Warren Lee Broggin, Jr. v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner
Argued at Salem, Virginia
WARREN LEE BROGGIN, JR.
MEMORANDUM OPINION * BY
v. Record No. 0131-98-3 JUDGE SAM W. COLEMAN III
OCTOBER 5, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
B. Leigh Drewry, Jr., for appellant.
Kathleen B. Martin, Assistant Attorney
General, (Mark L. Earley, Attorney General,
on brief), for appellee.
Warren Lee Broggin was convicted in a bench trial of robbery
and use of a firearm in the commission of a felony in violation of
Code §§ 18.2-58 and 18.2-53.1. On appeal, Broggin contends that
the trial court erroneously admitted hearsay evidence and that the
evidence was insufficient to support the convictions. We affirm.
I. BACKGROUND
On review of a challenge to the sufficiency of the evidence,
we view the evidence in the light most favorable to the prevailing
party and grant to it all reasonable inferences fairly deducible
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
therefrom. See Commonwealth v. Jenkins, 255 Va. 516, 521, 499
S.E.2d 263, 265 (1998).
Vachel Pollard, Tyshon Reeves, and Warren Broggin hired a
cab. The cab company dispatched Stanley Williams to transport the
three. At some point during the evening, Pollard gave Reeves a
pistol. After making several trips by cab, the three directed the
driver to take them to Pollard's grandmother's house. While the
cab driver waited, the three decided to rob him. After discussing
the plan, Broggin said, "all right . . . we'll do that."
The three men then directed the driver to a dead-end street.
When there, Reeves told the driver to stop the car, and with
pistol in hand, told the driver to "Give it up." The three took
$25 in bills, some change, a utility knife, a pager, and a scanner
from the driver. Reeves testified that Broggin took the scanner.
Pollard, who testified for the Commonwealth, stated that
Broggin had agreed to rob the driver and that Broggin knew about
the gun. Reeves also testified that Broggin was aware of the plan
to rob the driver and that he agreed to it.
On direct examination, when the Commonwealth's attorney asked
Pollard if he was testifying because "he wanted to," he responded,
"I ain't -- no, I was supposed to testify." On cross-examination,
defense counsel asked whether Pollard had arranged through his
counsel to benefit from testifying against Broggin.
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[Defense Counsel]: Now Mr. Pollard, of
course you're charged in this as well; is
this right?
[Pollard]: Yes, sir.
[Defense Counsel]: And you've talked to
your lawyer, Mr. Light, about this haven't
you?
[Pollard]: Yes, sir.
[Defense Counsel]: And you've also -- you
realize –- you're testifying today because
you're hoping your testimony is going to
help you, aren't you?
[Pollard]: Yes, sir.
[Defense Counsel]: And you want to do or
say anything that's going to help you, don't
you?
[Pollard]: Yes, sir.
[Defense Counsel]: If that means that
you've got to point the finger at somebody
else you're going to do that; isn't that
right?
[Pollard]: No, sir.
Over Broggin's hearsay objection, the Commonwealth
introduced a statement that Pollard earlier had made to
Detective Viar soon after Pollard's arrest. The trial court
admitted the evidence as a prior consistent statement that
Pollard had made before he had an opportunity to meet with
counsel and make arrangements to benefit from his testimony.
Pollard's prior statement made immediately after the arrest also
implicated Broggin as part of the scheme. However, in some
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respects Pollard's prior statement contradicted his trial
testimony.
II. ANALYSIS
The trial court did not err by allowing the Commonwealth to
introduce Pollard's hearsay statement made to Detective Viar
soon after Pollard's arrest. 1
[E]vidence of a prior consistent
out-of-court statement is admissible when
the opposing party: (1) suggests that the
declarant had a motive to falsify his
testimony and the consistent statement was
made prior to the existence of that motive,
(2) alleges that the declarant, due to his
relationship to the matter or to an involved
party, had a design to misrepresent his
testimony and the prior consistent statement
was made before the existence of that
relationship, (3) alleges that the
declarant's testimony is a fabrication of
recent date and the prior consistent
statement was made at a time when its
ultimate effect could not have been
foreseen, or (4) impeaches the declarant
with a prior inconsistent statement.
Mitchell v. Commonwealth, 25 Va. App. 81, 84-85, 486 S.E.2d 551,
552-53 (1997); see Faison v. Hudson, 243 Va. 397, 404-05, 417
1
Despite the Commonwealth's claim that Broggin failed to
state adequate grounds for his objection, Broggin preserved the
issue for appeal. See Rule 5A:18. Without prompting, the
Commonwealth offered specific grounds for admitting the hearsay
as a prior consistent statement. Broggin objected to the
statement and objected to the grounds on which it was offered.
The trial court considered and ruled on the specific issue. The
trial court was fully aware of the nature of Broggin's
objection. Accordingly, appellant preserved the issue for
appeal.
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S.E.2d 305, 309-10 (1992) (noting exceptions to rule barring
admission of prior consistent statements).
