IN THE COURT OF APPEALS OF VIRGINIA RECORD NO. 3029-08-3 TIMOTHY WAYNE WRIGHT, JR, Appellant, v. COMMONWEALTH OF VIRGINIA, Appellee. BRIEF IN OPPOSITION TO THE PETITION FOR APPEAL Christopher L. Miller, Esquire Deputy Commonwealth’s Attomey, VSB #45660 Office of the Commonwealth’s Attomey For Harrisonburg and Rockingham County 53 Court Square, Suite 210 Harrisonburg, Virginia 22801 540.564,3350, Fax: 540.433.9161 Counsel for the AppelleeTABLE OF CONTENTS TABLE OF AUTHORITIES ...... STATEMENT OF THE CASE... QUESTIONS PRESENTED.........0.04+ STATEMENT OF THE FACTS.. ARGUMENT. A) WHETHER THERE WAS SUFFICIENT EVIDENCE FOR THE JURY TO FIND THE DEFENDANT GUIILTY BEYOND A REASONABLE. DOUBT «o...ssesessesteceessesnecessteesneeee a 11-14 CONCLUSION ... eo CERTIFICATE meters 1STABLE OF AUTHORITIES Black v. Commonwealth, 222 Va. 838, 841, 284 S.E, 2d 608, 610 (1981)... Cantr denied, 496 U S. 911 (1990)... monwealth v. Jenkins, 255 Va, 16, 521, 499 S.B. 2d 263, 265 (1998). George v. Commonwealth, 242 Va. 264, 278, 411 S.E, 2d 12, 20 (1991). Robertson v. Commonwealth, 31 Va. App. 814, 820, 525 S.E.2d 640, 643 (2000)..... Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E, 2d 730, 732 (1995). Spangler v. Commonwealth, 188 Va. 436, 438, 50 $.E. 2d 265, 266 (1984). ‘Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337, S.E.2d 897, 898 (1985). ‘Yellardy v. Commonwealth, 38 Va. App. 19, 21-22, 561 S.E. 2d 739, 741 (2002)... STATUTES: Virginia Code §8.01-680. 81 Virginia Code §18.2-53.1.. Virginia Code § 18.2-154,.... Virginia Code §18.2-286.1... trell v. Commonwealth, 7 Va. App. 269, 289, 373 S.E. 2d 328, 338 (1988), ce cert. 2 13 fall 13 i 12 2 12 12IN THE COURT OF APPEALS OF VIRGINIA Record No, 3029-08-3 THOMAS WAYNE WRIGHT, JR., Appellant v COMMONWEALTH OF VIRGINIA, Appellee. BRIEF IN OPPOSITION TO THE PETITION FOR APPEAL TO THE CHIEF JUDGE AND JUDGES OF THE COURT OF APPEALS OF VIRGINIA, comes now the Appellee, the Commonwealth of Virginia, by Counsel, and respectfully presents the following Brief in Opposition to the Appellant's Petition for Appeal regarding the final judgments of the Circuit Court of County of Amberst, Virginia, of Decemb: 2008. For purposes of this appeal, the Appellee adopts the 2008. For purposes of this appeal, the Appolice adopts the J references to the appellant, Timothy Wayne Wright, Jr., as the “Defendant”, and any reference to the trial transcripts of October 1, 2008, October 2, 2008, October 3, 2008, and October 4, 2008 as “TI, at ”T2,at 13, at .” and T4,, at ‘2 respectively; and any reference to the sentencing transcript of December 10, 2008, as “S. at1 STATEMENT OF THE CASE The statement of the case by the Appellant is adopted for the purposes of this appeal As the Appellant has noted in his brief: On October 4, 2008, following a four (4)-day jury trial in the Circuit Court for the County of Amherst, Virginia, the Defendant was found guilty of first degree murder , use of a firearm in the commission of murder, shooting into an occupied motor vehicle, and discharging a weapon from a motor vehicle in violation of Virginia §§18.2-32, 18.2-53.1, 18.2-154, and 18,2-286.1, respectively, of the Code of Virginia (1950), as amended, T.4, at 138. On December 10, 2008, the Defendant was sentencing in accordance with the recommendations of the jury in these matters to incarceration within the Virginia Department of Corrections to a total term of sixty-three (63) years upon his convictions. S., at 44. The Defendant was sentenced as follows 1. First Degree Murder: 50 Years; 2. Use ofa Firearm: 3 Years; 3. Shooting into an Ocoupied Vehicle: 5 Years; and 4. Discharging a Weapon from a Vehicle: 5 Years, On December 18, 2008, a Notice of Appeal was filed with the Amherst County Circuit Court IL QUESTIONS PRESENTED A) WHETHER THERE WAS SUFFICIENT EVIDENCE FOR THE JURY TO FIND THE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT.m. STATEMENT OF THE FACTS On May 3, 2008, Justin Baumgardner was brutally hunted down and murdered by the Defendant, Timothy Wayne Wright, Jr., while the victim was driving his truck and left to him die in Amherst County, Virginia. The Defendant had created a “myspace” personal webpage that was titled “Tim, the Ultimate Physco, Physco or Psycho Killer, Master of Death,...”, and stating “...I want to be with the love of my life, Nicole...”