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ATKINS v. COMMONWEALTH OF VIRGINIA


ATKINS v. COMMONWEALTH
OF VIRGINIA

(unpublished)


FEBRUARY 24, 1998
Record No. 2740-96-2

TROY LEE ATKINS, JR.

v.

COMMONWEALTH OF VIRGINIA

MEMORANDUM OPINION[1]
BY JUDGE JAMES W. BENTON, JR.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Robert W. Duling, Judge
Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia

Carl C. Muzi for appellant.

Leah A. Darron, Assistant Attorney General (Richard Cullen,
Attorney General, on brief), for appellee.


Troy Lee Atkins, Jr., was convicted of second degree murder.
On appeal, he argues that the trial judge abused his discretion
by allowing a witness to be recalled to testify at trial after
the witness violated the trial judge’s order not to discuss the
case with other witnesses. He also argues that the evidence was
insufficient to support his conviction. We affirm the conviction.

I.

On appeal, we view the evidence in the light most favorable to
the Commonwealth, granting it all reasonable inferences fairly
deducible therefrom. See Higginbotham v. Commonwealth,
216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). So viewed, the
evidence proved that in the early morning hours of December 27,
1995, Atkins drove from Emporia to Richmond with Sara Lee Odom,
two of their children, and another couple. Atkins and Odom
registered at a motel and put the children to bed.

A registered nurse testified that Atkins arrived at the
hospital emergency room on the afternoon of December 27. When the
nurse went outside to see Odom in Atkins’ truck, Odom did not
have a pulse. Atkins told the nurse that several girls attacked
Odom after Odom went to a store. He said when Odom returned home,
Odom told Atkins what happened and complained of a headache.
Atkins said when he asked Odom if she wanted to go to the
hospital, Odom refused and said she would be fine after taking a
shower.

Atkins also spoke with a clinical social worker in the
emergency room and repeated the same events. The social worker
noted that Atkins was upset. Atkins said that he brought Odom to
the hospital after she passed out. The social worker informed
Atkins that Odom’s situation was life threatening. She also told
him that if Odom was attacked, criminal assault charges would be
filed against the assailants. Atkins walked through the emergency
room entrance to smoke a cigarette and never returned.

Detective Leonard testified that when he went to the hospital
on December 27, Odom’s body had been removed by the medical
examiner. Detective Leonard visited Emporia several times looking
for Atkins and left his business cards with Atkins’ friends and
family. Atkins was apprehended in North Carolina on February 6,
1996, brought to Richmond for questioning, and gave a lengthy
statement to the Richmond police explaining the events that
occurred on December 27.

Testifying from Atkins’ written statement, Detective Leonard
stated that Atkins said he and Odom were waiting in Atkins’ truck
for a friend at 6:00 a.m. on December 27 when Odom decided to go
to a nearby store for sodas and cigarettes. About twenty minutes
later, Atkins heard loud "fussing" outside his truck.
When he exited the truck, he saw Odom with a stick. Odom told
Atkins that two or three women were "messing with her."
After Atkins yelled at the women, they ran. He saw two or three
people running off. Odom had a gash and two scratches on her face
and a bleeding finger. When Atkins told Odom she should go to the
hospital, she said she was fine and asked him to take her to the
motel.

Atkins said that when he arrived at the motel he sent the
children to get a soda for Odom. Odom then went into the room and
got into the bathtub. Atkins said Odom complained because he made
the water too hot and at one point said "ouch." Atkins
said that he asked Odom if she had been hit with sticks and she
said that she had. After the children returned, Odom sat on the
bed, changed her clothes, talked and joked with the children,
walked around the room, smoked cigarettes, and drank a soda.
Atkins said that Odom asked him to not mention the beating to the
children. At Odom’s request, he took the children to a friend’s
house.

Atkins’ statement further recited that when he took the
children to the friend’s house, Odom’s daughter saw blood in the
truck. She accused Atkins of fighting with her mother and asked
him where the blood came from. She said "I know you and
mama . . . got mad and been fighting." Atkins
said he told her she was being "nosy." In his
statement, Atkins admitted that he and Odom had had fights before
but never so severe as to require medical attention.

After leaving the children, Atkins went to a store and
purchased something for Odom’s pain. When he returned to the
motel, Odom was dressed. Odom said she did not have a headache
and was not sore. Although he rubbed the ointment on her, Odom
did not take the medicine he purchased for her pain.

