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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner
Argued at Salem, Virginia
Record No. 2761-00-3
MERRY CHRISTINE PEASE
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION* BY JUDGE JAMES W. BENTON, JR.
APRIL 2, 2002
FROM THE CIRCUIT COURT OF WISE COUNTY
J. Robert Stump, Judge
Robert M. Galumbeck (Gerald L. Gray; Dudley, Galumbeck, Necessary and Dennis, on brief), for appellant.
(Randolph A. Beales, Attorney General; John H. McLees, Jr., Senior Assistant Attorney General, on brief), for appellee.
A jury convicted Merry Christine Pease of second degree murder of her husband, Dennis Pease, and using a firearm in the commission of that murder. On appeal, Pease contends the trial judge erred by failing to dismiss the indictment on double jeopardy grounds, refusing to disqualify the substitute prosecutor, and denying her motion to set aside the verdict based on insufficiency of the evidence. We hold the evidence was insufficient to prove the offenses, and we reverse the convictions.
A jury first convicted Pease in August of 1994 for the murder of her husband and the use of a firearm in the commission of murder. A panel of this Court reversed those convictions because the Commonwealth’s Attorney, Timothy McAfee, improperly influenced the grand jury when he “informed them that he thought [a witness for Pease] would not be truthful . . . [and] actually examined [the same] witness for the grand jury.” Pease v. Commonwealth, 24 Va. App. 397, 400, 482 S.E.2d 851, 852 (1997). We held that this behavior violated Code ??19.2-201 and “that . . . McAfee substantially influenced the grand jury in reaching an indictment to the prejudice of [Pease].” Id. at 400, 482 S.E.2d at 852.
On remand, the trial judge appointed two attorneys as substitutes for the Commonwealth’s Attorney. See Code ??19.2-155. A grand jury re-indicted Pease on the same charges. Later, the substitute prosecutors filed a motion to nolle prosequi the indictments. They asserted that
exculpatory evidence which ha[d] recently come into the hands of the [substitute] prosecutors . . . , namely a Report of the Medical Examiner which rules the death of Dennis Pease as suicide[,] . . . was not in the files received by [the substitute] prosecutors when they chose to refile the charges . . . [and] was . . . [not] admitted into evidence in the previous trial.
The trial judge granted the motion.
Several months later, upon the motion of the newly elected Commonwealth’s Attorney, the trial judge appointed McAfee, the former Commonwealth’s Attorney, to serve as substitute prosecutor pursuant to Code ??19.2-155. A grand jury again issued an indictment against Pease for the murder of her husband and the use of a firearm in the murder. In response, Pease filed motions to quash the indictment, alleging double jeopardy, conflict of interest by McAfee, and other grounds. The trial judge denied the motions.
At trial, the evidence proved that on the morning of November 18, 1993, a friend of Pease’s husband approached him at work because he thought Pease’s husband was angry with him. He testified that Pease’s husband was acting differently than normal and “just wasn’t his self.” When he spoke to Pease’s husband, Pease’s husband said he thought Pease was having an extra-marital affair. Pease’s husband also said “something was going to happen real soon.” The co-worker told Pease’s husband that when he thought his own wife was having an affair, he had removed the ignition coil from her car so that she could not leave home. Pease’s husband left work at the end of his shift at 8:00 a.m.
Later that afternoon, Pease loudly knocked at the door of a neighbor, who was a police officer, and said, “I have been shot. Help me.” The neighbor called the emergency number and then attended to a wound near Pease’s abdomen, where a “bullet had penetrated all the way through her.” He saw a powder burn on her clothing and on her hand. In response to the neighbor’s questions, Pease said her husband shot her and she had not touched the gun. Although he later wrote that Pease was shot “point blank,” the neighbor testified that this was only his interpretation of what she said. He testified that Pease told him the following events occurred:
She said that they had been arguing and having some problems. That she had went to the back door, or the back bedroom to the door and was knocking on the door trying to get Dennis to come out. And she said that he jerked the door open and pointed the gun at her and shot her. And she turned around and ran out of the residence.
The neighbor testified that Pease said “as [she] went out of the house, [she] may have heard another shot.” Pease also told him that her husband had disabled her car and that she first went to the road to get help but no one stopped.
Pease was transported to a hospital where she received medical treatment for a life-threatening wound to her abdomen. Several investigators questioned Pease after she arrived at the hospital. Investigator Darnell testified Pease said that she and her husband had argued for “a couple of weeks,” that her husband had taken her checkbook, and that, on this day, she had been unable to start her car. Pease also said she was five to eight feet from her husband, near a kitchen chair, when he shot her.
