Clark v. Commonwealth

78 Va.App. 726

892 S.E.2d 685

Thomas Edward CLARK v. COMMONWEALTH of Virginia

Record No. 0620-22-2

Court of Appeals of Virginia, Richmond.

October 17, 2023

Dennis J. McLoughlin, Jr. (McLoughlin Law PLC, on briefs), Henrico, for appellant.

Matthew J. Beyrau, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Raphael, White and Senior Judge Petty

OPINION BY JUDGE WILLIAM G. PETTY

A jury convicted Thomas Edward Clark of first-degree murder, rape, and abduction with intent to defile. On appeal, Clark challenges the sufficiency of the evidence to sustain his convictions. Additionally, he contends that the trial court erred by (1) admitting evidence that was not disclosed timely, (2) allowing mid-trial amendments to the indictments, and (3) refusing to set aside the jury's verdicts and grant a new trial based on juror misconduct. For the following reasons, we affirm.

BACKGROUND

On appeal, we review the evidence "in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth , 74 Va. App. 225, 231, 867 S.E.2d 505 (2022) (quoting Commonwealth v. Cady , 300 Va. 325, 329, 863 S.E.2d 858 (2021) ). Doing so requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Cady , 300 Va. at 329, 863 S.E.2d 858 (quoting Commonwealth v. Perkins , 295 Va. 323, 324, 812 S.E.2d 212 (2018) ).

I. The Offenses

S.F., a mother and grandmother, lived alone in her own home in a quiet neighborhood south of the James River in the City of Richmond. On May 9, 2019, she was scheduled to fly to Florida to visit her mother. When she failed to arrive and her family could not contact her, her nephew called the Richmond police department and requested that they check on her. Around 7:15 p.m. that evening, two City of Richmond police officers went to S.F.’s home to perform a "welfare check." The officers entered the home through the unlocked front door and found S.F.’s body submerged in water in her bedroom bathtub. Cold water was running from the spigot onto S.F.’s face. S.F.’s legs were splayed open and her shirt was pushed up; her pants were "inside out" and there were stains on the crotch of her underwear. S.F.’s right arm was behind her back, there were "ligature marks" around both her wrists, and she had abrasions on her neck.

A knife, glove, bandana, and an "iPhone cord" were in a "pile" on the bathroom counter. The items were wet, and there were bloodstains on the knife, glove, and bandana. The iPhone cord had been cut and tied into a loop that matched a "piece of white cord" found underneath S.F.’s body. Police prepared a PERK ¹ and collected samples from bloodstains on the doorframe of S.F.’s bedroom and on the comforter and pillow on her bed. Police also collected the knife, glove, bandana, and iPhone cord pieces in a bag. Officers seized S.F.’s iPhone and laptop that were in the kitchen. There were no signs of forced entry into the home or that anything had been stolen.

Around 2:30 a.m. the next morning, the medical examiner, Dr. Kristy Waite, M.D., conducted an autopsy and determined that S.F. died from asphyxia by strangulation. Her time of death was between 2:30 a.m. on May 8, 2019, and 6:30 p.m. on May 9, 2019. Dr. Waite explained that, during the autopsy, S.F.’s body was in a "completely fixed" state of "rigor mortis," which typically occurs "8 to 12 hours" after death and can persist for "24 to 48 hours." S.F. did not have any injuries in her "vaginal area" but blood vessels in S.F.’s eyes and face were ruptured and she had severe neck and spinal injuries, which Dr. Waite opined were consistent with strangulation.

During their investigation, police learned that Clark worked for a landscaping contractor S.F. had hired to stain her deck in mid-April. S.F. had been dissatisfied with the work, so Clark and another employee returned to her home around April 29, 2019, to finish the job. Clark lived with his girlfriend and friend, Seth Noller, in a residence that was about a twelve-minute drive north of S.F.’s home.

On May 14, 2019, Richmond Police Detective James Baynes conducted a video-recorded interview of Clark at the police station. Clark claimed that when he returned to complete work on S.F.’s deck, she had let him inside her house to use the bathroom and get some water. Detective Baynes showed Clark a photograph of the bandana found in S.F.’s bathroom, and Clark admitted that it resembled one that belonged to him. During a second video-recorded interview two days later, Clark claimed that it would be "impossible" for his DNA to be inside S.F. because he did not "have to take anything from a woman" and he only had sex with his girlfriend. Clark maintained that he had not returned to S.F.’s home since completing work on her deck and challenged the detective to "check [his cell] phone" to prove it. Clark said he always carried his cell phone except when he allowed Noller to use it at his house. Clark provided a DNA sample and his cell phone to police.

