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Carter v. Commonwealth

Supreme Court of Virginia

June 22, 2017

CORDELL LIONEL CARTER
v.
COMMONWEALTH OF VIRGINIA

          FROM THE COURT OF APPEALS OF VIRGINIA

          Lemons, C.J., Goodwyn, McClanahan, Powell, Kelsey, and McCullough, JJ., and Millette, S.J.

          OPINION

          CLEO E. POWELL, JUSTICE

         Cordell Lionel Carter ("Carter") was convicted by a jury in the Circuit Court of Amherst County ("trial court") of first-degree murder and use of a firearm in the commission of a felony, in violation of Code §§ 18.2-32 and 18.2-53.1. On appeal, he argues that the trial court erred by excluding testimony regarding the victim's alleged acts of violence and threats. He also argues that the trial court erred in refusing to set aside the verdict. For the following reasons, we will affirm Carter's convictions.

         I. BACKGROUND

         "In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Scott v. Commonwealth, 292 Va. 380, 381, 789 S.E.2d 608, 608 (2016).

         On January 14, 2014, Jennifer Johnson ("the victim"), was at home with her fourteen and seven-year-old sons.[1] Carter, with whom the victim had an off-and-on romantic relationship, came to the victim's house and went into her bedroom where she was resting. From the living room, her fourteen-year-old son heard Carter and the victim "arguing and bickering back and forth." He then heard "something hit the floor. . . like, a boom or something dropped." A few seconds later, Carter walked out of the bedroom, made a comment to the children about an ambulance, and left the residence. Carter was only in the victim's bedroom for two to five minutes.

         After Carter left, the victim's fourteen-year old son went into her bedroom, where he found her on the floor, shaking and speaking in "gibberish." He looked for his mother's cell phone to call for help, but could not locate it. The victim's son ran to Sonny Showalter's house about fifty yards away, and called 911. The police arrived eight minutes later, but the victim had died in the interim. The police did not find any firearms at the house, but they did find a .38 shell casing on the bedroom floor.

         Through their investigation, the police determined that when the victim was shot, she was standing in front of her bedroom window, directly across from the doorway to the room, at an angle facing toward the right side of the room. The police concluded that the bullet traveled "facing toward[] her at the same direction, " and then went through the window at an angle, striking a post on the front porch. Medical Examiner Amy Tharp testified that the victim died from a single bullet wound to her chest. Dr. Tharp concluded that the victim was shot from "an intermediate range . . . within a few feet" because there was no visible soot or burns from use of a firearm on her hands.

         The victim's mother, Jessie Monaghan ("Monaghan"), testified that on the night before the shooting, Carter told her that he was going to the victim's house to give her money. According to Carter, Johnson was blackmailing him regarding videos of Carter having sex with Monaghan. During the course of the conversation, Carter told Monaghan that "[e]verything would be okay." Monaghan also spoke with the victim at some point the day prior to the victim's shooting.[2]

         Immediately after the shooting, Carter called Monaghan and told her to get the children from the victim's house because "she was shot" and would be "dead." Carter then called his boss and resigned from his employment. He told his boss "that he did something bad" that would be "on the news."

         On the second day of trial, Carter moved for a continuance due to Monaghan's sudden hospitalization. Carter proffered that he intended to call Monaghan who would testify that hours before the shooting the victim stated that Carter "wasn't going to be around long." He asserted that, in light of his self-defense plea, this threat was admissible to show the victim's propensity for violence and that she was the initial aggressor. The trial court held that "even if [Monaghan] was here, " the testimony would not be admissible because "the focus in self-defense is what the defendant reasonably feared under the circumstances as they appeared to him at that time." The trial court reasoned that because the threat was never communicated to Carter, "it can't go to whether he reasonably feared."

         Showalter testified for the defense. He testified that he did not know whether the victim had a gun and that he never warned Carter to be careful with the victim. Carter then took the stand, testifying on his own behalf. He stated that on the day of the shooting, he went to the victim's house to bring her money. He said that her son answered the door and let him in. The victim came out to the living room and was "hollering and screaming, " so Carter and the victim went into the bedroom. Carter testified that he gave the victim $500, but she wanted $1, 000. According to Carter, the victim then threatened to kill him and "reached like she had the gun." Carter said he then "hit her hand and her hand went up" and he heard a "pop" and the victim fell against the wall. Carter also testified that he "tried to knock [the gun] out of her hand." He said that the victim fell against the wall and was "standing there" when he left. He did not see any blood and did not think anything was wrong with her. He testified that he believed she was just "acting out." Carter admitted on cross-examination that the victim found sex tapes on his cell phone of him "sleeping with" the victim's sister and mother.

         Carter attempted to testify regarding several instances wherein the victim assaulted him or Showalter. The trial court allowed Carter to testify to acts of violence committed by the victim between 2012 and the date of her death. The trial court excluded testimony that the victim stabbed a man ten years earlier, and that she had hit Carter in 2008 or 2009. The trial court also excluded testimony that the victim allegedly broke her mother's jaw in 2013.

         In its closing argument, the Commonwealth stated, "[t]here is a saying that says evil triumphs when good men do nothing. Today is your chance to do something. Don't let evil triumph in this case, find [the defendant] guilty of first degree murder." (See Commonwealth's Br. Appx. 10.) After the case was submitted to the jury, Carter objected to this statement as purely emotional. Carter did not request a mistrial. However, the trial court found that the Commonwealth's statements were "not sufficient to inflame the jury. . . . So the motions are overruled and your exceptions are noted for the record."

         Carter then called Showalter for a proffer. Under oath, Showalter stated that he knew the victim had a gun and that his previous testimony was not true. After the jury returned guilty verdicts, Carter moved for a new trial ...


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