Atkins said that later in the afternoon he and Odom went to
Atkins’ uncle’s house and remained inside for twenty minutes.
Odom said she couldn’t breath, and she fainted. With the
assistance of another woman, Atkins gave Odom mouth?to?mouth
resuscitation. Atkins then took Odom to the hospital. Atkins said
that he did not contact the police after leaving the hospital
because he did not have their phone number and because he was
afraid a warrant would be issued for his arrest.

Later in his statement, Atkins gave another version of the
events. Atkins said that when he was sitting in the truck and
heard the voices, he jumped out of the truck and saw Odom coming
toward him. Odom had a gash on her face. Later, when Odom was
taking her bath and Atkins saw her injuries, he told her it
looked as if she had been hit with sticks. She told him she had
been beaten with sticks.

Odom’s fourteen?year?old daughter testified that at 8:00
a.m. on December 27, her mother was seated motionless in Atkins’
truck in front of the motel room. Atkins got a coat from the
motel room. Odom’s daughter next saw the coat over her mother’s
shoulders. Atkins sent the two children to get sodas, and he told
them he and Odom were going to visit another couple in the motel.
When the children returned with the sodas, Atkins and Odom were
in the bathroom of the motel room. Odom’s daughter passed a soda
through the slightly opened door and heard her mother say
"ouch." Later, Odom’s daughter saw her mother lying in
bed with the sheets pulled up to her shoulders. Odom’s daughter
said her mother never spoke to her or the other child. She never
saw Odom walking around, smoking, talking, or drinking her soda.

Later, when the children awoke, Atkins left Odom at the motel
and took the two children to a friend’s house. The daughter saw
blood in Atkins’ truck on the rear passenger window and headrest.
When she asked Atkins if he had been fighting with her mother, he
just smiled. He asked her why she asked, and she replied
"[b]ecause I see blood." She testified that Atkins made
no further comment.

Dr. Jack Daniel, the assistant medical examiner, opined that
Odom died of acute head trauma. He testified that "her
entire back, her buttocks, . . . the entire extent
of her left arm, [and] much of her right arm were covered with
prominent bruises. Associated with those bruises were a large
number of small angular . . . lacerations."
Four lacerations on Odom’s head caused "a great deal of
bleeding into her scalp" and bleeding on the top of her
brain. Odom had bruising and abrasions on the front of both of
her lower legs and her right knee, and she had extensive bruising
and swelling on both hands. Her right ring finger was broken. Dr.
Daniel testified that Odom also had abrasions on the tip and
sides of her nose and around her mouth. The most severe injury on
her face was a deep laceration about a quarter of an inch long on
the right side of her face near her nose. Dr. Daniel further
testified that if a stick had been used in the beating, he would
have expected a broken nose rather than this type of injury.

Dr. Daniel opined that the "very, very severe
bruising," the extensive tissue damage, and the absence of
major bone fractures indicated that a flexible instrument was
used to inflict Odom’s injuries. He testified that all of the
marks, including the angular irregular marks, were "entirely
consistent" with having been inflicted with a belt buckle.
He also opined that the configuration of a belt and its buckle
recovered by the police from Atkins’ truck was "entirely
consistent" with Odom’s injuries. He testified, however,
that any other belt could have been used and that he could not
rule out the possibility that a tree branch was used to inflict
these injuries. Dr. Daniel further testified that Odom’s injuries
were inflicted by a dozen or more blows and that the severity of
Odom’s injuries would have been immediately apparent to anyone
who saw her.

Dr. Daniel was recalled to testify after several witnesses had
testified. When Atkins’ counsel objected to his further
testimony, Dr. Daniel was questioned to determine whether he had
violated the judge’s admonition not to discuss the case with
others. During the course of this voir dire, Dr.
Daniel testified that a North Carolina detective, who had
testified earlier in the trial and had sat through Dr. Daniel’s
testimony, talked with him during lunch. After further voir
dire, the trial judge overruled the objection.

Dr. Daniel testified again and opined that while Odom might
have been conscious for several hours after the injuries were
inflicted, he could not say "with any confidence" that
she would have been coherent. He stated that Odom would have
become "progressively less coherent, less responsive over a
period of hours if in fact she did not lose consciousness
immediately."

At the conclusion of the evidence, the trial judge convicted
Atkins of second degree murder.

II.

Atkins first contends that the trial judge erred in not
barring Dr. Daniel’s second testimony. Atkins argues that Dr.
Daniel violated the judge’s order not to discuss the case with
others and that the doctor had been prepared by other
Commonwealth’s witnesses to answer certain questions prior to
being recalled to testify. Atkins asserts that he was prejudiced
by the testimony because without it, the Commonwealth would not
have established when Odom was beaten.

