Pettway v. Commonwealth

1

JEREMY TODD PETTWAY v. COMMONWEALTH OF VIRGINIA

No. 1212-22-1

Court of Appeals of Virginia

March 19, 2024

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Gary A. Mills Judge

Charles E. Haden for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges O'Brien, AtLee and Malveaux Argued at Norfolk, Virginia

MEMORANDUM OPINION ^[*]

RICHARD Y. ATLEE, JR. JUDGE

Following two jury trials, the circuit court convicted Jeremy Todd Pettway of conspiracy to commit first-degree murder, first-degree murder, use of a firearm in the commission of a felony, and maliciously shooting into an occupied dwelling. On appeal, Pettway challenges the sufficiency of the evidence to sustain his convictions. Additionally, he contends that the circuit court erred by denying his motion to exclude certain text messages and by granting the Commonwealth's motion "seeking to limit evidence and argument concerning alleged third-party guilt." Finally, he contends that the circuit court erred by instructing the jury on concert of action. Finding no reversible error, we affirm the circuit court's judgment.

I. 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 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (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 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).

A grand jury indicted Pettway for conspiracy to commit first-degree murder, first-degree murder, use of a firearm in the commission of a felony, and maliciously shooting into an occupied dwelling. A jury convicted Pettway of conspiracy but could not reach a unanimous verdict on the other charges, resulting in a mistrial. Following a second trial, another jury convicted Pettway of the remaining charges.

The evidence at the second trial established that in 2021, Pettway worked at the post office. His coworkers included Jacqueline Shabazz ("Jacqueline"^[1]), Tashara Jackson, Christopher Carter, and Ada Malone. Jacqueline lived in Newport News with her children and husband, the victim in this case, Salahuddin Shabazz ("Salahuddin"). Jacqueline was having a surreptitious affair with Carter, and Pettway and Jackson were also sleeping together. Additionally, Jacqueline and Jackson had an ongoing feud that dated back to when Jackson came to work at the same post office branch in 2018.

On April 1, 2021, Jacqueline had an "altercation" with Jackson when they crossed paths at a nail salon. After the argument, Jacqueline slashed a tire on Jackson's SUV that was parked outside. The next day, Jacqueline went on a weekend vacation with Salahuddin, during which time she and Carter secretly called each other and exchanged text messages expressing their mutual affection.

When she and Salahuddin returned home on April 6, Jacqueline found her car vandalized. Someone, she suspected Jackson, had slashed its tires, spray painted "Whore" on it, and put a candy bar in the fuel tank. Later that day, Carter told Jacqueline that Jackson was hosting a party at a restaurant. Suspecting that Jackson had damaged her vehicle, Jacqueline took Salahuddin to the restaurant to confront her. Jacqueline and Jackson fought in the parking lot of the restaurant while Salahuddin pointed a Taser at onlookers and warned them not to intervene. Jacqueline and Salahuddin returned home after the fight. Fearing that Jackson might harm her family, Jacqueline took her children to spend the night at a hotel in another county.

Around 1:00 a.m. on April 7, an intoxicated Salahuddin briefly visited his family at the hotel before driving home. After Salahuddin departed, Jacqueline spoke to him by phone until around 1:50 a.m., when he arrived home and his phone ran out of power. Around 2:00 a.m., Salahuddin called Jacqueline and said that he was resting on the living room couch and charging his phone. Around 2:13 a.m., during the phone call, Jacqueline heard a man knock at the door of her home. Salahuddin asked, "What's up?" and the person said "Charles." When Salahuddin opened the door, Jacqueline heard gunshots. Jacqueline immediately hung up and called 911.^[2]

Soon thereafter, police officers arrived at the home and found Salahuddin's body on the floor by the front entrance; he had suffered four gunshot wounds, including two in the head. Police collected four empty ".380" bullet cartridge casings nearby. Although there was a surveillance camera inside the home, it did not record the incident because Salahuddin had unplugged it the day before the shooting.

When Jacqueline got home, shortly after the police arrived, she reported that she believed that Jackson had murdered Salahuddin due to their recent fight. Law enforcement investigated Jacqueline and tested her hands for gunshot residue. They also identified Pettway and Jackson as suspects.

