Parker v. Commonwealth

CHANTZ PARKER, S/K/A CHANTZ NATHANIEL PARKER v. COMMONWEALTH OF VIRGINIA

Record No. 0113-16-3

COURT OF APPEALS OF VIRGINIA

FEBRUARY 21, 2017

UNPUBLISHED

Present: Judges Petty, Russell and Malveaux

Argued at Lexington, Virginia

MEMORANDUM OPINION^* BY JUDGE MARY BENNETT MALVEAUX

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY

James J. Reynolds, Judge

Jason S. Eisner for appellant.

Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Chantz Parker ("appellant") was convicted of armed burglary, in violation of Code § 18.2-89, attempted robbery, in violation of Code §§ 18.2-26 and -58.1,wearing a mask in public, in violation of Code § 18.2-422, and three counts of using a firearm during the commission of a felony, in violation of Code § 18.2-53.1. On appeal, appellant argues that: (1) the trial court erred in denying his motion to sever his trial from that of his codefendant; (2) the trial court erred by admitting medical records; and (3) the evidence was insufficient to prove either his identity as one of the perpetrators or his specific intent to commit robbery. We disagree with appellant's contentions, and consequently, we affirm the judgment of the trial court.

I. BACKGROUND

Around 11:15 p.m. on March 26, 2014, Mark and Janet Moore heard an unexpected knock at their front door. Through a window, they saw a young man wearing a black hoodie.The man in the hoodie told the Moores that his car had broken down. He then asked to use a telephone. Feeling uneasy, Mark Moore went to his bedroom and retrieved his handgun. He returned to the entrance way and began to unlock the door.

As Moore turned the deadbolt, the man in the hoodie forced his way through the front door, knocking him into a coffee table and pushing Moore's wife over a recliner. Two masked men, carrying "assault"-style rifles entered into the home as well.

The man wearing the hoodie shot Moore through the thigh. As he fell, Moore fired at one of the masked men. Although Moore was not sure that he struck his target, the rifle fell from the targeted man's hands. The man in the hoodie continued firing, grazing Moore's scalp. As the intruders regrouped and fled, Moore fired another shot at them.

The home invasion lasted twenty to twenty-five seconds. None of the intruders demanded anything or attempted to take any property from the home during the encounter.

After midnight that same evening, Raphael Brown and appellant arrived at Annie Penn Hospital's emergency room in Reidsville, North Carolina.¹ Brown had multiple gunshot wounds to his arms and chest. Appellant had a gunshot wound in the back of his left calf. Both men told the police that they were hit by stray gunfire when shooting broke out at a party in Reidsville. No reported shooting incidents in Reidsville were noted for that evening. Neither Brown nor appellant could recall where the party was held, names of other party guests or who hosted the party.

Both men denied involvement in the home invasion.

Brown and appellant were indicted on a number of felonies arising out of the home invasion, including armed burglary, attempted robbery, and wearing a mask in public.² Each man also was indicted on three counts of using a firearm during the commission of a felony.

After the Commonwealth moved to try the two men jointly, appellant filed a motion to sever. At a pretrial hearing, appellant argued that a joint trial might impede his ability to introduce alibi evidence if Brown offered a conflicting alibi.³ He also argued that the evidence against Brown, which he perceived to be substantially stronger, would implicate him by association in a joint trial. Appellant further suggested that any minor contradictions between his and Brown's statements to police might be used to impeach him. The trial court denied appellant's motion, observing that appellant had at most demonstrated potential prejudice, not actual prejudice. Appellant renewed his motion immediately before trial. The court again denied his motion.

The Commonwealth also filed pretrial motions to procure the attendance of several witnesses from North Carolina, including the custodians of records for both Annie Penn Hospital and Wake Forest Baptist Medical Center, where Brown's surgery was performed. Appellant objected to orders granting these motions, asserting that they represented "an attempt to introduce confidential medical records." He renewed his objection to the issuance of a new round of certificates procuring their attendance after the trial was continued.

Brown raised a similar objection to the introduction of the medical records during the trial itself, arguing that their disclosure "would be in violation of his medical privacy rights under HIPAA and . . . any sort of state HIPAA as well."⁴ Appellant joined in this objection, expressly incorporating Brown's arguments as well as his handwritten objections on the original certificates. The court overruled their objections, observing that even if admission of the records violated HIPAA, the appropriate remedy was not exclusion in the criminal trial but a separate action for damages.

