                    COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Frank
Argued at Alexandria, Virginia


DORELL PERCELL TAYLOR
                                                   OPINION BY
v.   Record No. 1118-99-2                     JUDGE ROBERT P. FRANK
                                               SEPTEMBER 26, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                        Robert W. Duling, Judge

            Steven D. Benjamin (Betty Layne DesPortes;
            Benjamin & DesPortes, P.C., on briefs), for
            appellant.

            John H. McLees, Jr., Senior Assistant
            Attorney General (Mark L. Earley, Attorney
            General, on brief), for appellee.


     Dorell Percell Taylor (appellant) appeals his convictions, by

a jury, of first degree murder and use of a firearm in the

commission of murder.   On appeal, he contends the trial court

erred in:   1) requiring defense counsel to call a witness on

behalf of the defense, which was contrary to counsel's judgment;

2) admitting the hearsay statement of the victim; and 3) finding

the evidence sufficient to support the convictions.      We disagree

and affirm the trial court's judgment.

                            I.   BACKGROUND

     On April 8, 1997, Richmond Police Officer John Sheppard

found Martin Scott, Jr. (victim), lying in a fetal position in

the back of a truck.    As Officer Sheppard approached the victim,

he noticed the victim was covered in blood with an obvious
gunshot wound to the mouth and head.    A lot of blood was present

in the bed of the truck.   Officer Sheppard testified that when he

saw the victim, he knew the victim was going to die.    Officer

Sheppard identified himself and told the victim he was going to

die.   The victim was able to uncurl slightly but did not reply.

Officer Sheppard again told the victim he was going to die and,

this time, asked the victim who shot him.    The victim replied

almost immediately by saying either the name "Dorell" or the name

"Torell."    Officer Sheppard could not tell which name was spoken

because the victim's mouth was full of blood.    The victim was

gurgling and struggling to breathe.     When asked where "Dorell" or

"Torell" lived, the victim gestured with his hand in a southerly

direction.   When Officer Sheppard asked the victim if he was

gesturing toward Rosewood Avenue, the victim nodded his head

affirmatively.   Officer Sheppard testified that, at this point,

it appeared the victim could no longer speak.    The victim died

after paramedics took him to the hospital.
       Frank James Ford owned the truck in which the victim was

found.   Ford testified he loaned his truck to appellant on April

7, 1997, for a couple of hours in exchange for drugs.

       Veronica Blunt, the victim's neighbor and friend, was

upstairs in the victim's house on April 7, 1997.    In addition to

the victim, Mario Rogers and a man named Russ also were in the

house.   As Blunt came down the stairs, she heard a man demanding

cocaine and money.   As she neared the bottom of the steps, she

saw appellant, who had a gun, standing in front of the victim.

She also saw appellant point the gun twice at the victim.      Blunt

then fled the victim's house for her own home.    Upon realizing

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the doors to her home were locked, she climbed a clothesline pole

in order to reach her upstairs back porch.      As she climbed, she

heard gunshots and heard the victim run out his back door calling

out.    She then heard the victim at her front door screaming for

help.    Blunt finally got into her house, calmed her elderly

mother, and then went to the front door, but the victim was no

longer there.    Blunt ran to her bedroom window, looked out, and

saw the victim lying in the truck.       She called 911.   When the

police arrived, Blunt told them the victim had awoken her by his

calls for help.    She also told a police detective that she could

not identify the victim and she stated she could not identify the

shooter when the police showed her a photo spread.         Later, Blunt

told appellant's former attorney that she could not identify the

person who shot the victim, and she told the Commonwealth's

attorney she could not identify the murderer.      Blunt testified

she did not provide the police with information about the

shooting because she was afraid appellant would kill her.
        Police investigators found blood and bullet marks throughout

the victim's house and garage.    Blood also was found on the stoop

of Blunt's house.

