                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Frank
Argued at Salem, Virginia


DOLLY YVONNE PARKS
                                            MEMORANDUM OPINION * BY
v.   Record No. 0545-99-4                    JUDGE ROBERT P. FRANK
                                                AUGUST 15, 2000
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                 Robert W. Wooldridge, Jr., Judge

          S. Jane Chittom, Appellate Counsel (Public
          Defender Commission, on briefs), for
          appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Dolly Yvonne Parks (appellant) was convicted, by a jury, of

first degree murder in violation of Code § 18.2-32.     On appeal,

she contends the trial court erred in:   1) responding to the

jury's question in the sentencing phase of the trial and 2)

allowing her husband to testify to the content of telephone

messages made by appellant to the victim.    We disagree and affirm

the judgment of the trial court.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                             I.   BACKGROUND

     Appellant and her husband, Henry Parks (Parks), were married

in September 1992.   They separated three years later for

approximately seven months before reconciling, and then separated

permanently in October 1996.      They had two children, a son and a

daughter.   In November 1997, appellant was living in New York with

the children and Parks was living in Fairfax County with his

girlfriend, Gwendolyn Jackson (Jackson), who was pregnant.

     Parks met Jackson in July 1996.      He moved into Jackson's

townhouse in September 1997, some three or four months after she

became pregnant with his child.      Parks testified that appellant,

to whom he was still married, was hostile about his relationship

with Jackson.

     On November 2, 1997, appellant unexpectedly came to the

residence shared by Parks and Jackson between 6:00 p.m. and

7:00 p.m.   An argument ensued between appellant and Parks.    She

made comments about Parks' life with Jackson, such as "I can't

believe you left me for this."      Appellant threatened Jackson and

made derogatory remarks about her relationship with Parks.

Appellant told Jackson she would "beat" her and "kill" her had

Jackson not been pregnant.    Appellant thought Jackson was the only

impediment to her reconciliation with Parks, even though Parks

told her that was not the case.

     Parks returned home at 2:00 a.m. on November 26, 1997, and

noticed the living room was dark and the upstairs light was on.

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He quickly ran upstairs to check on Jackson because the house

"just felt very cold," "strange," and "like something had gone

wrong."    Not finding Jackson, he ran back downstairs and

discovered her body on the living room floor.    Her face was "very

bloody."    Parks saw "something" wrapped around her neck "fairly

tightly."    He immediately called 911.

     The police responded at 2:16 a.m.    The officers observed that

a struggle had taken place at the residence, but there were no

signs of forced entry.    Jackson's body was fully clothed, and she

was wearing a leather jacket.    Her purse and wallet were on the

floor near her outstretched hand.    Her body was rigid, which

indicated she had been dead for several hours.    One eye was

swollen shut, and there were scrapes and dried blood on her face.

A damp washcloth was found behind the stereo.

     The medical examiner determined the cause of death was

"strangulation by ligature" and that Jackson's injuries were

consistent with having been caused by an extension cord.

Appellant's teeth matched the bite mark on Jackson's breast, and

the DNA taken from under Jackson's fingernails and from the blood

and saliva on her breast was consistent with a mixture of

Jackson's and appellant's DNA.

     Appellant claimed Parks had given her money to bring their

son to Fairfax for Thanksgiving.    She said she arrived at Parks'

apartment at 7:30 p.m. on November 25, 1997, but no one was home.



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     She and her son went to a nearby fast food restaurant and

returned to the apartment at 9:30 p.m.   As they approached the

apartment, two men she had seen there earlier ran down the steps

and left in a car.   The apartment was open so she walked in with

her son to find Jackson lying on her side on the floor.    Appellant

said that when she rolled Jackson onto her back, Jackson grabbed

and bit her and that she reacted by biting Jackson.   She claimed

she told her son to find a phone while she tried to perform CPR on

Jackson.

     Appellant also tried to clear the blood from Jackson's mouth,

using her own hand and scarf.   She then checked for a pulse and

found none, and could not hear Jackson breathing.

     Appellant further testified that a man she knew from New

York, with whom Parks allegedly had sold drugs, came downstairs

and admitted beating Jackson.   He ordered her to leave and not to

say anything.   Appellant took a cab to the bus station where she

and her son spent the night.

     At trial, Parks testified, over appellant's hearsay

objection, that in June 1997 he retrieved two messages from

Jackson's voice mail system at her place of employment.    Parks

called the message service number and then used the "pin number"

Jackson had given him to obtain messages.   Parks recognized

appellant's voice as the caller.   In the first message, appellant

said in an "angry" tone that Jackson was a "floozie" and a "tramp"

who "stole her husband."   She also said Jackson was "stupid" for

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wanting to be with a man in Parks' situation.     The second message

was "very short" but similar in context.     The messages were not

saved.