Wendy Gibson, a forensic scientist, testified at trial that the projectiles that hit Brown were consistent with the unusual ammunition that Moore used against the intruders. The shells in Moore's revolver each contained three disc-shaped slugs and a number of spherical pellets. Police found four slugs embedded in the doors and walls at the Moores' residence. Surgeons found two more slugs and a pellet embedded in Brown. Gibson compared these projectiles with Moore's remaining shells and available literature on the ammunition. She opined that the slugs and pellet removed during Brown's surgery shared the characteristic dimensions and weight as the slugs and pellets removed from Moore's unfired ammunition.

FBI Special Agent David Church testified that Brown's cell phone records indicated that someone used Brown's phone to place a call from within the cellular sector that covers the Moores' residence at 11:27 p.m. that evening. Special Agent Church opined as an expert on cell site analysis that the phone must have been in the general area of the Moores' home at the time.

The Commonwealth also presented evidence showing that bloodstains matching Brown's DNA profile were found in a vehicle that belonged to the man in the hoodie. Police conducted a photo lineup at which the Moores identified Jamison Canavan as the man in the hoodie. Policelearned that Canavan's father had traded in a SUV at a local dealership a few months after the home invasion. A witness who knew Canavan remembered seeing him drive the SUV on a regular basis. After locating the new owner, police searched the vehicle and discovered bloodstains on the driver's seat and seatbelt connector as well as the front passenger's seatbelt connector. Forensic scientist Patricia Taylor developed a DNA profile for these bloodstains, which she matched to Brown's DNA profile. She ultimately opined that the odds of Brown coincidentally matching the DNA profiles in either of these bloodstains was greater than one in 7.2 billion.

Evidence adduced at trial proved that someone used appellant's phone to send two text messages at 11:27 p.m. from the cellular sector covering the Moores' home. There was no forensic evidence placing appellant in either the Moores' residence or the recovered vehicle. The projectile that hit appellant was not compared with the ammunition from Moore's gun.

At the close of the Commonwealth's case-in-chief, both defendants made motions to strike the evidence. Appellant moved to strike the armed burglary charge, arguing that no evidence proved his specific intent to commit robbery when he entered the Moores' residence. Appellant also moved to strike the attempted robbery charge on the same grounds. Appellant further moved to strike all of the charges on the grounds that there was "absolutely no evidence" that he participated in the home invasion. The trial court denied these motions.

The jury convicted appellant.

II. ANALYSIS

A. Joinder/Severance

The decision to join or sever trials turns upon showings of good cause and findings of prejudice to the defendant. See Code § 19.2-262.1 (providing the standards for joinder and severance); Allen v. Commonwealth, 58 Va. App. 618, 621-22, 712 S.E.2d 748, 749-50 (2011)."The underlying determinations of good cause and prejudice involve a case-by-case exercise of the trial court's discretion." Allen, 58 Va. App. at 622-23, 712 S.E.2d at 750. We will reverse for an abuse of that discretion "[o]nly when reasonable jurists could not differ." Id. at 623, 712 S.E.2d at 750 (quoting Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009)).

Appellant argues that the trial court erred in denying his motion to sever his co-defendant's trial from his trial. Appellant posits that the joint trial allowed evidence admissible only against Brown to be offered against him, as well.

Code § 19.2-262.1, which governs joinder in criminal cases, establishes an "initial burden of persuasion on the Commonwealth to show good cause for a joint trial." Id. at 622, 712 S.E.2d at 750. Once the Commonwealth meets that threshold, the burden shifts to the defendant to show that "a joint trial would cause 'actual prejudice' to his rights." Id. at 623, 712 S.E.2d at 750 (emphasis added) (quoting Randolph v. Commonwealth, 24 Va. App. 345, 363, 482 S.E.2d 101, 110 (1997)). "Prejudice requiring severance . . . results only when 'there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence . . . .'" Randolph, 24 Va. App. at 364, 482 S.E.2d at 110 (quoting Barnes v. Commonwealth, 22 Va. App. 406, 412, 470 S.E.2d 579, 582 (1996)).

Appellant asserts that the admission of certain evidence prejudiced him. Appellant offered an alibi defense to the charges against...