Antwan M. Kingsberry v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons ∗ and Frank
Argued at Chesapeake, Virginia
ANTWAN M. KINGSBERRY
MEMORANDUM OPINION ∗∗ BY
v. Record No. 0142-99-1 JUDGE ROBERT P. FRANK
AUGUST 22, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
Jay E. Dugger (McDermott & Roe, on brief),
for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Antwan M. Kingsberry (appellant) appeals his convictions
after a bench trial of robbery in violation of Code § 18.2-58, use
of a firearm in the commission of a robbery in violation of Code
§ 18.2-53.1, and wearing a mask in public in violation of Code
§ 18.2-422. On appeal, he contends the trial court erred in: 1)
admitting into evidence the statement of codefendant Olivier
Dixon, 2) admitting into evidence a letter written by codefendant
Karsene Paden, and 3) finding the evidence sufficient to support
∗
Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
the convictions. In finding the trial court erred in admitting
the statement of codefendant Dixon, we reverse and remand for
further proceedings if the Commonwealth be so advised.
I. BACKGROUND
On November 29, 1997, the general manager, Tom Sawyer, and
two employees, Eileen Metheny and Jenny Jamison, of the Regal
Cinema in Hampton were counting the day's receipts in an upstairs
office. They heard loud noises outside the office, and Sawyer
went into the hallway to investigate. He returned to the office
with his hands raised and told Metheny and Jamison not to move.
Then, three masked men, who were carrying guns, entered the room.
Jamison testified that all three men were black. The men ripped
the phone lines from the wall. One of the men struck Sawyer in
the head with a gun. The men took the bag of money from the
counter and left the office.
On December 10, 1997, Detective George Burton of the Hampton
Police Department arrested Dixon in connection with the robbery at
the Regal Cinema. At trial, Detective Burton testified as to the
statement Dixon made to the police. Appellant's counsel objected
to the admission of Burton's testimony on the basis of hearsay.
Appellant's counsel asserted that Dixon was available to testify,
and, therefore, his statement was inadmissible hearsay. Counsel
for Dixon stated that Dixon was present and willing to testify.
Dixon eventually testified on behalf of appellant and on behalf of
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himself. The trial court overruled the objection and admitted
Burton's testimony regarding Dixon's statement to the police.
Burton testified that Dixon told the police he went to Regal
on November 29, 1997, with the intent of getting in to see a free
movie. He told the police he was with two friends, Karsene Paden
and another man he knew only by the last name of Kingsberry.
Dixon identified photographs of Paden and appellant as the two men
who were with him at Regal. Dixon told the police that Paden was
the first person to go upstairs in the theater. Paden propped
open a door and allowed appellant to come inside. Dixon then went
upstairs to see what was happening. He told police that he saw
appellant and Paden going down a hall with masks on. He said that
he saw them go into a room he described as the "money counting
room." He said he knew the room's purpose because he had been in
the room with a former Regal employee. He said that he looked
into the room and saw Paden and appellant putting money into a
backpack. He also said Paden had a gun. Dixon stated he then
went downstairs. Paden and appellant came downstairs, and Paden
gave him $100.
Perry Mendel testified that he had been incarcerated at the
Hampton City Jail when Paden told him that he and two other men
had robbed the Regal Cinema using guns and got $7,000. Paden then
described how he and the other men spent the money.
On April 5, 1998, Richard Elrod, a former employee at the
Hampton City Jail, testified he intercepted a letter with
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appellant's return address from the outgoing jail mail. The
police determined the letter was written by Paden. The letter
requested that appellant tell Paden what appellant had told the
police.
Dixon testified that he went to the Regal Cinema on the day
of the robbery to pick up movie tickets. After waiting
unsuccessfully for the tickets, he left. He testified that the
statement he gave to the police was untrue.
Paden testified that he did not participate in the robbery at
the Regal Cinema. He stated that he wrote the letter to
appellant, who is his brother, because he was concerned for
appellant's welfare.
II. ANALYSIS
Appellant contends the testimony of Burton regarding the
statement Dixon gave to the police was inadmissible hearsay
because Dixon was available and prepared to testify. 1
In Paden v. Commonwealth, 259 Va. 595, 529 S.E.2d 792 (2000),
the Supreme Court of Virginia addressed the denial of codefendant
Paden's petition for appeal by this Court. Paden asserted
Burton's testimony regarding Dixon's statement was inadmissible
1
On brief, appellant argues the admission of Dixon’s
statement was a violation of his Sixth Amendment right to
confront and cross-examine witnesses. However, in his Question
Presented, he limited his assignment of error to whether the
statement was hearsay, a non-constitutional argument. Thus, we
only address the hearsay issue. See Rule 5A:20(c)-(e).
