Opinion
Record No. 0566-93-2
Decided: January 17, 1995
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND, James B. Wilkinson, Judge
Kevin M. Schork (Rhonda McGarvey, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Baker, Benton and Senior Judge Cole
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The appellant, Kevin Raynard Taylor, was indicted for murder, in violation of Code Sec. 18.2-32, and use of a firearm in the commission of murder, in violation of Code Sec. 18.2-53.1. A jury found him guilty of second degree murder and use of a firearm in the murder. The trial court sentenced him to twenty years for the murder conviction and two years for the use of a firearm conviction.
On appeal, appellant contends that the trial court denied him his constitutional right to call for evidence in his favor as guaranteed under Article I, Section 8 of the Virginia Constitution when it refused to allow several of his witnesses to testify. No constitutional issues were raised in the trial court. Instead, the trial court refused to admit certain evidence presented by the defendant, holding that the testimony was not relevant to the issues in the case. We shall address the evidentiary questions that were before the trial court. Finding no reversible error, we affirm.
The Commonwealth's evidence established that on June 10, 1992, the appellant and four friends, Jerry Bell, Mario Harris, Carl Baptist, and Brian Tunstall, were at a place known as "Niteworld" on Midlothian Turnpike. When the five men left Niteworld, they decided to drive around and play practical jokes on people by knocking on doors and leaving. According to their testimony, they had no specific destination in mind. They were travelling in three cars and stopped at Thomas Boushall Middle School. There was a shotgun in the vehicle driven by Carl Baptist and owned by appellant's father. Several of the young men fired the gun into the air while they waited around the school. They then decided to go to a house on Epperson Avenue identified as displaying a Confederate flag in the front.
They arrived at 4516 Epperson Avenue and parked in front of the house. Bell exited Harris's car, went to the front door, and knocked five or six times. Several minutes later, John Austin came to the door, and Bell ran away. Harris picked him up a few blocks away. According to the testimony of Carl Baptist, when he stopped in front of the Austin home, appellant told him to leave the ignition on. Appellant picked up the gun and said, "It's going to be a loud shot." Appellant then fired the gun and told Baptist, "Let's go." Austin was killed while standing in the doorway. Later, the group met at appellant's home. Robert Corbin, Austin's brother-in-law, was the first to discover Austin at the crime scene. He found Austin's body at the front doorway. No weapons were on the floor or near the body.
Appellant's account of the crime was substantially different from the Commonwealth's. The defendant called his brother, Andre Taylor, to testify about an incident that occurred during the afternoon of June 10, 1992, at the Taylor home. Andre testified that around 5:00 p.m., he backed his car out of his driveway in front of a truck. The truck driver, later identified as Austin, slammed on his brakes to avoid a collision. Andre put his car in gear to avoid being hit by the truck and kept going.
The defense then called Delores Taylor, the defendant's mother. She testified that she did not see the incident but she heard the noise made by the brakes. The truck driver stopped and came into the Taylor yard. When she attempted to relate what the truck driver said to her, the Commonwealth objected. The jury was excused and the defense attorney related what she expected Mrs. Taylor's testimony to be:
Mr. Austin was upset because of what happened; and he got out of the truck and started speaking to Ms. Taylor, April Taylor, and Johnette Lassiter, who are all here to testify; and he had a confrontation. He wanted to know who Andre was. He said he was coming back for Andre. He was coming back for all of them. This conversation was still going on when — Well, actually, according to my witnesses what they told me, Jerry Bell walked home from the store — and I think he indicated this in his own testimony — walked home from the store and came upon a man in a truck with a dog. There was a confrontation in the yard.
Our evidence would be that when Kevin Taylor [appellant] came home, his family was discussing this incident. And that Jerry Bell was the one who told him about it initially.
Because the Commonwealth did not contest this proffer, we accept it as an unchallenged unilateral representation of counsel. See Klein v. Klein, 11 Va. App. 155, 160, 396 S.E.2d 866, 868 (1990).
The trial judge asked defense counsel to explain why this evidence was admissible. Defense counsel stated that it was intended to show what effect the incident had on the defendant and to show his purpose for going over to the Austin house. Defense counsel also said that the evidence was intended to show appellant's state of mind that evening. The trial court ruled that after the defendant testified, he might admit the testimony, but that it was too remote at that point. In addition, the defendant admitted self-defense was not an issue.
Appellant testified that when he arrived home from summer school, the family was in the kitchen. Jerry Bell pulled him aside and "told me that this man had threatened Mamma Ann." Jerry told appellant the whole story about Andre and the confrontation in the yard between Andre and Austin.
