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GRAY v. COMMONWEALTH



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GRAY

v.

COMMONWEALTH


November 3, 2000

Record No. 992566

Present: Carrico, C.J., Lacy, Hassell, Keenan,
Koontz, and

Kinser, JJ., and Compton, S.J.

THOMAS ABRAM GRAY, SR.

v.

COMMONWEALTH OF VIRGINIA


OPINION BY SENIOR JUSTICE A. CHRISTIAN COMPTON

FROM THE COURT OF APPEALS OF VIRGINIA

Defendant Thomas Abram Gray, Sr., was found
guilty by a jury in the Circuit Court of Botetourt County in July
1998 of conspiracy to murder one James M. Martin, Code
?? 18.2-22 and

-32, and of attempted possession of an
unregistered firearm muffler or silencer, Code
?? 18.2-308.6 and -26. Judgment was entered upon the
verdicts, and defendant was sentenced to three years’
imprisonment for the conspiracy and to a fine of $2,500 for the
other crime.

Upon defendant’s appeal to the Court of Appeals
of Virginia, the judgments of conviction were affirmed. Gray
v. Commonwealth
, 30 Va. App. 725, 519 S.E.2d 825 (1999).

We awarded defendant this appeal to consider
whether the Court of Appeals erred in its judgment regarding the
sufficiency of the evidence to support the convictions; the
constitutionality of Code ? 18.2-308.6, the firearm muffler
statute; and certain instructions tendered by the defendant but
refused by the trial court.

Employing settled principles of appellate
review, we shall recite the facts in the light most favorable to
the Commonwealth, the prevailing party in the trial court.

James M. Martin and Dorothea Martin, both in
their late forties, separated in March 1994 after almost 16 years
of marriage. After the separation, she lived in Bedford County
and was employed at the Troutville post office; he resided in
Fincastle.

In October 1996, defendant, age 39, met
Dorothea at the post office when he went there to obtain money
orders in connection with his life insurance business. At the
time, no final decree had been entered in the Martins’ pending
divorce suit.

In the proceedings, Martin had agreed to pay
her $67,500. However, if he died before the divorce became final,
she would receive his home (valued near $170,000), his half of
his construction business (valued about $80,000), the proceeds of
his $100,000 life insurance policy, and additional property he
owned in Bedford County.

The defendant and Dorothea began a sexual
relationship in December 1996. Dorothea’s husband first met
defendant in April 1997 and learned about the affair after
defendant had contacted the Martins’ teenage son "and
discussed [defendant's] whole sex life" with him. Later,
Martin observed defendant and Dorothea together at a local
"Pizza Den."

In June 1997, Martin summoned defendant to
testify at a divorce hearing, believing defendant would state
that Dorothea was guilty of adultery. Instead, upon Dorothea’s
promise to pay him $15,000, defendant lied about the relationship
and denied having had sexual intercourse with her. She reneged on
her promise, and defendant wrote her a letter in August
threatening to expose all her misconduct if she did not pay him
the promised amount.

In September 1997, Dorothea was planning her
husband’s murder. She showed defendant a magazine ad for a
"blueprint" to make a firearm silencer that she desired
to procure. She ordered the diagram and, upon receipt, showed it
to defendant, a former mechanic. Upon review of the diagram,
defendant told Dorothea, that "you don’t need nothing like
that," and stated that the same purpose could be
accomplished, that is, reducing the sound of a firearm, by use of
an automotive fuel filter and by "knock[ing] a hole through
it and put[ting] it on a .22." Subsequently, while so
enamored with Dorothea that he would do anything she asked,
defendant bought such a fuel filter and fabricated a firearm
silencer to fit two .22 caliber rifles that he owned.

The relationship between defendant and Dorothea
became turbulent. On February 20, 1998, defendant called Martin
on the telephone telling him "that Dorothea was [a] no count
tramp and there was some things that [Martin] should know and he
had a tape he said would prove everything that he was telling
[Martin] about her was the truth." Defendant and Martin met
later that day and defendant had Martin listen to an audio tape
recording of conversations between defendant and Dorothea in
which they discussed "their sex and telephone sex and all
kinds of talk about [Martin] and just everything." At that
meeting, defendant told Martin that "she’d used [defendant],
played him for a fool, played him for a sucker."

Defendant gave Martin the tape, and he met
Dorothea the following night. According to Martin, when he played
the tape for her, "[s]he denied every word of it,"
although the sound of her voice on the recording was clear.