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hearsay. See id. at 596, 529 S.E.2d at 793. The Supreme Court
agreed, stating:
According to Paden, the Commonwealth
did not establish the first factor, Dixon's
unavailability to testify, because Dixon was
present at trial and his attorney stated
that Dixon was prepared to testify. The
Commonwealth argues that, regardless of the
representations made by Dixon's counsel,
Dixon was unavailable to testify because
Dixon could not be compelled to give
evidence against himself and because the
decision whether to testify was personal to
Dixon and not his attorney.
The Commonwealth correctly recites the
rights of codefendant Dixon. Nevertheless,
until Dixon asserted those rights, he
remained available to testify. Under these
circumstances, the Commonwealth failed to
establish that Dixon was unavailable to
testify, and the trial court erred in
admitting the hearsay testimony of Detective
Burton.
Id. at 596-97, 529 S.E.2d at 793 (citations omitted). Cf.
Randolph v. Commonwealth, 24 Va. App. 345, 356, 482 S.E.2d 101,
106 (1997) (holding the Commonwealth was not required to call a
codefendant as a witness in joint trial to establish
unavailability because, "as a codefendant in a joint trial, [he or
she] could not be compelled to testify"). Therefore, we adopt the
Supreme Court's reasoning and hold that Burton's testimony
regarding Dixon's statement was inadmissible because the
Commonwealth failed to establish Dixon was unavailable to testify.
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Appellant next contends the trial court erred in admitting
the letter written by Paden. Appellant argues the letter is
inadmissible hearsay.
Whether an extrajudicial statement is
hearsay depends upon the purpose for which
it is offered and received into evidence.
If the statement is received to prove the
truth of its content, then it is hearsay
and, in order to be admissible, must come
within one of the many established
exceptions to the general prohibition
against admitting hearsay.
Hanson v. Commonwealth, 14 Va. App. 173, 187, 416 S.E.2d 14, 22
(1992) (citation omitted).
"The admissibility of evidence is within the broad discretion
of the trial court . . . ." Pavlick v. Commonwealth, 25 Va. App.
538, 543, 489 S.E.2d 720, 722 (1997) (citing Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)).
In this case, the trial court stated the purpose for which
the letter was received into evidence. The trial court
specifically said, "It does to my satisfaction show a connection
between Mr. Paden and Mr. Kingsberry. But it's fairly innocuous
with regard to these alleged crimes. And it is on that basis it
is admitted over the objection." Therefore, the trial court did
not receive the letter for the fact that Paden wanted appellant to
tell him what appellant told the police. Instead, the court
received it to show a connection between Paden and appellant. We
find, therefore, appellant's argument that the letter was
inadmissible hearsay and violated his Sixth Amendment right to
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confront and cross-examine witnesses is without merit. The trial
court did not abuse its discretion in admitting the letter written
by Paden to show a connection between Paden and appellant.
Finally, appellant contends the evidence was not sufficient
to support his convictions.2
On appeal, in determining whether the evidence was
sufficient, we consider all admitted evidence, including any
illegally admitted evidence. See Lockhart v. Nelson, 488 U.S. 33,
41 (1988).
The standard of review for determining
the sufficiency of evidence on appeal is
well established. We must examine the
evidence in the light most favorable to the
Commonwealth, the prevailing party at trial,
and we will not disturb the trial court's
judgment unless it is plainly wrong or
without evidence to support it.
Hedrick v. Commonwealth, 257 Va. 328, 340, 513 S.E.2d 634, 640
(1999) (citations omitted).
In this case, Dixon identified appellant and Paden as the men
who were with him at the Regal Cinema on November 29, 1997. He
told the police that one man was named Karsene Paden and the other
2
We undertake a full sufficiency analysis for double
jeopardy purposes. See Parsons v. Commonwealth, 32 Va. App.
576, 581, 529 S.E.2d 810, 812-13 (2000). The evidence, the
sufficiency of which we address, is the evidence adduced at
trial, regardless of whether it was properly admitted. Thus,
our decision on sufficiency of the evidence is tied specifically
and exclusively to the body of evidence in the trial on appeal,
and is in no sense declaratory of the merits of the case, in the
face of an evidentiary reversal, and is in no sense declaratory
of the sufficiency of any future body of evidence.
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he knew only as Kingsberry. He told police he followed appellant
and Paden upstairs in the theater. Both men were wearing masks.
He observed them go into the "money counting room." When he
looked into the room, he saw appellant and Paden putting money
into a backpack. Paden had a gun.
Jenny Jamison, a Regal employee, testified that all three men
who robbed the Regal Cinema were wearing masks and carrying guns.
We find the evidence was sufficient to establish appellant
participated in the robbery, used a firearm in the commission of
the robbery, and wore a mask in a public place. Therefore, the
trial court's determination that the evidence was sufficient to
support the convictions was not plainly wrong or without evidence
to support it.
III. CONCLUSION
We find the trial court did not err in admitting the letter
written by Paden or in finding the evidence sufficient to support
the convictions. However, because we find the trial court erred
in admitting Burton's testimony regarding Dixon's statement to
police, we reverse and remand for further proceedings if the
Commonwealth be so advised.
Reversed and remanded.
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