Robert A. Bruce, s/k/a, etc. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata
and Senior Judge Hodges
Argued at Richmond, Virginia
ROBERT A. BRUCE, s/k/a
ROBERT ALLISON BRUCE
v. Record No. 0273-94-2 MEMORANDUM OPINION * BY
JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA FEBRUARY 13, 1996
FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY
James M. Lumpkin, Judge Designate
Robert N. Johnson (Anne M. Johnson; Robert N.
Johnson, Jr.; Robert N. & Anne M. Johnson, Inc.,
on briefs), for appellant.
Thomas C. Daniel, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
On appeal from his convictions of first degree murder and
use of a firearm in the commission of a felony, Robert Bruce
contends that the trial judge erred in (1) denying Bruce's motion
to excuse a prospective juror for cause; (2) overruling Bruce's
motion to strike the evidence at the end of the Commonwealth's
case; (3) denying Bruce's renewed motion to strike the
Commonwealth's evidence at the conclusion of the case; (4)
denying Bruce's motion for a mistrial; (5) denying Bruce's motion
to set aside the verdict; and (6) denying Bruce's written
post-trial motion for a mistrial.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
The Juror Issue
"The standard to be applied . . . in
determining whether to retain a venireman on
the jury panel is whether his answers during
voir dire . . . indicate . . . something that
'would prevent or substantially impair the
performance of his duties as a juror in
accordance with his instructions and his
oath.'"
Whether a prospective juror should be
excused for cause is a matter resting within
the sound discretion of the trial court, and
its action in refusing to excuse a particular
venireman will not be disturbed on appeal
unless the refusal amounts to manifest error.
Yeatts v. Commonwealth, 242 Va. 121, 134, 410 S.E.2d 254, 262
(1991) (citations omitted), cert. denied, 503 U.S. 946 (1992).
Bruce asks us to adopt a per se rule disqualifying potential
jurors in criminal cases whose spouses are law enforcement
officials who have participated in the investigation of the crime
that is the subject of the trial. We decline to adopt such a
rule.
The trial judge found nothing in the voir dire answers of
Jeanne Williams to indicate that her performance would be
impaired if she was selected as a juror, and we find nothing in
the record to show an abuse of discretion amounting to manifest
error in the trial judge's refusal to excuse her for cause.
Williams indicated that she knew her husband was the only
state trooper at the scene of the death. However, Williams also
stated that her husband "discusses nothing job-related with me,
nothing. I'm more ignorant than people out on the street."
Williams said she had not formed an opinion as to the guilt or
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innocence of Bruce. When asked whether she could listen to the
evidence and make up her own mind, Williams responded, "I think I
could."
Considering Williams' assurances that she could decide the
case based on the evidence, and considering Williams'
manifestation that she had obtained no information about the case
from her husband, we conclude that Bruce has shown no "manifest
error" in the trial judge's retention of Williams as a
prospective juror. See Stewart v. Commonwealth, 245 Va. 222,
235, 427 S.E.2d 394, 403, cert. denied, 114 S. Ct. 143 (1993);
Satcher v. Commonwealth, 244 Va. 220, 237, 421 S.E.2d 821, 831
(1992), cert. denied, 113 S. Ct. 1319 (1993).
The Sufficiency of the Evidence
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Where the
evidence is entirely circumstantial
"all necessary circumstances proved must be
consistent with guilt and inconsistent with
innocence and must exclude every reasonable
hypothesis of innocence. The chain of
necessary circumstances must be unbroken.
The circumstances of motive, time, place,
means, and conduct must all concur to form an
unbroken chain which links the defendant to
the crime beyond a reasonable doubt."
Boothe v. Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745
(1987) (citation omitted).
The evidence supported the conclusion that the victim did
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not commit suicide and that Bruce murdered the victim. On
December 11, 1991, the victim was found in her home with a fatal
bullet wound in her head. Bruce and the victim had been married
since 1975. Dr. Jeffrey Fracher, the victim's psychologist,
testified that the victim and appellant were having marital
difficulties, and that the victim was planning to leave her
husband on December 20, 1991. She had hired a lawyer and,
according to Dr. Fracher, she was "looking forward to moving out
and moving on." Dr. Fracher, who was experienced in recognizing
suicidal inclinations, testified the victim did not exhibit
suicidal thoughts. Dr. Fracher also stated that the victim's
activities during the week before her death were "totally
inconsistent with a suicide profile." These activities included
attending a conference, arranging for a babysitter on the day she
was to take the graduate admissions examination, and meeting her
lawyer to discuss separation plans. The victim also had plans to
live with her parents. Other Commonwealth witnesses testified
that the victim did not exhibit suicidal tendencies because she
continued to make plans for the future, even until the day before
her death.
Further, the forensic evidence suggested that the victim did
not commit suicide. Investigator Charles Bryant testified that
the victim was wearing a glove on the hand with which she
allegedly fired the gun. Bryant stated that the glove "was not
completely on her hand as someone would normally wear a glove."
