Taiveon Antionio Tucker v. Commonwealth of Virginia ( 2020 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges O’Brien and AtLee
UNPUBLISHED
Argued at Richmond, Virginia
TAIVEON ANTIONIO TUCKER
MEMORANDUM OPINION* BY
v. Record No. 0301-19-2 JUDGE MARY GRACE O’BRIEN
APRIL 21, 2020
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
James S. Yoffy, Judge
John G. LaFratta (Main Street Law Offices, on brief), for appellant.
Craig W. Stallard, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
A jury convicted Taiveon Tucker (“appellant”) of first-degree murder in the commission of
robbery, in violation of Code § 18.2-32; use of a firearm in the commission of murder, in violation
of Code § 18.2-53.1; and robbery, in violation of Code § 18.2-58. Appellant was seventeen years
old at the time of the offenses and was tried as an adult pursuant to Code § 16.1-269.1.
Appellant asserts two assignments of error. First, he argues that the evidence was
insufficient to prove he committed the offenses “because no reasonable trier of fact could have
found that [he] committed robbery.” He contends,
[w]ith no evidence of a taking or a use of force or of use of a firearm,
there was no robbery and therefore there could be no felony murder
in the commission of a robbery, nor a use of a firearm during the
commission of a murder.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
In his second assignment of error, appellant asserts that the court “erred by not granting [his]
motion to quash the direct indictment for first-degree murder because [Code §] 16.1-269.1(B)
mandates a preliminary hearing for juveniles being tried as adults for first-degree murder.”
BACKGROUND
A. The incident
Appellant lived in an apartment building adjacent to the Oakley Townhomes in Henrico
County. On the evening of November 15, 2017, appellant’s friend, Dajounieck Wingfield, who
lived in the same building, joined him outside.
When appellant saw Wingfield, he asked her “where the jugs were.” Wingfield responded,
“I don’t know, I don’t get into that type of stuff.” Wingfield testified at trial that “jugs” means
“robbing somebody or taking what they have.” Detective Christopher Henry of the Henrico County
Police Department, who testified as an expert in street practices, languages, and terminology,
confirmed Wingfield’s explanation of the term and stated that “jug” means “[t]o rob someone.”
Wingfield and appellant were joined by other people outside. Wingfield testified that one
man, identified as “Four” or “Fo,” had a gun. Another man, Aarin Anderson, produced cigars,
known as “rellos,” used for smoking marijuana. The group smoked together for about twenty-five
minutes. At one point, Wingfield watched appellant and Anderson walk away and talk privately for
two to three minutes. Shortly thereafter, the group dispersed.
Wingfield returned to her apartment and came back outside to smoke a cigar. About two
minutes later, she heard gunshots. Wingfield sent appellant an Instagram message asking if “he
[was] okay.” Appellant responded affirmatively and asked to use Wingfield’s cell phone charger.
Wingfield refused his request and did not see him again that night.
Anderson, who lived in the same building as appellant and had known him for about a year,
testified that on November 15, 2017, he and appellant smoked marijuana in front of the building
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with Wingfield and the other men. Although Anderson testified at the preliminary hearing that
another individual in the group, Waddell Grant, had a gun, at trial he testified that he did not see
anyone with a gun. At one point, appellant borrowed Anderson’s cell phone, and later, after
Anderson and appellant left the group, they walked toward the Oakley Townhomes “[t]o get some
weed.” An Oakley maintenance worker testified that he saw two people matching the description of
appellant and Anderson in front of the rental office at approximately 9:00 p.m. on November 15,
2017.
While Anderson and appellant were waiting in the Oakley parking lot, appellant borrowed
Anderson’s cell phone again; when he returned it, appellant told Anderson that he had been talking
to the person who would provide the marijuana. Anderson’s cell phone records, introduced at trial,
showed calls made at 8:24 p.m. and 8:53 p.m.
A car pulled into the parking lot, and Anderson began walking away. He watched appellant
go to the passenger side, and from a distance of about three or four parking spaces, Anderson saw
appellant open and close the passenger door, walk around the back of the car, and “put[] something
in his pocket.” Anderson heard a gun fire and glass breaking and saw appellant “at the driver’s side
window . . . [c]lose enough to touch it.” Anderson ran back to his apartment complex.
Within minutes, appellant also returned to the complex looking “shocked,” and asked if
Anderson “heard it.” Anderson did not ask appellant what happened because he “didn’t want to
know,” but he went to a store to buy cigars for them to smoke “[t]he marijuana [they] just got.”