Appellant was permitted to testify fully about the facts and circumstances surrounding the incident at the Taylor home. He testified that he drove around the neighborhood and found the truck Bell had described to him. According to appellant, he initially went to Austin's house to confront him and tell him to quit threatening his family. He left without confronting Austin because he was scared. Appellant returned to the Taylor home and called Brian Tunstall and Carl Baptist. He asked them if they would go with him. He asked Baptist if he had any ammunition for the gun because he wanted to scare the man. Appellant told Tunstall and Baptist that he was going to a man's house to tell him that if the man came after his family again, "he would get it." Appellant told Baptist and Tunstall that he was going to shoot in the air to scare him. The group met at the Taylor house, and appellant again explained the plan to his friends. Appellant then sneaked the gun through a downstairs window and handed it to Tunstall.
Appellant testified that Jerry Bell knocked on the door three times. According to appellant, Austin opened the door, stepped out of the house, and said, "I have a .357 in my hand." Bell took off running and Taylor told Baptist to "Go, Go, Go." Appellant stated that he shot the gun in the air intending to scare the man. Appellant had the gun in the back seat of the car with some of it under his legs and some hanging out the window. Appellant admitted that the gun was loaded and the hammer was pulled back. The gun was loaded with "double O" buckshot and ready to fire when the car driven by Baptist pulled in front of Austin's house. Appellant reached down and "hit the trigger." He stated that he did not intend to shoot Austin, and when they drove away, he did not know that Austin had been hit. Appellant stated that he just wanted to scare Austin and had no intention of killing anybody.
After the defendant testified, defense counsel asked the court to make a ruling whether she could call appellant's mother, appellant's sister, and Johnette Lassiter to testify concerning the details of the incident that occurred in the Taylor yard. The court had previously delayed ruling on the relevance of this evidence until it heard appellant's testimony. The trial court ruled that the evidence was not relevant. Because of the trial court's ruling, appellant did not call the witnesses to testify. We hold that the trial court erred in its ruling because the evidence concerning the incident between the victim and Andre Taylor was relevant to show the motive and intent of appellant in going to the Austin home and his reason for shooting Austin. It was also relevant to show the relationship between the defendant and the victim.
A criminal conviction shall not be reversed for an error committed at trial when "it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached." Code Sec. 8.01-678. "[A] fair trial on the merits and substantial justice" are not achieved if an error at trial has affected the verdict. Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc). "An error does not affect a verdict if a reviewing court can conclude, without usurping the jury's fact-finding function, that, had the error not occurred, the verdict would have been the same." Id. "While not every erroneous ruling on the admissibility of evidence will constitute reversible error, once error is established it will be presumed to be prejudicial. . . . In such case, the burden shifts to the opposing party to prove that the error was non-prejudicial." Beverly v. Commonwealth, 12 Va. App. 160, 163-64, 403 S.E.2d 175, 177 (1991).
This presumption of prejudice, however, does not suggest the need for a perfect trial. "No trial is perfect, and error will at times creep in." Parsons v. Commonwealth, 154 Va. 832, 852, 152 S.E. 547, 554 (1930). "Every man is entitled to a fair trial and to nothing more, and so . . . out of the imperative demands of common sense, has grown the doctrine of harmless error." Oliver v. Commonwealth, 151 Va. 533, 541, 145 S.E. 307, 309 (1928).
Lavinder, 12 Va. App. at 1009, 407 S.E.2d at 913.
We conclude that the failure to admit the testimony of the mother and other witnesses concerning the details of the incident in the Taylors' yard did not affect the verdict and was not prejudicial to appellant.
Appellant contended throughout the trial that he did not intend to kill anyone, that he intended to tell Austin to quit threatening his family, and that he was going to shoot into the air to scare him. According to defense counsel, the purpose of the testimony about the incident was to show the mental state of the appellant and to explain why he went to Austin's house. On the other hand, the Commonwealth contended that the incident at the Taylor home caused appellant to be angry and have ill will toward Austin. He then planned the shooting, got his friends together, and, late at night, went to the victim's house, called him outside, and, with premeditation, willfully and deliberately shot Austin.
In light of the jury instructions given by the trial court, the only possible verdicts were murder in the first degree, murder in the second degree, involuntary manslaughter, and innocent. Because the jury returned a verdict of second degree murder, it could not have found that appellant, with premeditation, willfully and deliberately shot Austin. Therefore, the issue of first degree murder is moot and need not be discussed further. See Clarke v. Commonwealth, 159 Va. 908, 921, 166 S.E. 541, 545 (1932).
There are several reasons why we conclude that admission of the testimony of the mother and others concerning the details of the encounter between the victim and Andre Taylor would not have affected this case. First, all of the evidence concerning the incident was admitted through other witnesses. Andre Taylor testified how the incident started, namely, the near collision between his car and Austin's truck. Appellant testified that Jerry Bell took him aside and told him all about the incident and his mother did not tell him anything about it. The proffer of defense counsel did not contain any new information about the incident that was not disclosed to appellant and that was not already before the fact finder. Furthermore, the Commonwealth did not challenge the fact that the incident occurred.