The glove contained no gunshot residue. A gun was found two
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feet, four inches from the victim's outstretched right hand, and
five feet, four inches from the head wound. Bruce, who allegedly
found the victim's body, told Bryant that he may have kicked the
gun. No fingerprints were recovered from the gun, the victim's
eyeglasses, or papers found in the victim's lap. No suicide note
was found.
Dr. Marcella Fierro, a pathologist, testified that the
bullet travelled right to left, back and down, starting at the
victim's right temple and stopping behind her left ear.
Furthermore, Dr. Fierro stated that when she attempted to
reconstruct the positioning of the shooting, she was unable to
position the gun such that the bullet would have travelled along
that path.
Ann Jones, a firearms expert and a woman of roughly the same
size as the victim, testified that she attempted to replicate the
crime scene. Jones had trouble firing the gun while wearing the
glove, and she was unable to shake the gun off of her hand while
wearing the glove loosely as the victim wore it.
Moreover, from the evidence presented, the jury could have
inferred a motive for Bruce to take the victim's life. Constance
Pepper, a life insurance agent, testified that on March 19, 1991,
Bruce had changed his wife's life insurance policy so that he was
the sole beneficiary of the policy. Ed Meeks, Bruce's court-
appointed counsel in another matter, testified that appellant was
in desperate need for money. Meeks stated that Bruce was facing
a possible twenty-year prison sentence if he failed to make
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court-ordered restitution by mid-December 1991. Meeks testified
Bruce had written Meeks that Bruce was willing to do almost
anything to avoid going to jail. Bruce had forfeited his license
to practice law and had stated that his only source of money was
his mother's annuity fund.
Charles Lindsay and Robert Taylor testified that Bruce knew
where Taylor kept the gun that was stolen from Taylor's truck and
was used to kill the victim. Taylor also testified that the
victim had never ridden in the truck in which the gun was kept.
Bruce presented evidence from a psychiatrist, who examined
the victim's medical records and testified that the victim's
behavior was consistent with a pattern of potential suicidal
behavior. In addition, Dr. Robert Sinnenburg testified on behalf
of Bruce. Dr. Sinnenburg stated that the victim's wound was
"absolutely consistent" with a self-inflicted gunshot wound.
Although appellant offered alibi evidence concerning his
activities on December 11, 1991, the jury had "a right to weigh
the testimony of all the witnesses, experts and otherwise." Hill
v. Commonwealth, 8 Va. App. 60, 64, 379 S.E.2d 134, 137 (1989)
(en banc). The jury believed the testimony of the Commonwealth's
witnesses. The testimony of the Commonwealth's witnesses was
competent and was not inherently incredible. From the
Commonwealth's evidence, the fact finder could have inferred that
appellant killed the victim and attempted to make her death look
like a suicide. Accordingly, the evidence was sufficient to
prove beyond a reasonable doubt that appellant committed first
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degree murder. 1
The Motion To Set Aside the Verdict
Bruce contends that the trial judge erred in admitting
evidence that Bruce was a defendant in a criminal proceeding,
that he had to make restitution in a matter for which he could
have received a twenty-year prison sentence, and that Bruce had
surrendered his license to practice law.
The Supreme Court has upheld admission of prior offenses
when offered to prove "(1) premeditation, (2) absence of mistake
or accident, (3) motive or intent, (4) and the conduct and
feelings of the accused toward his victim." Smith v.
Commonwealth, 239 Va. 243, 256, 389 S.E.2d 871, 878 (citations
omitted), cert. denied, 498 U.S. 881 (1990). The evidence of
Bruce's prior crimes was admissible to prove premeditation and
motive. The probative value of the evidence outweighed any
potential prejudice to Bruce. Therefore, the trial judge did not
abuse his discretion in admitting the evidence.
Bruce asserts the trial judge erred in allowing the
Commonwealth to "attack" the qualifications of Dr. Sinnenburg
after the Commonwealth previously stipulated to his
qualifications. However, the Commonwealth did not attack Dr.
Sinnenburg's qualifications by indicating that Dr. Sinnenburg was
1
We will not consider the jury instruction issues since no
appeal was granted by this Court on these issues. See Rule
5A:12(c). For the same reason, we will not consider the
assertion that the trial judge erred in failing to grant a change
of venue.
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not board-certified in forensic pathology. Rather, on rebuttal,
the Commonwealth attempted to impeach the credibility of Dr.
Sinnenburg by showing that he was not board-certified in forensic
pathology. Therefore, the trial judge did not err in admitting
the evidence.
Dr. Fierro testified that three of the several thousand
autopsies she had performed involved a gloved person who had
committed suicide. On appeal, Bruce contends that this testimony
was irrelevant and prejudicial. However, the evidence
established Dr. Fierro's experience with similar cases.
Therefore, it was relevant evidence. See Evans-Smith v.
Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 441 (1987).