The evidence establishes a plan by Dorothea and
defendant to have Martin murdered by an out-of-state assassin
while Martin was following a routine of walking alone at night
near the Roanoke airport. During a discussion on February 22,
1998 at defendant’s home between Martin and defendant that was
recorded on tape by Martin with defendant’s consent, defendant
revealed the murder plot to Martin. Defendant exhibited a rifle
while "screwing a silencer on the end of it." Defendant
said, "’Jim, this was made for you.’" Defendant stated,
"’Dorothea ordered the plans and I made it.’"
Continuing, defendant told Martin, " ’Jim, she wants
you dead . . . she tells me that with a phone call and
a plane ticket you’re history.’ " According to Martin,
defendant "told me why he built it, he built it to kill
me."

The next day, February 23, Martin contacted the
Virginia State Police at the Salem office where he was
interviewed by special agent Doug Orebaugh. Executing a search
warrant at defendant’s home on that day, Orebaugh seized the
home-made silencer from defendant’s tool box along with two .22
caliber rifles the barrels of which had been threaded to accept
the silencer.

Orebaugh also seized from defendant nearly 100
audio tapes containing "a couple hundred hours" of
recorded conversations, mainly between defendant and Dorothea
involving so-called "telephone sex." These
conversations had been taped because defendant’s office telephone
was voice activated. Many of the tapes that included
conversations related to the murder plot were played for the
jury.

The following colloquy between defendant and
Dorothea illustrates the nature of many of the comments between
the duo about the murder plot. During a conversation recorded on
November 15, 1997, defendant described his efforts to muffle the
sound of the rifle shot and to make the firing "completely
quiet." He stated, "The only thing you can hear is the
trigger snap . . . going clunk. That’s all you hear and
then you hear the bullet hit, plunk." Dorothea responded,
"I want to hear that bullet hit. Yee-ha." Defendant
then said, "You don’t want to do it fast
. . . . This is something that’s got a lot of pain
and suffering in it. Slowly, gradually. The first one is dead
center below the belt. You’ve heard of getting shot in the
ass." At trial, defendant admitted he was referring in that
conversation to Martin being shot.

Defendant testified that he had not agreed with
Dorothea to kill Martin nor had he intended that Martin be
killed. He stated that he made the silencer for his teenage son
to use when hunting squirrels. When called to testify by
defendant’s counsel, Dorothea refused, invoking her
constitutional privilege against self-incrimination.

In this appeal, defendant contends the Court of
Appeals erred by affirming the trial court’s failure to strike
the evidence with respect to the charge of conspiracy to commit
murder. Defendant argues the evidence was insufficient to support
the conviction. We disagree.

A conspiracy is an agreement between two or
more persons by some concerted action to commit an offense. Wright
v. Commonwealth
, 224 Va. 502, 505, 297 S.E.2d 711, 713
(1982); Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E.
326, 327 (1937). See Code ? 18.2-22. The crime may
be proved by circumstantial evidence. Indeed, because of the very
nature of the offense, "it often may be established only by
indirect and circumstantial evidence." Floyd v.
Commonwealth
, 219 Va. 575, 580, 249 S.E.2d 171, 174 (1978).

In Virginia, the crime of conspiracy is
complete when the parties agree to commit an offense. Falden,
167 Va. at 544, 189 S.E. at 327. No overt act in furtherance of
the underlying crime is necessary. Stevens v. Commonwealth,
14 Va. App. 238, 241, 415 S.E.2d 881, 883 (1992).

In the present case, the evidence is sufficient
for a jury reasonably to infer from all the circumstances that
defendant agreed with Dorothea to have Martin killed so that she
could receive a financial windfall. As part of the agreement,
defendant was to make a firearm silencer that he contemplated
Dorothea would use to accomplish the homicide, employing, in
defendant’s words, "some out of town muscle." The jury
was entitled to reject defendant’s denials that he agreed to have
Martin shot and his assertion that he attempted to make the
silencer for his son’s use.

Next, defendant contends the Court of Appeals
erred in affirming the trial court’s failure to strike the
evidence with respect to the charge of attempted possession of a
firearm silencer in violation of Code ? 18.2-308.6.
Defendant argues the evidence was insufficient to convict.

At the threshold of this issue, however,
defendant contends the statute is unconstitutionally vague and
the indictment should have been dismissed for that reason. He
argues the statute fails to define the prohibited conduct with
sufficient clarity to provide reasonable persons with fair notice
of what is prohibited. We do not agree.

