Robin Kalleen Radcliff v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bray
Argued at Norfolk, Virginia
ROBIN KALLEEN RADCLIFF
v. Record No. 0987-93-1 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA JUNE 6, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge
Gerard T. Schafer; Jon M. Babineau for appellant.
H. Elizabeth Shaffer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Robin Kalleen Radcliff (defendant) was convicted by jury of
capital murder and conspiracy to commit capital murder. On
appeal, defendant complains that the trial court erroneously (1)
refused to admit into evidence a videotape of her psychiatric
evaluation, (2) denied her statutory right to a speedy trial, and
(3) admitted the hearsay statements of alleged co-conspirators.
Defendant further contends that the evidence was insufficient to
support the convictions. We disagree and affirm the judgment of
the trial court.
Under familiar principles of appellate review, we consider
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. Traverso v. Commonwealth, 6 Va. App. 172, 176, 366
S.E.2d 719, 721 (1988). The parties are fully conversant with
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the record, and a recitation of the facts is unnecessary to this
memorandum opinion.
HYPNOTIC EVIDENCE
It is well established that hypnotic testimony is considered
unreliable and inadmissible evidence in this Commonwealth. See
generally Hopkins v. Commonwealth, 230 Va. 280, 289-90, 337
S.E.2d 264, 270 (1985), cert. denied, 475 U.S. 1098 (1986);
Greenfield v. Commonwealth, 214 Va. 710, 715-16, 204 S.E.2d 414,
419 (1974). In Hopkins, the Supreme Court observed that
[i]t is generally agreed that a person under hypnosis (1)
is vulnerable to both conscious and unconscious
suggestion, (2) may imagine details to fill gaps in his
memory (confabulate) or intentionally fabricate facts to
benefit himself or please the hypnotist, (3) may be
unable to distinguish fact from fiction, both during and
following hypnosis, and (4) may emerge from hypnosis with
a strong subjective confidence in his subsequent
recollection of the events recalled during hypnosis.
Hopkins, 230 Va. at 291, 337 S.E.2d at 271 (citations omitted).
See generally Archie v. Commonwealth, 14 Va. App. 684, 420 S.E.2d
718 (1992) (trial court properly excluded description of an accused
while under sodium amytal).
After viewing the videotape in issue, the trial court
determined that "viewing . . . that portion of the tape showing
only the hypnosis itself as well as an in-court demonstration of it
without any testimony would be of little probative value and
carries with it a great risk of fabrication." The admissibility of
evidence rests within the sound discretion of the trial court, and
its rulings will not be disturbed on appeal absent a "clear abuse"
of such discretion. Coe v. Commonwealth, 231 Va. 83, 87, 340
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S.E.2d 820, 823 (1986). Under the circumstances here, we find that
the court properly excluded disfavored evidence.
SPEEDY TRIAL
Code § 19.2-243 provides, in pertinent part, that "the
accused, if . . . held continuously in custody thereafter, shall be
forever discharged from prosecution for such offense if no trial is
commenced in the circuit court within five months 1 from the date
. . . probable cause was found by the district court." Id.
However, the statute delineates several circumstances which excuse
noncompliance, including delay occasioned "[b]y continuance granted
on the motion of the accused or his counsel, or by concurrence of
the accused or his counsel in such a motion by the attorney for the
Commonwealth . . . ." Id. (4). These exceptions are not "all
inclusive" and "others of a similar nature are implied" by the
statute. Moten v. Commonwealth, 7 Va. App. 438, 442, 374 S.E.2d
704, 706 (1988) (citations omitted). "The exceptions, both express
and implied, often look to the defendant's actions that tend to
delay the trial." Id.; see Jones v. Commonwealth, 13 Va. App. 566,
570, 414 S.E.2d 193, 195 (1992).
Here, the Juvenile and Domestic Relations District Court found
probable cause on November 18, 1991, and defendant was continually
in custody until trial commenced on February 9, 1993. In the
interim, defendant presented numerous motions to the court which
necessarily delayed trial. The first, filed December 9, 1991,
1
"The five month period is computed as 152 and a fraction
days." Moten, 7 Va. App. at 441, 374 S.E.2d at 706.
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requested access to defendant for purposes of psychiatric
evaluation and was followed by like motions and attendant orders on
January 22, 1992, June 8, 1992, and July 13, 1992. Additional
delays resulted from two continuance motions attributed to
defendant.
