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Brown v. Commonwealth

Court of Appeals of Virginia

May 22, 2018

RUSSELL ERVIN BROWN, III
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY Paul W. Cella, Judge

          Matthew L. Engle (Bernadette M. Donovan; Douglas A. Ramseur; Seth T. Shelley; Shameka L. Hall; Jacqueline M. Reiner; Donovan & Engle, PLLC; Office of the Capital Defender, Central Region; Jacqueline M. Reiner, PLLC, on briefs), for appellant.

          Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Chief Judge Huff, Judges Russell and Malveaux Argued at Richmond, Virginia

          OPINION

          GLEN A. HUFF CHIEF JUDGE.

         Russell Ervin Brown, III, ("appellant") appeals his convictions of capital murder and attempted capital murder, in violation of Code § 18.2-31; attempted murder, in violation of Code § 18.2-32; and three counts of use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1. Following a jury trial, the Circuit Court of Dinwiddie County ("trial court") sentenced appellant to the jury's recommended sentence of two life sentences for the capital murder and attempted capital murder charges, ten years for the attempted murder charge, and a total of thirteen years for the firearm charges. On appeal, appellant raises seven assignments of error:

1. The trial court erred in denying [appellant's] Motion for Grand Jury Information for the Preceding Five Years.
2. The trial court erred in denying [appellant's] motions for change of venue.
3. The trial court erred in limiting questioning and denying [appellant's] motion to strike prospective jurors Delores Palmer and Aaron Whitworth for cause.
4. The trial court erred in denying [appellant's] motion to strike the capital murder charge.
5. The trial court erred in denying a second-degree murder instruction.
6. The trial court erred in admitting testimony about an alleged statement made by [appellant] during his arraignment.
7. The trial court erred in denying [appellant's] Motion to Set Aside the Verdict.

         For the following reasons, this Court affirms appellant's convictions.

         I. BACKGROUND

         On appeal, "we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial." Williams v. Commonwealth, 49 Va.App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence is as follows.

         The Shooting

         On March 7, 2013, appellant shot and killed Virginia State Trooper Junius Alvin Walker on the shoulder of Interstate 85 in Dinwiddie County. Appellant had pulled his car onto the shoulder because it "had been running hot." Walker activated his police cruiser's blue lights and pulled over beside appellant's car, at which point appellant-without provocation-fired numerous shots into the cruiser at Walker, killing him. As Walker's cruiser rolled toward the woods beside the interstate, appellant followed and continued firing his rifle into it.

         Thomas Hales, a delivery truck driver, was heading south on Interstate 85 at the time of the shooting. Noticing the state police cruiser resting at the edge of the woods and finding it unusual, Hales pulled his truck onto the shoulder and backed toward appellant's car and the cruiser. He saw Walker sitting in the cruiser's front seat "kind of slumped over" and was unsure if Walker was alive. "[J]ust a few seconds" after Hales stepped out of his truck to investigate the scene, he observed appellant-dressed in camouflage and holding a rifle-abruptly stand up opposite him on the cruiser's passenger side. Hales fled back to his truck, and just as he made it into the driver's seat, appellant fired multiple rounds at the truck, blowing out its passenger window and the windshield in front of the driver's seat. Hales returned to the interstate as quickly as he could, took the next exit, and called 911 to report the encounter.

         Meanwhile, Virginia State Police Trooper Samuel Moss came upon the scene. He saw the conspicuous collection of appellant's car, Walker's police cruiser partially in the woods, and Hales' delivery truck parked off the interstate. He could hear the gunfire as he pulled his cruiser onto the shoulder. As Moss parked, Hales' box truck began to pull away from the scene. Moss later testified that he "had no clue what was going on" when he arrived because "[t]here was no 911 call or anything like that. It was literally something [he] just came up on." At this point, appellant turned his attention from Hales' truck to Moss and began firing at Moss. Moss exited and took cover at the cruiser's rear, where he exchanged gunfire with appellant.