Forensic testing established that Clark could not be eliminated as a contributor to DNA profiles developed from sperm fractions found on the crotch of the underpants retrieved from S.F.’s body and from samples collected from inside her vagina. A forensic examiner determined that "the probability of randomly selecting an unrelated individual with a DNA profile matching th[ose] developed from the sperm fraction[s]" was "1 in greater than 7.2 billion (which is approximately the world population) in the Caucasian, African American, and Hispanic populations." Moreover, there was "no indication of an additional contributor" to the DNA profile developed from the sperm faction found inside S.F.’s vagina. ²

Clark's DNA was also identified on the bloodstains on the handle of the knife, the glove, and the bandana found in S.F.’s bathroom. Additionally, S.F.’s DNA was on bloodstains on the blade of the knife, the doorframe of her bedroom, and the comforter and pillow on her bed. ³

Data from Clark's cell phone established that around 6:20 p.m. and 6:24 p.m. on May 8, 2022, his email account was used to search for pornographic websites on his phone. From 6:24 p.m. until 7:52 p.m., Noller's email account was used to search the internet on Clark's phone. Around 7:52 p.m., Clark's cell phone called his employer.

Data from S.F.’s cell phone, which was password-protected, established that the last time someone had "unlocked" it was between 6:49 p.m. and 6:51 p.m. on May 8, 2019. Thereafter, numerous text messages and calls to S.F. went unanswered. Police also searched S.F.’s laptop and concluded that no one had accessed it since 6:55 p.m. on May 8, 2019.

During phone calls with his ex-wife while incarcerated before trial, Clark claimed that police could not have discovered his DNA at the crime scene because S.F. had been "soaked in hot water." Detective Baynes testified at trial that he did not disclose the "temperature of the water that [S.F.] was found in" to Clark when he interviewed him.

II. Material Proceedings Below

On October 7, 2019, a grand jury indicted Clark for first-degree murder, rape, and abduction with intent to defile.

A. Pre-Trial Discovery

Before trial, Clark moved for discovery under Rule 3A:11, "the Due Process Clause of the Fifth Amendment of the United States Constitution," and "Article 1, §§ 8 and 11" of the Virginia Constitution. The court ordered the Commonwealth to provide discovery to defense counsel "pursuant to Rule 3A:11 and the case authorities." The order required Clark to provide any notice of alibi to the Commonwealth by May 15, 2020, but did not specify any other deadlines.

On February 7, 2020, and May 27, 2020, Clark signed documents acknowledging that he had received discovery responses from the Commonwealth, including his and S.F.’s cell phone records. Clark did not file any supplemental discovery motions or move for a bill of particulars. On November 15, 2021, the first day of Clark's jury trial, he filed a notice of alibi that "at the time of the charged offenses" he was driving in Henrico County between the 5800 and 8000 blocks of West Broad Street.

B. Trial

1. FBI Special Agent Jeremy D'Errico’s Expert Testimony and Report

On the evening before the second day of Clark's jury trial, FBI Special Agent Jeremy D'Errico, an expert in historical cell site analysis, analyzed S.F.’s and Clark's cell phone records to determine which "cell sites" their cell phones had used on May 9, 2019; he then used that information to estimate the phones’ locations. Agent D'Errico concluded that Clark's cell phone used a cell tower near S.F.’s home seven times between 3:21 p.m. and 4:50 p.m. on May 9, 2019, and S.F.’s phone used the same tower at 3:48 p.m. and 5:18 p.m. that day. He produced an 18-page report containing a summary of his expert opinion, along with maps charting the estimated locations of the cell phones.

The next day at trial, Clark objected to Agent D'Errico’s expert testimony and written report, arguing that it violated his right to effective assistance of counsel, due process, and confrontation. Clark proffered that the previous night he received an email from the Commonwealth disclosing Agent D'Errico’s expert report and opinion "for the first time." Additionally, Clark proffered that he would have to cross-examine at least four other expert witnesses that day without the assistance of counter-experts. He concluded that he could not "effectively cross-examine" Agent D'Errico "at this last minute when [he had to] juggl[e] four other expert witnesses." Accordingly, Clark moved the trial court either to exclude Agent D'Errico’s report and opinion or declare a mistrial. Alternatively, Clark argued that the Commonwealth could use the evidence in rebuttal because he had not timely...