Juleian Cappell v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia
JULEIAN CAPPELL
MEMORANDUM OPINION * BY
v. Record No. 0807-02-3 JUDGE JEAN HARRISON CLEMENTS
MAY 27, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
John J. McGrath, Jr., Judge
Aaron L. Cook (Aaron L. Cook, PC, on brief),
for appellant.
Virginia B. Theisen, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Juleian Cappell appeals from a judgment of the trial court
revoking his previously suspended sentence. On appeal, Cappell
contends the trial court (1) abused its discretion in finding him
in violation of his supervised probation and revoking his
previously suspended sentence and (2) violated his due process
rights by relying on a ground for revocation that was not included
in the notice he was given. For the reasons that follow, we
affirm the judgment of the trial court.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, this opinion recites only those facts and incidents of the
proceedings as are necessary to the parties' understanding of the
disposition of this appeal.
I. BACKGROUND
On February 10, 1999, having convicted Cappell of four
charges of forging public records, the trial court sentenced him
to eight years' imprisonment. The trial court then suspended the
imposition of the entirety of that sentence and placed Cappell on
supervised probation for three years.
On September 14, 2001, while still on probation, Cappell was
arrested in connection with the homicide of Rosendo Cruz on
September 12, 2000, and charged with first degree murder, use of a
firearm in the commission of murder, discharging a firearm within
one thousand feet of school property, and possession of a firearm
after having been convicted of a felony.
On September 28, 2001, Cappell's probation officer submitted
a letter to the trial court alleging Cappell had violated the
conditions of his probation by virtue of his arrest on the
September 12, 2000 charges. Specifically, the probation officer
alleged Cappell had violated "Condition No. 1: 'I will obey all
Federal, State, and Local laws and ordinances'" and "Condition No.
9: 'I will not use, own, possess, transport or carry a firearm.'"
In a jury trial on February 27 and 28, 2002, Cappell was
acquitted of the murder, use of a firearm, and discharge of a
firearm charges. The trial court granted the Commonwealth's
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motion for nolle prosequi of the possession of a firearm charge on
March 11, 2002.
On March 11, 2002, the same judge who presided over the jury
trial held a revocation hearing. The judge stated, without
objection, that the hearing would proceed on Cappell's alleged
"fail[ure] to keep the peace and be of good behavior [and]
violation of loca[l] and state ordinances." At the hearing, the
judge, without objection, admitted the transcript of the jury
trial into evidence and observed that he had reviewed his notes
from the jury trial.
The evidence from the jury trial revealed that the homicide
of Rosendo Cruz occurred on the evening of September 12, 2000,
during an altercation on Norwood Street in the City of
Harrisonburg between Ashby Jackson and several of his cohorts and
some "Hispanic" men Jackson had confronted earlier that day.
Numerous witnesses at the scene of the altercation testified at
trial as witnesses for the Commonwealth. Several witnesses who
participated in the conflict were given lenient dispositions of
their charges by the Commonwealth in exchange for their testimony.
The testimony regarding Cappell's participation in the
conflict varied. One witness testified she did not see him in the
area of the altercation. Another witness at the scene of the
altercation testified that, after hearing the gunshots, he saw
Cappell running with Jackson's brother to Cappell's vehicle.
Jackson's brother testified he drove with Cappell to the scene of
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the altercation on Norwood Street. He saw Cappell get out of the
vehicle but did not see him when the shots were fired. After
hearing the gunshots, he returned to Cappell's vehicle and saw
Cappell running back to the vehicle. He did not see Cappell with
a gun in the vehicle or when Cappell was running back to the
vehicle.
Kenneth Shawn McAfee provided the most conclusive evidence of
Cappell's involvement in the altercation. McAfee, a convicted
felon whose murder charge and malicious wounding by mob charge
were respectively "nol prossed" and reduced to a misdemeanor by
the Commonwealth in exchange for his testimony, testified he heard
"one or two" gunshots during the altercation. He looked in the
direction of the gunfire and saw "a couple more" flashes of light.
He saw a "gun like object," with "flames shooting from it as it
[was] fired," in the hand of a man he "took . . . to be" Cappell.
The shooter's "bald head, . . . wire frame glasses, . . . build,
and complexion" matched those of Cappell, McAfee stated. He
testified he was not positive it was Cappell because "there [were]
no street lights right there" and it was "dark," but he was
"ninety-five percent sure" Cappell was the shooter. When McAfee
later asked Cappell "what made [him] do it," Cappell told him only
that "everybody would be all right."