         As the gunfight raged on, Moss recognized he needed a more powerful weapon than his sidearm in order to hold his position. He crept back to the driver's seat to release the trunk, then returned to his position at the left rear tire from which he was able to retrieve his M4 rifle from the trunk. Moss then fired at appellant, who had taken cover inside the passenger cabin of Walker's cruiser. Appellant responded by diving from the cruiser onto the ground and returning fire from a prone position.[1] Appellant used the surrounding brush as cover as the altercation continued, "hiding behind [the brush], popping out, shooting, going back for cover."

         Eventually, appellant ran toward the front of Walker's car into the woods and ceased firing. Moss could not see where appellant went, but remained in position scanning for him because Moss "didn't want him to come across the wood line and get a better angle on me." Backup officers arrived on the scene shortly thereafter. The gunfight ultimately had lasted "several minutes, " which was far longer than the "five or six seconds" Moss's training taught him to expect. Moss later testified that "the shots just kept coming" and that he wondered "[h]ow much [ammunition] has he got over there?" Appellant fired no fewer than twenty-nine rounds during the exchange.

         Appellant fled into the woods after the gunfight, where he abandoned his rifle and clothing. Immediately opposite the roadside scene, just through a stand of woods, was a small towing business' unfenced rear salvage lot containing several wrecked vehicles. Appellant located a sedan there with missing windows and hid in its rear passenger floorboard area.

         Dinwiddie County Sheriff's Office Investigator Charles Lucy was familiar with the area and heard over the radio that appellant had retreated into the woods, so he responded to the towing business in order to intercept appellant. Lucy located the sedan and approached to "clear" it for his safety.[2] As he did so, he observed appellant lying naked on the rear floorboard. Lucy called for backup and ordered appellant to put his hands up. Appellant yelled "don't kill me, " and responding backup officers arrested him. Lucy later testified that appellant's nudity made it less likely that law enforcement officers would fire on him. Lucy stated that because appellant wore no clothing and had visible hands, he was "able to maintain cover on [appellant] . . . which made [him] relax a bit." Lucy clarified that had appellant been clothed, the situation "would have been very, very high elevated" because he knew he was responding to "an officer-involved shooting."

         Following appellant's arrest, Virginia State Police Trooper Walter Craig transported him to a state police office where officers instructed him to "sit there and be quiet." Without any prompting, appellant volunteered various statements about his actions that day that Craig later recounted at trial:

He stated that he sat in his car for a while, watching traffic go by; and while he was sitting in his car, he was talking to his father, [3] and a police car pulled up beside him on the shoulder, with no lights.
He also stated that he knows procedure, and police are supposed to pull behind you with lights on and call for backup. He stated that he didn't see lights, and he saw the black officer's face and that he looked like a dead man and didn't know it. [Appellant] stated that as he saw the officer's face, he didn't know what happened, and he turned into a demon, and he picked up his rifle and shot him, and the police car kept rolling in the grass. And he got out of his car; and after the car crashed, he kept shooting him.
He stated that he tried to get his gun, but he couldn't get his gun because he knew the type of holster and safety that was used. [Appellant] stated that a truck stopped, and he shot at him too, but he hoped that the truck driver was okay, as the truck left.
[Appellant] stated that a white police [officer] showed up, and he shot at him too. He stated that his father told him to leave, and he ran through the woods and the water. He took off his clothes, and his Browns hat, and dropped them in the woods. He stated that he saw a junk car, and he laid down in it, and he said that a white officer shined a light in his face, and his father told him to put his hands up and tell the truth.

         Grand Jury

         A Dinwiddie County grand jury indicted appellant for the capital murder of Walker, attempted capital murder of Moss, attempted murder of Hales, and three counts of using a firearm in the commission of a felony. Appellant pled not guilty to all charges.