The proffer of defense counsel does not contain any averment that the rejected testimony from the proposed witnesses was transmitted by them to the defendant. Therefore, their knowledge of the event could not have affected the mental state of appellant. Further, appellant testified completely about his mental state, including his reason and motive for shooting John Austin.
Criminal homicide is divided into two categories: murder and manslaughter. Malice is the element that distinguishes the two. Moxley v. Commonwealth, 195 Va. 151, 157, 77 S.E.2d 389, 393 (1953). Malice may be either express or implied by conduct. Coleman v. Commonwealth, 184 Va. 197, 201, 35 S.E.2d 96, 97 (1945). Whether an accused acted with malice is generally a question to be decided by the fact finder. Pugh v. Commonwealth, 223 Va. 663, 667, 292 S.E.2d 339, 341 (1982). To prove second degree murder the evidence must show an unlawful killing done with malice. Wooden v. Commonwealth, 222 Va. 758, 762, 284 S.E.2d 811, 814 (1981). Malice includes acts done in anger. Waller v. Commonwealth, 134 Va. 773, 784, 114 S.E. 786, 790 (1922).
Malice inheres in the intentional doing of a wrongful act without legal justification or excuse. Malice is not confined to ill will, but includes any action flowing from a wicked or corrupt motive, done with an evil mind or wrongful intention, where the act has been attended with such circumstances as to carry in it the plain indication of a heart deliberately bent on mischief. Malice is implied from any willful, deliberate and cruel act against another.
Williams v. Commonwealth, 13 Va. App. 393, 398, 412 S.E.2d 202, 205 (1991).
" 'Words alone, however insulting or contemptuous, are never a sufficient provocation to have the effect of reducing a homicide to manslaughter. . . . In order to justify an accused in striking another with a deadly weapon . . . a threatening attitude alone affords no justification.' " Royal v. Commonwealth, 2 Va. App. 59, 66, 341 S.E.2d 660, 664 (1986) (citations omitted), rev'd on other grounds, 234 Va. 403, 262 S.E.2d 323 (1987). In this case, the threats upon the appellant's family occurred at least five hours before the homicide. Because the threats were oral, unaccompanied by any physical violence, they were not a sufficient justification to warrant the killing.
The focus of the Commonwealth's case was to prove malice in order to upgrade the homicide to murder. The defendant's position was to downgrade the evidence so as to prove an accident or inadvertence rather than homicide. Repeated testimony of the threats would have overemphasized the appellant's corrupt motive, ill will, and anger toward the victim. Such evidence would have been contrary to appellant's contention that the killing was accidental and inadvertent. It would have been additional evidence to prove malice. Accordingly, we conclude that the failure of the trial court to admit the evidence of appellant's witnesses was not prejudicial and did not affect the verdict of the jury. If the error had not occurred, the conviction would have been the same. We hold that the appellant has received a fair trial on the merits and substantial justice has been reached.
For the foregoing reasons, we affirm the appellant's convictions.
Affirmed.
I agree with the majority's conclusion that "the incident [that occurred prior to the shooting] was relevant to show the motive and intent of appellant in going to the Austin home and his reason for shooting Austin [and] was also relevant to show the relationship between [appellant] and [Austin]." See Wynn v. Commonwealth, 5 Va. App. 283, 288-92, 362 S.E.2d 193, 196-98 (1987). Therefore, I concur in the holding that the trial judge erred in refusing to allow the defendant to prove through his witnesses the incident that preceded the shooting.
I disagree, however, with the majority's harmless error analysis. The trial judge's failure to admit the testimony of the mother and other witnesses concerning Austin's conduct in the Taylor's yard was prejudicial to the appellant. The jury was deprived of relevant evidence that would have affected the weight the jury gave to testimony, the credibility of the witnesses, and the jury's verdict. The Commonwealth had the burden "to prove that the error was non-prejudicial," Beverly v. Commonwealth, 12 Va. App. 160, 164, 403 S.E.2d 175, 177 (1991), and it could not have borne its burden on the evidence in this record.
In finding that the trial judge erred, the majority aptly noted that "appellant's description of the crime was substantially different [than] the Commonwealth's." In its harmless error analysis, however, the majority failed to consider that the Commonwealth sought to prove through its witnesses that the appellant maliciously shot Austin by showing that Austin's house was in a randomly selected area and chosen because it displayed a confederate flag in the window. It was precisely this version of events that appellant sought to disprove through the witness that the trial judge refused to permit the jury to hear.