        During his defense, appellant presented two witnesses who

testified they heard gunshots at the victim's house and then saw

Mario Rogers, not appellant, running from the house.        Antonio

Williams, a friend of appellant and a convicted felon, testified,

that after hearing shots fired from the victim's house, he saw a

man named "Mario" leave the house with a gun.      Elliott Haynes,

also a convicted felon, testified he heard shots coming from the

victim's house and saw Mario Rogers running out of the house.

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     During the trial, the defense attorney informed the court

that she and appellant were having a difference of opinion as to

whether Mario Rogers should be called as a witness for the

defense.   The trial court directly questioned appellant about his

desire to call Rogers as a witness.      Appellant indicated he knew

his attorney did not want to call Rogers to testify but that he

wanted to call Rogers as a witness.      The trial court then

instructed appellant's attorney to call the witness.     Defense

counsel responded, "Yes, sir," and called Rogers as the defense's

next witness.
     Rogers testified he was in the victim's house the night the

victim was shot but did not see the shooter.     Rogers denied

having a gun the night the victim was killed and stated he did

not kill the victim.   Rogers testified he was with the victim

earlier in the day when appellant asked the victim for money. The

victim gave appellant $75, and appellant left the house.        A few

hours later, when appellant returned to the house and demanded

more money, the victim replied he did not have the money.

Appellant told Rogers not to be there when he returned.     Rogers

tried to exit through the front door, but saw appellant going to

the truck.   Rogers stated that he went out the back door and

appellant re-entered the house through the front door.      As Rogers

fled the house, he heard shots being fired and saw appellant

leave the house with a gun.

                           II.    ANALYSIS

     Appellant first contends the trial court erred in requiring

his trial counsel to call a witness on behalf of the defense,

despite counsel's opinion that the witness should not be called.

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     At trial, defense counsel informed the trial court that she

and appellant had a difference of opinion about whether to call

Mario Rogers as a witness for the defense and was at a loss as to

whose rights were superior.   The trial court asked appellant if he

wanted to call Rogers, and appellant answered in the affirmative.

The trial court also asked appellant if his counsel had advised

him that Rogers should not be called as a witness.   Appellant

indicated his counsel had advised him not to call Rogers, but,

despite his attorney's opinion, he wanted to call Rogers.    The

trial court then instructed defense counsel to call Mario Rogers.

Defense counsel responded, "Yes, sir," and did not object to the

trial court's directive that she call Rogers as a witness.
     We find that appellant is procedurally barred from raising

this issue on appeal because his counsel did not object to the

trial court's directive to call Rogers as a witness, and,

therefore, did not properly preserve the issue for appeal.   See

Rule 5A:18.

     Appellant next contends the trial court erred in admitting

the victim's hearsay statement as a dying declaration.

               Under this exception, dying declarations
          are admissible evidence in homicide cases if
          they were made when the declarant was "under
          a sense of impending death, and without any
          expectation or hope of recovery. Whether so
          made or not, is a preliminary question to be
          determined by the court on all the
          circumstances of the case." Bull v. The
          Commonwealth, 55 Va. (14 Gratt.) 613, 620
          (1857). The fact that the declarant was
          conscious of his condition "may be
          established otherwise than by the statements
          of the decedent: as by the character and
          nature of the wound, his appearance and
          conduct, etc." Hill v. The Commonwealth, 43
          Va. (2 Gratt.) 594, 608 (1845).



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Clark v. Commonwealth, 235 Va. 287, 291, 367 S.E.2d 483, 485

(1988).

     While the victim did not state he was dying, he had been shot

in the mouth and head.    In fact, the officer testified that when

he saw the victim's wound he knew the victim was going to die.

The victim was lying in a fetal position and was covered in blood.

When the officer approached and began talking to him, he was able

to uncurl slightly but never stretched completely out.    He also

did not sit up.   The officer told the victim he was going to die.

The bed of the truck contained a lot of blood.   The victim was

gurgling and struggling to breathe and his mouth was full of

blood.    He was unable to speak clearly because of his wound and

the blood in his mouth.   When the officer asked him where "Dorell"

or "Torell" lived, the victim was no longer able to speak.