         In a July 14, 2015 motion, appellant sought disclosure of "all grand juror information for the preceding five years" in order to prepare a potential Sixth Amendment fair cross-section challenge to the Dinwiddie County grand jury selection process. Counsel for appellant contended that the previous five years of data were necessary in order to "arrive at statistically-sound calculations." During a hearing on October 7, 2015, the trial court asked the Commonwealth whether it agreed that "the Defense is entitled to the jury list for the term in which this case is scheduled to be tried." The Commonwealth conceded that good cause existed for granting appellant access to the grand jury list for the 2016 term. The trial court then asked the Commonwealth whether its position was that "prior grand jury lists from prior years are not pertinent to this case." The Commonwealth agreed, noting its concerns for citizens' privacy given the voluminous nature of the request. The trial court ultimately ruled in a letter opinion that appellant was entitled only to the "jury list for the 2016 term in which this case is tried."

         Jury Selection

         Appellant also moved to change venue citing the extensive media coverage of Walker's murder and the closeness of the Dinwiddie community. The trial court denied that motion, noting that it was "not prepared to move this case to a different jurisdiction without even attempting to seat a jury."

         Jury selection in fact took six days, during which the trial court questioned six panels of twenty prospective jurors each in order to form a pool of twenty-eight from which twelve jurors and four alternates would be selected. The trial court began by asking each panel preliminary questions and dismissing jurors it found were unqualified based on those questions, then it called in the remaining prospective jurors individually for more detailed questioning by the attorneys. On the first day of jury selection, the trial court asked whether any members of the first panel had "heard anything about this case from any source such as the news media." Reviewing the response, the trial court observed, "[i]t appears as if almost everybody has." Following extensive examination by the attorneys, five jurors were qualified from the first panel and seven were excused for their familiarity with Walker or preconceived opinions of appellant's guilt.[4] Of the second panel, only two of the prospective jurors had not heard about the case from the media or other sources. The trial court qualified six people out of the second panel and excused another six for their familiarity with Walker or belief in appellant's guilt.

         The trial court asked the third panel whether anyone had learned information about the case from sources such as media reports that might affect their impartiality; six prospective jurors responded affirmatively. After individual examination of the panel members, the trial court qualified four members and excused two because of their familiarity with Walker or belief that appellant was guilty. In the fourth panel, several jurors indicated familiarity with the case from media or other sources, and ten had formed a prior opinion of appellant's guilt or innocence. The trial court ultimately qualified six jurors from the fourth panel after detailed individual examination by the attorneys and excused eight for their familiarity with Walker or fixed opinion that appellant was guilty.

         The trial court considered a fifth panel, asking the usual preliminary questions including whether anyone had heard anything about the case from sources like the media. The trial court observed that "frankly, virtually everybody in the group" had heard something about the case. Following individual examination, the trial court qualified five prospective jurors and excused eight based on their familiarity with Walker or opinion that appellant had committed the charged crimes. After the fifth panel, the trial court had qualified twenty-six of the twenty-eight jurors necessary to proceed. It accordingly summoned a sixth panel of twenty jurors, half of whom acknowledged hearing about the case from sources like the media. The trial court qualified the first two prospective jurors individually questioned by the attorneys, completing the pool of twenty-eight members. Both parties made their peremptory strikes on the following day, leaving the final jury of twelve members and four alternates.

         Two members of the final jury, Delores Palmer and Aaron Whitworth, survived motions to strike for cause during the initial selection process. Asked by one of the Commonwealth's attorneys whether she had formed any opinions regarding appellant's guilt, Palmer indicated she believed "he did it" and noted that opinion was based on the media reports about the crime. She immediately thereafter stated that she "still [had] to draw my own answer" and that "my opinion just now wouldn't decide on what I heard. I need to, like I told you before, to hear the rest of the facts of what happened . . . . I could decide from that." During examination by defense counsel, she maintained that she could put her opinions aside. She stated: "We all form-everybody form[s] opinions, but to hear the facts would decide my decision once everything is laid out . . . because that was then; this is now. . . . I can come to a clear conclusion after everything is said and done." Appellant moved to strike Palmer based on her preformed opinion that appellant was guilty. After hearing argument, the trial court ruled that

the standard is whether a person has some fixed opinion that would prevent them from hearing the evidence and deciding the case based on the evidence. And the fairest characterization of her answer as a whole was, "Yes, I had an opinion. I heard something about this in the news, but I would have to listen to the evidence before deciding the case." So your motion will be overruled[.]

