Stephanie Leigh-Anne Cull, s/k/a etc. v CW

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Lemons∗
Argued at Richmond, Virginia
STEPHANIE LEIGH-ANNE CULL, S/K/A
STEPHANIE LEIGH ANN CULL
MEMORANDUM OPINION∗∗ BY
v. 	Record No. 2202-98-2 	JUDGE DONALD W. LEMONS
MARCH 28, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
David B. Hargett (Morrissey & Hershner, PLC,
on brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
∗ Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
∗∗ Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Stephanie Leigh-Anne Cull appeals her convictions for first
degree murder and abduction. 	On appeal she maintains that the
trial court erred (1) by refusing her jury instruction on duress
and (2) by making a videotape, previously shown to the jury at
trial, available to the jury during deliberations. 	Finding no
error, we affirm the convictions.

I. 	BACKGROUND
In her car, Cull drove Kelley Tibbs, Domica Winckler, Tracy
Bitner, Dana Vaughn1 and the victim, Stacy Hanna, to Marsh Field
in Chesterfield County. 	Motivated by "lies" that Hanna had
allegedly told about Tibbs and Bitner, the codefendants2 beat and
kicked Hanna, cut her with box cutters and dropped a cinder
block on her. 	The box cutters were specifically obtained for
purposes of the attack.
The women transported the severely injured Hanna in the
trunk of Cull's car to a location on Nash Road in Chesterfield
County where they continued to beat and stab her until she died.
The trial record and the briefs of the parties are replete with
graphic details of the attack and the particular acts of the
various participants. 	To the extent that any of these details
are necessary to the resolution of an issue on appeal, it will
be considered in the following analysis of that issue.
II. 	INSTRUCTION ON DURESS
Cull argues that she was entitled to an instruction
exonerating her from criminal liability if the jury found she
acted under duress.
1 Dana Vaughn was also in the car; however, she was not
charged with any offenses.
2 Although referred to as "codefendants" the women were
tried separately. 	As noted previously in Footnote 1, Dana
Vaughn was not charged and, therefore, is not included in our
use of the word "codefendants."
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"If there is evidence in the record to
support the defendant's theory of defense,
the trial judge may not refuse to grant a
proper, proffered instruction." 	Delacruz v.
Commonwealth, 11 Va. App. 335, 338, 398
S.E.2d 103, 105 (1990) (citing Painter v.
Commonwealth, 210 Va. 360, 365, 171 S.E.2d
166, 168 (1969)). 	"If a proffered
instruction finds any support in the
credible evidence, its refusal is reversible
error." 	McClung v. Commonwealth, 215 Va.
654, 657, 212 S.E.2d 290, 293 (1975) (citing
Taylor v. Commonwealth, 186 Va. 587, 591, 43
S.E.2d 906, 908 (1947)).
Herbin v. Commonwealth, 28 Va. App. 173, 180-81, 503 S.E.2d 226,
230 (1998). 	Instructions must be supported by more than a mere
scintilla of evidence. 	See Gibson v. Commonwealth, 216 Va. 412,
417, 219 S.E.2d 845, 849 (1975), cert. denied, 425 U.S. 994, 96
S. Ct. 2207, 48 L.Ed.2d 819 (1976). 	In determining whether
evidence amounts to more than a scintilla, "we must look at [it]
in the light most favorable to [appellant]." 	Foster v.
Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991).
The common law defense of duress excuses acts that would
otherwise constitute a crime where the defendant shows that the
acts were the product of threats inducing a reasonable fear of
immediate death or serious bodily injury. 	See United States v.
Bailey, 444 U.S. 394, 409, 100 S. Ct. 624, 634, 62 L.Ed.2d 575
(1980). 	If the defendant failed to take advantage of a
reasonable opportunity to escape, or of a reasonable opportunity
to avoid doing the acts without being harmed, she may not rely
on duress as a defense. 	See id. at 410, 100 S. Ct. at 634-35;
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United States v. Gordon, 526 F.2d 406, 407-08 (9th Cir. 1975).
Where it is properly shown, duress is a complete defense to a
crime. As has been stated,
[t]he rationale of the defense is not that
the defendant, faced with the unnerving
threat of harm unless he does an act which
violates the literal language of the
criminal law, somehow loses his mental
capacity to commit the crime in question.
Rather, it is that, even though he has the
mental state which the crime requires, his
conduct which violates the literal language
of the criminal law is justified because he
has thereby avoided a harm of greater
magnitude.