Clearly, the delay from December 9, 1991, to September 8,
1992, was occasioned by defendant's successive motions related to
psychiatric evaluation. These "motions were 'by no means . . .
frivolous or wholly without substance[,]' and were acts 'which
necessitated a slowdown of the judicial process.'" Jones, 13 Va.
App. at 571, 414 S.E.2d at 195 (citation omitted). The motions
evinced no concern by defendant for a speedy trial and "remove[d]
[her] case from the protections afforded by the statute." Id.
Defendant's continuance motion of November 12, 1992, and related
order, postponed trial until February 9, 1993. Thus, when
responsibility for these delays is properly assessed against
defendant, and the related days deducted from the relevant elapsed
time, trial was commenced within the statutory period.
Defendant's assertion that her motions did not create a
"failure to try the accused" chargeable to defendant because the
related orders oftentimes did not recite definite trial dates is
also without merit. See Code § 19.2-243. This argument was
considered and rejected in Townes v. Commonwealth, 234 Va. 307,
322, 362 S.E.2d 650, 658 (1987), cert. denied, 485 U.S. 971 (1988),
and, consistent with Townes, we reject it here.
HEARSAY
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A conspiracy is "'an "agreement between two or more persons by
some concerted action to commit an offense."'" Johnson v.
Commonwealth, 8 Va. App. 34, 38, 377 S.E.2d 636, 638 (1989)
(citations omitted). The crime is "committed when the agreement
. . . is complete, regardless of whether any overt act in
furtherance of commission of the substantive offense is committed."
Id. "[A] conspiracy . . . may be established by circumstantial
evidence," and "a formal agreement need not be shown." Stultz v.
Commonwealth, 6 Va. App. 439, 442-43, 369 S.E.2d 215, 217 (1988)
(citations omitted).
Once a "conspiracy has been proved, 'the acts and declarations
of any of the conspirators, in furtherance of the object of the
conspiracy, are admissible evidence against each and all of them,
though such acts and declarations were not done and said in the
presence of all.'" Amato v. Commonwealth, 3 Va. App. 544, 551-52,
352 S.E.2d 4, 8-9 (1987) (citation omitted). However, "before the
co-conspirator's hearsay declaration may be admitted, a prima facie
case of conspiracy must be established by evidence independent of
the declarations themselves." Rabeiro v. Commonwealth, 10 Va. App.
61, 63, 389 S.E.2d 731, 732 (1990). We accord the factual findings
of the trial court "in making [this] admissibility determination
. . . the same weight as . . . a finding of fact by the jury." Id.
at 64, 389 S.E.2d at 733.
Michael Bourne testified that defendant and Gary Hinojosa
entered Bourne's bedroom on the morning of July 28, 1991, and asked
to borrow his automobile. When questioned by Bourne, defendant
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answered, "We need to borrow your car," "Someone is going to take
care of James. 2 . . . Someone is going to shoot James." Bourne
responded, "You're just going to have James shot?," and defendant
stated, "Well, no. It's going to cost a lot of money." Hinojosa
also urged Bourne to allow defendant and himself use of the car.
Clearly, both defendant and Hinojosa together wanted the vehicle
incidental to a scheme to murder James. Defendant's statements
that "someone" was going to murder James and that, "It's going to
cost a lot of money," suggests the involvement of a person or
persons other than herself and Hinojosa. This testimony provided
prima facie evidence of a conspiracy and, therefore, a proper
foundation for the admission of the hearsay.
Contrary to defendant's argument, statements of a co-
conspirator made after the murder but before payment for the crime
were also admissible. "[A] conspiracy is not terminated by
commission of the crime until the spoils are divided and the co-
conspirators have 'gone their separate ways.'" Stumpf v.
Commonwealth, 8 Va. App. 200, 206, 379 S.E.2d 480, 484 (1989)
(citation omitted). Manifestly, the conspiracy to murder for hire
persisted until the consideration was paid and received, thus
concluding the criminal union.
SUFFICIENCY
The jury's verdict will not be disturbed unless plainly wrong
or without evidence to support it. Traverso v. Commonwealth, 6 Va.
2The victim was James Radcliff, defendant's husband.
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App. 172, 176, 366 S.E.2d 719, 721 (1988). Our review of the
record discloses abundant evidence to support the convictions.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
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BENTON, J., dissenting.
