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Severance v. Commonwealth

Court of Appeals of Virginia

May 23, 2017



          James W. Hundley (Erin L. Blanch; Briglia Hundley, P.C., on briefs), for appellant.

          Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Alston, O'Brien and Senior Judge Clements Argued at Alexandria, Virginia



         Following a jury trial, Charles Stanard Severance ("appellant") was convicted of two counts of capital murder for the deaths of Ronald Kirby and Ruthanne Lodato, one count of first-degree murder for the death of Nancy Dunning, and other related charges. Prior to trial, appellant moved to sever the charges relating to the Dunning murder from the other offenses. Following a hearing, the court denied the motion.[1] Trial was held October 8 through November 2, 2015. The court imposed the jury's verdict of three life sentences for the murder convictions, and forty-eight years of incarceration for the other related charges. This appeal followed.

         Appellant asserts three assignments of error:

I. The trial court erred in denying [appellant's] motion to sever the Dunning case from the Lodato and Kirby cases.
II. The trial court erred in denying [appellant's] motion to strike the evidence.
III. The trial court erred in sentencing [appellant] for both capital murder convictions.


         Factual Background

         We consider the evidence in the light most favorable to the prevailing party, the Commonwealth. Beasley v. Commonwealth, 60 Va.App. 381, 391, 728 S.E.2d 499, 504 (2012). So viewed, the evidence established that appellant graduated from college in 1986 with a degree in mechanical engineering. Following graduation, he was employed sporadically due to difficulties with employers. Appellant's family began to notice that he was acting erratically in 1988, but he never received significant mental health treatment.

         Appellant began a relationship with Tamela Nichols in 1998. The parties resided together in Alexandria and had a child, Levi, who was born in April 1999. Issues arose between appellant and Nichols in March 2000, and Nichols moved out with Levi. A number of contentious custody and visitation hearings in the Alexandria Juvenile and Domestic Relations District Court ensued. Ultimately, Nichols was granted sole legal and physical custody and no visitation was awarded to appellant. The custody orders were served on appellant and were signed by various deputies "for Sheriff Dunning." Following the proceedings, Nichols received threatening letters from appellant.

         Witnesses testified that for years after the custody proceedings, appellant became upset and irrational when the subject arose. He would quickly become argumentative and denounce the police and the "enforcement class." Appellant was illogical when discussing the issue; he used repetitive phrases such as "tomahawking the homestead."[2] Appellant's family was concerned about his mental health, but appellant was distrustful of the mental health system. He became irate when he learned that his parents had attended meetings of an organization that assisted parents with children suffering from mental health disorders. Appellant ran for mayor of Alexandria in 1996, and his platform included a condemnation of mental health institutions.

         Murder of Nancy Dunning: December 5, 2003

         Nancy Dunning was a well-known real estate agent who lived in Alexandria. She was married to James Dunning, the sheriff of Alexandria who had held that position since 1985. Mrs. Dunning made plans to meet her husband and son for lunch on December 5, and they became concerned when she did not arrive. She had told her son that she was going to stop at Target before meeting them. Her son drove to the Dunning residence and noticed that the garage door was open and his mother's car, which displayed a sheriff's license plate, was in the garage. He went inside the residence, saw the bags from Target in the family room, and found his mother lying in the front hallway, unresponsive, with blood on her face. The front door was closed but unlocked, and nothing was out of place or missing from the residence. Crime scene investigators found no evidence of forced entry. A small caliber bullet was discovered in a pool of blood near the victim and a blood smear was located on the front door.

         At trial, the Commonwealth presented surveillance footage that depicted a man who appeared to be following Dunning at the Target store where she shopped before her death. However, a number of appellant's witnesses testified that the man in the video was not appellant.

         Dr. Carolyn Revercomb, a medical examiner, performed the autopsy on Dunning. She found three gunshot wounds, and a fourth abrasion on the victim's chest that she characterized as a "bullet slap wound." Dr. Revercomb opined that the "bullet slap wound" could have resulted from a gunshot through the victim's arm that did not penetrate her chest. She noted that the bullet found at the scene may have caused that injury. Dr. Revercomb testified that the gun barrel was "quite close" to the victim when she was shot.