W. LaFave & A. Scott, Criminal Law 374 (3d ed. 1983). 	Vague
threats of future harm, however alarming, will not suffice to
excuse criminal conduct. 	See United States v. Patrick, 542 F.2d
381, 388 (7th Cir. 1975), cert. denied, 430 U.S. 931, 97 S. Ct.
1551, 51 L.Ed.2d 775 (1977); Gordon, 526 F.2d at 408.
Cull maintains that she "participated in the events out of
fear for her life." 	She further states in her brief that her
"past experiences with Bitner, Winkler, and Tibbs, and her
passive, nonviolent nature made [her] more susceptible to
duress."
The record, however, shows that Cull knew of the plans to
assault Hanna when the group arrived at the house on Belmont
Avenue in her vehicle that she was driving. 	She admitted that
she picked up a box cutter with knowledge of the intent of the
group to assault Hanna. 	In her videotaped confession she
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acknowledged that after picking up Hanna, she and the other
women went to another person's home and stayed there for "45
minutes or so" before taking Hanna to Marsh Field. 	She stated,
"I didn't kick her any more than 15 times." 	In her confession,
she vividly described the attack including the cuts, kicks and
beatings with a belt. 	She stated, "I hit her with [a belt] a
couple of times." 	She acknowledged that they left Hanna at
Marsh Field but came back for her several minutes later. 	They
put her into the trunk of Cull's car and Cull drove them all to
the Nash Road location. 	While taking her to Nash Road, the
discussion among the women included killing Hanna, cutting off
her fingers and cutting out her tongue. 	In the videotaped
confession Cull admitted that she "cut [Hanna] twice" and later
stated that one time was at Marsh Field and one time was at Nash
Road. 	She acknowledged that the women came up with a "story" of
how Hanna had gotten out of the car earlier in the evening and
that none of them had seen her afterwards. 	Not once during her
entire interview with the police detective did Cull mention fear
of or threats from Tibbs, Winkler or Bitner. 	Furthermore, at
trial, testimony revealed that the trip from Marsh Field to Nash
Road took Cull, who was driving, directly past the Chesterfield
Police Headquarters.
This record has no more than a scintilla of evidence, if
that, of Cull suffering any threat of immediate death or serious
bodily harm if she did not participate in the acts.
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Additionally, the record shows that she failed to take advantage
of a reasonable opportunity to escape her circumstances without
being harmed. 	Apart from the fact that she was not compelled to
participate in the first place, she armed herself with a box
cutter with full knowledge of the group's intention and did not
abandon the group during the forty-five minute stop at another
home before the trip to Marsh Field. 	On the way to Nash Road
she did not pull into the police station where she most
certainly could have abandoned the enterprise without fear of
harm.
Based on this record, Cull was not entitled to the
instruction on duress, and the trial court did not err by
refusing it.
III. 	AVAILABILITY OF VIDEOTAPE TO JURY DURING DELIBERATIONS
The videotaped confession was marked as Exhibit #32 and was
played for the jury. 	At the time, the trial judge stated it
would be "marked and made part of the record" but would not "go
to the jury." 	The Commonwealth immediately asked "to be heard
on that [issue] at break." 	Following additional argument of
counsel, the trial judge stated, "I'll withhold ruling on it
right now. 	It's marked as Commonwealth's Exhibit 32 for
identification. 	If the jury should request the tape, then we'll
cross the bridge when we come to it."
When the tape was played for the jury, it was admitted into
evidence. 	As the Commonwealth's attorney noted, "We didn't
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offer it for the contents of its plastic and paper; we offered
it for the contents of the statement." 	Irrespective of any
characterization made by the trial judge, the contents of the
tape were admitted into evidence when the jury viewed it. 	The
decision to make the tape available to the jury during
deliberations was reserved by the trial judge, presumably,
because if the jury did not ask for the tape, he would not have
to rule on the question. 	The jury did ask for the tape, and the
trial judge allowed it to be available to them during
deliberations.
As we have previously stated,
Code § 8.01-381 provides that upon the
request of any party, the court shall
instruct the jury that they may request
exhibits for use during deliberations.
Exhibits requested by the jury shall be sent
to the jury room or otherwise be made
available. 	[See] Code § 8.01-381. 	An
out-of-court statement, whether written or
recorded, which is introduced into evidence,
is an "exhibit." 	Therefore, the jury was
entitled to take [appellant's] recorded
statement, which was introduced into
evidence as an exhibit, into the jury room.