. T.3, 132. On the night of the murder, Justin Michael Davis, a friend of the Defendant, was with him; Davis had known the Defendant for about a month. ‘T.2, 136. On the night of the murder the Defendant drives Davis to Monacan Park. T.2, 149. The Defendant told Davis, that he saw Emily Nicole Turpin with some other guy and was enraged. T. 2, 152. Emily Nicole Turpin had dated and had a sexual relationship with the victim, Justin Baumgardner, in 2007. T.1, 310-311. Turpin had met the Defendant, Timothy Wayne Wright, Jr, in April of 2008 and was dating him at the time of the murder. .1, 311,312. Turpin denied having a romantic relationship with Justin Davis. T.1, 358. The Defendant and Turpin Ti, 318, The Defendant fouud oui about Tuspiis's taiked and saw each vile every day. sexual relationship with the victim, Baumgardner, and expressed his anger by saying, on more than one occasion, that the victim needed to leave Turpin alone or he was “going to fuckin’ kill him”. T.1, 328. Right before the murder, Turpin saw the Defendant with Justin Davis" black gun, T.1, 329. Shane Bailey, a friend of the Defendant’s for four years, saw Justin Davis’ black gun in the glove compartment of the Defendant's vehicle before the murder. T.2, 390. On May 2, 2008, the Defendant showed Robert Lee Coffman, Jr. a black 38 caliber gun, a man he had only recently met. 2, 429. The Defendant showed Coffman that the gun was loaded. T.2, 433, On May 3, 2008, Turpin was with the Defendant, andDavis, when the victim contacted her by texting her on her phone that evening around 6 p.m, ‘T-1, 330-331, Turpin and the victim decided to meet and this made the Defendant mad; ‘Turpin met with the victim at Monacan Park at 7:47 p.m.. T.1, 335. Tim Wright arrived about 30 to 40 minutes later at Monacan park. T.1, 336, 339. The Defendant was with Davis, and the Defendant was driving first, but switched with Justin Davis. T.1, 340,341 Turpin kissed and hugged after the Defendant was thought to be out of sight. T.1, 342. The Defendant drives back to the park and argues and pushes the victim. T.1, 343. The Defendant tells the victim * you need to leave Nicole alone or I'll fuckin kill you....”. T.1, 344. Davis, who was with the Defendant, remained in the vehicle during the fight. T.1, 345. Davis witnessed a physical altercation between the Defendant and the victim, Justin Baumgardner. T.2, 155. Davis left in his truck going right towards Elon Road. T.1, 346. ‘The Defendant drives out the park quickly, about 30 to 45 seconds after the victim left, and tured right, headed to 130 (Elon Road). T.1, 347. The Defendant chases after the victim towards Elon Road with Davis as a passenger and when the Defendant sees a pair of us hie says “kil Justin.” 7.2, 161, The Defendant reirieves Davis” yun from undemeath the seat and switches position with Davis so that Davis is driving and the Defendant is in the passenger seat. T.2, 162. The victim's pick-up truck is identified and the Defendant orders Davis to pass the victim. 1.2, 163. It is at this point that the Defendant shoots at the victim, multiple times with Davis’ 38 caliber pistol. T.2, 163. The Defendant, at trial, stipulated that Davis’ .38 caliber pistol was the murder weapon. T.2, 560. Dr, Amy Tharp, Assistant Chief Medical Examiner for the Commonwealth of Virginia, performed a full pathological examination and autopsy of Justin Baumgardner. T.3, 196. The cause of the victim’s death was a gunshot wound to his chest. T.3, 196.‘After the murder, the Defendant made the comment to Davis that dead witnesses don’t talk. 7.2, 164. Davis called the Defendant the next morning and spent the day with the Defendant, but did not report the murder at first, T.2, 210, 214. The day after the murder, The Defendant told Shane Bailey that he and Justin Dvis had ‘did it” (referring to the murder of the victim). T.2, 391. Bailey when asked on three prior occasion denied having heard the Defendant say anything about the murder. T.2, 401. It was only when he talked with his mother and after his mother had summonsed the police back to their house, that Bailey told the officer of the Defendant’s admission. 7.2, 402. Bailey's mother was involved in a romantic relationship with Justin Davis’ father. 