and
to infer that she was attempting to conceal her guilt. See
Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d
233, 235 (1998).
When the evidence of the co-conspirator's out-of-court
statements is added to the other evidence of the conspiracy, it
was sufficient to prove beyond a reasonable doubt that the
defendant conspired to murder James Martin. Accordingly, we
affirm the conviction.
Affirmed.
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Benton, J., dissenting.
The evidence at trial proved that Dorothea Chisom Martin
and her husband endured several separations during their
marriage until Martin's husband left their marital home in 1995.
Martin filed for a divorce in November 1995, a month after her
husband last left their home. A year later, Martin met Thomas
Gray and began a relationship with him. In 1998, Gray was
indicted and convicted by a jury of conspiracy to murder
Martin's husband. After Gray's conviction and while he was in
the county jail, the grand jury indicted Martin and Gray for
conspiracy to commit capital murder of Martin's husband in
violation of Code § 18.2-31. Although the indictment does not
specify the precise violation of Code § 18.2-31, the jury
instructions and verdict pertain to "murder for hire" a
violation of Code § 18.2-31(2).
At Martin's jury trial, the prosecutor called Gray as the
Commonwealth's witness. Gray, however, invoked his Fifth
Amendment right not to testify. Later, during the presentation
of the Commonwealth's evidence, the prosecutor sought to offer
hearsay statements made by Gray, whom the Commonwealth alleged
to be Martin's co-conspirator. Martin's counsel objected that a
proper foundation did not exist.
"The general rule is that . . . a prima
facie case of conspiracy [must be
established] before the declarations of a
co-conspirator, made out of the defendant's
presence, may be admitted into evidence."
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"Otherwise hearsay would lift itself by its
own bootstraps to the level of competent
evidence."
Poole v. Commonwealth, 7 Va. App. 510, 513, 375 S.E.2d 371, 373
(1988) (citations omitted).
The trial judge initially denied the prosecutor's motion to
use Gray's hearsay statements. He thoroughly analyzed the
evidence as follows:
[JUDGE]: All right. These things are
established, Number One, Mr. Gray apparently
wants [Martin's husband] dead, but we
already knew that. We had a Jury that told
us so.
Mr. Gray called Mrs. Martin numerous
times. I also note that in these 19
letters, all of which I have not read, but I
read the majority of them, she writes to him
to stop calling here, particularly at work.
The question of the denial to Mike Bass
posing as Jack Brisco could -- as I
understood the evidence, he goes to the door
and says, "Butch sent me and you are to give
me a gun or give me $300 to buy a gun."
The evidence that I have of what was
going on with Mr. Gray was whoever was going
to do this was going to use [Martin's
husband's] own gun to make it appear to be a
suicide.
Her denial then amounts to one of two
things. One, she knew that was not part of
the plan and she was not going to buy into
it; or she really did not know what was
going on.
Let's look at the money. She sent $450
and she sent it with a letter, the envelope
which was postmarked the 12th and it got
here on the 13th.
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The letter said, "Hi Sport, hope this
helps. It is what you asked for. Let me
know if you get it. Call work and say that
you got it so that I will be at ease. Would
you do the same for me?"
Well, pretty broad phrasing in there.
Look at that the background of that.
The letter of August 5th, it is a long
rambling letter, but in the middle of the
page she writes, "I got the bills today. I
wish that you would tell me what you expect
of me. I feel responsible for you being in
there, so I should help with the outside
work. I'm here for you, you know that I
will do what I can."
Then she talks about having to space out
her checks for a month and she rambles on
then for a considerable length.
At the bottom of the third page she says,
"take care, my love, and try to stay out of
trouble and be a good boy, don't start
anything. I love you and Buff wants out."
She is talking about the cat wanting to go
out.
Throughout the letters there is an
emotional affection on her part toward Mr.
Gray. Mr. Gray is hardly in a position to
reciprocate it by this time.
On August 10th, the letter to [Martin's
attorney] had referenced to, "As I told you
on the phone several times, let me know what
you want me to do."
If I had that statement by itself that
sounds interesting, but the paragraph goes
on. "I do intend to get another job with
the Postal Service until 2001, but shit
happens. If you don't have a place to go,
well, yes, you will, but if you don't think
you will, you will always have one with me
if I save my money, unless you want me to
keep you from bankruptcy and I can get a
down payment on us a nice home, both boys
will be welcome."
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Now, with Special Agent Orebaugh, I'm
persuaded that he is reasonably well known
to [Martin] from the previous trial.
My recollection is that he at least
interrogated her -- I do not remember the
details, but he comes at one o'clock in the
morning and she gives him what is clearly a
false answer.
I don't condone that, but I do not know
what significance to attach to it.
She is either lying to cover up a
conspiracy, she is lying to cover up that
she is having contact with Gray or she is
lying because she just does not want to
cooperate with Investigator Orebaugh because
they were down that road once before.
She lies about sending him money, she
says something about $20 later, but then she
does admit it and she says that it is for
the payment of rent and taxes. That is the
way that it came down for the Investigator.
The letter says, "I hope this helps. It
is what you asked for." And we have in two
prior letters talking about the bills that
came in. She talks about maintaining his
credit.
[PROSECUTOR]: In the August 10th letter she
talks about paying the bills that he sends
her and that is always what is it.
It is not her sending money to him. It
is him sending the bills to her.
Mr. Fulcher testified that they do not
have checkbooks in jail.
[JUDGE]: I understand that.
[DEFENSE COUNSEL]: You can send the money
somewhere else.
[PROSECUTOR]: He sent her the bills and she
pay them. That is throughout the letters.
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[JUDGE]: She says in that paragraph and I
will get it back out if I need to, she says,
"I got the bills today" and then "tell me
what you want to do. I need to space my
checks out for a month."
Now, one can infer from that that she is
paying the bills, but I don't know.
The bottom line is this evidence is in
equal balance at this point. I cannot say
that a prima facie case is made out, but I
cannot say that it is totally void, either,
but the burden is on your side, Mr.
[prosecutor].
The ball is not over the fifty yard line,
the scales are not tipped one way or the
other, use whatever metapho[r] that you want
to use. Do you have other evidence to
present?
During the testimony of Martin's husband, the trial judge
reconsidered his ruling and granted the prosecutor's motion.
Nothing in Martin's husband's testimony, however, tended to
prove Martin was engaged in a conspiracy to commit murder for
hire. The trial judge's initial analysis of the evidence
accurately reflected the state of the relevant evidence and the
prosecutor's failure to prove a prima facie case of conspiracy.
For these reasons, I would hold that the trial judge erred
in admitting the hearsay statements. Accordingly, I dissent.
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