We reject [appellant's] claim that
permitting the jury to have a recorded
statement by the accused in the jury room is
prejudicial error because it creates a
danger that, by replaying it, that part of
the evidence will be overemphasized. 	This
"risk" exists when a jury peruses any
exhibit. 	The legislature has determined
that the jury is entitled to have exhibits
in the jury room. 	Nothing in the Virginia
statutes or case law requires the trial
judge to supervise the jury's review of
evidence to "prevent overemphasis." 	The
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fact that a jury may dwell upon or emphasize
any evidence, whether testimony or exhibits,
is within the jury's purview in weighing and
considering the evidence. 	Therefore, the
trial court did not err by allowing the jury
to have the exhibits, which included
[appellant's] recorded statement, in the
jury room during deliberations without court
supervision.
Pugliese v. Commonwealth, 16 Va. App. 82, 90-91, 428 S.E.2d 16,
23 (1993).
IV. 	CONCLUSION
Finding no error, we affirm the convictions.
Affirmed.
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Benton, J., concurring.
I concur in Parts I and II of the opinion. 	I do not join
in Part III because I believe that an error was committed. 	That
error, however, was harmless and does not require a reversal of
the convictions. 	Therefore, I also join in the judgment
affirming the convictions.
(A)
During the testimony of a detective, the prosecutor
produced the videotape of the detective's interview with
Stephanie Cull and played it for the jury without objection.
The transcript, however, does not contain a stenographic record
of the words spoken on the videotape as it was played for the
jury. 	After the jury saw and heard the videotape, the following
occurred:
[PROSECUTOR]: 	The Commonwealth would offer
the tape at this time as Commonwealth's
exhibit.
[JUDGE]: 	Marked as Commonwealth's 32. 	It
will be marked and made a part of the
record. 	It will not go to the jury.
[PROSECUTOR]: 	We would like to be heard on
that at break.
[JUDGE]: 	Marked as Commonwealth's 32. . . .
Later, when the prosecutor presented his argument
concerning the videotape, the following pertinent statements
were made:
[PROSECUTOR]: 	. . . It's an exhibit. 	It is
the demonstrative criminal agency in this
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case, which is legitimately offered in
evidence. 	And if it is in evidence, like
any other exhibit, if the jury asks for it,
they should be entitled to review it and
examine it.
We didn't offer it for the contents of
its plastic and paper; we offered it for the
contents of the statement. 	It would be akin
to a written statement. 	If . . . the
defendant made a written confession, The
Court would have no problem with that going
to the jury if they asked to see it. 	We
would make the same motion with regard to
the tape should it arise that the jury asks
for it.
[JUDGE]: 	I'll withhold ruling on it right
now. 	It's marked as Commonwealth's 32 for
identification. 	If the jury should request
the tape, then we'll cross the bridge when
we come to it.
After all the evidence had been presented and during the
jury's deliberation, the jury requested to have the "transcript
of the tape." 	The trial judge told the jury that he "cannot
give [the jury] the transcript . . . [because it] was not
received in evidence in this case." 	When the jury asked for the
videotape "in lieu of the transcript," the judge ruled as
follows:
I've considered Pugliese [v. Commonwealth,
16 Va. App. 82, 428 S.E.2d 16 (1993)]. . . .
It was The Court's intention that the
videotape be made a part of the record in
this case and I do acknowledge that the
magic words received in evidence were never
uttered by The Court, but the tape was
marked for purposes of identification. 	The
Court did, however, make the statement that
the tape be made a part of the record and I
think that is sufficient for receiving it in
evidence. 	There has been a request for the
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tape. 	The tape will be played for the jury
in the jury room.
The defendant excepts to The Court's
ruling and that exception is preserved for
appellate purposes.
(B)
By our Rules of Court "each exhibit offered in evidence,
whether admitted or not, and initialed by the judge" is part of
the trial record. 	Rule 5:10(a)(3). 	Thus, Rule 5:10(a)(3)
generally requires the trial judge to mark as an exhibit for
identification any document or item formally offered as evidence
by trial counsel. 	See, e.g., State v. Onofrio, 425 A.2d 560,
566 (Conn. 1979) (discussing the reasons why the right to have a
proffered exhibit marked for identification is a broad right).