After being apprehended, accomplices frequently have a
tendency and incentive to shift blame. See Lilly v. Virginia,
119 S. Ct. 1887, 1904 (1999) (Rehnquist, C.J., concurring)
(noting that a codefendant's custodial confession is viewed with
"'strong suspicion'" given his "'strong motivation to implicate
the defendant and exonerate himself'" (quoting Lee v. Illinois,
476 U.S. 530, 541 (1986))). Here, Broggin's counsel suggested
that Pollard had a reason to fabricate by implicating Broggin.
Broggin implied that Pollard had reached agreements with the
assistance of his counsel from which, Pollard stood to gain by
incriminating Broggin. Because Broggin implied that Pollard had
a recent motive to incriminate him, Pollard's prior consistent
statement, made at a time before Pollard had an opportunity to
meet with counsel or arrange to benefit from his testimony, was
relevant to corroborate Pollard's trial testimony.
However, as Broggin points out, Pollard's prior statement
conflicted in some respects with his trial testimony. In the
prior statement, Pollard had said that the three decided to rob
the driver before the cab ride and that the idea was originally
Broggin's. Also, Pollard had said that Broggin took cash from
the driver, but at trial he stated that Broggin was present and
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supported the robbery, but he did not take any items from the
cab driver.
The fact that Pollard's prior statement differed in some
respects from his trial testimony did not render it inadmissible
as a prior consistent statement. The statement was materially
consistent with Pollard's trial testimony insofar as it
implicated Broggin as having knowledge of and agreeing to rob
the driver at gunpoint. Whether evidence is admissible lies
within the sound discretion of the trial court and will not be
disturbed on appeal absent an abuse of discretion. See Blain v.
Commonwealth, 7 Va. App. 10, 16-17, 371 S.E.2d 838, 842 (1988).
The prior statement was relevant to disprove Broggin's assertion
of recent fabrication. To the extent that the statement
contained evidence in addition to the prior consistent
statement, the trial court is presumed to have disregarded those
portions of the statement that did not serve the purpose for
which the court admitted it. See Yarborough v. Commonwealth,
217 Va. 971, 978, 234 S.E.2d 286, 291 (1977) (holding that trial
court is presumed to know and properly apply the law); Hall v.
Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 455, 462 (1992)
(en banc) (holding that the trial court is presumed to disregard
prejudicial or inadmissible evidence).
As to the sufficiency of the evidence, the evidence is
sufficient to support Broggin's convictions for robbery and use
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of a firearm in the commission of a felony. When the
sufficiency of the evidence is challenged on appeal, we review
the evidence to determine whether the elements of the offense
are proven beyond a reasonable doubt, and we uphold the
conviction unless it is plainly wrong or lacks evidentiary
support. See Jenkins, 255 Va. at 520, 499 S.E.2d at 265. Mere
conflicts in the evidence or the fact that there is evidence,
which if believed would not support a conviction, do not render
the evidence insufficient. See Lewis v. Commonwealth, 8 Va.
App. 574, 582, 383 S.E.2d 736, 741 (1989) (en banc).
"When the alleged accomplice is actually
present and performs overt acts of
assistance or encouragement, he has
communicated to the perpetrator his
willingness to have the crime proceed and
has demonstrated that he shares the criminal
intent of the perpetrator. When the alleged
accomplice is actually present, but performs
no overt act, he is nonetheless a principal
in the second degree if he has previously
communicated to the perpetrator that he
shares the perpetrator's criminal purpose."
Rollston v. Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823,
825-26 (1991) (quoting Roger D. Groot, Criminal Offenses and
Defenses in Virginia 183 (1984)).
Here, the evidence, viewed in the light most favorable to
the Commonwealth, showed that Broggin was aware of, and agreed
to, a plan to rob the driver. Reeves testified that Broggin
took the scanner from the driver. Thus, Broggin committed an
overt act in furtherance of the robbery and communicated his
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approval and intent to participate prior to the robbery.
Accordingly, the evidence was sufficient to convict him of
robbery as a principal in the second degree.
Because the evidence was sufficient to convict Broggin of
robbery as a principal in the second degree, so too is it
sufficient to convict him of use of a firearm in the commission
of a felony. With the exception of certain capital murder
charges, every felony principal in the second degree may be
indicted, tried, convicted, and punished as a principal in the
first degree. See Code § 18.2-18. Although Broggin did not
personally possess the weapon, by acting in concert with Reeves
and Pollard to commit the robbery, Broggin is criminally
accountable for use of the weapon in the commission of a felony.
See Carter v. Commonwealth, 232 Va. 122, 125-26, 348 S.E.2d 265,
267-68 (1986); Cortner v. Commonwealth, 222 Va. 557, 562-63, 281
S.E.2d 908, 911 (1981). Thus, the evidence is sufficient to
convict him of using a firearm in the commission of a felony in
violation of Code § 18.2-53.1.
Accordingly, the trial court did not err by admitting
Pollard's prior consistent statement to rebut allegations of
recent fabrication. Furthermore, the evidence is sufficient to
support the convictions of robbery and use of a firearm in the
commission of a felony. We affirm the convictions.
Affirmed.
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