Pair v. Commonwealth

1

TYRONE LAMONT PAIR v. COMMONWEALTH OF VIRGINIA

No. 1507-22-1

Court of Appeals of Virginia

January 16, 2024

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Tyneka L.D Flythe, Judge

Brett P. Blobaum, Senior Appellate Attorney (Virginia Indigent Defense Commission, on briefs), for appellant.

Aaron J. Campbell, Assistant Attorney General (Jason S. Miyares Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Beales and Raphael Argued at Norfolk, Virginia

MEMORANDUM OPINION ^[*]

MARLA GRAFF DECKER CHIEF JUDGE

Tyrone Lamont Pair appeals his conviction of second-degree murder in violation of Code § 18.2-32. He argues on appeal that the trial court erred when it allowed testimony about the existence and service of a recent emergency protective order that the victim had obtained against him the day before she was killed. The appellant further argues that the evidence was insufficient to sustain his conviction. For the following reasons, we disagree and affirm the conviction.

Background^[1]

In December 2020, the appellant and Sammy Pair, the victim lived together in a townhouse. The appellant and the victim were married, but the state of their marriage was "not good." On December 27, 2020, the victim informed the appellant that she was moving out of their shared home. Four days later, on December 31, she obtained an emergency protective order (EPO) against the appellant. The order was served personally on him at the townhouse later that day.

That same day, Felicia Worsley, an acquaintance of the appellant, arrived at the townhouse at about 6:00 p.m. to spend the holiday weekend with him.^[2] When Worsley and the appellant were in the townhouse, she heard "keys at the door." The appellant opened the front door, and Worsley heard a woman's voice but did not see the woman.^[3] The appellant told Worsley to leave by the back door, move her car to another parking lot, and wait in her car. While Worsley was waiting in the parking lot, she saw some "police lights." The appellant then joined Worsley and told her that he had to be away from the townhouse so the woman who was there "could get her belongings out." He and Worsley left at about 7:15 p.m. and went to a nearby hotel where they stayed for the weekend.

Around noon the next day, January 1, 2021, Tim Williams was talking to the victim on the phone when he heard a "banging sound" in the background. He also heard the voice of the victim as she screamed in pain. Williams heard a male voice say "[t]ell that f ----- g n----r . . . come through too." After that, the call abruptly disconnected at 12:07 p.m. The data taken from the residential security system at the townhouse showed that the back door opened at 12:02 p.m., the front door opened and closed at 12:08 p.m., and the back door closed at 12:09 p.m.

Williams called the victim back repeatedly after the call disconnected, but no one answered. At 12:31 p.m., he called 911. Williams had no further contact with the victim. Her phone stopped receiving data at 1:14 a.m. on January 2, 2021, and was never recovered.

The appellant was in the area of the townhouse on January 1 from 11:56 a.m. until 12:15 p.m. Worsley drove him there in her car because he said he wanted "to check on his cars" near the townhouse. She waited for him in her car in the parking lot as he got out and left her sight.

In response to Williams's call to 911 on January 1, a Newport News police officer arrived at the townhouse at 12:35 p.m. No one appeared to be home, and nothing obvious was amiss. The officer left without forcing entry.

The next day, January 2, 2021, Worsley and the appellant returned to the area of the townhouse at 6:39 a.m. and again at 8:36 p.m. Both times Worsley waited in the car while the appellant left her for a short period. Security system data from that day showed the front door opened and closed at 8:38 p.m. and the back door opened and closed at 8:49 and 8:50 p.m., respectively.

About 6:00 p.m. and again at 9:00 p.m. that same day, the appellant contacted the victim's niece, Theresa Clyburn, and asked her to check on the victim. When Clyburn arrived at the townhouse, the lights were on inside, no one answered her knock, and the victim did not answer her phone.

At 11:19 p.m. that night, the appellant called 911 and asked for a welfare check on the victim. He told the 911 operator that he was eleven hours away in Memphis.^[4] An officer went to the townhouse about twenty minutes later. Lights were on, but no one answered the door, and the officer heard no sounds inside. There was no car in the allotted parking space. The screen on the front window was bent, but the glass was not broken, and the window was locked. The officer did not enter the premises because he had no authority to do so.

