Tanya L. Drummond v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judge Annunziata, Senior Judge Duff and
Retired Judge Kulp *
Argued at Alexandria, Virginia
TANYA L. DRUMMOND
MEMORANDUM OPINION ** BY
v. Record No. 0903-99-1 JUDGE JAMES E. KULP
JUNE 6, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
James A. Cales, Jr., Judge
S. Jane Chittom, Appellate Counsel (Dianne G.
Ringer, Senior Assistant Public Defender, on
brief), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Tanya L. Drummond (appellant) was convicted by a jury of
first degree murder. On appeal, appellant contends the trial
court committed reversible error: (1) by overruling appellant's
Batson challenge to the Commonwealth's peremptory strike of juror
Pamela Knox; (2) by refusing to grant appellant's jury
instructions on heat of passion and the lesser-included offense of
voluntary manslaughter; and (3) in finding the evidence sufficient
*
Retired Judge James E. Kulp took part in the consideration
of this case by designation pursuant to Code § 17.1-400,
recodifying Code § 17-116.01.
**
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
to convict her of first degree murder. We disagree and affirm
appellant's conviction.
I.
THE BATSON CHALLENGE
During jury selection, the Commonwealth exercised one of its
peremptory strikes to remove Pamela Knox, an African-American
female, from the jury panel. The trial court found that appellant
had established a prima facie showing that the peremptory strike
was made on the basis of race, and required the Commonwealth to
explain the strike on some race-neutral basis. The Commonwealth
advised the court that appellant had attended the Portsmouth
public schools and that Knox was employed by the same school
system. Although Knox did not indicate that she knew appellant,
the Commonwealth expressed concern that a problem might
nevertheless arise during the trial. The trial court found that
the Commonwealth had presented a non-pretextual, race-neutral
reason for striking Knox, and overruled appellant's challenge to
this strike.
The United States Supreme Court has held that a prospective
juror may not be removed by peremptory strike solely on the basis
of race. See Batson v. Kentucky, 476 U.S. 79, 89 (1976). Where a
defendant makes out a prima facie case that a peremptory strike is
based upon race, it is then incumbent upon the prosecutor to
produce explanations for striking the juror that are race-neutral.
See Buck v. Commonwealth, 247 Va. 449, 450-51, 443 S.E.2d 414, 415
- 2 -
(1994). "If the explanation is based upon factors other than the
juror's race, it is deemed to be race neutral." Kasi v.
Commonwealth, 256 Va. 407, 421, 508 S.E.2d 57, 65 (1998), cert.
denied, 119 S. Ct. 2399 (1999). A defendant may challenge any
race-neutral reason offered by the prosecutor as being pretextual,
and the trial court must determine whether the defendant has
carried her burden of proving purposeful discrimination by the
prosecutor. See Buck, 247 Va. at 451, 443 S.E.2d at 415.
A "trial court's decision on the
ultimate question of discriminatory intent
represents a finding of fact of the sort
accorded great deference on appeal" . . . .
This standard of review logically recognizes
the trial court's unique opportunity to
observe and evaluate "the prosecutor's state
of mind based on demeanor and credibility"
in the context of the case then before the
court.
Robertson v. Commonwealth, 18 Va. App. 635, 639, 445 S.E.2d 713,
715 (1994) (citations omitted). Thus, "[o]n appeal, the trial
court's findings will be reversed only if they are clearly
erroneous." Buck, 247 Va. at 451, 443 S.E.2d at 415.
"[T]he issue is the facial validity of the prosecutor's
explanation." Hernandez v. New York, 500 U.S. 352, 360 (1991)
(plurality opinion). See Goodson v. Commonwealth, 22 Va. App.
61, 81, 467 S.E.2d 848, 858 (1996) (holding that "[a]ge,
education, employment, and demeanor during voir dire may
constitute race-neutral explanations for a peremptory strike").
It is not necessary that the prosecutor's explanation be
- 3 -
persuasive, or even plausible. See Purkett v. Elem, 514 U.S.
765, 767-68 (1995).
The Commonwealth here offered a race-neutral reason for the
peremptory strike. As explained by the prosecutor, the basis
for the strike was the potential that during the trial something
might spark some recollection by Juror Knox of a prior
relationship with appellant. Such a circumstance could have
posed a problem during the trial. And appellant failed to meet
her burden of showing that the prosecutor's explanation was
pretextual. 1 Accordingly, the trial court did not err when it
denied appellant's Batson motion.
II.
JURY INSTRUCTIONS
The trial court instructed the jury on both first and
second degree murder. The court refused, however, to grant
appellant's jury instructions on heat of passion and the
lesser-included offense of voluntary manslaughter. We need not
address whether the trial court erred by rejecting the proffered
instructions, for if any error occurred, it was harmless.
