Phillip Evan Jones v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, AtLee and Malveaux
UNPUBLISHED
Argued at Norfolk, Virginia
PHILLIP EVAN JONES
MEMORANDUM OPINION* BY
v. Record No. 1386-22-1 JUDGE MARY GRACE O’BRIEN
DECEMBER 19, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Christopher R. Papile, Judge
Charles E. Haden for appellant.
Timothy J. Huffstutter, Assistant Attorney General (Jason S.
Miyares, Attorney General, on brief), for appellee.
A jury convicted Phillip Evan Jones (appellant) of first-degree murder and use of a firearm
in the commission of murder. On appeal, appellant argues that the evidence was insufficient to
sustain his convictions because the Commonwealth failed to prove his identity as the perpetrator
and that the murder was premeditated. Appellant further contends that the court erred by refusing
to strike a prospective juror for cause. Finding no error, we affirm appellant’s convictions.
BACKGROUND
On appeal, we state the facts in the light most favorable to the Commonwealth. Poole v.
Commonwealth, 73 Va. App. 357, 360 (2021). “In doing so, we discard any of appellant’s
conflicting evidence and regard as true all credible evidence favorable to the Commonwealth and
all inferences that may reasonably be drawn from that evidence.” McGowan v. Commonwealth,
72 Va. App. 513, 516 (2020).
*
This opinion is not designated for publication. See Code § 17.1-413(A).
I. Evidence at Trial
On September 14, 2020, Darius Brown was shot in the back three times in the parking lot
of Tidewater Physicians Multispecialty Group in Newport News, Virginia. The shooting was
recorded by home surveillance cameras in the surrounding area. The surveillance videos showed
that a silver SUV, driven by Jordan Matthias, drove past Brown as he walked down the sidewalk
towards the parking lot. Appellant was a passenger in Matthias’s SUV. Matthias and appellant
pulled into the parking lot and idled as Brown walked towards the parking lot. Appellant exited
the SUV and approached Brown at the sidewalk. Appellant talked with Brown while he
followed Brown through the parking lot. Matthias drove away as appellant and Brown walked
through the parking lot. Brown suddenly collapsed as appellant walked closely behind him.
Matthias’s SUV pulled up to the parking lot just after Brown collapsed, and appellant ran to the
vehicle and fled. No one else was near Brown when he was shot.
Detective Jacqueline Howser interviewed appellant two weeks later. Appellant stated he
worked as a videographer and had filmed a music video for Brown a few months earlier.
Appellant admitted he was in the parking lot during the shooting but claimed that he never saw
or interacted with Brown and ran away when he heard gunshots. Appellant also told Detective
Howser that he previously owned a handgun that was “probably a nine[-millimeter]” but sold it
several months earlier.
Matthias confirmed that he drove appellant to the parking lot. After appellant “flashed”
him down, Matthias drove appellant home. He claimed he never saw appellant with a weapon
and that he witnessed nothing because he was preoccupied searching for his wallet.
A crime scene technician recovered three nine-millimeter cartridge casings close to
Brown’s body. A forensic scientist testified at trial that the casings and bullets were all
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discharged from the same firearm and that the bullets that killed Brown could have been fired
from a nine-millimeter handgun.
II. Voir Dire
During voir dire, defense counsel asked if any prospective jurors or their family members
had ever been charged with a crime. Juror E.B.1 disclosed that she had been a victim of a
shooting and was a witness in the case. Defense counsel noted that appellant was accused of a
shooting and asked Juror E.B., “so just given that you’ve been through that and then you’ll have
to hear about a gunshot-related incident in this case, do you feel like you could be fair and
impartial to both sides in this particular case?” Juror E.B. responded, “Yes.”
Defense counsel then inquired whether her prior experience “would make it hard for [her]
to be fair and impartial.” Juror E.B. answered, “I don’t think so. I can’t be 100 percent sure, but
I could -- I would do my best to be impartial.” Finally, defense counsel asked if she had “a doubt
that [she] could be fair and impartial” and Juror E.B. answered, “Not 100 percent sure.”
Neither counsel nor the court questioned Juror E.B. further. Appellant moved to strike
Juror E.B. for cause, arguing that her responses disqualified her from the jury because she was
not 100% percent sure she could be fair and impartial. The court denied the motion and
reasoned,
I’m not sure if it’s 99.9 percent sure or what. Again, she started
out indicating she could be fair and impartial. Then when [defense
counsel] followed up in terms of, [a]re you certain? Then I think
she very honestly said not 100 percent. But I’m comfortable that
her responses at the outset were sufficient to indicate her ability to
be fair and impartial . . . .
1
We use the juror’s initials to protect her privacy.
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ANALYSIS
I. Sufficiency of the Evidence
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” McGowan, 72 Va. App. at 521 (alteration in original) (quoting Smith v.