At 9:03 p.m. on November 15, 2017, a 911 caller reported two gunshots at Oakley
Townhomes and a car parked with its lights on. Henrico County Police Officer Stephen C. Flores
responded and found a car with its lights on, engine running, and a broken window. A body, later
identified as Ra’quan Mayo, was slumped over in the driver’s seat. Mayo had a pistol in his lap and
had been shot in the back of his head.
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Henrico County Police Sergeant Joseph Morgello also responded to the crime scene,
followed a trail of broken glass, and discovered a .45 caliber shell casing about “[e]ight or ten
parking places” away from the car. Additionally, the police recovered an unfired .45 caliber
cartridge about 96.4 feet from the driver’s side of the car. A laboratory analysis concluded that both
the casing and cartridge came from the same magazine. Detective Henry testified that an unfired
cartridge could be ejected from a gun when the slide is pulled. He explained that in his experience,
when a live cartridge has been ejected from a gun, someone has either checked the gun to see that it
was loaded or “racked” the gun for purposes of intimidation “to accomplish [a] robbery.”
The pistol found in Mayo’s lap was a .9mm Glock, which could not have fired the .45
caliber cartridge. Appellant’s fingerprints were located on the outside of the front passenger door
handle of Mayo’s car.
Detective Henry interviewed appellant the following day. Appellant claimed he did not
know anyone named Aarin Anderson. When Detective Henry showed him Anderson’s photograph,
appellant said that “the dreads looked familiar” but again denied knowing him. Appellant also
stated that “he had never seen [Mayo] in his life.”
Detective Henry interviewed appellant again after arresting him the next day. Despite his
initial claim that he did not know Mayo, appellant admitted that he had bought marijuana from
Mayo on two occasions before November 15, 2017. Appellant told the detective that on the day of
the incident, he wanted to buy one half-ounce of marijuana from Mayo, and Mayo “fronted” him
the marijuana to sell.1
Appellant also told the detective that when he returned to his apartment after receiving the
marijuana from Mayo, he heard a gunshot. He considered texting Mayo to check on him but
Detective Henry testified that “fronting” means to supply drugs to a person who would sell
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them and return a portion of the proceeds.
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decided not to because “if he did[,] it would make it look like [appellant] had something to do with
it.”
Cell phone records established that appellant and Mayo contacted one another twenty-three
times on November 15, 2017. Additionally, Mayo’s cell phone showed the two incoming calls
from Anderson’s phone number on November 15, 2017, at 8:24 p.m. and 8:53 p.m. Prior to that
date, however, Mayo’s cell phone had never received contact from Anderson.
While incarcerated awaiting trial, appellant made several phone calls that were recorded. In
one call, appellant stated that if witnesses testified at his trial that “jugs” meant “robbery,” then he
was “fucked.” In another call, appellant proposed that Wingfield receive money to change her
testimony.
B. Procedural history
Appellant was initially arrested for robbery and use of a firearm in the commission of a
robbery. After his arrest, he also was charged with second-degree murder under Code § 18.2-32,
conspiracy to commit robbery, and use of a firearm in the commission of murder. The
Commonwealth filed a notice in the juvenile and domestic relations district court (“the JDR court”)
to have appellant transferred to circuit court for trial as an adult pursuant to Code § 16.1-269.1.
After a probable cause hearing, the JDR court certified all pending charges to the grand jury.
The grand jury returned indictments for the charges and subsequently returned an additional
indictment for first-degree murder, also under Code § 18.2-32. At that time, the Commonwealth
moved to nolle prosequi the second-degree murder charge, which the court granted.
Appellant moved to quash the first-degree murder indictment. He argued that although the
second-degree murder charge was transferred to circuit court after a preliminary hearing in the JDR
court, he never received a preliminary hearing on the first-degree murder charge, as required by
Code § 16.1-269.1(B). The court denied the motion.
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At the close of the Commonwealth’s case, the court granted appellant’s motion to strike the
charge of conspiracy to commit robbery. The jury found appellant guilty of first-degree murder in
the commission of a robbery, robbery, and use of a firearm in the commission of a murder. The jury
acquitted appellant of use of a firearm in the commission of robbery.
ANALYSIS
A. Sufficiency of the evidence to prove robbery
Appellant argues that the evidence was insufficient to prove that he committed robbery
because there was no evidence that he took Mayo’s marijuana by force, threat, or intimidation. He
also contends that because the evidence was insufficient to prove robbery, he could not be convicted
of first-degree murder in the commission of robbery or use of a firearm in the commission of
murder.
“[W]hen reviewing a challenge to the sufficiency of the evidence to support a conviction, an
appellate court considers the evidence in the light most favorable to the Commonwealth, the
prevailing party below, and reverses the judgment of the trial court only when its decision is plainly
wrong or without evidence to support it.” Marshall v. Commonwealth, 69 Va. App. 648, 652-53
(2019). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted to
substitute its own judgment, even if its opinion might differ from the conclusions reached by the
finder of fact at the trial.’” Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018) (quoting Banks
v. Commonwealth, 67 Va. App. 273, 288 (2017)).