Investigator Robinson testified that they did not record their interview with Pease. He recalled she said the following in the interview:
[S]he had gone to the bedroom door of the master bedroom and asked . . . what he had done to her car.
She turned and walked away from the bedroom into the kitchen or the bedroom door into the kitchen. The bedroom door opened and she turned and [he] fired a pistol striking her in the abdomen.
He came towards her. He brandished the pistol. She said she struck the pistol with her right hand and asked him, said please don’t kill me, she jerked away from him and ran out the mobile home and ran seeking assistance at the next door neighbors’.
The police discovered Pease’s husband dead in the living room of the home with two gunshot wounds, one to his right lung and a second wound to his heart. He was not wearing shoes or a shirt. A woman’s underpants, drenched in his blood, was near his left hand. Feathers were on and near his body. In his pocket, the police found a wire from a car’s distributor cap and a wire that had been removed from the home’s telephone. A Ruger .357 revolver, which was the weapon that fired the bullets, was on the floor near his body; it had three empty chambers. The Commonwealth offered as evidence the autopsy report, which described the two gunshot wounds. The report also contains the notation: “If [the] wound [to the lung] was the first shot,[Pease’s husband] would have been capable of inflicting both wounds.”
The record contains extensive testimony concerning the condition and configuration of the mobile home residence. When the police entered the home, the primary bedroom was in disarray. The blinds from the bedroom window were on the floor and demolished. Feathers from a burst pillow were strewn about. The bedroom door, which could be locked from inside, was only six feet from the kitchen table. A kitchen chair was overturned in the hallway between the two rooms. Pease’s husband’s shoes were in one of the children’s bedrooms, along with his cigarettes and an alcoholic drink. A desk had been overturned in that room.
The investigators found a bullet lodged in an ironing board near the kitchen. Another bullet, which caused the wound to Pease’s husband’s heart, was found lodged in his back. The investigators searched that night for the third bullet but were unable to locate it. They also found no hole that the third bullet may have caused in the structure or its furnishings.
The next morning, the investigators again visited Pease in the hospital. One investigator said when they questioned Pease, she said she was in a lot of pain but wanted to talk. During this interview, Pease recounted the following:
[T]hey had been arguing for about two weeks about money and the kids, that that day they were arguing about money and she made a comment that he wouldn’t give her enough money to run the household, that they had been arguing that morning about money.
* * * * * * *
She indicated she had went to the bedroom door to begin with because her husband, Dennis, had went to her car and done something to her car and came back into the trailer into the master bedroom, locked the door.
She went to the door and asked him what have you done to my damn car and he opened the door and shot her.
* * * * * * *
She gave Investigator Mullins an explanation that [her husband] had caught up with her, she was headed toward the living room but he had caught her in the kitchen and she had hit his hand that had the gun in it but that she never touched the gun.
* * * * * * *
When she pushed his hand that had the gun in it away in the kitchen, she ran out the front entrance of the trailer and she thought she heard another shot as she was running off the porch, the front porch of the trailer.
About two weeks later, Investigator Mullins visited Pease at her home. He testified that he told her the police could not rule this case a suicide because they “have got a missing bullet, the one you was shot with and, you know, we can’t find it.” When he asked if her husband abused her in the past, Pease said that she and her husband had argued about her spending more time with him, that she had told her husband she had to spend several days each week with her father, and that they had discussed getting a divorce. She said her husband had never accused her of being unfaithful, but he was extremely obsessive and possessive. Pease also told the investigators that her husband was strict with her children, that he was verbally abusive toward her, but that she had never obtained warrants against her husband for abuse. When asked if she had heard any shots after she left the house, she said she had not.
Investigator Mullins testified that Pease called a few days later to inform him she had located the bullet. When he returned to Pease’s home, Pease moved the curtain on the kitchen window and exposed a .38 caliber bullet. Investigator Mullins testified that the bullet was “lying . . . in the [window]sill like it had never been moved.” He also testified that the bullets were “wad cutters” that had previously been reloaded. He explained that the charges in the bullets were not as powerful as commercially purchased bullets and that, when shot from the gun, the bullet would not travel as fast as a regular, manufactured bullet.
