Criminal – Man convicted for role in robbery that ends in murder

Where the defendant worked with others to rob a man, and an incidental and probable consequence of the use of a firearm in the commission of a robbery is that someone will get killed, his conviction as a principal in the second degree was affirmed.

Background                              

A jury convicted Joshua Maurice Cousins of five counts, including first degree murder.

Suppress

Cousins argues that the search warrant for his cell phone records lacked probable cause. He asserts that the affidavit supporting the warrant did not explain how Cousins was involved, but rather, “merely asserted that the search warrant was necessary to further the investigation.”

Cousins’s argument that the affidavit merely stated that police wanted Cousins’s phone records to “further the investigation of the murder of David Crostic” significantly understates the facts alleged to support the warrant. From the alleged facts, the magistrate reasonably could infer that Cousins was communicating with Kanavis Davis and Jimmy Wilson shortly before the offense occurred for the purpose of carrying out the robbery.

The affidavit clearly demonstrated a “substantial basis” for the issuing magistrate to conclude that “there is a fair probability that . . . evidence of a crime will be found” in Cousins’s cell phone records. Thus, the trial court did not err in finding that the warrant was supported by probable cause.

The record also supports the trial court’s finding that the good faith exception would apply even if the warrant lacked probable cause. Because “an officer cannot be expected to question the magistrate’s probable cause determination,” it was reasonable for the executing officers to believe the warrant for Cousins’s cell phone records was valid.

Sufficiency

Cousins argues that the evidence was insufficient to convict him as a principal in the second degree to the acts of Wilson and Dayomic Smith. He claims that the original plan was “to break into [David Crostic’s] home and obtain money while no one was home.” “Cousins maintains that the homicide, robbery, abduction, breaking and entering, malicious wounding and firearm offenses . . . were not part of the original design.” This court disagrees.

Cousins recruited Davis, Wilson and Smith to steal from Crostic. By his own account, the plan included breaking into Crostic’s home. Before going to Crostic’s house, the conspirators met at a hardware store where one of them bought zip ties. After leaving their phones in Smith’s car, Cousins drove the group from the store to Crostic’s house “[b]ecause he knew where he was going.” Wilson and Smith were both armed.

When they got to Crostic’s house, Cousins handed Wilson the red bag and sent him to the front door armed with a revolver. Cousins did not abandon the plan once they realized that Crostic’s girlfriend, Dawn Lyman, was home; instead, Smith went into the house with a gun and zip ties while Cousins repositioned the van to facilitate their escape.

The jury reasonably could infer that the presence of guns and zip ties in the van demonstrated the conspirators’ intent to commit armed robbery and to detain any occupants of the home in the process. Even if Cousins did not share Wilson and Smith’s intent to use firearms, “[t]he evidence warrants the inference that [Cousins] was one of four men, acting in concert, who decided to rob” Crostic. “An incidental and probable consequence of the use of a firearm in the commission of a robbery is that someone will get killed.”

New trial

Cousins claims that the trial court erred in denying his motion for a new trial. He argues that he could not have discovered the existence of the testimony of Raymond Hester, Davis’s former cell mate, regarding exculpatory statements allegedly made by Davis, through reasonable diligence. He also claims that Hester’s testimony “was material and should have produced a different result on the merits at a new trial.”

The Commonwealth impeached Hester’s credibility with proof that he had been

convicted of more than 20 felony convictions, which included numerous convictions of moral turpitude. The trial court found that Hester’s criminal record “severely undercuts the evidentiary value of his testimony” and that his testimony conflicted with other credible evidence admitted at trial. Though Hester’s testimony, if believed, might produce a different result, “the trial court, assessing the credibility of . . . witnesses both at trial and at the motion hearing, properly could find that it was not such as should produce opposite results on the merits at another trial.”

 Affirmed.

Cousins v. Commonwealth, Record No. 1709-24-2, April 14, 2026. CAV (unpublished opinion) (per curiam). From the Circuit Court of Chesterfield County (Robbins Jr.). (Gregory R. Sheldon; BainSheldon, PLC, on brief), for appellant. (Jason S. Miyares, Attorney General; Justin B. Hill, Assistant Attorney General, on brief), for appellee. VLW 026-7-149. 14 pp.

Full-Text Opinion

VLW 026-7-149
Virginia Lawyers Weekly