“Robbery is a common-law crime in Virginia, although its punishment is prescribed by
Code § 18.2-58.” Pritchard v. Commonwealth, 225 Va. 559, 561 (1983). Robbery “is defined as
‘the taking, with intent to steal, of the personal property of another, from his person or in his
presence, against his will, by violence or intimidation.’” Ali v. Commonwealth, 280 Va. 665, 668
(2010) (quoting Durham v. Commonwealth, 214 Va. 166, 168 (1973)).
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Initially, appellant argues that there was no evidence, direct or circumstantial, of a “taking.”
He contends that his interaction with Mayo was a consensual transaction for the exchange of drugs.
Relying on the lack of testimony concerning the price of the marijuana, he asserts that the evidence
established that Mayo “fronted” him the drugs and expected payment later.
However, Wingfield testified that on the date of the robbery and murder, appellant referred
to “jugs” in a conversation with her. Both Wingfield and a detective identified the term as referring
to robbery. Appellant acknowledged that his reference to “jugs” was incriminating when he
mentioned in a phone call following his arrest that if a witness testified that “jugs” meant robbery,
he was “fucked.” In another phone call, appellant indicated that Wingfield should be paid to change
her testimony. The circumstantial evidence establishes that appellant planned and executed the
robbery in order to obtain the marijuana. See Johnson v. Commonwealth, 2 Va. App. 598, 604-05
(1986) (finding that circumstantial evidence alone was sufficient to sustain a conviction).
Appellant also contends that the Commonwealth failed to prove the taking was
accomplished by force, threat, or intimidation because there was no testimony that anyone saw him
with a gun. However, the Commonwealth is not required to rely solely on direct evidence of gun
possession to prove robbery with a firearm. See Byers v. Commonwealth, 23 Va. App. 146, 150
(1996) (“[P]roof of ‘actual’ possession of a firearm under Code § 18.2-53.1 may be established by
circumstantial evidence, direct evidence, or both.”). “Circumstantial evidence is as competent and
is entitled to as much weight as direct evidence, provided it is sufficiently convincing to exclude
every reasonable hypothesis except that of guilt.” Coleman v. Commonwealth, 226 Va. 31, 53
(1983).
Although appellant was not seen with a gun on the night Mayo was killed, circumstantial
evidence supports the conclusion that he used a firearm to commit murder during a robbery.
Appellant arranged to meet Mayo to obtain drugs, Mayo was killed by gunfire at approximately the
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same time the transaction occurred, and appellant gave conflicting statements about his relationship
with Mayo and Anderson. Further, appellant and Anderson were the only people near Mayo at the
time he was killed, and detectives recovered both spent and live ammunition at the crime scene from
a gun that did not match the one found on Mayo’s lap. Detective Henry’s testimony demonstrated
that live ammunition may be “racked” from a gun for purposes of intimidation. “[T]he
Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence,
not those that spring from the imagination of the defendant.” Ragland v. Commonwealth, 67
Va. App. 519, 531 (2017) (quoting Case v. Commonwealth, 63 Va. App. 14, 23 (2014)). No
reasonable hypothesis of innocence flows from the evidence presented at trial, and therefore, the
evidence was sufficient to find appellant guilty of robbery. Additionally, insofar as appellant
challenged his convictions for murder and use of a firearm during the commission of murder
because they were contingent on an erroneous robbery conviction, we affirm those convictions as
well.
B. Motion to quash indictment
Appellant asserts that the court erred in denying his motion to quash the indictment for
first-degree murder because Code § 16.1-269.1(B) requires a preliminary hearing for juveniles
charged with first-degree murder. Statutory interpretation “presents a pure question of law and is
accordingly subject to de novo review.” Reineck v. Lemen, 292 Va. 710, 721-22 (2016) (quoting
Washington v. Commonwealth, 272 Va. 449, 455 (2006)). Courts must “apply the plain language
of a statute unless the terms are ambiguous or applying the plain language would lead to an absurd
result.” Boynton v. Kilgore, 271 Va. 220, 227 (2006) (citation omitted).
