Avarette M. Everwien, etc. v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judge Benton, Senior Judge Cole
and Retired Judge Trabue *
Argued at Richmond, Virginia
AVARETTE M. EBERWIEN, S/K/A
AVERETTE M. EBERWIEN
MEMORANDUM OPINION** BY
v. Record No. 0671-93-2 JUDGE KENNETH E. TRABUE
NOVEMBER 14, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY
Richard H.C. Taylor, Judge
Denis C. Englisby (Englisby & Englisby, on brief), for
appellant.
Richard B. Smith, Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for appellee.
Averette M. Eberwien (Eberwien) appeals his convictions for
first degree murder and use of a firearm in the commission of a
felony. Eberwien contends that the trial court erred (1) in
granting the Commonwealth's pretrial motion to exclude testimony
and physical evidence which Eberwien contends the admission of
which would have shown that another person committed the murder;
(2) in denying Eberwien's motion for a continuance when the
prosecution presented new demonstrative evidence; (3) in refusing
appellant's jury instruction regarding circumstantial evidence;
and (4) evidence presented at trial was insufficient to sustain
Eberwien's murder conviction. For the reasons stated below, we
*
Retired Judge Kenneth E. Trabue took part in the
consideration of this case by designation pursuant to Code
§ 17-116.01.
**
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
affirm.
I.
Factual Background
On January 5, 1992 Eberwien told his wife's sister and her
sister's boyfriend that it would be inexpensive to hire a
"hitman." Three days later, in the presence of Eberwien's
stepson, Eberwien and his wife discussed the possibility of
divorce and the division of marital property, although neither
had filed for divorce at that time. During this meeting Eberwien
told his wife that he could have her murdered the next day, but
that in order to do so he would have to make it appear as though
it was a burglary. The wife responded to this by saying that she
had made arrangements to have any demise investigated.
On January 15, 1992, the Hanover County police received a
call from Eberwien that an intruder wearing a black ski mask shot
his wife in their home in the Rockville area of Hanover County.
Eberwien told the police that the intruder killed his wife, then
beat him across the back and fled. When the police arrived at
Eberwien's home, they found his wife lying dead on the floor with
a gunshot wound to the head.
When the police questioned Eberwien, he told them that he
met an intruder in the hall, and that the intruder made him and
his wife crawl on their hands and knees throughout the house to
check each room. Eberwien had told the police dispatcher he
spoke with earlier that he was walking through the hall when the
intruder emerged from the den holding Mrs. Eberwien. Eberwien
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spoke with other officers at the scene as well, and gave several
different versions of events. At trial, officers testified that
when they arrived at the murder scene, Eberwien's pants were not
scuffed or dirty, nor did he show any signs of physical injury
except a slight scratch on his hand. When Eberwien was taken to
the hospital for examination, the hospital reported that there
were no visible signs of injury.
Eberwien also told police that the intruder made him and his
wife lie down on the floor next to one another and that the
intruder then shot his wife. However, the gunshot wound to the
victim's head caused a large spray of blood and body tissue
across the floor where Eberwien claimed to have been lying. A
blood spatter pattern analysis expert testified that someone
lying where Eberwien claimed to have been lying would have been
covered in the victim's blood and brain matter. Police testified
that Eberwien's clothing did not appear to have any blood stains
with the exception of some blood stains on his sleeve, which an
expert in forensic serology and fabric separation testified is
consistent with the backspray of blood resulting from firing upon
a body at close range.
The day following the murder, a state police officer and a
trained dog made a thorough search of the area surrounding the
murder scene and were unable to find any evidence pertaining to
the murder. However, the following day the victim's brother and
a friend searched the same area and discovered a black ski mask
lying in plain view near the road leading to the house. Forensic
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experts testified at trial that there was no interchange of
fibers between the ski mask and the house, victim or Eberwien.
II.
Pretrial Motion To Exclude
Eberwien contends that the trial court erred in granting the
Commonwealth's pretrial motion to exclude evidence which he
alleged tended to show that the murder may have been committed by
Chris Sprenkle. The Commonwealth made a motion in limine to
exclude all evidence pertaining to Sprenkle, which the trial
court granted. The defense had intended to present evidence that
Sprenkle, who had subsequently died, was a known burglar and
murderer and that he was in the area prior to the murder. In
addition, Eberwien wanted to present evidence that Sprenkle owned
sawed-off shotguns and that around the time of the murder,
Sprenkle was driving a red pickup truck and wore facial hair.