Commonwealth, 296 Va. 450, 460 (2018)). “The relevant issue on appeal is, ‘upon review of the
evidence in the light most favorable to the prosecution, whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’” Lambert v.
Commonwealth, 298 Va. 510, 515 (2020) (quoting Pijor v. Commonwealth, 294 Va. 502, 512
(2017)). “This deferential standard of review ‘applies not only to the historical facts themselves,
but the inferences from those facts as well.’” Johnson v. Commonwealth, 53 Va. App. 79, 100
(2008) (quoting Crowder v. Commonwealth, 41 Va. App. 658, 663 n.2 (2003)). “The inferences
to be drawn from proven facts, so long as they are reasonable, are within the province of the trier
of fact.” Id. (quoting Hancock v. Commonwealth, 12 Va. App. 774, 782 (1991)).
A. Identity
Appellant argues that the Commonwealth failed to prove that he was the shooter. He
contends that the Commonwealth proved only his presence at the scene, which was merely a
“suspicious circumstance[]” insufficient for a conviction.
In reviewing the sufficiency of the evidence, we do not examine “each incriminating fact
in isolation.” Commonwealth v. Barney, ___ Va. ___, ___ (Mar. 16, 2023). “Instead, in an
appellate sufficiency review, the evidence is ‘considered as a whole.’” Id. at ___ (quoting
Stamper v. Commonwealth, 220 Va. 260, 273 (1979)). “This approach recognizes that ‘while no
single piece of evidence may be sufficient, the combined force of many concurrent and related
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circumstances . . . may lead a reasonable mind irresistibly to a conclusion.’” Id. at ___ (quoting
Commonwealth v. Moseley, 293 Va. 455, 463 (2017)).
A rational fact finder could conclude from the evidence at trial that appellant shot Brown.
The surveillance footage established that Matthias and appellant drove past Brown and then
waited for him in the parking lot. Appellant approached Brown near the sidewalk and followed
him through the parking lot. While appellant walked closely behind Brown, Brown suddenly
collapsed. Appellant immediately ran to Matthias’s SUV and fled. No one else was visible in
the parking lot or near Brown when he was shot in the back. Appellant’s statements established
that he had owned a nine-millimeter handgun, which was consistent with the shell casings found
near Brown’s body. “[A] jury may ‘draw reasonable inferences from basic to ultimate facts.’”
Johnson, 53 Va. App. at 100 (quoting Haskins v. Commonwealth, 44 Va. App. 1, 10 (2004)).
Additionally, although appellant claimed that he had sold his gun several months earlier
and that he never saw or interacted with Brown, the jury was “entitled to disbelieve” appellant’s
self-serving statements “and to conclude that [appellant was] lying to conceal his guilt,”
especially when the surveillance footage was inconsistent with appellant’s claims. Flanagan v.
Commonwealth, 58 Va. App. 681, 702 (2011) (quoting Marable v. Commonwealth, 27 Va. App.
505, 509-10 (1998)). The jury was also permitted to consider appellant’s flight as evidence of
his guilt. See Speller v. Commonwealth, 69 Va. App. 378, 388 (2018) (“Flight following the
commission of a crime is evidence of guilt . . . .” (quoting Clagett v. Commonwealth, 252 Va. 79,
93 (1996))).
Viewed in its entirety, the evidence was sufficient to enable a rational fact finder to
conclude that appellant was the shooter and was therefore guilty of first-degree murder and use of
a firearm in the commission of murder.
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B. Premeditation
Appellant next argues the evidence of premeditation was insufficient to support his
conviction for first-degree murder because the Commonwealth did not offer any direct evidence
of his intent.
“To premeditate means to adopt a specific intent to kill, and that is what distinguishes
first and second degree murder.” Kirby v. Commonwealth, 50 Va. App. 691, 700 (2007)
(quoting Remington v. Commonwealth, 262 Va. 333, 352 (2001)). “Proof of premeditation . . .
will be sufficient[] even if the premeditation shown is only slight or momentary.” Beavers v.
Commonwealth, 245 Va. 268, 282 (1993). “[T]he design to kill may be formed only a moment
before the fatal act is committed provided the accused had time to think and did intend to kill.”
Kirby, 50 Va. App. at 700 (quoting Remington, 262 Va. at 352). “Because ‘premeditation and
formation of an intent to kill seldom can be proved by direct evidence[,][a] combination of
circumstantial factors may be sufficient.’” Fields v. Commonwealth, 73 Va. App. 652, 674
(2021) (alterations in original) (quoting Aldridge v. Commonwealth, 44 Va. App. 618, 655
(2004)); see also Commonwealth v. Perkins, 295 Va. 323, 330 (2018) (“Intent is the purpose
formed in a person’s mind which may, and often must, be inferred from the facts and
circumstances in a particular case.” (quoting Burton v. Commonwealth, 281 Va. 622, 626-27
(2011))).
The evidence supports the jury’s conclusion that appellant premeditated Brown’s murder.