Code § 16.1-269.1(B) provides that “[t]he juvenile court shall conduct a preliminary hearing
whenever a juvenile 14 years of age or older is charged with murder in violation of [Code
§§] 18.2-31, 18.2-32[,] or 18.2-40.” Code § 16.1-269.1(D) further provides,
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Upon a finding of probable cause pursuant to a preliminary hearing
under subsection B[,] . . . the juvenile court shall certify the charge,
and all ancillary charges, to the grand jury. Such certification shall
divest the juvenile court of jurisdiction as to the charge and any
ancillary charges. Nothing in this subsection shall divest the juvenile
court of jurisdiction over any matters unrelated to such charge and
ancillary charges which may otherwise be properly within the
jurisdiction of the juvenile court.
Following appellant’s arrest, the Commonwealth moved to certify him as an adult for the
charges of second-degree murder, conspiracy to commit robbery, and the related firearm charges.
After the preliminary hearing, the JDR court granted the Commonwealth’s motion and sent the
cases to the grand jury. The Commonwealth subsequently directly indicted appellant for
first-degree murder and moved the circuit court to nolle prosequi the second-degree murder charge.
Appellant argues that the Commonwealth was precluded from directly indicting him for first-degree
murder in circuit court because his preliminary hearing in the JDR court was for second-degree
murder, not first-degree murder.
However, the applicable section of the transfer statute, Code § 16.1-269.1(B), does not
delineate the degree of murder that requires a preliminary hearing in the JDR court: “The juvenile
court shall conduct a preliminary hearing whenever a juvenile . . . is charged with murder in
violation of [Code §§] 18.2-31, 18.2-32[,] or 18.2-40.” (Emphasis added). Code § 18.2-32
addresses both first- and second-degree murder. Given the lack of distinction between the degrees
of murder in the transfer statute, it is reasonable to conclude that the General Assembly intended
that a single murder preliminary hearing in the JDR court is sufficient even if the Commonwealth
subsequently determines that the facts warrant a charge for an elevated degree of homicide.
The limited purpose of a preliminary hearing also supports the denial of appellant’s motion
to quash. “The primary purpose of a preliminary hearing is to ascertain whether there is reasonable
ground to believe that a crime has been committed and the person charged is the one who has
committed it.” Webb v. Commonwealth, 204 Va. 24, 31 (1963) (holding that an adult’s statutory
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right to a preliminary hearing is waived when a grand jury has already returned an indictment). The
preliminary hearing in the JDR court was to determine “probable cause.” Code § 16.1-269.1(D). It
functioned as a “screening process . . . to determine whether there [was] . . . reasonable ground to
believe that the crime ha[d] been committed and whether the accused [was] the person who
committed it.” Wright v. Commonwealth, 52 Va. App. 690, 699 (2008) (en banc) (quoting Moore
v. Commonwealth, 218 Va. 388, 391 (1977)). See also Williams v. Commonwealth, 208 Va. 724,
728 (1968).
As required by Code § 16.1-269.1(B), the JDR court conducted a preliminary hearing for
the charge of second-degree murder in violation of Code § 18.2-32. Upon certification of this and
other charges to the circuit court, the JDR court was divested of jurisdiction over any ancillary
charges and only retained jurisdiction over “unrelated” matters. Code § 16.1-269.1(D). See
Holliday v. Commonwealth, 64 Va. App. 168, 169-72 (2014) (holding that conspiracy charges
could be brought by direct indictment in circuit court after the JDR court had “certified a murder
charge and thereby been divested of jurisdiction” over all ancillary charges). The first-degree
murder charge was undoubtedly “related” to the second-degree murder charge because it arose from
the same incident. See Code § 16.1-269.1(D). Because the JDR court found probable cause that
appellant committed murder in violation of Code § 18.2-32, appellant suffered no prejudice from
the denial of an additional preliminary hearing on a different theory of murder also in violation of
Code § 18.2-32.
The procedural history in this case establishes that appellant received all necessary
protections of the juvenile system. See Kent v. United States, 383 U.S. 541, 556 (1966) (stating that
a juvenile’s transfer from the jurisdiction of the juvenile court to a circuit court for trial as an adult is
“critically important”). As required by Code § 16.1-269.1(B), appellant received a preliminary
hearing in the JDR court for murder charged under Code § 18.2-32. Nothing in Code
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§ 16.1-269.1(B) requires an additional preliminary hearing for a subsequent elevated murder charge
arising from the same facts and also brought under Code § 18.2-32. Accordingly, we find that the
court did not err in denying appellant’s motion to quash the indictment for first-degree murder.
CONCLUSION
We find no error in the court’s conclusion that the evidence was sufficient to establish
robbery, first-degree murder in the commission of robbery, and use of a firearm in the commission
of murder. Additionally, because appellant had a preliminary hearing in the JDR court for
second-degree murder charged under Code § 18.2-32, the court did not err in denying his motion to
quash a subsequent indictment for first-degree murder charged under the same statute and arising
from the same facts.
Affirmed.
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