In Turner v. Commonwealth, 23 Va. App. 270, 476 S.E.2d 504(1996), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997), we addressed
the issue of harmless error in the context of a trial court's
1
Appellant pointed out that the Commonwealth did not strike
a white female employed by the Chesapeake School System. The
record contains no evidence, however, indicating that this juror
potentially knew appellant.
- 4 -
refusal to instruct a jury on voluntary manslaughter where the
jury ultimately convicted the defendant of first degree murder.
We concluded that
where the reviewing court is able to
determine that the trial court's error in
failing to instruct the jury could not have
affected the verdict, that error is
harmless. Such a determination can be made
where it is evident from the verdict that
the jury would have necessarily rejected the
lesser-included offense on which it was not
instructed.
Id. at 276, 476 S.E.2d at 507.
In finding that the trial court's failure to instruct the
jury on voluntary manslaughter constituted harmless error, we
explained:
In convicting appellant of first degree
murder, the jury rejected the
lesser-included offense of second degree
murder. In so doing, the jury found beyond
a reasonable doubt that appellant acted not
only maliciously, but also willfully,
deliberately, and premeditatedly. Homicide
committed pursuant to a preconceived plan is
not voluntary manslaughter; premeditation
and reasonable provocation cannot co-exist.
The verdict reached by the jury here compels
the conclusion that it would never have
reached a voluntary manslaughter verdict.
Therefore, we conclude that the jury in this
case, by rejecting the lesser-included
offense of second degree murder, necessarily
rejected the factual basis upon which it
might have rendered a verdict on the
lesser-included offense of voluntary
manslaughter.
Id. at 277-78, 476 S.E.2d at 508 (citations and footnotes
omitted).
- 5 -
The jury's finding that appellant was guilty of first
degree murder compels a conclusion that it would not have
convicted her of voluntary manslaughter even if instructed on
that lesser offense. Accordingly, any failure to instruct on
heat of passion and voluntary manslaughter was harmless.
III.
SUFFICIENCY OF THE EVIDENCE
Although appellant concedes she was responsible for the
death of thirty-month-old Benita Godsey, she contends the
evidence was insufficient to prove that she acted with
premeditation.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted). "The credibility of the witnesses, the
weight accorded testimony, and the inferences to be drawn from
proven facts are matters to be determined by the fact finder."
Stover v. Commonwealth, 31 Va. App. 225, 228, 522 S.E.2d 397,
398 (1999). The role of this Court is not to "substitute its
judgment for that of the trier of fact." Hunley v.
Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).
"The jury's verdict will not be disturbed on appeal unless it is
plainly wrong or without evidence to support it." Traverso v.
Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
- 6 -
Thomas Boone testified that he lived with appellant and his
daughter Benita in Room 122 of the London Boulevard Motel.
Appellant had been living with Boone for one and a half years.
She was Benita's primary caregiver and the only mother Benita
had ever known.
On January 13, 1998, Boone was scheduled to work at
5:00 p.m., and appellant was going to have to stay home with
Benita while he was away. Benita had been fussy all day, and
appellant and Boone argued heatedly that afternoon because
appellant wanted to go out with a friend that night. Boone
testified, however, that appellant subsequently calmed down and
that appellant and Benita were watching television together when
he left for work.
Bernard Robertson, who worked at the motel, testified that
around 7:00 p.m. he heard the "[s]ound of beating with a belt"
and the cries of a baby emanating from Room 122. Between 9:00
and 9:30 p.m., appellant exited the room and asked Robertson for
thirty-five cents to make a telephone call. She then proceeded
to a nearby payphone. Robertson described appellant as upset,
but not crying.
Paramedics John Wannamaker and Brian Bock responded to
appellant's residence at 9:45 p.m. They found Benita lying in
her crib unconscious and not breathing. Wannamaker described
appellant as unemotional and testified that she pointed to
Benita saying "'There's the child. I'm not sure what's wrong
- 7 -
with it.'" Bock testified that appellant was initially
unresponsive when he asked her about Benita's medical problems
and about some medication that was in the room. But she became
hysterical and started crying "'My baby; my baby,'" when he
asked her what had happened to Benita.
The paramedics were unable to resuscitate Benita, and she
was pronounced dead shortly after arriving at the hospital.
Assistant Chief Medical Examiner Dr. Elizabeth Kinnison
testified that Benita died from acute head injuries. She stated
that a "tremendous force" would have been required to inflict
the fatal injuries and that "something happened more than once."
Dr. Kinnison opined that Benita's fatal injuries could have been
caused by the child's head striking a dresser or a crib.