The Commonwealth produced extensive evidence from police investigators and forensic experts. The investigators found no blood and no discernible fingerprints on the gun. They also found no indication that the gun had been wiped clean. An expert in gunshot residue testified that his analysis did not allow him to conclude whether Pease or her husband fired the weapon. He testified that Pease’s husband had primer residue on both hands and that Pease had primer residue on her face and right hand and “particles that were indicative of primer residue on her left hand.” The gunshot residue on hands could indicate the person fired a weapon or was in close proximity to the discharge of a weapon or handled a dirty weapon. He also testified “it would not be unusual at all for . . . primer residue to be found on [an] individual at a [distance] of six feet” and he would expect to find primer residue if an individual had a hand around the barrel of a revolver or around the cylinder.
An expert in the field of firearms and toolmarks testified that, based on his examination of Pease’s sweatshirt, the muzzle of the revolver was “at or near contact” with Pease when it was discharged at her. He testified that a hand could have a gunpowder burn even without coming in contact with the gun “[i]f the heel portion of the hand was directly above the muzzle, then it would pick up the residue as opposed to the extending fingers or down the elbow.” The firearm expert testified that in order for gunpowder to deposit on a person’s hand the person’s hand would have to be less than one inch away from the gun and that he would not anticipate a burn on the heel of a person’s hands would be caused by simply touching the gun when it was not firing.
A blood stain and spatter expert testified that the shots to Pease’s husband would not necessarily cause blood to spray from the wound. She also testified that there was “one blood trail with connecting blood drops that connect from the bedroom area through that hall, through the kitchen and into the living room.” There was no indication that there had been multiple paths. The expert testified further that the blood on the floor between the kitchen and the living room had been disturbed “which indicates that . . . something had come into contact with that to move or to alter the blood that was in that pre-existing stain pattern.” She testified that if someone’s heel had disturbed the blood drop, that the foot would create a “diminishing repetitive transfer . . . every time it stepped.” She also testified that there was evidence of such transfers on the floor and that a stain on the heel of Pease’s husband’s foot indicated he was responsible for the transfer.
Testifying as Pease’s witness, the assistant chief medical examiner gave the only testimony about the autopsy report. He testified that if he had to choose, it is more likely that the shot to the heart was immediately incapacitating as opposed to the shot to the lung. He opined that a person with a bullet wound to the lung, such as found in Pease’s husband, could live “at least a few minutes, probably several minutes . . . [a]nd in some cases, perhaps, . . . several hours.” He testified that such a person “would have had enough strength and presence of mind to do a great many things including” walking twelve to fifteen feet and pulling blinds and curtains off the wall. He also testified that such a person could walk twelve to fifteen feet after being shot without dropping any blood on the floor and that it was not possible to conclude when the blood started to flow because that would depend on a number of factors including the position of that person’s body. He further testified that it was possible that a person with this type of wound to a lung could have walked another twenty feet, the distance from the bedroom to the living room, and inflicted the second wound. He testified that “in the absence of any extraneous information, you could say this could be self inflicted or inflicted by someone else.” He also testified that Pease’s husband had a .10 percent blood alcohol content which would have affected his judgment.
At the conclusion of the evidence, the jury convicted Pease of second degree murder and use of a firearm in the commission of murder.
Pease contends the evidence proved that the prosecutor’s misconduct, which influenced the grand jury to return the initial indictment and which gave rise to the reversal of her conviction, bars her retrial under the Double Jeopardy Clause of the Fifth Amendment. We disagree.
The following principles are now well recognized:
The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense. As a part of this protection against multiple prosecutions, the Double Jeopardy Clause affords a criminal defendant a “valued right to have his trial completed by a particular tribunal.” The Double Jeopardy Clause, however, does not offer a guarantee to the defendant that the State will vindicate its societal interest in the enforcement of the criminal laws in one proceeding.
Oregon v. Kennedy, 456 U.S. 667, 671-72 (1982) (footnote and citations omitted).
Underlying this constitutional safeguard is the belief that “the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”
United States v. Dinitz, 424 U.S. 600, 606 (1976) (citation omitted). The Supreme Court has noted, however, that “[p]rosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion . . . does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Kennedy, 456 U.S. at 675-76. Consequently, the Court specifically “h[e]ld that circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” Id. at 679.
Noting that the prosecutor violated the statute when he obtained the first indictment against Pease, the trial judge found that this was not an instance in which the “prosecutor was trying this case and got to a certain point and thought he was going to lose it.” The record supports the trial judge’s finding that the prosecutor’s misconduct, which we addressed on the first appeal of this case, was not done in an attempt to goad Pease into seeking a new trial. The misconduct occurred at the initial grand jury stage of the proceeding before an indictment was issued.
