Commonwealth v. Cappe: Sufficiency of Evidence and Procedural Default on Evidentiary Error
Cappe v. Commonwealth, Record No. 240055 (Va. Feb. 13, 2025) (order)
Sh’Kise Fazion Cappe was convicted of first-degree murder, use of a firearm to commit murder, and conspiracy. The evidence against Cappe at trial included surveillance footage showing three men, including one alleged to be Cappe, emerging from a white sedan and later shooting the victim. The trial judge excluded testimony from a family friend that would have said that none of the men in the video was Cappe. The white sedan in the video matched the description of Cappe’s vehicle, including distinctive features such as a missing front license plate. Police also found ammunition in Cappe’s car matching that found at the crime scene. Cell phone records placed Cappe near the crime scene at the time of the murder. Finally, after news coverage of the crime, Cappe sent incriminating text messages saying, “get low” and “get rid of everything.”
Cappe appealed his convictions to the Court of Appeals, arguing the evidence was insufficient to to support the convictions and that his friend’s testimony was incorrectly excluded. As to the evidence, Cappe argued that the images from the video were too grainy to identify him, the Commonwealth had given no motive for the murder, and no DNA evidence tied him to the crime. The Court of Appeals disagreed. It found that the evidence was sufficient to convict Cappe, and that while the friend’s testimony should have been admitted, its exclusion was harmless error. Cappe appealed to the Supreme Court.
The Supreme Court agreed that the evidence was sufficient to convict Cappe, particularly given the significant deference that appellate courts give to the fact finder. Despite Cappe’s arguments on the images, DNA, and motive, a reasonable jury could still have found him guilty of the charged crimes. However, the Supreme Court did not review the Court of Appeals’ harmless error finding. Cappe’s attorneys had not briefed that assignment of error, so it was procedurally defaulted.