Eberwien contends that these facts were relevant because a
witness saw a red and white pickup truck near the murder scene on
the day of the murder and because the ski mask found near
Eberwien's house contained facial hair that could not be matched
with Eberwien.
In support of its motion, the Commonwealth presented
evidence that Sprenkle had left Virginia several days prior to
the murder. An expert for the Commonwealth testified as to
Sprenkle's modus operandi in previous burglaries and murders and
stated that he could find no connection between Sprenkle's known
crimes and the Eberwien killing. In addition, the Commonwealth
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presented evidence that the hair samples taken from Sprenkle were
not consistent with any hair found on the ski mask, and defense
counsel agreed with this assertion. Also, evidence at the
hearing indicated that Sprenkle's sawed-off shotgun was not the
weapon that fired the shell used in murdering Alice Eberwien.
In Virginia, evidence that a crime was committed by someone
other than the person accused of that crime is admissible for
purposes of generating a reasonable doubt regarding the guilt of
the accused. Weller v. Commonwealth, 16 Va. App. 886, 890, 434
S.E.2d 330, 333 (1993). However, the evidence introduced must
point directly to the guilt of the third party, and the
admissibility of circumstantial evidence tending to prove the
guilt of the third person is left to the discretion of the trial
court. Id. Here, Eberwien did not offer any evidence whatsoever
linking Sprenkle to the murder. In fact, all of the evidence
presented at the pretrial hearing indicated that it was not
Sprenkle who committed the murder. Thus, the trial court did not
abuse its discretion in refusing to admit testimony concerning
Sprenkle.
III.
Denial of Continuance
Eberwien contends that it was reversible error for the trial
court to refuse his motion for a continuance when, the day before
trial, the prosecution provided the defense with a blood spatter
diagram that differed from the diagram provided to the defense
during discovery. After the murder, the Commonwealth's expert
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prepared a blood spatter diagram showing a two hundred degree arc
of blood spray from the victim. Later, this expert revised the
diagram to indicate a two hundred and seventy degree arc of blood
spray. When the Commonwealth attempted to introduce this latter
diagram into evidence, Eberwien asked the court that either the
new chart not be allowed into evidence or that the court grant a
continuance so that his expert could evaluate the new diagram.
The court denied the request for a continuance and allowed the
more recent diagram to be admitted.
Whether a continuance should be granted or denied is a
matter within the sound discretion of the trial court, and a
decision one way or the other will not be disturbed on appeal in
the absence of a showing that discretion has been abused. Thomas
v. Commonwealth, 244 Va. 1, 13, 419 S.E.2d 606, 612, cert.
denied, ___ U.S. ___, 113 S. Ct. 421 (1992). Admission of items
of demonstrative evidence to illustrate testimonial evidence is
also a matter within the sound discretion of a trial court.
Mackall v. Commonwealth, 236 Va. 240, 254, 372 S.E.2d 759, 768
(1988), cert. denied, 492 U.S. 925 (1989). Furthermore, we
cannot find an abuse of discretion unless Eberwien's case was
prejudiced in that he was denied the opportunity to present
material evidence. "The evidence is material only if there is a
reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different. Robinson v. Commonwealth, 231 Va. 142, 151, 341
S.E.2d 159, 164 (1986) (citation omitted).
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Eberwien has failed to establish that he was prejudiced by
the admission of the second diagram. The evidence was introduced
for demonstrative purposes only, and the real evidence did not
change. While Eberwien proffered that his expert witness wanted
additional time to review the second overlay, there is no
evidence in the record showing that Eberwien's expert could
present evidence rebutting that of the Commonwealth's expert
based on the first diagram. Furthermore, Eberwien was able to
present the first diagram showing the two hundred degree arc of
blood spray in order to impeach the accuracy of the
Commonwealth's second diagram. "An appellant must demonstrate
that the excluded evidence is relevant and material and that the
party was entitled to have it introduced in order to establish on
appeal that the trial court erred by excluding it." Toro v. City
of Norfolk, 14 Va. App. 244, 254, 416 S.E.2d 29, 35 (1992). Thus
we find that the trial court did not abuse its discretion in
denying Eberwien's motion for a continuance.