7.2, 403. On May 5, 2008, Davis reported the murder weapon, his gun, missing and insinuated that the Defendant had taken it, which he admitted was a false story. T.2, 226. On May 6, 2008, Davis told the police that he had been kidnapped by the Defendant which he also admitted was a false story. T.2, 172-173. He finally told law-enforcement the true story and said the reason he did not tell the truth at first was because he was scared his father would lose his job with the Aniherst County Shersif's Office and ins general fea of die Defeudausi. T.2, 173, la particular, the Defendant had previously commented on several occasions to Davis that while the Defendant was in Iraq he had raped and killed pregnant women and children. T.2, 257. Davis had no previous criminal history. T.2, 173. Ashley Michele Seawell testified that around 9::15 p.m, she heard multiple gun shots on Elon Road . T.1, 136. Anthony Dylan Seawell at 3411 Elon Road also heard multiple gun shots the evening of May 3, 2008. T.1, 146-147. Greg Moorman from Alltel Wireless testified that he was able to determine that the Defendant’s cell phone was used to communicate with Turpin cell phone, numerous times,uring the evening of the murder. 7.2, 287-297. Moorman testified that during a certain period of time on the evening of the murder, the Defendant’s cell phone utilized three cell phone towers close to Monacan Park to complete the calls to Turpin’s phone. T.2, 301. Cary MeConnell of 3465 Elon Road found Justin Davis in his vehicle that was full of bullet shots. T.1, 153. Lieutenant Craig Davis of the Amherst County Sheriff's Office responded to the crime scene at 3465 Elon Road in the County of Amherst, Virginia on May 4, 2008. T.1,160. Lt, Davis located a cartridge casing (Commonwealth's Exhibit 5) near where the victim’s truck was found and other cartridge casings (Commonewalth’s Exhibit 7). 7.1, 166, 170. An additional cartridge casing was also found by Seargent James Ingram of the Amherst county Sherriff's department. T.1, 187-188, These casings were beleieved to be .38 caliber semi-automatic casings. T.2, 501. Investigator John Tetterton of the Amherst County Sherriff’ Office responded to the crime scene to collect evidence on May 4, 2008. T.1, 197. Inv. Tetterton took several photographs on the crime including the truck, the victim’s body in the vehicle and the bullet citertoa obscrved aad photographed a guashot wound on the victim’s body. T.1., 217.(Commowenalth’s Exhibit 28). He also collected ‘wo bullet jackets (Commonwealth's Exhibits 33, 35), a bullet fragment (Commonwealth’s Exhibits 34), and a bullet recovered from the victim (Commonwealth’s Exhibit 45). ‘The Defendant shot five bullet holes into the victim’s vehicle. T.1, 298. Richard Van Roberts, a firearms examiner with the Virginia Department of Forensic Science, testified that the cartridge cases recovered at the scene and the bullet were of the same caliber, and that the three recovered cartridge cases were fired from the same gun. 7.2, 562.On July 24, 2008, James Bric Finney, a convicted felon and former paid informant, ‘was incarcerated at the Amherst County Jail for failure to pay child support. 7.3, 16. While at the jail church, the Defendant told Finney that he had “shot a punk on Elon Road”, and that he had shot him with a .38 handgun which he said was in the James River. 3, 18 Finney was not from Amberst County and was not familiar with Blon Road. T.3, 18. Brandon Stanley, a convicted felon who had plead guilty to robbery and firearm charges, testified at trial came to know the Defendant when he was incarcerated at the ‘Amherst County Jail. T. 7.3, 35. According to Stanley, the Defendant admitted that he had shot the victim and he said it was over a girl named Nicole. T.2, 36, 37. He also admitted to Stanley that he use a.38 that belonged to Steven Davis, Justin Davis’ father. T.2, 40. Stanley heard the Defendant discuss a map with Emest Tumer. T.3, 42. Stanley had this information on May 5, 2008, but did not tell authorities until the middle of August. T.3, 48. Emest Tumer was a co-defendant along with Stanley and was willing to testify against Stanley. 7.3, 49. Donnie Calvin Scauits, Js., why was invascoiaicd in the Auulieast Couuty Sail for a felony charge of third offense domestic assault and battery, was assaulted by the Defendant in the jail. 1.3, 60. The Defendant told him that he should kill him just like he killed the other guy, ‘1.3, 61. The Defendant on cross-examination denied knowing Donnie Seamster. 