Code ? 18.2-308.6 provides:

"It shall be unlawful for any person to
possess any firearm muffler or firearm silencer which is not
registered to him in the National Firearms Registration and
Transfer Record. A violation of this section shall be punishable
as a Class 6 felony."

Defendant has no standing to mount a broad,
general, facial statutory challenge because he does not contend
his conduct was constitutionally protected nor is the First
Amendment implicated. Woodfin v. Commonwealth, 236 Va. 89,
92, 372 S.E.2d 377, 379 (1988), cert. denied, 490
U.S. 1009 (1989). Thus, the narrow question is whether the
statute is vague as applied to defendant’s conduct in this case.

The rule applicable here, given the defendant’s
argument, is that a "penal statute is void for vagueness if
it fails to give a person of ordinary intelligence notice that
his contemplated conduct is forbidden by the statute
. . . ." Id.

In the context of this case, there is nothing
uncertain or ambiguous about the statutory language making it
"unlawful for any person to possess any firearm muffler or
firearm silencer" that is not properly registered. The words
"muffler" and "silencer" relating to firearms
have commonly accepted meanings. A "muffler" is
"any of various devices to deaden the noise of escaping
gases or vapors; something that silences," and a
"silencer" is a "device for small arms that
permits the exit of the projectile but reduces the noise without
materially impeding the escape of the exploding gases; a device
for silencing or reducing noise." Webster’s Third New
International Dictionary 1483, 2117 (1993).

The statute in question plainly sets forth the
conduct it proscribes, that is, possessing all unregistered
firearm silencers or mufflers, including those privately
manufactured. Thus, there was no basis to dismiss the indictment,
and the Court of Appeals properly so ruled.

And, we reject defendant’s contention that the
evidence was insufficient to convict of the attempted possession
of such a device. In a circular argument, defendant contends that
"any ‘attempted possession’ of a firearm muffler or silencer
as charged in the indictment did not violate the statute because
there is no obligation to register a firearm until the weapon is
actually possessed."

An attempt is composed of the intention to
commit the crime, and the doing of some direct act towards its
consummation that is more than mere preparation but falls short
of execution of the ultimate purpose. Sizemore v. Commonwealth,
218 Va. 980, 983, 243 S.E.2d 212, 213 (1978).

The evidence in this case establishes that
defendant tried to construct a firearm silencer using an
automotive fuel filter. Although the device that defendant made
was not a perfect silencer, it functioned to reduce the sound of
a rifle shot. Defendant intended to make an operational silencer,
he possessed the imperfect device, and he had no plans to
register what he had made. This is a classic case of an attempt
to possess an unregistered firearm muffler or silencer because
there was an intent to violate the statute accompanied by a
direct act towards its consummation.

Next, claiming there was evidence he changed
his mind after agreeing to participate in Martin’s murder,
defendant contends the Court of Appeals erred in approving the
trial court’s action in instructing the jury that
"[w]ithdrawal from the agreement or change of mind is no
defense to the crime of conspiracy." He also contends error
was committed by the Court of Appeals in approving the trial
court’s refusal to give an instruction tendered by him stating
that withdrawal from the agreement to kill Martin or a change of
mind by defendant is a defense to the charge of conspiracy.

We hold the Court of Appeals did not err in
ruling that, in Virginia, unlike some other jurisdictions,
withdrawal is not a defense to conspiracy. As we already have
stated, citing Falden and Stevens, in Virginia the
crime of conspiracy is complete when the parties agree to commit
an offense, and no overt act in furtherance of the underlying
crime is necessary. Therefore, as the Court of Appeals stated, no
action subsequent to the formation of the agreement can exonerate
the conspirator of that crime. Gray, 30 Va. App. at 733,
519 S.E.2d at 829.

Finally, we find no merit in defendant’s
contention that the Court of Appeals erred in affirming the trial
court’s refusal to give instructions defining certain terms in
Code ? 18.2-308.6, the firearm silencer statute. As we have
stated, the statutory terms are unambiguous. A defendant is not
entitled to jury instructions defining clear and unambiguous
statutory terms. Roach v. Commonwealth, 251 Va. 324, 346,
468 S.E.2d 98, 111, cert. denied, 519 U.S. 951
(1996).

Consequently, the judgment of the Court of
Appeals will be

Affirmed.

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