Louis Scott Hudson v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Agee
Argued at Alexandria, Virginia
LOUIS SCOTT HUDSON
MEMORANDUM OPINION * BY
v. Record No. 0917-01-4 JUDGE G. STEVEN AGEE
JULY 16, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CLARKE COUNTY
John R. Prosser, Judge
Timothy S. Coyne (Fowler, Griffin, Coyne,
Coyne & Patton, P.C., on briefs), for
appellant.
Virginia B. Theisen, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Louis Scott Hudson (Hudson) was convicted by a Clarke
County Circuit Court jury of the second-degree murder of his
wife, Mary Donovan Hudson (Mrs. Hudson), in violation of Code
§ 18.2-32, and of using a firearm in the commission of a murder,
in violation of Code § 18.2-53.1. He was sentenced to twelve
years incarceration on the murder conviction and three years on
the firearm conviction with the sentences running consecutively.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On appeal, he contends the trial court erred by denying his
motion to set aside the verdict due to insufficient evidence. 1
For the following reasons, we reverse Hudson's convictions.
I. BACKGROUND
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, only those facts necessary to a disposition of this
appeal are recited.
On the day of her death, 2 September 20, 1999, Mrs. Hudson
spent the morning fox hunting and attended her father's funeral
service with Hudson that afternoon. At home after the funeral,
Mrs. Hudson was talking on the telephone with a friend, Wes
Thompson. According to Thompson, Hudson interrupted the call by
speaking directly to Thompson and calling him a "son of a bitch
mother fucker." Hudson demanded to know why Thompson was
1
Hudson also contends the trial court erred by (1) denying
his motion to suppress evidence gathered subsequent to his
arrest for public intoxication; (2) admitting DNA evidence
despite the Commonwealth's failure to comply with the notice
requirements of Code § 19.2-270.5; and (3) failing to instruct
the jury on suicide and accidental death. Because we find the
evidence insufficient to sustain Hudson's second-degree murder
conviction, we do not address these additional issues.
2
The defense presented the following evidence: there was
no history of abuse between the couple; Mrs. Hudson overdosed on
prescription drugs a few weeks prior to her death; her blood
alcohol content at the time of her death was between .22 and
.24; and an autopsy revealed a prescription drug in her system
at the time of her death.
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talking to his wife, and Thompson hung up. Hudson denied he
talked to Thompson.
Later that evening, Hudson called his father's house and
told his mother that Mrs. Hudson had shot herself. He did not
call 911, seek medical help or notify the police. Hudson's
parents went to the house and observed Mrs. Hudson's prone body,
but testified that they did not touch it. Hudson was not
present when his parents arrived. Hudson's father then called
911 to report the shooting.
In response, Clarke County Sheriff's Deputies arrived at
Hudson's home around 8:00 p.m. and discovered it was in disarray
and Hudson was not there. Deputy Jones saw Mrs. Hudson's body
lying on the living room couch with a .22 caliber pistol
awkwardly positioned in her right hand, essentially facing
backwards. There was a bloody handprint on the back cushion of
the couch. However, the deceased did not appear to have blood
on her hands.
At 9:17 p.m., the Sheriff's Department received a call from
Hudson's father informing them that his son was at the father's
house, a few miles away from the investigation scene.
Deputy Small arrived first, and Hudson's father advised him
to wait for backup. Deputy Jones and Investigator Roper arrived
a short time later. The three officers entered the house and
found Hudson seated in his father's living room, holding a cup
of coffee. Hudson was extremely intoxicated. Hudson's father
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told the officers that he did not want Hudson in his home and
asked the officers to remove him. Deputy Jones informed Hudson
that he was being arrested for being drunk in public. 3
Hudson was taken to the Sheriff's Department, where a .22
caliber bullet was discovered in his coat pocket during a
pat-down search. Shortly thereafter, a gunshot residue test was
administered, but no warrant was obtained for the test. Later
that night, Investigator Roper did obtain a search warrant for
Hudson's clothes. The next morning, at 6:30 a.m., the
investigator met with Hudson at the jail and gave Hudson the
Miranda warnings. Hudson then provided Investigator Roper with
a statement.
Hudson stated that his wife had been unhappy because she
thought that she deserved more from her father's estate.
According to Hudson, his wife picked up the gun and began
playing with it. Hudson said that he told her not to do so.
Hudson said he went to the bathroom and while there, heard a
shot. He returned, and he saw his wife "slumping over" on the
couch. He said he left and went to his father's house. He
stated that he "never got close to" Mrs. Hudson's body. Hudson
did not know why he failed to call 911 and did not remember
calling anyone after the shooting. When asked to explain the
3
In district court, months later, Hudson pled guilty to the
charge of public intoxication.