     When asked at the sentencing hearing how the family was

coping with Jackson's death, her father replied they would not

"have a chance to meet" her baby.    Neither the question nor answer

was objected to by appellant.

     During deliberations, the jury asked if it could "take the

(absence of) the life of Jackson's baby into consideration."

Following the question, counsel and the trial court discussed an

appropriate answer.   The Commonwealth suggested the jury should be

told that they could consider any harm "flowing" from the crime.

Appellant disagreed, contending, because the fetus is not a life,

the jury could not take the fetus' life into consideration.

     Defense counsel further said the jury could be told it "'must

consider only the evidence before you,' which would allow them to

take into consideration that [Jackson] was pregnant, but would not

define that the child was a life."      Yet, counsel preferred that

the trial court simply answer "no" to the jury's question.

     The trial judge, indicating he would not answer the question

with a simple "no," proposed telling the jury that they "may not

consider that the fetus in Gwen Jackson's body was murdered," but

that her pregnancy was a circumstance to be considered along with

the other evidence in the case.   Defense counsel continued to



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object to any language that assumed the unborn baby was murdered,

i.e. that appellant committed two murders.

     The trial court asked the jury to clarify the question.     The

foreperson said the jurors wanted to know whether they could

consider "the loss of the baby's life, the fetus . . . the loss of

two lives versus one" in sentencing.

     The entire jury panel responded that the foreperson's

clarification was what they understood the question to be.   The

trial court then concluded the jury was asking if it could

consider the loss of the fetus as a second murder and decided the

jury should be told if that was the question, "the answer is no."

Appellant continued to object, asserting that the jury's question

was improper because there could not have been a murder of the

fetus and that the jury should be told "no," that it could not

consider the loss of the fetus.    The prosecutor asked the trial

court to add that the jury could "consider all of the evidence in

the case with respect to the impact upon the victim," but the

court declined to do so.   The court responded to the jury in

writing:   "If by this question you are asking whether you may

consider the loss of the fetus in Gwen Jackson as a second murder,

the answer is no."

                           II.    ANALYSIS

                      A.   The Jury's Question

     Appellant contends the trial court's answer to the jury's

question implies that the death of the fetus has some relevance to

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sentencing, though not as a second murder.   In her reply brief,

appellant further contended the trial court erred in not telling

the jurors not to consider the death of the fetus.

     A trial court may provide supplemental instructions to a jury

over a defendant's objection.   See Blevins v. Commonwealth, 209

Va. 622, 628, 166 S.E.2d 325, 330 (1969).    In fact, "[i]t is

proper for a trial court to fully and completely respond to a

jury's inquiry concerning its duties."    Marlowe v. Commonwealth, 2

Va. App. 619, 625, 347 S.E.2d 167, 171 (1986) (citation omitted).

The trial court must "give a direct and correct response to an

inquiry by the jury and its failure to do so is ground for

reversal."    Shepperson v. Commonwealth, 19 Va. App. 586, 591, 454

S.E.2d 5, 8 (1995) (citation omitted).

     Appellant's sole concern as to the jury's clarification of

their initial question was that there could not be a murder of a

fetus.    Counsel suggested to the trial court that the answer to

the question should be "no."    The trial court answered the jury,

"If by this question you are asking whether you may consider the

loss of the fetus in Gwen Jackson as a second murder, the answer

is no."   Appellant's concern was to insure that the jury would not

consider the fetus' death as a murder.    The trial court advised

the jury of that specific issue.

     Appellant contends the trial court's answer gives credence to

the fact that the child was eligible to be murdered.   The trial

court's response implied no such thing.    The response clearly and

                                - 7 -
correctly addressed appellant's concern by informing the jury that

they could not consider the loss of the fetus as murder.    The

members of the jury, in the clarifying question and the responses

to the trial court's poll, indicated their question dealt with

whether there was one murder or two.     The trial court properly

responded they could not consider the death of the fetus as

murder.

                            B.   Hearsay

     Appellant contends Parks' testimony regarding voice mail

messages to Jackson from appellant is inadmissible double

hearsay and because the tape was not produced, its reliability

could not be tested.   Appellant contended the tape could have

been altered.

     "'The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be

disturbed on appeal in the absence of an abuse of discretion.'"

James v. Commonwealth, 18 Va. App. 746, 753, 446 S.E.2d 900, 904

(1994) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371

S.E.2d 838, 842 (1988) (citation omitted)).