In Kennedy, the Supreme Court rejected an attempt “to broaden the test from one of intent to provoke a motion for a mistrial to a more generalized standard of ‘bad faith conduct’ or ‘harassment’ on the part of the . . . prosecutor.” 456 U.S. at 674. The Supreme Court could not have been clearer when it ruled that “[o]nly where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Id. at 676. Pease points to no evidence that the prosecutor intended, at the time he sought the indictment, to delay the trial or to goad Pease into asking for a mistrial of the trial, which then had not been scheduled. Accordingly, we hold that the record supports the trial judge’s denial of Pease’s motion to bar retrial.
Relying on Adkins v. Commonwealth, 26 Va. App. 14, 492 S.E.2d 833 (1997), Pease argues that McAfee, who obtained the first invalid indictment and who tried the case on remand as a substitute prosecutor, had a personal interest in the outcome of the proceeding. Pease asserts that McAfee was not impartial and had two ethical complaints pending against him when the judge appointed him as substitute prosecutor. She contends the trial judge erred in not removing him from the case and quashing the second indictment he obtained from the grand jury.
“A special prosecutor appointed by the trial judge steps into the role of public prosecutor and necessarily accepts that duty of impartiality.” Id. at 19, 492 S.E.2d at 835.
It is true that prosecutors may on occasion be overzealous and become overly committed to obtaining a conviction. That problem, however, is personal, not structural . . . [and] such overzealousness “does not have its roots in a conflict of interest.”
Young v. U.S. Ex Rel. Vuitton Et Fils S.A., 481 U.S. 787, 807 n.18 (1987) (citation omitted).
Testimony at the evidentiary hearing established that the complaints against McAfee concerned his conduct of the trial that led to Pease’s first conviction, which we later reversed. The Virginia State Bar was investigating complaints concerning an allegation of improper communication with the first grand jury and an allegation that McAfee had withheld from Pease’s defense attorney a report by Dr. David W. Oxley, the deputy chief medical examiner, which indicated Pease’s husband’s death “was probably a suicide.”
Concerning whether McAfee provided the defense with Dr. Oxley’s report, the judge found that “[i]t’s just as probable that [the cover sheet] was not . . . attached as it was attached” to the documents delivered to Pease’s attorney. As to the other complaint, the judge noted that McAfee had been a prosecutor in the federal system, where prosecutors routinely enter the grand jury room, and he declined to find that McAfee’s communication to the grand jury was intentional. He found that McAfee “mixed the federal with the state grand jury situations.” He further found as follows:
It is my opinion that Mr. McAfee will not be retaliating against Ms. Pease. She is not going to testify against him in any Bar complaint. [There is no] reason for Mr. McAfee to be vindictive against her. . . . I find [there] is certainly evidence of his ability to be impartial and fair and objective.
In summary, based on the evidence presented at the hearing, the trial judge determined that McAfee had no “personal interest in the outcome of [the] case” and that McAfee “had no reason to vindicate himself.” Further, the trial judge found that McAfee had no actual bias that barred his participation as the prosecutor. In view of the evidence and the trial judge’s findings, we cannot say the trial judge erred in ruling that the evidence was insufficient to support Pease’s assertion of impropriety by McAfee.
“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). No one saw Pease shoot her husband; thus, the Commonwealth relied upon circumstantial evidence to support the conviction. 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.
Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 822 (1977) (citations omitted). Pease argues that her husband did not die through the criminal agency of another; she contends the evidence failed to exclude the reasonable conclusion that he committed suicide.
Several investigators and Pease’s neighbor testified about statements Pease made to them at various times. In each instance, they testified from notes they made. None of Pease’s statements were recorded, and Pease gave no written account of the events. In each rendition of Pease’s statements, Pease denied shooting her husband and said her husband shot her. Noting that Pease made several statements concerning the events and her conduct that ensued, the Commonwealth argues, however, that the jury could reasonably find that Pease contradicted herself on various things including (i) whether a struggle occurred in the kitchen, (ii) her distance from her husband when he shot her, (iii) whether she heard a shot as she ran from the home, (iv) whether she found the bullet on the windowsill, and (v) how she received the burn on her hand.
Although the jury is entitled to believe that Pease made contradictory statements, Pease’s statements concerning what transpired must be viewed in the context in which they were made. The Supreme Court has held that “[t]he probative value of [a defendant’s] inconsistent statements must be determined in light of the situation in which they were made.” Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 78, 78 (1977). Pease’s conflicting statements unquestionably were made at a time when Pease was in severe pain from the gunshot wound. Furthermore, most of the conflicts in the statements concerned matters that are not material concerning the identity of the shooter.