On voir dire, before his second testimony, Dr.
Daniel testified that when he spoke to the North Carolina
detective at lunch, "there was some question as to whether
or not . . . certain questions that might have
been asked . . . about the length of
survival" and "what [the victim] might have been
capable of doing." Dr. Daniel stated that his opinions were
not changed as a result of his conversation with the detective.
When questioned by the trial judge, Dr. Daniel testified that
although he was aware of the nature of the questions he was about
to be asked by the Commonwealth’s attorney, any response he would
give was unrelated to his conversation with the detectives.

The North Carolina detective testified that during their walk
to lunch he said to Dr. Daniel, "in North Carolina one of
the questions . . . would have asked the time. How
long she would have lived." He said that Dr. Daniel’s
response was "that would have been a responsible or
respectable question."

Detective Leonard, who testified after the lunch recess,
overheard the conversation. He testified that the North Carolina
"detective . . . asked him ?? he didn’t
understand why . . . the Commonwealth attorney
didn’t ask Dr. Daniel . . . what the girl could do
after the beating. What she would be able to do." Detective
Leonard could not recall Dr. Daniel’s response and stated that he
did not remember contributing to the conversation.

The Commonwealth’s attorney stated that after lunch he
realized that he had forgotten to ask Dr. Daniel several
important questions. The Commonwealth’s attorney stated that he
did not discuss these questions with Detective Leonard or the
North Carolina detective and that the questions were in his notes
but that he simply forgot to ask them.

Defense counsel asked the trial judge to prohibit Dr. Daniel
from testifying or to declare a mistrial. The judge denied the
motion and ruled as follows:

The paramount question in the Court’s mind is whether the
conversations that took place outside of this courtroom that
should not have taken place is likely to change the testimony
to be offered at this time by Dr. Daniel. The Court has
concluded that those conversations and the manner in which
this situation arose will not affect the testimony by Dr.
Daniel as to whatever questions he may be asked at this point
during the remainder of his time on the stand as a witness
and for that reason the Court sees no useful purpose would be
served by declaring a mistrial and I shall not do that.

"The purpose of excluding witnesses from the courtroom
is, of course, to deprive a later witness of the opportunity of
shaping his testimony to correspond to that of an earlier
one." Huddleston v. Commonwealth, 191 Va. 400, 405,
61 S.E.2d 276, 279 (1950). "A judge’s admonition to
witnesses not to discuss [their] testimony with third parties
until the trial is completed . . . [is intended
to] lessen the danger that [a witness'] testimony will be
influenced by hearing what other witnesses have to say, and to
increase the likelihood that [witnesses] will confine themselves
to truthful statements based on their own recollections." Perry
v. Leeke
, 488 U.S. 272, 281 (1989).

"A trial [judge] has discretion to decide whether a
witness who violates an exclusion order should be prevented from
testifying." Bennett v. Commonwealth, 236 Va. 448,
465, 374 S.E.2d 303, 314 (1988). On review, we must consider
"whether there was prejudice to the
defendant . . . [,] whether there was intentional
impropriety attributable to the prosecution . . .
[,] whether the out?of?court comments concerned any substantive
aspect of the case[,] and whether [the comments] had any effect
on the witness’ testimony." Id. Thus, "we cannot
reverse the trial court’s action in permitting [Dr. Daniel] to
testify unless it appears that [Atkins] was prejudiced by such
action." Satcher v. Commonwealth, 244 Va. 220, 244,
421 S.E.2d 821, 836 (1992).

Although Dr. Daniel’s testimony regarding the length of time
Odom would be conscious after the beating and Odom’s degree of
coherence was damaging to Atkins, that is not the test of
prejudice. Rather, prejudice occurs where the violation of the
exclusion order somehow influences the testimony of the witness
on the stand. See Bennett, 236 Va. at 464?65, 374
S.E.2d at 314?15 (no abuse of discretion where witness did not
change testimony as result of information obtained from
Commonwealth in violation of exclusion order); Jury v.
Commonwealth
, 10 Va. App. 718, 721, 395 S.E.2d 213, 215?16
(1990) (abuse of discretion to refuse to allow witness who
unintentionally remained in courtroom in violation of exclusion
order to testify because there was no showing that witness’
presence in courtroom influenced his testimony). No evidence
proved that Dr. Daniel’s testimony was influenced by his
conversation with the North Carolina detective.

