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COURT OF APPEALS OF VIRGINIA

Present: Judges Kelsey, McClanahan and Senior Judge Bumgardner Argued at Alexandria, Virginia

TYRONE TREMAINE SMITH v. Record No. 0838-05-4 OPINION BY JUDGE D. ARTHUR KELSEY AUGUST 8, 2006

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY Thomas D. Horne, Judge Lorie E. O'Donnell, Public Defender, for appellant. Michael T. Judge, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

A jury convicted Tyrone Tremaine Smith of second-degree murder, maliciously shooting into an occupied building, possession of a firearm while in possession of a controlled substance, and use of a firearm while committing murder. On appeal, Smith argues that the trial court abused its discretion by (i) allowing the jury to view the crime scene, (ii) denying his motion for a mistrial, and (iii) refusing to vacate the jury's sentencing verdicts after he attempted suicide. Disagreeing with each of these assertions, we affirm. I. One evening in March 2003, Smith sold crack cocaine to John Johnson and two of Johnson's neighbors, Linda and Graham Zimmerman. Smith had sold crack to the same group earlier that evening. Believing the second batch to be of poor quality, Graham Zimmerman called Smith and demanded his money back. Smith came back to Zimmerman's apartment, but refused to give Graham a refund. After a brief fight, Smith threw down the money and left.

Just after Smith left, Graham Zimmerman went through the house turning off the lights and closing the curtains. While Graham and Linda were looking out the "side of the bedroom window," Graham told her to "go call the police." As Linda turned to step out of the bedroom, she "heard a round of gunfire go off" and then saw Graham "hit the floor." He was later pronounced dead from a fatal gunshot wound to the head. Smith confessed to the shooting, telling police Graham Zimmerman attacked him with a knife during the fight over the second batch of drugs. Smith said he fired several shots from a parked car outside Zimmerman's apartment in an effort to "scare" him. Smith said he hoped he "hit him," but did not believe he actually did. Smith went to his parents' house later that night and told them he had shot someone. The next day, Smith threw the gun into a pond. Prior to trial, the Commonwealth filed a motion requesting that the jury be allowed to view the crime scene. There would be no dispute at trial whether Smith shot into the dwelling, the Commonwealth explained. But the layout of the apartment complex, the location of Smith and Graham during the incident, and the distance between the two would be central issues. The view, the Commonwealth contended, was "necessary to explain and clarify the evidence regarding the placement of the defendant, victim, and others before, during, and after" the shooting. Smith objected to the view. Because lighting was "a crucial factor in the case," Smith argued, a view during the daylight hours "would be misleading." The trial judge deferred his ruling on the motion until he heard further evidence at trial. At trial, the Commonwealth renewed its motion for a jury view after presenting its case. Smith objected, insisting that the photographs and measurements provided the jury with a sufficient understanding of the crime scene. The trial judge granted the Commonwealth's motion, holding that it would aid the jury in evaluating the evidence and would not prejudice Smith. Before leaving for the crime scene, however, the judge ensured that the jurors could

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"appreciate the fact that we are not going to this area at night so the lighting conditions would otherwise change by going there in daylight versus going there at nighttime." Each juror was given an aerial photograph of the area that previously had been admitted into evidence. While there, the judge explained, the jurors could walk around the crime scene for a few moments. But they could not speak to each other or go inside the apartment complex. The bailiffs escorted the jury to the crime scene in one van while the judge, attorneys, court reporter, and Smith traveled there in another van. It was raining when the jury arrived at about 10:04 a.m. Less then ten minutes later, the view ended and everyone returned to the courthouse. Back in the courtroom, the Commonwealth rested its case. Smith called his girlfriend, Joanna Howland, as a witness. She testified that she drove Smith to the apartment complex and witnessed him hang out of the car window and fire several shots at Graham Zimmerman's apartment. When she drove away, Smith told her that "he hoped that he hit him." Smith later received two phone calls from someone informing him that "the man was dead." Smith "was crying and very upset," Howland testified, because "he didn't mean to hurt him, he was just trying to scare him." On cross-examination, the Commonwealth asked Howland if she had received any correspondence from Smith about the matter. Howland said she had received several letters from Smith while he was in jail. In these letters, she testified, Smith told her not to testify against him. After this line of questioning, Smith moved for a mistrial. These letters, he argued, should have been turned over by the Commonwealth during pretrial discovery. The trial judge denied the mistrial motion, but agreed to "instruct the jury to disregard the testimony with respect to any letters that may have been written." Smith responded that "the only fair thing to do" would be for the court to "preclude her, to strike her testimony in its entirety." "I will," the judge responded, "if that's what you want." When the jury returned, the

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judge directed them "to totally disregard any testimony" given by Howland in the case. "Can all of you abide by that instruction, put her testimony to one side, disregard it?" the judge asked. He then confirmed the jurors, by nodding their heads, agreed they could disregard the stricken testimony "in its entirety as if it never occurred." At the conclusion of all the evidence, Smith pled guilty to conspiracy to distribute cocaine. Questioning Smith thoroughly, the trial court found the plea voluntarily and intelligently made. The court then submitted the remaining charges to the jury. After about two hours, the jury returned guilty verdicts on all charges. The court proceeded to the sentencing phase and submitted the case back to the jury. An hour later, the jury informed the court that it had reached its sentencing verdicts. The bailiffs went to the holding cell to retrieve Smith and found that he had attempted to hang himself. After the court was informed of the situation, the following colloquy took place between Smith's counsel and the trial judge: SMITH'S COUNSEL: I believe that I would not be doing my job for Mr. Smith if I did not raise obviously the question of his mental status at this time. I bring that to the Court's attention. I don't know - We are going to have Mr. Smith brought out at this time. We're going to go ahead and finish the jury trial and I'm going to take some action in this case this afternoon. Thank you, sir.

COURT:

SMITH'S COUNSEL:

The bailiffs then brought Smith into the courtroom. His counsel asked for "a moment to spend with Mr. Smith" before the jury returned. The court agreed. Shortly thereafter, the jury reentered the courtroom, announced their sentencing verdicts, and departed after a few brief remarks by the trial judge.

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Two months later, Smith filed a motion seeking to vacate the jury sentencing verdicts. Smith argued that the trial court should not have permitted the jury to deliver the sentencing verdicts. Instead, counsel contended, the court should have immediately stopped the proceedings and ordered a competency evaluation of Smith. Although the "only thing that took place was the jury verdict being heard, and certainly he understands what that jury verdict was at this point in time," counsel argued, "we don't know . . . what he was able to comprehend prior to his attempt." Later, at Smith's request, the trial court ordered a competency evaluation prior to scheduling a final hearing to review the jury's sentencing recommendations. The psychiatrist who evaluated Smith found him fully "competent to be sentenced" and noted that his brief hospitalization was "entirely uneventful." Smith's dangerous behavior, the psychiatrist explained, was not "the product of mental illness but instead is the product of his volition." Better characterized as "manipulative violence," Smith's behavior made him a candidate for "protective" incarceration prior to the final sentencing hearing. "It is likely he will continue to choose to engage in such behavior," the psychiatrist concluded, "in an effort to avoid proceeding to sentencing." After reviewing the competency evaluation, the trial court denied the motion to vacate and entered the final sentencing order. II. A. DAYTIME JURY VIEW  NIGHTTIME CRIME We begin with Smith's argument that the trial court abused its discretion in granting the Commonwealth's motion for a jury view of the crime scene. This view, Smith argues, added no probative value to the factfinding process and only served to prejudice his defense. We disagree. Code

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