The evidence proved the events occurred inside a mobile home, where the distances are not great. Although the evidence proved the bedroom was in disarray, no evidence established that Pease caused it or was in the bedroom when it occurred. Moreover, the evidence proved that the distance from the door of the bedroom to the kitchen table was only six feet. Each of Pease’s statements places her between the bedroom door and the kitchen when she was shot. The Commonwealth’s firearms expert testified that the muzzle of the firearm was “at or near contact” with her when it was fired. The expert’s testimony is not inconsistent with Pease’s statements that she did not fire the gun. This evidence is also consistent with Pease’s defense that her husband shot her in this area at close range.
The Commonwealth makes much of the fact that Pease found the third bullet and suggests that the jury could find that she placed it there. The evidence is undisputed, however, that three bullets were discharged from the gun. Although the investigators searched the residence, they did not find it. Tellingly, one investigator testified, when asked whether he was looking for the bullet or the bullet hole, “[w]ell of course, we were looking for the bullet hole. You have got to find the hole before you can find the bullet.”
The forensic evidence also does not negate the conclusion that the bullet landed in the windowsill. Indeed the forensic expert testified that if the gun was shot from the bedroom area door at someone in the hallway, the bullet could possibly go to the kitchen window area. Depending on trajectory, velocity, and the angle of the bullet, the bullet could have landed on the windowsill. The evidence also proved that the bullets had been reloaded and did not have the usual charge. Thus, a forensic expert testified that a bullet with an altered, reduced charge which passed through a body could have struck the structure without penetrating it and fallen to the windowsill.
Moreover, the evidence does not conclusively establish that the bullet found lodged in the ironing board was the bullet that penetrated Pease. The firearm expert testified that the bullet that went into the ironing board was on a downward trajectory. The evidence established that in order for this to be the bullet that went through Pease’s abdomen Pease would have had to be against the wall when the shot was fired. Given the downward trajectory of the bullet, it could also have been the bullet that entered Pease’s husband’s lung. Therefore, it is consistent with the forensic evidence that the bullet retrieved from the windowsill was the bullet that wounded Pease. In view of the forensic evidence, the investigators’ testimony that they thoroughly searched the house could reasonably establish that they obviously overlooked the bullet in the windowsill.
The Commonwealth also argues that the evidence is inconsistent with Pease’s assertion that she was not present when her husband was wounded. The Commonwealth points to a strand of Pease’s hair found in the puddle of blood from her husband’s mouth and to a foreign DNA substance found on Pease’s shoe as evidence that Pease was present when her husband was shot. Although the evidence established that one blond hair that had been forcibly removed from Pease’s head was in a puddle of blood near her husband’s mouth, an expert in hair and natural fiber examination testified that it was possible the hair could have been removed in combing. Only one strand of hair was found. The expert testified it was unlikely that only one strand of hair could have been forceably pulled from a person’s head by another person. The expert also testified that this hair could have been transported from the husband’s clothes.
A forensic expert in DNA testing testified that DNA material, consisting of blood and some other material, was found on Pease’s left shoe. He explained that “the major profile [of the DNA found in the blood] was consistent with . . . Pease.” There were also regions of DNA with genetic material inconsistent with Pease’s DNA. The DNA material in these regions could have been indicative of a small amount of blood or saliva, sweat, or some other bodily fluid. Although the expert could not rule out Pease’s husband as a possible contributor, the DNA was also found in one out of seven people of the Caucasian population in that region. More importantly, the expert could not identify when the DNA material was deposited. Therefore, neither piece of evidence establishes that Pease was present when her husband was wounded.
The Commonwealth argues that the jury could reject Pease’s hypothesis that her husband shot her and then shot himself. It argues that her husband had told his co-worker that he believed Pease was having an extra-marital affair, that Pease was unsympathetic after her husband’s death, and that Pease had a financial motive to kill her husband.
Although the record contains extensive testimony about forensics, the evidence fails to disprove the hypothesis that Pease’s husband was the shooter. A large amount of testimony centered on where the shots were fired and whether the location of the bullets matched Pease’s account of what had transpired. The assistant chief medical examiner testified that it was certainly possible for Pease’s husband to inflict both wounds to himself. He testified that after the first lung shot, a person could live “at least a few minutes, probably several minutes ?? . . . [a]nd in some cases, perhaps, . . . several hours.” He testified that Pease’s husband “would have had enough strength and presence of mind to do a great many things including” walking into the bedroom and pulling blinds and curtains off the wall. He also testified that Pease’s husband had a .10 percent blood alcohol content which would have affected his judgment.