IV.
Jury Instruction
Eberwien further contends that the trial court erred in
refusing his jury instruction regarding circumstantial evidence.
Eberwien requested the following instruction: "There is no
stronger presumption afforded than that an accused is presumed
innocent, which cannot be overthrown except by proof of his guilt
beyond a reasonable doubt. Where inferences are relied upon to
establish guilt, they must point to the guilt so clearly that
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other conclusions would be inconsistent therewith." Eberwien
took this language from Moran v. Commonwealth, 4 Va. App. 310,
314, 357 S.E.2d 551, 553 (1987), and we have more recently used
the same language in McQuinn v. Commonwealth, 19 Va. App. 418,
427, 451 S.E.2d 704, 709 (1994) (Judge Benton, dissenting), aff'd
on reh'g en banc, 20 Va. App. 753, 460 S.E.2d 624 (1995), and
Person v. Commonwealth, 10 Va. App. 36, 38, 389 S.E.2d 907, 909
(1990). However, in each of these cases the court was expounding
a principle of law, not instructing a jury.
Though this language explains the relevance of
circumstantial evidence, Eberwien was not entitled to have it
presented as a jury instruction. Parties are entitled to
appropriate instructions on the law relevant to their case.
Banner v. Commonwealth, 204 Va. 640, 133 S.E.2d 305 (1963).
However, "when one instruction correctly states the law, multiple
instructions upon the same legal principle are undesirable."
Tuggle v. Commonwealth, 228 Va. 493, 508, 323 S.E.2d 539, 548
(1984), cert. granted and vacated on other grounds, 471 U.S. 1096(1985). In this case, the court already chose to grant the
Commonwealth's instruction from the Virginia Model Jury
Instructions: "When the Commonwealth relies upon circumstantial
evidence, the circumstances proved must be consistent with guilt
and inconsistent with innocence. It is not sufficient that the
circumstances proved create a suspicion of guilt, however strong,
or even a probability of guilt. The evidence as a whole must
exclude every reasonable theory of innocence." This instruction
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fully elucidated the legal principle involved, and there was no
need to substitute Eberwien's suggestion. The court's refusal to
grant instructions on a legal principle already fully covered by
other instructions is not an abuse of discretion. Eaton v.
Commonwealth, 240 Va. 236, 397 S.E.2d 385 (1990), cert. denied,
502 U.S. 824 (1991); Stockton v. Commonwealth, 227 Va. 124, 314
S.E.2d 371, cert. denied, 469 U.S. 873 (1984); Willis v.
Commonwealth, 10 Va. App. 430, 393 S.E.2d 405 (1990). If the
jury is properly instructed on the relevant principles of law, it
is not error for the court to refuse additional instructions on
the same matters. Williams v. Commonwealth, 228 Va. 347, 323
S.E.2d 73 (1984). Thus, Eberwien did not have the right to have
his particular instruction given to the jury when the court's
instruction as tendered by the Commonwealth already covered this
principle, and his appeal therefore fails on this issue.
V.
Sufficiency
Finally, Eberwien contends that the evidence at trial was
insufficient to sustain his convictions. We disagree. When the
sufficiency of the evidence is challenged on appeal, we must
construe the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975). Even though in the present case
the evidence was primarily circumstantial, the inferences drawn
from circumstantial evidence are within the province of the jury
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and not the appellate court so long as the inferences are
reasonable and justified. O'Brien v. Commonwealth, 4 Va. App.
261, 263, 356 S.E.2d 449, 450 (1987).
Here, there was evidence that Eberwien mentioned the
possibility of murdering his wife to several people shortly
before her death, even stating that he could disguise his guilt
by making it appear as though the murder had been committed by a
burglar. When police arrived at the murder scene, Eberwien gave
numerous different accounts of the events leading up to his
wife's murder, and the evidence taken from the murder scene was
completely inconsistent with any of the versions provided by
Eberwien. In addition, there was expert testimony that the blood
stains on Eberwien's sleeve following the murder were typical of
the backspray caused by firing at a body at close range. Thus
taken in the light most favorable to the Commonwealth, there is
sufficient evidence to sustain Eberwien's conviction for both
charges.
For these reasons, we sustain Eberwien's convictions.
Affirmed.
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