Instead, he waved his hand in a southerly direction.    When the

officer asked him if he meant toward Rosewood, the victim did not

speak but nodded his head.
     We hold that the evidence supports the trial court's finding

that the victim was under a sense of impending death when he spoke

because he had been shot in his mouth and head, he was lying in a

fetal position, his clothing was covered in blood, the truck had a

lot of blood in it, the officer told him he was going to die, he

was struggling to breathe, he was unable to sit up or stretch out,

and his mouth was full of blood.   Further, after answering the

officer's initial question, he was not able to speak.    He motioned

and nodded his head.   We find this evidence supports the trial

court's conclusion that the victim was conscious of his condition.



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     Appellant argues that for the dying declaration exception to

apply there must be some evidence of the victim's subjective

belief that his death is imminent.    Appellant relies on Hall v.

Commonwealth, 12 Va. App. 198, 204, 403 S.E.2d 362, 365 (1991)

(declarant, who was shot on Christmas Eve, "repeatedly told his

wife that he would not see Christmas," told her she and his child

would have to carry on without him, asked to talk to a minister,

and told the minister he wanted to be saved); Batten v.

Commonwealth, 190 Va. 235, 239, 56 S.E.2d 231, 233 (1949)

(declarant said he was dying and would not live until the morning

and then asked his sister to take care of his mother); Thomas v.
Commonwealth, 183 Va. 501, 507, 32 S.E.2d 711, 714 (1945)

(declarant said he was dying, "'this will be the last of me,'" and

"'this is the end'"); Mitchell v. Commonwealth, 178 Va. 407, 414,

17 S.E.2d 370, 372-73 (1941) (after a doctor told the declarant he

would not get well, the declarant also said he did not think he

would get well); Waller v. Commonwealth, 178 Va. 294, 306, 16

S.E.2d 808, 813 (1941) (declarant said he was going to die and was

not going to live); and O'Boyle v. Commonwealth, 100 Va. 785, 793,
40 S.E. 121, 124 (1901) (when someone asked the declarant if she

realized her condition, declarant said she did).   Appellant argues

the victim did not respond to the officer's statement that he was

going to die and did not evince any awareness that he had a fatal

wound.

     While Hill involved statements made by the declarant, such as

"it will soon be over with me," Hill, 43 Va. at 609, the Supreme

Court of Virginia, in Clark, reiterated the Hill standard that

imminent death may be established by "'the character and nature of


                              - 7 -
the wound, his appearance and conduct.'"   Clark, 235 Va. at 291,

367 S.E.2d at 485.   The cases appellant relies upon are consistent

with Hill, but the facts of this case also fall within the Hill

standard.   Hill and the cases cited by appellant require the

declarant to be under a sense of impending death and set forth the

mode of proving the declarant's sense of impending death.   Hill

allows circumstantial evidence to prove the requirement.    The

other cases involve the declarant's statements as the mode of

proving the requirement.   We find no conflict between the cases.
     Finally, appellant contends the evidence was insufficient to

support his convictions.

                 When a defendant challenges on appeal
            the sufficiency of the evidence to sustain
            his conviction, it is the duty of an
            appellate court to examine the evidence that
            tends to support the conviction and to permit
            the conviction to stand unless the conviction
            is plainly wrong or without evidentiary
            support.

Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72

(1998) (citations omitted).

     "The credibility of a witness, the weight accorded the

testimony, and the inferences to be drawn from proven facts are

matters solely for the fact finder's determination."   Crawley v.

Commonwealth, 29 Va. App. 372, 375, 512 S.E.2d 169, 170 (1999)

(citing Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473,

476 (1989)).

     In this case, the testimony by Blunt and Rogers and the

victim's dying declaration established that appellant was the

person who shot the victim.   The trial court was entitled to

reject the testimony of Haynes and Williams.   We, therefore, find



                                - 8 -
the trial court did not err in finding the evidence sufficient to

support the convictions.

     For these reasons, we affirm the judgment of the trial court.

                                                         Affirmed.




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