     Hearsay is "primarily testimony which consists [of] a

narration by one person of matters told him by another."

Williams v. Morris, 200 Va. 413, 417, 105 S.E.2d 829, 832

(1958).   However, "[i]f the declaration is offered solely to

show that it was uttered, without regard to the truth or falsity

of its content, the declaration is not excluded by the hearsay

                                 - 8 -
rule."    Speller v. Commonwealth, 2 Va. App. 437, 446, 345 S.E.2d

542, 548 (1986) (citation omitted)).    "In addition, hearsay

evidence is admissible if it falls into one of the recognized

exceptions to the hearsay rule which are based on necessity and

inherent trustworthiness."    Evans-Smith v. Commonwealth, 5 Va.

App. 188, 197, 361 S.E.2d 436, 441 (1987) (citation omitted).

                 If, however, the statement is admitted
            to prove some other extraneous fact, such as
            that the statement was in fact made, the
            state of mind of the declarant, or notice or
            knowledge, then the statement is not hearsay
            and will be admissible if relevant and not
            otherwise violative of another rule of
            evidence. When evidence that might
            otherwise be hearsay is admitted for a
            limited, non-hearsay purpose, the trial
            court must instruct the jury that they are
            to consider the evidence for the specific
            limited purpose; where such a limiting
            instruction is given, we presume that the
            jury followed that instruction.

Hanson v. Commonwealth, 14 Va. App. 173, 187, 416 S.E.2d 14, 22

(1992) (citations omitted).

     In Church v. Commonwealth, 230 Va. 208, 211-15, 335 S.E.2d

823, 825-27 (1985), the Supreme Court of Virginia addressed the

statement of a young victim who told her mother that sex was

"'dirty, nasty and it hurt.'"   The Court ruled that the child's

statement was not hearsay.    See id. at 211-12, 335 S.E.2d at

825-26.

            The Commonwealth did not offer the child's
            statement to prove that sex is "dirty, nasty
            and it hurt." Rather, it was offered to
            show the child's attitude toward sex, an
            attitude likely to have been created by a

                                - 9 -
           traumatic experience. Although the child
           made no prompt report of the crime, the
           Commonwealth was entitled to prove, by
           circumstantial evidence, that she had been a
           victim. Thus, the child's out-of-court
           statement was not hearsay, but was
           admissible as circumstantial evidence
           tending to establish the probability of a
           fact in issue.

Id. at 212, 335 S.E.2d at 825-26.

     Similarly, in this case, the challenged testimony was not

offered to prove Jackson was a "floozie" or a "tramp" or to

prove Jackson stole appellant's husband.   The evidence was

offered solely to show appellant's attitude toward Jackson.   The

Commonwealth was entitled to prove the bad feelings appellant

harbored toward Jackson because motive is "'relevant and often

most persuasive upon the question of the actor's intent.'"

Archie v. Commonwealth, 14 Va. App. 684, 690, 420 S.E.2d 718,

722 (1992) (quoting Epperly v. Commonwealth, 224 Va. 214, 232,

294 S.E.2d 882, 892-93 (1982)).

     Appellant further contends Parks' testimony was double

hearsay.   Essentially, appellant argues, there were two

out-of-court asserters, appellant and the voice mail recording.

     Assuming without deciding that the admission of Parks'

testimony, which reported the voice mail recording, was hearsay,

the admission of Parks' testimony was harmless error.

                Non-constitutional error is harmless
           "[w]hen it plainly appears from the record
           and evidence given at trial that the parties
           have had a fair trial on the merits and
           substantial justice has been reached." To

                              - 10 -
          determine whether an error is harmless, we
          "must review the record and the evidence and
          evaluate the effect the error may have had
          on how the finder of fact resolved the
          contested issues."

Purvis v. Commonwealth, 31 Va. App. 298, 308, 522 S.E.2d 898,

902 (2000) (citations omitted).

     In this case, Parks' testimony was admitted to show

appellant's attitude toward Jackson.    There was evidence before

the jury that appellant appeared on November 2, 1997, at the

home shared by Parks and Jackson.    On that date, she told Parks,

"I can't believe you left me for this."    She also threatened

Jackson and made derogatory remarks about Jackson's relationship

with Parks.   Specifically, she told Jackson she would "beat" her

and "kill" her had Jackson not been pregnant.    This evidence

clearly established appellant's feelings about Jackson and

Jackson's relationship with Parks.     Therefore, we find Parks'

testimony regarding the voice mail messages did not affect the

jury's ability to resolve the contested issues.

     For these reasons, we affirm the judgment of the trial

court.

                                                           Affirmed.




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