He further opined that it was also possible that Pease’s husband could have walked from the bedroom to the living room, which is immediately adjacent to the kitchen area, and inflicted the second wound. Although he did not know whether it happened, he testified that it was possible for a person to walk twelve to fifteen feet after being shot without dropping any blood on the floor. According to the assist
ant chief medical examiner, it was just as reasonable as not to believe that Pease’s husband walked down the hallway without depositing blood, pulled the blinds from the window, and shot himself in the heart.
The Commonwealth argues that because there was blood on Pease’s husband’s hands, he could not have handled the gun to fire the second shot to his heart which an expert explained would have been immediately incapacitating. A blood stain and spatter expert explained, however, that the shots to Pease’s husband would not necessarily cause blood to spray from the wound. The experts also testified that the blood on Pease’s husband’s hands could have come from coughing blood from his nose and mouth. Although there was evidence that Pease’s husband could have been carrying, in one hand against his wound, the woman’s underpants that was found by his body, no evidence ruled out the reasonable possibility that Pease’s husband had blood on the hand carrying the woman’s underpants and no blood on the other hand carrying the gun.
The evidence revealed that no blood from the heart shot had flowed down toward Pease’s husband’s jeans but a small amount of the blood had flowed across his back as he lay on the floor. Contrary to the blood spatter expert’s opinion that there was no indication Pease’s husband had been upright when the shot to his heart was fired, the assistant chief medical examiner testified that Pease’s husband could have been standing but the blood began flowing after he was on his side. He also opined that Pease’s husband could have been standing when the shot to his lungs was fired and that it was not necessary for him to have been against any surface for the bullet to have remained lodged in his back. In short, the evidence did not negate the hypothesis that Pease’s husband fired the second shot.
Although the Commonwealth argues that the jury could infer that Pease had a motive to kill from the husband’s belief that Pease was having an affair, no evidence in this record establishes the truth of the husband’s supposition. The testimony by the co-worker of Pease’s husband gives an indication, however, of the husband’s beliefs and his state of mind. Indeed, the testimony reveals that the husband was “not himself,” appeared to the co-worker to be angry, and expressed the view that “something was going to happen real soon.” The evidence further proved the husband drank enough alcohol to affect his judgment after he left work that morning. He also disabled Pease’s car, as his friend suggested, and disabled the telephone in the home. This evidence tends to prove that Pease’s husband had a motive to initiate what transpired in the Pease home on November 18, 1993.
Investigator Parker testified that Pease was present when investigators interviewed the deputy chief medical examiner regarding the incident. When the investigators asked the medical examiner whether Pease’s husband had been in pain after the first shot, Pease said “a lot.” Another investigator testified that he was present when Pease viewed the pictures of her house and her deceased husband. He said Pease laughed when she saw the pictures and another witness stated that Pease “was giggling and laughing and pointing at them and making notes on a paper.” Although these were matters the jury could consider, they indicated only inappropriate reactions after the fact and are not inconsistent with the conclusion that her husband shot her.
The Commonwealth also notes that Pease’s neighbor testified that while Pease was in his home waiting for the emergency response team, he overheard part of the conversation she was having with his wife. He testified that Pease was telling his wife about “some problems she had been having.” After discussing the need to have someone get her children, Pease then “leaned back in the chair” and said “I either done or did it all for [my children].” Although the Commonwealth argues that the jury could have concluded that Pease’s statement was incriminating, Pease’s neighbor’s testimony clearly indicates that he heard only part of the conversation. The evidence fails to reveal the entire context in which Pease’s statement was made. Pease’s comment could reasonably relate to the discussion she was having with her neighbor’s wife about her marital problems. Indeed, Pease later told the investigators she and her husband had argued for weeks about their children and her husband’s failure to provide “enough money to run the household.” Thus, this evidence is also not inconsistent with the hypothesis that her husband shot her. 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. Commonwealth, 140 Va. 557, 564, 125 S.E. 146, 148 (1924).
A witness from the Social Security Administration testified that as a result of Pease’s husband’s death Pease would receive $718 a month until her youngest daughter was age 16 and her two children would received $718 a month until they were age 18. No evidence proved, however, that Pease knew that she would receive this amount of social security benefits as a result of her husband’s death. Without additional speculation, this evidence does not aid the Commonwealth’s theory that Pease wanted to kill her husband to advance her personal financial gain.