13, 338, Emest Tumer, a convicted felon and former cooperating witness, was one of the Defendant’s cellmates at the Amherst County Jail. T.3, 79. The Defendant gave Tumer a map so that he could get someone to murder Justin Davis because he was the only witness to Justin Baumgardner’s murder. T.3, 82. The map was of the area where Justin Davis lived.7.3, 82-83. The Defendant told Tumer that he enjoyed killing pregnant women and children when he was in Iraq. 7.3, 84. The Defendant told Tumer that he had killed the victim with @ .38 Cobra that he got from Justin Davis. T.3, 85. The Defendant told Turner that he had a stolen bobeat and that the gun was near the bobcat and wanted someone to get rid of the gun, T.3, 88, Tumer gave the map of Steven Davis and Justin Davis’ residence that the Defendant drew to Captain Clarence Duval Doss of the Amherst County Sherriff’s Office. T.2, 504, Special Agent Dino Capuzzo of the Virginia State Police used the map to recover the bobcat and returned it to the business owner, Blue Ridge Concrete. 3, 122. Kenneth Walter Gill, an expert in finger print analysis from the Virginia Department of Forensic Science, testified that he was able to compare the palm prints and fingerprints of the Defendant with latent fingerprints and latent palm prints that were found on the map. T.2, 573. Gill determined that all of the latent prints of vatue on the map were in fact the Defendants prints. T.2, $80. Raymond Hudson testified on behalf of the Defendant, that he was incarcerated with Davis at the Lynchburg City Jail and thai Davis ivid Tiudson dai he juad framed de Defendant for the murder. T.3, 235. Hudson testified that he told the Defendant was Davis had told him when he came to the Amherst County Jail. T.3, 236. Lisa Wisebrick, student at Sweet Briar College, testified that she had met the Defendant and Davis in April of 2008, and that she had seen Davis with a gun. T:3.,270. ‘The Defendant denied that he had ever admitted to killing the victim while the Defendant had been incarcerated. T.3, 278-279. ‘The Defendant testified that on May 3, 2008, he spent the beginning of the day with Davis and also Turpin using Davis’ vehicle T.3. 281. According to the Defendant, Davis and he spent the afternoon of May.3, 2008 10together and he saw Davis’ gun in his glove box. According to the Defendant, Turpin called to let him know she was meeting the victim and he stated he had no problem with that. T.3, 287. The Defendant testified that he had Davis decided to drive some back roads and drove to Monacan Park. 7.3, 290. According to the Defendant Davis was driving the Defendants’ vehicle when they noticed Turpin at the park and kept on driving. The Defendant testified that he and Davis returned to the park and saw the victim’s vehicle and parked behind it, T.3, 294. The Defendant testified that Davis had an argument with the victim while he spoke with Turpin in a separate conversation. T.3, 295. The Defendant testified that the victim left and then he drove Davis and dropped him off and drove to his house. T.3, 296- 297. The Defendant denied being in a romantic relationship with Turpin despite the photos of them together and provocative photos sent by her to him. 1.3, 306. Defendant admitted to drawing the map. T.3, 325. The Defendant testified that, while he was incarcerated, he drew a map to Justin Davis’ home to assist a law enforcement investigation. T.3, 327. He testified that he came up when missing when Emest Tumer shared his cell, T.3, 327-328. Iv. ARGUMENT A) THE EVIDENCE WAS SUFFICIENT FOR THE JURY TO FIND THE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT. “On review of a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth, the prevailing party, and grant to it all reasonable inferences fairly deducible therefrom.” Robertson v, Commonwealth, 31 Va. App. 814, 820, 525 $.E.2d 640, 643 (2000), see v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265 (1998).Additionally, as the Appellant notes, because the Defendant chose to introduce evidence on his own behalf after the Commonwealth rested its case, the sufficiency of the evidence must be judged by the evidence presented by the Defendant as well as by the evidence presented by the Commonwealth, Spangler v. Commonwealth, 188 Va. 436, 438, 50 S.E.2d 265, 266 (1984). Also, as the Defendant notes: It is well settled that the “credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who ‘has the opportunity to see and hear that evidence.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.B. 2d 730, 732 (1995). This Court cannot reverse a conviction unless “it appears from the evidence that is plainly wrong or without evidence to support ealth, 1 Va. App. 241, 243, 337, S.E.2d 897, 898 (1985). It; Sutphin v. Commonw. Also, as the Defendant notes it has long been held by this Court that the weight which should be given to evidence and whether the testimony of a witness is credible are questions committed to the sound discretion of the trial court fact finder. Yellardy v. Commonweaith, 38 Va, App. 19, 21-22, 561 5.0. 