Later that day, detectives interviewed Pettway about the shooting. Pettway, who was in a sexual relationship with Jackson, did not acknowledge this relationship, claiming only that he and Jackson were "coworkers." He claimed they last communicated two weeks before the incident. On April 20, 2021, police executed a search warrant for Pettway's residence and vehicle but did not collect any evidence. Police subsequently executed search warrants for Pettway's and Jackson's cell phone records.

Newport News Police Detective Trevor Buchanan, an expert in "call detail records" and geolocation analysis, used Pettway's and Jackson's cell phone records to determine their phones' movements and activities around the time of the offense. Additionally, he obtained videos from traffic and surveillance cameras in Pettway's and Jacqueline's neighborhoods. At trial, Detective Buchanan testified that between 1:25 a.m. and 2:01 a.m. on April 4, 2021-the day before Jacqueline found her car damaged-Pettway's and Jackson's phones traveled northwest toward the area of Pettway's residence, where Pettway's phone had activated a nearby cell phone tower. At 2:01 a.m., both phones disconnected from the cellular network and did not reconnect until 2:15 a.m., which Detective Buchanan opined was consistent with the phones being turned off. From 2:15 a.m. through 3:00 a.m., Pettway's and Jackson's phones traveled together toward the Shabazz residence before returning to Pettway's home.

The phone records also showed that at 1:41 a.m. on the night of the murder, about 30 minutes before the shooting, Jackson's phone placed a 20-minute-long call to Pettway's phone. During the call, cameras recorded Jackson's SUV drive from her home to the vicinity of Pettway's residence, where a man speaking on a cell phone approached her vehicle. Between 2:01 a.m. and 2:05 a.m., cameras recorded Jackson's SUV drive to the vicinity of the Shabazz house. Cell phone records demonstrated that Pettway's and Jackson's phones traveled together during that time. Around 2:05 a.m., Pettway's and Jackson's phones disconnected from the cellular network, which Detective Buchanan again explained was indicative that the phones were turned off. Around 2:13 a.m., a neighbor's surveillance camera recorded a figure approach the front door of the Shabazz residence. Records of her 911 call introduced at trial established that Jacqueline reported the shooting around 2:13 a.m. Cameras then recorded Jackson's car return to Pettway's residence, where Pettway's phone activated a nearby cell phone tower around 3:26 a.m.^[3]

Detective Buchanan searched Pettway's cell phone, which contained text messages establishing that in the weeks following the shooting, Pettway and Jackson discussed their relationship, the fight at the restaurant, and the shooting. For example, on April 12, 2021, in response to a message from Jackson indicating that she regarded him as a "true friend" and that she had not "felt so protected since my brother left me," Pettway texted, "I don't do back stabbing shit. I take head shots I'm coming to u face to face." Describing the April 6, 2021 fight with Jacqueline at the restaurant, Jackson said, "When I tell u everything you did to protect me he would've did plus wayyy more" and it "definitely would've been worse! But I felt so helpless that day like who the fuck do I call." In another message sent shortly after police searched his home and vehicle on April 20, 2021, Pettway told Jackson, "They did [not] take nothing lol . . . Got rid of it." Continuing, Pettway stated that "Malone" was "worried" because she was the "owner of [the] gun now." Pettway instructed Jackson, "[D]on't tell no one what happened," "[k]eep [the] same routine," and "[d]on't forget to delete." The next day, Pettway reminded Jackson to delete their communications and described himself as Jackson's "protector"; Jackson replied, "We both are! Bonnie and Clyde forever!" In response, Pettway texted, "We got this[.] If not[,] See u in your dreams."

On April 22, 2021, police searched Malone's house and found a .380-caliber handgun locked in a safe underneath her bed. At trial, Malone testified that Pettway gave her the handgun two days before the search and had instructed her to give it to police if they came to her home.^[4]The Commonwealth introduced sales records at trial demonstrating that Pettway had purchased the handgun in 2014. Forensic testing established that the handgun had fired the bullet cartridge casings found at the crime scene.

Following closing arguments, the jury convicted...