         Murder of Ronald Kirby: November 11, 2013

         Ronald Kirby, the Director of Transportation Planning for suburban Maryland, the District of Columbia, and Virginia, lived with his wife in Alexandria, Virginia. He was at home on November 11 waiting for a plumber to arrive. Daniel Petrillo, the plumber, testified that he spoke to Kirby by telephone at 11:32 a.m. and advised him that he was on his way to Kirby's residence. When Petrillo arrived at 11:42 a.m., no one answered the door. He unsuccessfully attempted to reach Kirby by telephone and left shortly after noon.

         Petrillo testified that on his way to the Kirby residence he noticed a construction crew working on curbs and concrete. The crew was composed of Hispanic men, but Petrillo noticed one white man who "stuck out" walking down the street. The man was wearing a faded flannel shirt, and resembled appellant. Petrillo stated that he was "eighty percent sure" the person he saw was appellant.

         Kirby's son testified that he went to his father's residence that day and found the front door closed but unlocked. He called 911 when he discovered his father lying on his back near the door. Emergency personnel arrived at approximately 12:30 p.m. and found gunshot wounds to Kirby's chest. Bullets and bullet fragments were recovered from the scene. The crime scene investigator testified that there were no signs of forced entry, nothing was disturbed at the scene, and Kirby's wallet, watch, and wedding ring, which were on his body, were not taken.

         Dr. Jocelyn Posthumus, the medical examiner who performed the autopsy, testified that Kirby died as a result of gunshot wounds to his chest. She recovered three bullets from his body, two from his chest and one from his left hip. Dr. Posthumus also identified two gunshot wounds to Kirby's right hand. Because two other bullets were found at the scene, Dr. Posthumus opined that five bullets had been fired, from a distance of more than two or three feet. She testified that she has performed more than three hundred autopsies of shooting victims but this is the only case in which a .22 caliber long-rifle round was used in the shooting.

         Murder of Ruthanne Lodato and Malicious Wounding of Janet Franko

         Ruthanne Lodato, the sister of an Alexandria General District Court judge and the daughter of an Alexandria Circuit Court judge, lived with her husband and mother in Alexandria. Janet Franko worked at the residence as a caretaker for Lodato's mother. At 11:30 a.m. on February 6, 2014, Franko heard the doorbell ring and "a boom" followed by a scream. Franko testified that she ran to the door and encountered a bearded white man, who was fifty to sixty years of age. She saw the man holding something round from his sleeve, heard another "boom, " and felt a hard pain as she was shot in the arm. Franko ran out of the back door and told a neighbor to call 911.

         Franko was taken to the emergency room and the following day, she helped a police officer prepare a sketch of the man who shot her. She subsequently identified appellant from a photo array as "look[ing] like" her assailant, except for the amount of hair on his face. At trial, she testified that she was certain appellant was the man who shot her.

         Officer Jonattan Lopez, who responded to the scene, testified that he found Lodato lying on the floor. She told the officer that she didn't know the person who shot her, but he was an older white male with a gray beard. Crime scene investigation revealed no sign of forced entry and nothing stolen from the house. Two intact bullets were recovered from the scene.

         Dr. Nikki Mourtzinos, a medical examiner, testified that she performed the autopsy on Lodato, who died as a result of the gunshot wounds. Mourtzinos stated that one entrance wound was "quite small, " which indicated that it was made by a small caliber weapon, typically a .22 caliber. She testified that she had performed a "few hundred" autopsies and only a "handful of cases" involved .22 caliber weapons.

         Marlene Wahowiak, a neighbor of the Lodatos, contacted the police the day after the shooting. She told them that during the weeks preceding the murder, she had seen a man in the area on multiple occasions with a "full gray beard [and] messy hair" who "looked out of place, " because he wasn't dressed appropriately for the weather. When the police released the composite sketch made from Franko's description, Wahowiak immediately advised them that the sketch depicted the man she had seen in the neighborhood. She also identified appellant in court as the man she observed near the Lodato residence.

         Susana Marquez testified that she was driving in Alexandria a few blocks from the Lodato residence on February 6, 2014, when she noticed an approaching car that was driving very quickly and ignored a stop sign. She stated that the car was "red/orange" and identified appellant as the driver. At the time of the murder, appellant drove a 1999 red Ford Escort station wagon with a bumper sticker that said "Assassination City Derby." When ...

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