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.22 caliber bullet found in his pocket, Hudson said that he must
have picked it up with loose change from his dresser.
Hudson gave a second statement on November 18, 1999, to
Investigator Gregg of the Virginia State Police in the presence
of his attorney. In that statement, Hudson said that on
September 20, 1999, he and his wife were drinking at their home
and his wife was upset because she was not permitted to use
money in her trust fund to purchase a truck. He said that his
wife pulled out a gun, began playing with it, and said that she
was going to shoot herself.
Hudson said that he went into the bathroom and heard a
shot. When he came out of the bathroom he saw a "little bit" of
blood around his wife's eyes. He repeatedly denied going near
her body.
Hudson denied handling any firearm that night. He said he
last touched a firearm two nights prior to his wife's death. He
could not account for his whereabouts between the time of the
shooting and the time he arrived at his father's, a period of
more than an hour. According to Hudson, neither he nor his wife
made or received any telephone calls that night.
At trial, the medical examiner testified that Mrs. Hudson
suffered a contact range wound to the head and that the bullet
entered her head at the left ear and went through to her brain.
The medical examiner opined that death occurred within minutes.
A firearms expert testified that it was necessary to cock the
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hammer back on the pistol found in Mrs. Hudson's hand before
firing the weapon. A ballistics expert testified that he had
determined that the bullet recovered from the deceased's brain
was fired from the .22 revolver found in her hand. The evidence
further proved that at the time of death Mrs. Hudson's blood had
an ethanol concentration of .22% by weight volume; her blood
also contained Darvon and Diphenhydramine.
An expert in gunshot residue testified that both of
Hudson's hands showed primer residue. Hudson's wife also had
residue on her right hand. The expert tested .22 shells and
shell casings recovered at the scene and testified these
contained only lead and barium, but not antimony. The expert
testified that the residue on Hudson's hands contained three
elements: barium, lead and antimony. However, the residue on
the deceased's hands contained only lead and barium, which was
consistent with the .22 shells tested. The expert opined that
it was not likely that the residue on Hudson's hands came from
firing the ammunition that killed the deceased.
An expert in blood splatters also testified at trial. She
identified bloody contact stains on the couch cushion, the left
front thigh of the deceased's jeans and on her forearm. The
expert testified that the contact transfers came from
heavily-bloody hands, but not the deceased's hands, because no
blood was visible on her hands.
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Forensic scientist Carol Palmer testified that a spot of
blood on Hudson's seized shirtsleeve matched his wife's blood.
DNA testing showed that the possibility that the blood came from
anyone other than the deceased was one in 51 million.
II. ANALYSIS
On appeal, Hudson contends the evidence was insufficient to
convict him of second-degree murder. For the following reasons
we agree and reverse his conviction.
"Where the sufficiency of the evidence
is challenged after conviction, it is our
duty to consider it in the light most
favorable to the Commonwealth and give it
all reasonable inferences fairly deducible
therefrom. We should affirm the judgment
unless it appears from the evidence that the
judgment is plainly wrong or without
evidence to support it." Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d
534, 537 (1975).
Snow v. Commonwealth, 33 Va. App. 766, 774, 537 S.E.2d 6, 10
(2000).
"It is essential in every prosecution for the commission of
a homicide that the Commonwealth prove the corpus delicti."
Lane v. Commonwealth, 219 Va. 509, 514, 248 S.E.2d 781, 783
(1978). "To establish the corpus delicti in a homicide, the
Commonwealth must prove the victim's death resulted from the
criminal act or agency of another person." Betancourt v.
Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d 873, 878 (1998).
Further, to convict a defendant of second-degree murder, the
Commonwealth must prove the defendant acted with malice. Lynn
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v. Commonwealth, 27 Va. App. 336, 351, 499 S.E.2d 1, 8 (1998)
(defining second-degree murder as the "malicious killing" of
another person).
In this case, the Commonwealth relies upon circumstantial
evidence to support its theory that Hudson maliciously killed
his wife. When a conviction is based entirely upon
circumstantial evidence, we are guided by the following
standards in our review:
[W]ell established principles apply to
testing the sufficiency of circumstantial
evidence. [The Supreme Court has]
summarized those principles as follows:
". . . [I]f the proof relied upon by the
Commonwealth is wholly circumstantial, as it
here is, then to establish guilt beyond a
reasonable doubt all necessary circumstances
proved must be consistent with guilt and
inconsistent with innocence. They must
overcome the presumption of innocence and
exclude all reasonable conclusions
inconsistent with that of guilt. To
accomplish that, the chain of necessary
circumstances must be unbroken and the
evidence as a whole must satisfy the guarded
judgment that both the corpus delicti and
the criminal agency of the accused have been
proved to the exclusion of any other
rational hypothesis and to a moral certainty
. . . ."