2d 739, 741 (2002). Additionally, the Defendant notes that the jury's findings of fact and determinations concerning the credibility of the witnesses are presumed correct, and will not be overturned on appeal unless they are plainly wrong, and the jury verdicts will be affirmed unless they are without any evidence to support them. Va. Code §8.01-680; Black v. Commonwealth, 222 Va, 838, 841, 284 S.E, 2d 608, 610 (1981), Furthermore, the Defendant notes that when the Defendant challenges the sufficiency of the evidence, this Court should not overrule the verdicts of the jury and substitute its own judgment, even ifits opinion might differ from that of the jury if there 2is evidence to sustain the jury’s verdicts. George v. Commonwealth, 242 Va. 264, 278, 411 S.E. 2d 12, 20 (1991). And the Commonwealth was not required to disprove every remote possibility of the Defendant’s innocence. Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373 S.E. 2d 328, 338 (1988), cert. denied, 496 U.S. 911 (1990). ‘The evidence, when viewed in the light most favorable to the Commonwealth, is more than sufficient for the jury to find that the Defendant hunted down and brutally murdered Justin Baumgardner by shooting him and leaving him to die beside the road with no assistance. The jury verdict was not plainly wrong nor without evidence to support it, The jury had an opportunity to personally hear and observe the witnesses and weigh their credibility and determine their veracity. The jury also had an opportunity to personally hear and observe the Defendant and weigh his credibility and determine his veracity. There is both direct and circumstantial evidence of the Defendant's guilt in the record. There was clear evidence of his anger towards the victim and his motive to kill the victim, The Defendant was jeaious and ungry because Dmily Nivoie Turpin decided to meet Justin Davis the evening of the murder. The Defendant became involved in a physical altercation with the victim at Monacan Park. Justin Davis witnessed the Defendant shoot at the vehicle dri by the victim, The Defendant placed himself near the erime scene the evening of the murder and the evidence regarding his cell phone calls that night confirms his presence at Monacan Park and near the crime scene, The Defendant admitted his guilt to a third party, Shane Bailey, right after the murder. The Defendant admitted his guilt to others while he was incarcerated. The Defendant also attempted to get someone to kill Justin Davis, the eyewitness. It is clear that theDefendant was an angry and violent man before the events of May 3, 2008, The Defendant murdered Justin Baumgardner in a jealous rage. The jury had an opportunity to determine the credibility and veracity of the witnesses, No one else, but eh Defendant, had a motive to kill Baumgardner that evening. The Defendant's guilt was proven beyond a reasonable doubt. v. CONCLUSION ‘The Defendant hunted down and brutally murdered Justin Baumgardner by shooting him and leaving him to die beside the road with no assistance. The Commonwealth presented credible eyewitness testimony of these events, along with testimony regarding the Defendant’s murderous motive of jealousy and anger. The Defendant admitted to others that he had shot the victim. Furthermore, there was testimonial and circumstantial evidence to prove his guilt beyond a reasonable doubt. The jury rightly found the defendant guilty of all of the charges. WHERDFORE, the Conunoirwealth respectfully requests that this Honorable Court deny the Defendant’s Petition for Appeal for the reasons stated in the Commonwealth’s Brief in Opposition, Respectfully Submitted, ‘Deputy Commonwealth's Attomey, VSB#45660 Office of the Commonwealth’s Attomey’s For Harrisonburg and Rockingham County 53 Court Square, Suite 210 Harrisonburg, Virginia 22801 540.564.3350CERTIFICATE Thereby certify that, pursuant to Rule $A:19 (f) of the Rules of the Supreme Court of Virginia, seven copies of the foregoing Brief in Opposition were mailed by certified mail postage prepaid to the Clerk of the Court of Appeals of Virginia and a copy of the foregoing was mailed, first-class to opposing counsel: Grady W. Donaldson, Jr., Esquire Schenkel & Donaldson, P.C. P.O. Box 11315 1601 Graves Mill Road Lynchburg, Virginia 24506-1315 . Counsel for Appellant fice of Commonwealth's Attorney's For Harrisonburg and Rockingham County VSBH#45660 53 Court Square, Suite 210 Harrisonburg, Virginia 22801 $40,564,350, Fax: $40,433-9161 1s