         Appellant similarly moved to strike Whitworth, who eventually became the jury foreperson, because of his familiarity with the case from media reports and his prior experiences with mental health issues during a divorce. During the Commonwealth's questioning, Whitworth affirmed that he would be able to decide the case "based solely on the evidence presented in the courtroom." He conceded that he had "followed [the case] pretty heavily when it happened" and that "[i]t would be hard not to form an opinion" about the case based on the media exposure. He stated that "[i]t would be very difficult to-you can't unlearn something, and especially with something that was as shocking as what happened to Trooper Walker. You can't leave that at the door, and that is all I was alluding to." He clarified that he did not "know enough about what happened to be able to base a judgment on that" and indicated that he would not let the media reports about the case affect his judgment. Despite becoming emotional while discussing his prior personal experiences with mental health issues in his family, Whitworth maintained those experiences would not prevent him from fairly considering appellant's case. The trial court ruled:

Well, he was a thoughtful and emotional individual, but, as I said, that is not a disqualification.
I think he indicated that his wife had some mental difficulties in his judgment and that he had some media information, but I think he was sufficiently rehabilitated in that he indicated that he would not let the media coverage affect his judgment. I think he made the statement that the media is entertainment.
I think he also said, after a thoughtful presentation, that he would not let his issues with his wife affect his judgment regarding the mental health evidence in the case, so I think that he was sufficiently rehabilitated, and the motion will be denied[.]

         Appellant renewed his motion to change venue at the conclusion of jury selection, arguing that the difficulty in seating a jury justified the relocation. Appellant emphasized the length of time jury selection took and the pervasive media coverage that the vast majority of the venire had seen. In its ruling from the bench, the trial court first noted the presumption that "the defendant will receive a fair trial in the jurisdiction where the offense occurred and that . . . the defendant bears the burden of overcoming this presumption." The trial court recognized that media publicity and appellant's proposed insanity defense to the capital murder charge were special considerations that necessitated a longer selection process. It noted that the slower selection process "was due to the fact that we were being thorough and careful about a case that involved multiple considerations." After discussing in considerable detail the governing precedent and arguments by counsel, the trial court denied the motion.

         Proceedings at Trial

         At the conclusion of the Commonwealth's case-in-chief, appellant moved to strike the capital murder charge on the grounds that the Commonwealth did not prove appellant's intent to interfere with Walker's official duties. Finding that the Commonwealth's evidence supported an inference of that intent, the trial court denied the motion.

         The defense case-in-chief emphasized appellant's mental condition as it endeavored to establish that appellant was not guilty by reason of insanity. Dr. Evan Nelson, an expert in clinical psychology appointed at the Commonwealth's request, testified for the defense that he had interviewed appellant and considered voluminous other materials in order to reach an opinion regarding appellant's mental state at the time of the offense. After explaining his methodology, Nelson opined that, at the time of the offense, appellant "knew what he was doing, but he lacked the capacity because of his mental illness to appreciate the wrongfulness of his actions." He clarified his opinion as follows:

He knows that this is a gun. He knows that he's shooting a gun. He knows that he has killed a police officer. He repeatedly said that. He knows what his action was, but he has a delusional understanding of the wrongfulness. In this case he believes the wrongfulness is fulfilling some sort of mission from God that's been preordained. . . . Mental illness doesn't simply start up in the moments just before the offense. All this is a process. People decline into it. . . . [C]oming into the moment of this offense, he already had such a strong belief in these religious delusions that he was willing to act on them. . . . And so when he tells us a delusional idea of why he shot the officer, it makes it more credible to believe, because he has a history of doing that.

         Nelson reiterated that appellant "did understand the criminal nature of his acts in the sense that- knowing the nature, character, and consequences of them, yes, " but emphasized that "he thinks that the nature of his actions [is] not wrongful in any sort of measurable way that ...


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