The purpose for marking an exhibit for identification is to
preserve it for the record. 	See Kraus v. Newton, 558 A.2d 240,
241 (Conn. 1989) (holding that marking the exhibit preserves it
for the record and "provides an appellate court with a basis for
review"). 	Merely marking an exhibit for identification,
however, does not designate that the exhibit has been admitted
as evidence. 	See Rule 5:10(a)(3). 	Items that "were marked for
identification and are included in the record" do not become
evidence if "they were not received in evidence." 	Bowers v.
Huddleston, 241 Va. 83, 85, 399 S.E.2d 811, 812 (1991).
The trial judge acknowledged that he had marked the
videotape only for identification. 	Although it was marked only
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for identification, the jury had seen and heard the entire
videotape, without objection, during the trial. 	Thus, the oral
and visual contents of the videotape became evidence that the
jury could consider. 	That circumstance, however, does not make
the videotape itself evidence. 	Cf. Scott v. Greater Richmond
Transit Co., 241 Va. 300, 304-05, 402 S.E.2d 214, 218 (1991)
(holding that a statement of a past recollection recorded may be
read to the jury but cannot be received in evidence as an
exhibit when proffered by the offering party). 	Moreover, when
the videotape was played in the trial court for the jury, the
court reporter did not make a stenographic record of its
contents. 	Thus, the record before us contains no transcription
of what the jury heard and contains no exhibit admitted in
evidence during the trial of that videotape. 	Cf. Matson v.
Wilco Office Supply & Equip., 541 So.2d 767, 769 (Fla. App.
1989) (holding that when a videotape is played at trial it is
evidence that must be made a part of the record on appeal either
by a stenographic record of the evidence presented at trial or
by the videotape being admitted in evidence).
For these reasons, I would hold that the trial judge erred
in giving the jury the videotape, which was marked only for
identification in the record and which was not properly admitted
in evidence at trial. 	See Brittle v. Commonwealth, 222 Va. 518,
522, 281 S.E.2d 889, 890 (1981) (holding that a jury improperly
was permitted to see photographic exhibits that were not
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admitted in evidence); see also Wilson v. Wooldridge, 118 Va.
209, 216, 86 S.E. 872, 874 (1915) (holding that a motion to make
a document an exhibit to be considered by a jury was not timely
when it was made "[a]fter all the evidence had been introduced
in the case and the jury had been instructed as to the law").
As other courts have held, an exhibit that was not admitted in
evidence by the trial judge is not "evidence." 	See Bowman v.
Weill Const. Co., 502 So.2d 133, 136-37 (La. App. 1987) (noting
that "[i]tems of evidence which are physically placed in the
record . . . , but which are not properly introduced and
admitted in evidence by the trial court, may not be considered
by any tribunal in deciding the merits of the case"); see also
Commonwealth, Dept. of Transp. v. McCrea, 526 A.2d 474, 475 (Pa.
Commw. Ct. 1987) (holding that "[i]t is fundamental and
essential that, at trial, a document must be offered to and
admitted by the court before it may be considered evidence;
merely having the document marked as an exhibit, without more,
is insufficient").
(C)
The record clearly establishes that after the taking of
evidence had ended and while the jury was conducting its
deliberations, the trial judge ruled, in effect, that the
videotape, which earlier was merely marked for identification,
would be admitted as evidence and sent to the jury. 	Although I
believe that ruling came too late, I also believe that in the
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context of this case, the error was harmless. 	See Brittle, 222
Va. at 522, 281 S.E.2d at 890 (holding that error is harmful if
"an accused in a criminal case . . . has been prejudiced by
receipt of the information"). 	The videotape contained nothing
that the jury had not seen or heard in open court. 	Indeed, the
transcript of the trial reflects that the entire videotape was
played in open court. 	No claim is made that the videotape
contained extraneous material that was not previously seen by
the jury. 	Obviously, if the videotape had been admitted in
evidence as an exhibit during the trial, the jury could have had
use of it during its deliberations. 	See Code § 8.01-381.
Cull contends that if she had known that the judge would
admit the videotape as evidence, she would have testified at
trial. 	She contends she was prejudiced by the untimely ruling,
which did not allow her the opportunity to testify. 	Because the
jury saw and heard the entire videotape in the Commonwealth's
case-in-chief, that contention lacks persuasion. 	Cull had the
opportunity to testify at trial after the videotape was played
in open court.
For these reasons, I would hold that the error was harmless
and affirm the convictions.
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