Viewed in the light most favorable to the Commonwealth, the evidence does not exclude the reasonable hypothesis that Pease’s husband shot her and himself. The forensic evidence does not exclude that reasonable hypothesis. The close contact nature of the shots is consistent with that hypothesis.
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.
Accordingly, we reverse the convictions and dismiss the indictment.
Reversed and dismissed.
Bumgardner, J., dissenting.
I dissent from the decision that the evidence is insufficient to permit the verdict returned.
The victim was killed by two gunshots fired within an inch of his chest. The Commonwealth maintains his death was murder; the defendant asserts it was suicide. It was one or the other. The two opposite theories derive from the evidence at the scene and the statements of the defendant during the investigation. Twice a jury has accepted the interpretation of evidence argued by the Commonwealth. I conclude that the jurors properly discharged their responsibility to assess credibility and that, after their determination of witness credibility, they drew reasonable inferences from the facts they found proved. Those proven facts, and the reasonable and justified inferences drawn from them, permit a verdict of guilt beyond a reasonable doubt to the exclusion of any theory of innocence. I would affirm the convictions.
Much of the evidence is undisputed though it developed during an extended trial and required much demonstration and amplification by photographs to delineate it. The victim was shot twice from a maximum distance of one inch; the defendant was shot once from the same distance. Investigators recovered a .357 caliber revolver from the living room that had fired the three shots. Two bullets were located during the initial investigation the night of the shooting. One remained in the victim’s back barely penetrating the skin. It passed through the victim’s heart and caused almost immediate death. A second bullet lodged in an ironing board in the laundry room behind the kitchen. It penetrated the kitchen wall on a slightly downward trajectory forty-five inches above the floor and passed through a box of detergent before coming to rest.
The investigators could not find the third bullet though they searched the trailer for two days. The defendant produced it a few days after the chief investigator informed her that he would not rule the death a suicide because he could not find the bullet. The defendant called the investigator to her trailer and showed him a bullet lying in a kitchen window. She said she had not disturbed the bullet once she discovered it. Nothing damaged or marked the window glass, sill, or curtains in any manner.
Three shots were fired. Whoever fired the shot through the victim’s lung fired the shot through his heart. A different bullet made each of the three wounds: two to the victim, one to the defendant. Accordingly, the possible explanations were mutually exclusive. If the bullet in the ironing board passed through the victim’s lung, then the bullet in the windowsill hit the defendant. If the ironing-board-bullet passed through the defendant, then the windowsill-bullet penetrated the victim’s lung. The path of the bullet into the ironing board was exactly opposite to the path of a bullet landing in the windowsill: the former going from right to left when facing the trailer and the latter going from left to right. The location of the bullet in the windowsill was approximately in the same plane formed by the wall between the kitchen and the laundry room. If the ironing-board-bullet struck the defendant, the victim did not fire a shot from the bedroom door, down the hall, and into the defendant as she claimed.
The ironing-board-bullet or the windowsill-bullet could have hit the victim or the defendant. Once either bullet was linked to one of the two persons shot, the remaining bullet was linked to the other person shot. Whomever the ironing-board-bullet struck defines whom the windowsill-bullet struck. The victim committed suicide if the ironing-board-bullet hit him or if the windowsill-bullet hit the defendant. Conversely, the defendant committed murder if the ironing-board-bullet hit her or if the windowsill-bullet hit the victim. If evidence establishes the truth or falsity of any one of the four combinations, the other three possibilities are resolved.
The jury verdict resolved the issue of whether a bullet passed from the bedroom door, through the defendant, and landed in the windowsill. The decision to disbelieve the defendant’s story was not arbitrary or capricious. Four witnesses stated unequivocally that the sill contained no bullet the night of the shootings. The bullet suspiciously appeared after the investigator told the defendant he would not rule the death a suicide without it. Other evidence also made the defendant’s story unlikely. The bullet traveled a maximum distance of six to eight feet and landed at nearly right angles to the general axis of flight. It landed in the corner of the windowsill closest to the point of discharge, but it was so spent it dropped onto the sill without breaking the window, marking the sill, or tearing the curtains that covered the window.
In deciding to disbelieve the defendant’s claim to have found the bullet, the jury was entitled to evaluate her other statements and conduct. From her first statement to her neighbor, she gave stories incompatible with undisputed physical facts. For example, she claimed she had never touched the gun, but she had a large gunshot burn on the side of her hand, and she tried to wash it off. She maintained she was six to eight feet from the gun when shot, but the residue on her sweatshirt showed the gun was within one inch of her. She claimed she left the trailer before the victim was shot, but she made remarks that indicated otherwise. The jurors heard that evidence and much more which taken together entitled them to disbelieve the defendant. The jury was entitled to evaluate the reasonableness of the defendant’s story and find that she planted the bullet in the windowsill.