The Motions for a Mistrial
"Whether to grant a mistrial rests within the discretion of
the trial judge, and his or her decision may not be overturned
unless a manifest probability exists that the denial of a
mistrial was prejudicial." Hall v. Commonwealth, 14 Va. App.
892, 902, 421 S.E.2d 455, 462 (1992) (citation omitted).
Under principles established in Brady v.
Maryland, 373 U.S. 83 (1963), the
Commonwealth must turn over evidence
favorable to an accused that is material to
either guilt or punishment. Id. at 87. In
United States v. Bagley, 473 U.S. 667 (1985),
the Court set forth the test for materiality,
finding that 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." Id. at 682.
* * * * * * *
"A defendant cannot simply allege the
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presence of favorable material and win
reversal of his conviction." United States
v. Balliviero, 708 F.2d 934, 943 (5th Cir.
1983)[, cert. denied, 464 U.S. 939 (1983)].
Rather, a defendant must prove the favorable
character of evidence he claims has been
improperly suppressed. Speculative
allegations are not adequate. See United
States v. Barshov, 733 F.2d 842, 848 (11th
Cir. 1984), cert. denied, 469 U.S. 1158(1985). See also Black v. Collins, 962 F.2d
394, 406-07 (5th Cir.), cert. denied, 504 U.S
992 (1992).
Hughes v. Commonwealth, 18 Va. App. 510, 525-26, 446 S.E.2d 451,
460-61 (1994).
Appellant moved for a mistrial, asserting that the
Commonwealth failed to disclose an audio tape containing a police
interview of Don Williams in which Williams described a
conversation that he had with the victim on the day of her death.
On the tape, Williams said the victim was crying and was "real
depressed and she felt she didn't have anything . . . to live
for." Appellant claims that because this evidence supported his
defense that the victim was depressed and suicidal, the tape
provided exculpatory information which would have assisted
appellant in the preparation of his expert witness. Appellant
also asserts that the tape would have assisted him in the
preparation of the cross-examination of the Commonwealth's expert
witness, who testified that the victim had a positive attitude
prior to her death.
Appellant had full access to Williams prior to the trial and
even called Williams to testify on behalf of appellant. During
appellant's direct examination of Williams, Williams testified
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concerning the same observations made on the tape recording --
that the victim appeared to be depressed on the day she died.
The jury heard this evidence, considered it in conjunction with
all of the evidence in the case, and found that appellant
murdered the victim.
Further, appellant has not shown that a reasonable
probability exists that the tape's disclosure would have resulted
in a different outcome. Bagley, 473 U.S. at 683. The victim's
own psychologist testified the victim did not exhibit suicidal
thoughts and was looking forward to "moving on" with her life.
Several other witnesses testified the victim did not exhibit
suicidal tendencies and was planning for the future, even up
until the time of her death. Moreover, Williams also said on the
tape that, during his conversation with the victim, the victim
did not indicate she intended to take her own life, and the
victim said she "was trying to leave town and go stay with some
relatives or take a new job." In addition, the scientific
evidence did not support the suicide theory, and the Commonwealth
presented evidence of a motive for appellant to kill his wife.
Accordingly, in light of all of the evidence, we cannot find
a reasonable probability that the disclosure of the taped
conversation would have produced a different outcome. Therefore,
the trial judge did not abuse his discretion in denying
appellant's motion for a mistrial on this basis.
Appellant also made a post-trial motion for a mistrial based
upon the post-trial affidavit of another defense witness, Joyce
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Edelen. In her affidavit, Edelen stated that, on the day the
victim died, the victim told Edelen, "I am losing my mind." At
the trial, Edelen did not testify that the victim made this
statement. However, after Edelen testified, she informed the
Assistant Commonwealth's Attorney that she then recalled the
victim had made the statement. Appellant alleges that the
Commonwealth was then obligated to disclose the information to
appellant because it was exculpatory evidence and was crucial to
appellant's expert witnesses' testimony because it supported the
theory that the victim committed suicide.
As in the case with Williams, appellant had full access to
Edelen prior to trial, and appellant called Edelen to testify on
behalf of appellant. Further, it is speculative that the
victim's statement, "I am losing my mind" was necessarily
favorable to appellant and tended to support appellant's suicide
theory. Moreover, for the same reasons as stated in the
discussion of the Williams' taped interview, in view of the other
evidence presented, appellant has not shown that a reasonable
probability exists that the statement's disclosure would have
resulted in a different outcome. See id. There was ample
evidence from which the jury could have inferred beyond a
reasonable doubt that appellant murdered his wife. Therefore,
the trial judge did not abuse his discretion in denying the
post-trial motion for a mistrial.
For the reasons stated, we conclude that the evidence was
sufficient to prove beyond a reasonable doubt that Bruce
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committed first-degree murder and used a firearm in the
commission of the murder. Accordingly, the judgment of the trial
court is affirmed.
Affirmed.
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