Although the conversation between Dr. Daniel and the North
Carolina detective violated the nondiscussion order, it did not
constitute a "coaching session" as Atkins suggests. The
North Carolina detective merely commented that the Commonwealth’s
attorney forgot to ask a pivotal question, and Dr. Daniel agreed.
The detective did not prepare Dr. Daniel to answer certain
questions; indeed, he and Dr. Daniel did not discuss Dr. Daniel’s
responses to any questions. Furthermore, Dr. Daniel testified
that although he knew what he would be testifying about, his
answer to the question was based on his autopsy and examination
of the victim, not on his lunch time conversation.

Having examined the record, we hold that the trial judge did
not abuse his discretion in permitting the witness to testify.

III.

We also hold that the evidence was sufficient to support
Atkins’ conviction for second degree murder. Although the
evidence in this case is entirely circumstantial, the principle
is well established that circumstantial evidence alone may be
sufficient to support a conviction. See Johnson v.
Commonwealth
, 2 Va. App. 598, 604?05, 347 S.E.2d 163, 167
(1986). When a case is based on circumstantial evidence, the
circumstances proved must be consistent with guilt and exclude
every reasonable hypothesis of innocence. See Garland
v. Commonwealth
, 225 Va. 182, 184, 300 S.E.2d 783, 784
(1983). The Commonwealth "’is not required to disprove every
remote possibility of innocence, but is, instead, required only
to establish guilt of the accused to the exclusion of a
reasonable doubt.’" Cantrell v. Commonwealth, 7 Va.
App. 269, 289, 373 S.E.2d 328, 338 (1988) (citation omitted).

Atkins argues that his mere presence with Odom was
insufficient to support his conviction and that the evidence does
not exclude the hypothesis suggested by his statements to police
that Odom was injured when she was attacked on the street by a
group of people. The principle is firmly established that
"[o]pportunity is always a relevant
circumstance . . . and, when reinforced by other
incriminating circumstances, may be sufficient to establish
criminal agency beyond a reasonable doubt." Christian v.
Commonwealth
, 221 Va. 1078, 1082, 277 S.E.2d 205, 208 (1981).
Here, there is substantial other circumstantial evidence that
supports the trial judge’s finding.

Atkins’ statement that Odom was functioning normally several
hours after receiving her injuries was contradicted by the
medical evidence presented by Dr. Daniel and the testimony of
Odom’s daughter. Dr. Daniel testified that by the nature and
severity of Odom’s injuries, she could not have functioned as
Atkins suggests. If Odom had not been rendered unconscious by the
beating, Odom would have become progressively less coherent and
responsive. Odom’s daughter’s testimony further contradicts
Atkins’ statements about Odom’s behavior after the beating. She
did not see Odom smoke, drink, walk around, or even talk after
Odom and Atkins arrived at the motel.

The trial judge was not required to accept Atkins’ version of
events. See Rollston v. Commonwealth, 11 Va. App.
535, 547, 399 S.E.2d 823, 830 (1991). The trial judge could
disregard Atkins’ versions of events and chose to believe the
testimony of Dr. Daniel and Odom’s daughter.
"[D]eterminations of credibility lie within the purview of
the fact finder, who may reject a witness’ testimony and base a
finding of guilt upon contradictory statements. The fact finder
may conclude that the defendant lied to conceal his guilt." Moore
v. Commonwealth
, 25 Va. App. 277, 289, 487 S.E.2d 864, 870
(1997). See Sheppard v. Commonwealth, 250 Va. 379,
389, 464 S.E.2d 131, 137 (1995). Indeed, Atkins’ contradictory
statements to police and witnesses about the events leading up to
Odom’s death render doubtful the hypothesis suggested by Atkins
that Odom’s injuries were caused by others. The trial judge could
reasonably infer that Odom could not have functioned normally as
Atkins suggests but that she would be increasingly approaching a
state of unconsciousness.

In summary, Atkins was present when Odom was injured and
bleeding; he gave several contradictory statements about the
events in question; and Atkins’ version of Odom’s functioning
ability after the beating was contradicted by the medical
evidence. In addition, the belt found in Atkins’ truck was
consistent with the marks on Odom’s body. Atkins fled the
hospital, left the jurisdiction, and intentionally evaded the
police for one and a half months after the incident. See Langhorne
v. Commonwealth
, 13 Va. App. 97, 102, 409 S.E.2d 476, 480
(1991) (an inference of guilty conduct arises from evidence and
avoidance of the police). Viewed in the light most favorable to
the Commonwealth, the evidence was sufficient to prove beyond a
reasonable doubt Atkins’ guilt of the offense of second degree
murder.

For the foregoing reasons, we affirm the conviction.

Affirmed.

 

 

 

 

FOOTNOTES:

[1] Pursuant to Code ? 17?116.010 this
opinion is not designated for publication.

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