Officer Kevin Whitfield, who investigated the homicide,
testified that, during an interview conducted on September 14,
2001, Cappell told him that he did not know anyone associated with
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the shooting incident, had never been on Norwood Street, and was
at home at the time of the shooting. Whitfield further testified
that Cappell told him that he was intoxicated on the night of the
shooting.
At the revocation hearing, Cappell maintained there was no
basis for the revocation of his suspended sentence because he was
acquitted of the charges relating to the homicide of Rosendo Cruz.
Given McAfee's lack of credibility, Cappell argued, the
Commonwealth could argue, at best, only that he was present at the
scene of the altercation, which is not, by itself, a valid reason
to revoke his suspended sentence. 1 The Commonwealth countered
that the evidence at trial amply demonstrated Cappell violated the
terms and conditions of his probation. For example, the
Commonwealth argued, the probation officer's letter of September
28, 2001, stated that a term of Cappell's probation was to
"[r]emain drug and alcohol free." Cappell, the Commonwealth
continued, admitted to Officer Whitfield that he had been drinking
and was intoxicated on the night of the shooting. Cappell raised
no objection to the Commonwealth's argument.
Following the argument of counsel at the revocation hearing,
the trial court concluded:
1
At the revocation hearing, Cappell agreed with the trial
court that the standard of proof to be applied in a revocation
proceeding is a preponderance of the evidence and conceded that
a conviction for a subsequent criminal offense is not necessary
for there to be a probation violation.
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This Court sitting as a finder of fact based
upon the evidence that was adduced would find
that the Commonwealth carried a burden of
showing by a preponderance of the evidence
that Mr. [Cappell] was the gunman involved in
the slaying of Rosendo Cruz.
* * * * * * *
. . . [A]ssuming arguendo, although I
do not agree with it, that I would be
precluded from considering that fact because
of the jury verdict. There is ample other
evidence in the record. For example, . . .
* * * * * * *
Paul Jackson . . . and McAfee, and, I
believe, one other witness put Cappell in the
middle of this gang of men that went over to
seek retribution against the two Hispanic
males. Also we have the fact according to
Officer Whitfield that when interrogated by
Officer Whitfield concerning the shooting of
Rosendo Cruz, Mr. Cappell made a number of
statements which in light of the evidence
that's been introduced the Court finds to be
clearly dishonest and misleading statements.
He said he was never at, never been on
Norwood Street in his life, et cetera.
Didn't know anything about it. I think the
evidence clearly shows that he was present at
the slaying of Mr. Rosendo Cruz if not the
gunman himself. Also I would note that he
was under the influence of alcohol at the
time contrary to the terms of his probation.
Therefore, the Court finds that he is in
violation of his probation, and the Court
revokes all of his suspended sentence and
remands him to the custody of the . . .
Sheriff.
Cappell's attorney then responded, "If the Court would just
note my exception. Thank you."
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II. ANALYSIS
Cappell contends the trial court's decision to revoke his
probation was arbitrary and an abuse of discretion because the
evidence was insufficient to support the court's finding that
Cappell was the gunman in the death of Rosendo Cruz. Cappell
argues that, in making that finding, the trial court improperly
relied on the "less than certain and wholly discredited testimony"
of Kenneth Shawn McAfee, which "stands alone as the only evidence
suggesting that . . . Cappell may be the gunman."
When the sufficiency of the evidence is challenged on appeal,
we view the evidence "in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1987). "The credibility of a witness,
the weight accorded the testimony, and the inferences to be drawn
from proven facts are matters solely for the fact finder's
determination." Crawley v. Commonwealth, 29 Va. App. 372, 375,
512 S.E.2d 169, 170 (1999).
"When a defendant fails to comply with the terms and
conditions of a suspended sentence, the trial court has the power
to revoke the suspension of the sentence in whole or in part."
Alsberry v. Commonwealth, 39 Va. App. 314, 330, 572 S.E.2d 522,
525 (2002). "A trial court has broad discretion to revoke a
suspended sentence and probation based on Code § 19.2-306, which
allows a court to do so 'for any cause deemed by it sufficient.'"
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Davis v. Commonwealth, 12 Va. App. 81, 86, 402 S.E.2d 684, 686
(1991).