I disagree with the majority that Townes v. Commonwealth, 234
Va. 307, 362 S.E.2d 650 (1987), cert. denied, 485 U.S. 971 (1988),
supports a holding that the trial judge's failure to initially set
a trial date in this case until more than nine months after the
finding of probable cause is permissible under Code § 19.2-243. In
Townes, the Supreme Court noted that Townes's counsel made the
argument "that the first trial date set in his case was March 3,
1986, or some six months and eight days after the district court
found probable cause." 234 Va. at 322, 362 S.E.2d at 658.
However, the Court stated that it "disagree[d] with Townes." Id.
Indeed, in stating the procedural posture of the case, the opinion
recites that "[o]n October 16, 1985, Townes . . . moved for a
continuance, which was granted by order entered the same date, and
trial of the case was continued to December 4, 1985." Id. at 321,
362 S.E.2d at 658 (emphasis added).
Moreover, the Supreme Court ruled in Townes that on "December
23 . . . well within the five-month period, . . . the March 3, 1986
trial date was set 'on motion of both parties by agreement.'" 234
Va. at 323, 362 S.E.2d at 659 (emphasis added). This ruling moots
any other argument that Townes might have advanced concerning the
denial of a speedy trial. This Court has previously stated that
the Supreme Court's ruling on this aspect of the speedy trial claim
was "the actual holding in Townes." Baity v. Commonwealth, 16 Va.
App. 497, 506, 431 S.E.2d 891, 896 (1993).
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In Radcliff's case, the Juvenile and Domestic Relations
District Court found probable cause on November 18, 1991. In an
order dated September 8, 1992, the circuit court trial judge stated
that "by agreement of counsel, this case is continued until
December 2, 1992, for trial." The record contains no order prior
to September 8, 1992, setting a trial date. Thus, the initial
trial date was not even set until more than nine months had passed
after a finding of probable cause.
Code § 19.2-241 provides that "[t]he judge of each circuit
court shall fix a day of his [or her] court when the trial of
criminal cases will commence" and that "the accused . . . shall be
tried within the time limits fixed in [Code] § 19.2-243." Thus,
Code § 19.2-241 unambiguously requires the trial judge to provide a
benchmark "to insure a speedy trial, for the benefit of the accused
no less than for the Commonwealth." Benton v. Commonwealth, 90 Va.
328, 332, 18 S.E. 282, 284 (1893). Correspondingly, the Supreme
Court has held that "[a] defendant does not waive his right to a
speedy trial because he remains silent or does not demand that a
trial date be set within the prescribed period." Godfrey v.
Commonwealth, 227 Va. 460, 463, 317 S.E.2d 781, 783 (1984).
This Court recognized the importance of setting a trial date
when, in Williams v. Commonwealth, 2 Va. App. 566, 347 S.E.2d 146(1986), we noted that a "trial date scheduled by the court in a
criminal case must be documented before we may consider it in
evaluating trial delay." Id. at 569, 347 S.E.2d at 148. In
Williams, "[t]he record contain[ed] no order or decree reflecting
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that the trial court set the trial date." Id. at 568, 347 S.E.2d
at 147. In the following statement, this Court expressly
highlighted the role of Code § 19.2-241 in insuring a speedy trial:
Only the trial court has authority to schedule
criminal cases for trial. Code § 19.2-241 . . .
contemplates an orderly procedure for setting
criminal cases and expressly places the control of
that process under the supervision of the trial
court, not a party litigant. The policy expressed
in this provision recognizes the role of the trial
judge in insuring the prompt disposition of criminal
cases.
Id. at 569, 347 S.E.2d at 148 (citation omitted). In the absence
of any indication in this record that the trial court set a date
for a trial to occur within the prescribed five month period, it is
illogical to charge Radcliff with a delay of the trial for motions
made prior to the setting of the trial date.
In a case with analogous circumstances, the Supreme Court of
Indiana held that a defendant's agreement to a continuance prior to
the setting of a trial date could not be attributed to the
defendant for purposes of the speedy trial statute. State ex. rel.
O'Donnell v. Cass, 468 N.E.2d 209, 211 (Ind. 1984). The court
stated that in the absence of a set trial date, a "defendant . . .
can only assume that when a trial date is finally set it will
conform to the limitations of the [speedy trial] rule." Id.
In view of the absence of evidence that a date was set for
Radcliff's trial to occur within the prescribed five month period,
I would hold that the record is insufficient to sustain the
Commonwealth's burden of proving that Radcliff caused the delay in
trying the case. I, therefore, dissent.
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