Appellant waited in the parking lot for Brown to approach, met him at the sidewalk, and
followed closely behind him, evincing a plan. Appellant shot Brown—more than once—in the
back as Brown walked away, and then fled the scene. These circumstances are sufficient for a
rational fact finder to infer that appellant “had time to think and [intended] to kill,” Kirby, 50
Va. App. at 700, and thus, premeditated Brown’s murder. See Chandler v. Commonwealth, 249
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Va. 270, 280 (1995) (holding that a jury’s finding of premeditation was not plainly wrong where
the evidence showed that the defendant fired his gun more than once); see also Jackson v.
Virginia, 443 U.S. 307, 325 (1979) (noting that firing a weapon at a “close, and thus predictably
fatal, range” is indicative of an intent to kill).
II. Juror E.B.
Finally, appellant challenges the court’s refusal to strike Juror E.B. from the venire for
cause. He argues that Juror E.B. should have been removed because she could not be “100
percent sure” of her impartiality.
“Juror impartiality is a question of fact, and a trial court’s decision to seat a juror is
entitled to great deference on appeal.” Brown v. Commonwealth, 68 Va. App. 746, 784 (2018)
(quoting Lovos-Rivas v. Commonwealth, 58 Va. App. 55, 61 (2011)). “On appellate review, this
Court must give deference to the circuit court’s determination whether to exclude a prospective
juror because that court was able to see and hear each member of the venire respond to questions
posed,” and is therefore in a “superior position to determine whether a prospective juror’s
responses during voir dire indicate that the juror would be prevented from or impaired in
performing the[ir] duties.” Green v. Commonwealth, 262 Va. 105, 115 (2001). “[T]he trial court
must weigh the meaning of the answers given in light of the phrasing of the questions posed, the
inflections, tone, and tenor of the dialogue, and the general demeanor of the prospective juror.”
Taylor v. Commonwealth, 67 Va. App. 448, 455 (2017) (alteration in original) (quoting Smith v.
Commonwealth, 219 Va. 455, 464-65 (1978)). “[B]ecause the trial judge has the opportunity,
which we lack, to observe and evaluate the apparent sincerity, conscientiousness, intelligence,
and demeanor of prospective jurors first hand, the trial court’s exercise of judicial discretion in
deciding challenges for cause will not be disturbed on appeal, unless” the record reveals
“manifest error.” Id. at 455-56 (alteration in original) (quoting Jackson v. Commonwealth, 267
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Va. 178, 191 (2004)). In assessing a prospective juror’s impartiality, we review the voir dire of
the juror “as a whole, not just isolated statements by that juror.” Goodwin v. Commonwealth, 71
Va. App. 125, 136 (2019).
The court had the opportunity to observe Juror E.B. and determine her “sincerity . . . and
demeanor . . . first hand.” Taylor, 67 Va. App. at 455 (quoting Jackson, 267 Va. at 191). After
considering the entirety of her voir dire and the context of her statements, the court noted Juror
E.B. initially unequivocally stated she could be fair and impartial and found that it was
“comfortable that her responses at the outset were sufficient to indicate her ability to be fair and
impartial.” The record supports the court’s conclusion.
While Juror E.B. expressed some uncertainty about how her experience as a victim might
affect her ability to be impartial, the court found that her responses were indicative of her
honesty and not of a bias or inability to be impartial. “Our duty to defer to the trial judge” is
demonstrated by the first part of Juror E.B’s answer, “I don’t think so,” to defense counsel’s
question about whether her experiences “would make it hard for [her] to be fair and impartial.”
Weeks v. Commonwealth, 248 Va. 460, 475 (1994). In Weeks, the Supreme Court found that a
trial court properly refused a motion to strike a juror for cause. Id. In response to a question
about whether he could be impartial, the juror answered, “I think so.” Id. The Court held,
Our duty to defer to the trial judge on this subject is illustrated by
[the juror’s] final answer, “I think so,” which the trial judge, not
this Court, heard. The juror’s emphasis on “so” in that answer
conveys an entirely different meaning than if the emphasis had
been on “think.” On appeal, we must presume he emphasized
“so.”
Id. Like in Weeks, we must presume that Juror E.B. emphasized “I don’t think so.” Id.; see also
Keepers v. Commonwealth, 72 Va. App. 17, 45 (2020) (“[W]e defer to the trial court to resolve
any potentially equivocal statements because of its opportunity to observe the juror’s tone and
demeanor.”).
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Considering Juror E.B.’s voir dire as a whole, and giving due deference to the court’s
observations of the juror’s “sincerity . . . and demeanor,” we find no manifest error in the court’s
refusal to strike Juror E.B. for cause. Taylor, 67 Va. App. at 455 (quoting Jackson, 267 Va. at
191).
CONCLUSION
For these reasons, we affirm appellant’s convictions for first-degree murder and use of a
firearm in the commission of murder.
Affirmed.
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