The cause deemed by the court to be
sufficient for revoking a suspension must be
a reasonable cause. The sufficiency of the
evidence to sustain an order of revocation
"is a matter within the sound discretion of
the trial court. Its finding of fact and
judgment thereon are reversible only upon a
clear showing of abuse of discretion." The
discretion required is a judicial discretion,
the exercise of which "implies conscientious
judgment, not arbitrary action."
Marshall v. Commonwealth, 202 Va. 217, 220, 116 S.E.2d 270, 273
(1960) (quoting Slayton v. Commonwealth, 185 Va. 357, 367, 38
S.E.2d 479, 484 (1946)).
Moreover, "good behavior is a condition of every suspension,
with or without probation, whether expressly so stated or not."
Id. Thus, "the failure of a defendant to be of good behavior,
amounting to substantial misconduct, during the period of the
suspension would provide reasonable cause for revocation of the
suspension." Id. at 220-21, 116 S.E.2d at 273-74.
Upon our review of the record, we conclude the evidence
therein is sufficient to sustain the trial court's finding that
Cappell violated the terms and conditions of his suspended
sentence. Contrary to his statements to Officer Whitfield that he
did not know anyone associated with the shooting, had never been
on Norwood Street, and was at home at the time of the shooting,
three of the Commonwealth's witnesses placed Cappell at the scene
of the crime among the group of men who went to Norwood Street to
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confront the victim and his associates. Additionally, McAfee
testified that, based on his observation of the shooter's
distinctive physical characteristics, he was "ninety-five percent
sure" Cappell was the shooter. The trial judge, who had also
presided over the jury trial, implicitly found that McAfee's
testimony was credible.
Not held to the higher evidentiary standard of beyond a
reasonable doubt, see id. at 221, 116 S.E.2d at 274, the trial
court was entitled to find from this evidence, notwithstanding the
jury's verdict, that Cappell was illicitly involved in the
homicide of Rosendo Cruz and that he subsequently made several
deceitful statements to a police officer investigating that crime
in order to conceal his involvement. On the basis of either of
those findings, the trial court could properly conclude that
Cappell failed "to be of good behavior, amounting to substantial
misconduct, during the period of the suspension" of his
sentence. Id. at 220-21, 116 S.E.2d at 273-74. We hold,
therefore, that the trial court had reasonable cause to revoke the
suspension of Cappell's sentence and did not abuse its discretion
in doing so.
Cappell also argues that the trial court erroneously relied
on his consumption of alcohol on the night of the homicide as a
ground to support his revocation. He contends the trial court's
reliance on this ground, which had not been previously alleged by
the Commonwealth, violated his due process rights.
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Rule 5A:18 provides, in pertinent part, that "[n]o ruling of
the trial court . . . will be considered as a basis for reversal
unless the objection was stated together with the grounds therefor
at the time of the ruling." (Emphasis added.) Thus, we will not
consider a claim of trial court error as a ground for reversal
"where no timely objection was made." Marshall v. Commonwealth,
26 Va. App. 627, 636, 496 S.E.2d 120, 125 (1998). Similarly, we
"will not consider an argument on appeal which was not presented
to the trial court." Ohree v. Commonwealth, 26 Va. App. 299,
308, 494 S.E.2d 484, 488 (1988). "Rule 5A:18 applies to bar
even constitutional claims." Id.Here, the Commonwealth reminded the trial court at the
revocation hearing that the probation officer's letter of
September 28, 2001, stated that a term of Cappell's probation was
to "[r]emain drug and alcohol free." Cappell, the Commonwealth
then pointed out, admitted to Officer Whitfield that he had been
drinking and was intoxicated on the night of the shooting.
Cappell did not object to the Commonwealth's argument. Likewise,
when the trial judge noted, in announcing its ruling at the
revocation hearing, that Cappell had been "under the influence of
alcohol at the time contrary to the terms of his probation,"
Cappell voiced no objection. Similarly, Cappell made no argument
at the revocation hearing that the trial court's consideration of
his consumption of alcohol was a violation of his due process
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rights or otherwise improper. Rather, Cappell simply noted his
exception to the trial court's overall ruling.
We hold, therefore, that, having failed to raise the
instant due process issue before the trial court, Cappell is
procedurally barred by Rule 5A:18 from raising it for the first
time on appeal. Moreover, our review of the record in this case
does not reveal any reason to invoke the "good cause" or "ends
of justice" exceptions to Rule 5A:18.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
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