Clyburn returned to the townhouse around midnight with her uncle, who had a key. The front door was partially blocked by a chair pushed against it. Clyburn described the residence as "messed up"-the television was off the wall and a chair was flipped over. "BHB" was written in red on the living room wall. They found the victim's dead body lying face down on the bathroom floor. Her body was cold to the touch. "NO HOE GO GO" was written in a red substance that was not blood on the bathroom mirror. Clyburn called 911 at 1:09 a.m. on January 3, 2021.

Newport News Police Officer Corey Fredenburg arrived at the townhouse within minutes of the 911 call. He found no signs of forced entry to the townhouse and no obstructions at the back door. A pit bull was closed in the spare bedroom. The dog had no food or water, and Fredenburg saw no dog feces or urine in the room.

The cause of the victim's death was blunt force trauma to the head as a result of "at least two blows." The doctor who performed the autopsy testified that the injuries were not consistent with an accidental fall. The weapon used appeared to be a ceramic soap dispenser. A similar intact dispenser was found in another bathroom.

The appellant's DNA was found in the root of a hair recovered from the victim's right hand. But the forensic scientist who performed the analysis testified that the hair had little probative value because the appellant and the victim had lived in the same household.

An analysis of the appellant's cell phone showed that on December 31, 2020, he searched the internet for "Newport News active warrants." Over the next two days, he searched again for active warrants in Newport News, along with breaking news in the area, "fugitive [n]ews" in the area, his name, his wife's name, and "Newport News wanted list." The appellant gave no statement to the police and did not testify at trial.

The Commonwealth filed a motion in limine asking to introduce evidence that the victim had obtained EPOs against the appellant on December 5 and December 31, 2020. The trial court heard the motion before the trial began. The appellant argued that the evidence was not admissible under Code § 16.1-253.4(G) because it suggested he had committed a prior bad act and it was more prejudicial than probative. The Commonwealth argued that it showed the relationship of the parties and also was relevant to other evidence it planned to present. The court ruled that the December 5 EPO, which had expired, was not admissible because it was too distant in time. The court further ruled that the Commonwealth could present evidence that an EPO had been issued and served on the appellant December 31, 2020, but that the document itself was not admissible.^[5] Immediately after evidence of the service of the EPO on the appellant was presented, the court instructed the jury that the EPO was not evidence of any wrongdoing by the appellant.

A jury found the appellant guilty of second-degree murder. He was sentenced to forty years with three months suspended.

Analysis

The appellant argues that the trial court abused its discretion by allowing testimony about the December 31 EPO. He further argues that the Commonwealth failed to prove beyond a reasonable doubt that he was the killer.

I. Admissibility of EPO Evidence

An appellate court reviews a trial court's decision to admit evidence under an abuse of discretion standard. See, e.g., Commonwealth v. Proffitt, 292 Va. 626, 634 (2016). A reviewing court can conclude that "an abuse of discretion has occurred" only when "reasonable jurists could not differ" about the correct result. Commonwealth v. Swann, 290 Va. 194, 197 (2015) (quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)). "This bell-shaped curve of reasonability" guiding appellate review "rests on the venerable belief that the judge closest to the contest is the judge best able to discern where the equities lie." Minh Duy Du v. Commonwealth, 292 Va. 555, 564 (2016) (quoting Sauder v. Ferguson, 289 Va. 449, 459 (2015)). "In evaluating whether a trial court abused its discretion, . . . '[this Court does] not substitute [its] judgment for that of the trial court. Rather, [the Court] consider[s] only whether the record fairly supports the trial court's action.'" Lambert v. Commonwealth, 70 Va.App. 740, 749 (2019) (first, second, and fourth alterations in original) (quoting Grattan, 278 Va. at 620).

Evidence that a defendant committed prior bad acts "is generally not admissible to prove the character trait of a person in order to show that the person acted in conformity therewith." Va. R. Evid. 2:404(b). Even so, such evidence may be admissible for other purposes, including to establish "motive, opportunity, intent, preparation plan, knowledge, identity, absence of mistake, [or] accident," or to show that the prior acts "are part of a common scheme or plan." Id.; see, e.g., Vera v. Commonwealth, 77 Va.App. 271, 281 (2023) (noting that such evidence...