Benita had bruising around her eyelids, four bruises on her
chest, eight to ten bruises on her back, eight bruises on one of
her arms, and fifteen bruises on her left leg. She also had
bruises on her scalp and a subdural hemorrhage. Dr. Kinnison
testified that these injuries had been inflicted at or shortly
before the time of death. Most of the injuries, including the
fatal injuries, were inconsistent with having been caused by
Benita falling down from a standing position. Dr. Kinnison
further testified that merely striking the child with an open
hand would not have caused the fatal injuries.
At the time the fatal injuries were inflicted, Benita was
wearing a cast that wrapped around her waist and encased her
- 8 -
right leg. The cast was described as "dirty, foul-smelling" and
soaked in urine. Bock said Benita was unclean and she was
suffering from skin ulcers where the edge of the cast rubbed
against her skin.
Appellant provided two statements to the police regarding
Benita's death. On January 14, 1998, appellant told Detective
Bond that she had put Benita to bed in her crib at 8:00 p.m. the
night before. She said she heard Benita stir around 8:30 p.m.,
but when she checked on the child at 9:00 p.m., Benita was
unresponsive. Appellant advised Bond that she then called the
police.
On January 20, 1998, appellant told Bond that Benita was
whining after she put the child to bed so she hit Benita in the
face with her hand. Benita continued crying so appellant picked
her up and shook her. Appellant told Bond that she hit Benita
again on the head with her hand and then threw Benita into the
crib. Shortly thereafter, she noticed that Benita was
unresponsive and called an ambulance. Appellant denied striking
Benita with any object, although she subsequently admitted that
Benita's head struck the dresser and that the child's head could
have struck the crib rail and the metal mattress frame on an
adjacent bed.
To prove premeditated murder, the
Commonwealth must establish: "(1) a
killing; (2) a reasoning process antecedent
to the act of killing, resulting in the
formation of a specific intent to kill; and
- 9 -
(3) the performance of that act with
malicious intent." Premeditation requires
the formation of the specific intent to
kill.
Archie v. Commonwealth, 14 Va. App. 684, 689, 420 S.E.2d 718,
721 (1992) (citation omitted). "The question of premeditation
is a question to be determined by the fact-finder." Bowling v.
Commonwealth, 12 Va. App. 166, 173, 403 S.E.2d 375, 379 (1991).
"Premeditation need not exist for any specific length of
time," Chandler v. Commonwealth, 249 Va. 270, 280, 455 S.E.2d
219, 225 (1995), and may be proven by circumstantial evidence,
see Rhodes v. Commonwealth, 238 Va. 480, 486, 384 S.E.2d 95, 98
(1989). In determining whether a defendant acted with
premeditation
the jury may properly consider the brutality
of the attack, and whether more than one
blow was struck; the disparity in size and
strength between the defendant and the
victim; . . . and the defendant's lack of
remorse and efforts to avoid detection.
While motive is not an essential element of
the crime, it is relevant and often most
persuasive upon the question of the actor's
intent.
Epperly v. Commonwealth, 224 Va. 214, 232, 294 S.E.2d 882, 892
(1982) (citations omitted).
We found sufficient evidence of premeditation under similar
facts in Archie, 14 Va. App. 684, 420 S.E.2d 718. In that case,
the defendant was convicted of beating to death her boyfriend's
three-year-old daughter. Citing to Epperly, we noted the
evidence proved that the child-victim had sustained numerous
- 10 -
injuries at the hands of the defendant, the defendant had lied
about how the victim sustained her injuries, and the defendant
had shown no remorse over the child's death. See Archie, 14 Va.
App. at 689-90, 420 S.E.2d at 721. There was also evidence
tending to establish a motive for the defendant to harm the
victim. See id. at 690-91, 420 S.E.2d at 722; cf. Rhodes, 238
Va. at 487, 384 S.E.2d at 99 (finding insufficient evidence of
premeditation where the defendant killed her three-month-old
daughter with multiple blows, but where the defendant had
consistently expressed remorse over the child's death, she had
not attempted to avoid detection or blame, and there was no
evidence of motive).
The evidence in the present case was sufficient to allow
the jury to infer beyond a reasonable doubt that appellant acted
with premeditation. Appellant killed thirty-month-old Benita,
who at the time was wearing a cast for a broken leg, with
numerous blows administered with "tremendous force." Although
appellant subsequently expressed remorse over Benita's death,
when the paramedics first encountered appellant she was
unemotional and referred to the child as "it." Appellant's
failure to mention in her January 14 statement to Bond that she
had struck Benita on the night of the child's death evidenced a
desire to avoid responsibility for Benita's death. Finally,
appellant's anger about having to stay home with Benita that
night instead of going out with a friend, and her desire to
- 11 -
quiet the child tended to prove the existence of a motive to
harm Benita.
For the reasons stated above, the judgment of the trial
court is affirmed.
Affirmed.
- 12 -