The validity of the guilty verdict does not just rest on the jurors’ determination that the defendant lied and fabricated evidence. The physical evidence leads to that conclusion. The ironing-board-bullet struck the wall forty-five inches from the floor, the exact height of the entrance wound on the defendant. The victim dripped blood from the bedroom, to the kitchen, to the living room. The trail inexorably records his path into the living room where the fatal shot penetrated his heart.
The jurors could assess the physical facts and decide whether it was reasonable to infer that the victim first shot himself in the lung, walked to the bedroom without bleeding, walked back to the living room as he dripped blood, and shot himself again. The jury saw the demonstration of the way the victim had to hold the gun to inflict the first wound. The victim was right-handed. The shot entered near the nipple passing from right of center up and outward.
The jury could also assess whether it was reasonable to believe the victim could walk dripping the trail of blood shown in the exhibits while never getting blood on his right hand. The gun had no blood or fingerprints on it, and the victim’s right palm had no imprint from the pistol grip. An investigator testified he expected to find blood on the victim’s hand because of the way he had dripped blood. The jury could assess whether that was reasonable in light of specific testimony the victim’s palm contained blood distinctive from the type coughed out his mouth and nose as he lay dying.
The jurors also could assess whether it was reasonable to infer that the defendant was present when the victim was shot. The defendant was able to get away from the trailer and was not afraid the victim pursued her. The defendant made statements that indicated she knew he was dead. She knew the victim was in pain from the lung shot. She had hidden the murder weapon in the bedroom so the victim could not find it. The victim had another loaded pistol in his truck. A blood-splatter expert found no indication that a smear of blood on the victim’s back could have been made by him. One strand of the defendant’s hair was trapped in the blood coughed up by the victim as he lay on the floor dying. She was able
to find the third bullet.
The majority opinion accepts a review standard that the defendant urged in her brief: if an item of evidence is susceptible of two interpretations, the jury cannot rely on it to convict unless the Commonwealth shows the defendant’s interpretation is impossible. The majority views each item of evidence in isolation, accepts the defendant’s interpretation, and eliminates that item as evidence of guilt. It concludes with the maxim that the circumstantial evidence does not exclude every hypothesis of innocence.
For example, the majority dismisses the inference that the way in which the defendant held the gun caused the powder burn on her hand. The defendant argued shooting herself could not have made the particular shape of her burn. Both sides punctuated their testimony with demonstrations in support of their interpretations of this item of evidence. The record on appeal cannot provide such integral definition to the spoken word. The jury had those demonstrations in mind when assessing whether the defendant’s interpretation was reasonable under all the related facts and circumstances.
I believe the majority’s review of the facts is that rejected in Cantrell v. Commonwealth, 7 Va. App. 269, 373 S.E.2d 328 (1988). From the evidence presented, the jury must determine credibility and the weight of that which it finds as true. “‘The weight which should be given to evidence and whether the testimony of a witness is credible are questions which the fact finder must decide.'” Id. at 289, 373 S.E.2d at 339 (quoting Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986)). Then the jury must decide which inferences to draw from the proven facts. “‘[W]hat inferences are to be drawn from proved facts is within the province of the jury and not the court so long as the inferences are reasonable and justified.'” Id. (quoting Higginbotham v. Commonwealth, 216 Va. 349, 353, 218 S.E.2d 534, 537 (1975)). The jury is not required to accept the defendant’s version of how a killing occurred. Whether the defendant’s explanation is a “‘reasonable hypothesis of innocence’ is a question of fact.” Id.
Much of the evidence in this case was undisputed. The two sides offered opposing interpretations. A jury resolves such conflict. “When, as here, conflicting inferences flow from the undisputed evidence, principles of appellate procedure require us to adopt those conclusions most favorable to the Commonwealth if fairly deducible from the proven facts.” Pugh v. Commonwealth, 223 Va. 663, 667, 292 S.E.2d 339, 341 (1982). Viewing the facts in the light most favorable to the Commonwealth, granting all reasonable inferences consistent with guilt, no reasonable theories of innocence remain. Accordingly, I would affirm.
* Pursuant to Code ??17.1-413, this opinion is not designated for publication.
 This Court did not grant an appeal on the issue of the sufficiency of the evidence on the first appeal.