But, circumstances of suspicion, no
matter how grave or strong, are not proof of
guilt sufficient to support a verdict of
guilty. The actual commission of the crime
by the accused must be shown by evidence
beyond a reasonable doubt to sustain his
conviction.
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Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820,
822 (1977) (citations omitted).
We hold that the Commonwealth's evidence fails to exclude
all reasonable hypotheses of innocence. Hudson argues that Mrs.
Hudson did not die through the criminal agency of another. He
contends the evidence failed to exclude the reasonable
conclusion that Mrs. Hudson was fatally shot by accident or
intentionally by her own act. There is evidence to support this
hypothesis of innocence. The .22 revolver that fired the fatal
shot was found in Mrs. Hudson's hand. The expert evidence
demonstrated that the gunshot residue found on Mrs. Hudson's
right hand was consistent with the .22 shells at the scene. The
gunshot residue evidence further showed the residue found on
Hudson's hands was not consistent with that ammunition. In
addition, there were no identifiable fingerprints found on the
.22 revolver or any of the cartridges attributable to Hudson.
There is simply no evidence establishing Hudson ever touched the
weapon that fired the fatal bullet. Yet there is some evidence
that Mrs. Hudson may have fatally fired the gun.
Thus, this evidence is not inconsistent with the hypothesis
that Mrs. Hudson fatally shot herself purposefully or
accidentally. Where the facts are "equally susceptible of two
interpretations, one of which is consistent with the innocence
of the accused, the jury cannot arbitrarily adopt the
interpretation which incriminates [the accused]." Massie v.
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Commonwealth, 140 Va. 557, 564, 125 S.E. 146, 148 (1924). There
is not adequate evidence in the record that negates the
hypothesis that Mrs. Hudson shot herself or, conversely, that
puts the revolver in Hudson's hands. In this case, there simply
is insufficient evidence to prove Hudson committed murder beyond
a reasonable doubt. We, therefore, must reverse Hudson's
conviction for second-degree murder.
Proof by circumstantial evidence "is not
sufficient . . . if it engenders only a
suspicion or even a probability of guilt.
Conviction cannot rest upon conjecture."
Littlejohn v. Commonwealth, 24 Va. App. 401,
414, 482 S.E.2d 853, 859 (1997) (citing Hyde
v. Commonwealth, 217 Va. 950, 955, 234
S.E.2d 74, 78 (1977)). "'[A]ll necessary
circumstances proved must be consistent with
guilt and inconsistent with innocence and
exclude every reasonable hypothesis of
innocence.'" Stover v. Commonwealth, 222
Va. 618, 623, 283 S.E.2d 194, 196 (1981)
(quoting Inge v. Commonwealth, 217 Va. 360,
366, 228 S.E.2d 563, 567 (1976)). "When,
from the circumstantial evidence, 'it is
just as likely, if not more likely,' that a
'reasonable hypothesis of innocence'
explains the accused's conduct, the evidence
cannot be said to rise to the level of proof
beyond a reasonable doubt." Littlejohn, 24
Va. App. at 414, 482 S.E.2d at 859 (quoting
Haywood v. Commonwealth, 20 Va. App. 562,
567-68, 458 S.E.2d 606, 609 (1995)). The
Commonwealth need not "exclude every
possible theory or surmise," but it must
exclude those hypotheses "which flow from
the evidence itself." Cantrell v.
Commonwealth, 7 Va. App. 269, 289-90, 373
S.E.2d 328, 338-39 (1988) (citations
omitted). The evidence in the instant case
fails to prove appellant's guilt beyond a
reasonable doubt.
Betancourt, 26 Va. App. at 373-74, 494 S.E.2d at 878.
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Because the evidence fails to sufficiently establish that
Hudson killed his wife, we must also reverse the conviction
under Code § 18.2-53.1 for using a firearm in the commission of
a murder. See Gray v. Commonwealth, 28 Va. App. 227, 503 S.E.2d
252 (1998) (a finding that a defendant is guilty beyond a
reasonable doubt of murder is a necessary element of the Code
§ 18.2-53.1 firearm offense).
Accordingly, we reverse the convictions and dismiss the
indictments.
Reversed and dismissed.
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