Appellant's defense to the murder indictment was that he did not intend to shoot Austin and that the killing was accidental. Appellant testified at trial that he and his companions went to Austin's house with the intent only to scare Austin. He sought to prove that he wanted to scare Austin because earlier that day Austin had threatened appellant's mother and other members of appellant's family. He testified that he intended to shoot in the air near Austin, that he accidentally shot Austin when the car moved forward, but that he had no intention of shooting him. In upholding the Commonwealth's objection that the evidence of the earlier incident was irrelevant, the trial judge prevented appellant from fully proving his defense.
In contrast, the Commonwealth's witnesses gave testimony inconsistent with appellant's testimony and intended defense. Jerry Bell, a witness for the Commonwealth, testified that Austin's house was randomly selected. Bell testified that he, and several other men, and the appellant got into automobiles "just [to] go riding around and go do whatever. . . . to play practical jokes. . . . knocking on doors and just leaving." He testified that they went to Austin's house for the purpose of "knocking on [the] doors and leaving, playing practical jokes." Bell testified that after he knocked on Austin's door and ran away Austin came to the door. Appellant then shot Austin. To prove motive, the Commonwealth elicited from Bell that "[t]here was a confederate flag flying in front of the house."
When questioned about the confrontation that occurred in the yard between appellant's mother and Austin, Bell testified that appellant's mother had a confrontation with a man driving a truck. He testified, however, that he did not know that the man who caused the trouble with appellant's mother was Austin. He further testified that the incident occurred two weeks before the shooting. He reiterated that he and his companions went to Austin's house the night of the shooting only because it was randomly selected.
Carl Baptist similarly testified for the Commonwealth that he, Bell, and their companions were "just riding" around with no destination and came upon Austin's house. Furthermore, Baptist testified that he stopped his automobile at Austin's house because it displayed a confederate flag.
Baptist also testified that following his arrest he gave a statement to the police in which he referred to threats that Austin made to the appellant's mother on the day of the shooting. He disavowed that statement at trial, however, and testified that when he gave that statement to the police he was "just stalling . . . to protect [the appellant]." He testified that the statement was fabricated.
The appellant's witnesses would have supported appellant's defense. The witnesses would have provided a basis to support appellant's testimony that he did not randomly select Austin's house, that his purpose in being at Austin's house was related to the incident involving his mother, and that the killing was not intentional because of his state of mind. Because, as the majority agrees, appellant's motive and intent were relevant, the trial judge's refusal to allow the jury to consider evidence that bore on those matters could not have been harmless.
Intent is the distinguishing element between second degree murder and manslaughter. "Malice, a requisite element for murder of any kind, is unnecessary in manslaughter cases and is the touchstone by which murder and manslaughter cases are distinguished." Essex v. Commonwealth, 228 Va. 273, 280, 322 S.E.2d 216, 219-20 (1984). The Supreme Court of Virginia has defined malice as follows:
Malice inheres in the doing of a wrongful act intentionally, or without just cause or excuse, or as a result of ill will. It may be directly evidenced by words, or inferred from acts and conduct which necessarily result in injury. Its existence is a question of fact to be determined by a jury under proper instructions.
Dawkins v. Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500, 503 (1947).
It is fundamental that "[w]hether the defendant acted with malice is a question for the trier of fact." Essex, 228 Va. at 280, 322 S.E.2d at 220. The majority's supposition "that admission of the testimony of [appellant's witnesses] . . . would not have affected this case" is simply unsupported.
The intent required to be proven in [the charged] crime is the specific intent in the person's mind to commit the particular crime for which the [appellant] is charged. In determining whether the intent has been proven, the factfinder may consider the conduct of the person involved and all the circumstances revealed by the evidence. The [appellant] testified that he did not intend to kill anyone but shot only to scare [the victim]. The intent in his mind at the time of the shooting is a relevant issue in the case. The evidence of the threats made by [the victim] to [the appellant's mother] were admissible for the purpose of showing the mental state and intent of [the appellant] and should have been admitted in evidence.
Wynn, 5 Va. App. at 292, 362 S.E.2d at 198-99.
The disparity in the testimony of the witnesses could only have been resolved by the jury. "Because credibility was such a significant factor in this case, evidence which had the potential to aid the jury in judging credibility should have been admitted." Cash v. Commonwealth, 5 Va. App. 506, 511-12, 364 S.E.2d 769, 772 (1988). Furthermore, because the evidence the trial judge excluded did "not emanate from the [appellant's] mouth . . . [and did] not rest wholly upon the [appellant's] credibility," Massey v. Commonwealth, 230 Va. 436, 443, 337 S.E.2d 754, 758 (1985), the trial judge's refusal to allow the jury to hear that evidence deprived the appellant of the ability to strengthen the weight of his evidence and to diminish the evidence the Commonwealth offered. See also Proctor v. Town of Colonial Beach, ___ Va. App. ___, 441 S.E.2d 233 (1994). That error cannot be harmless because "[t]he evidence in the record does not overcome the presumption of prejudice and does not suggest that the jury would have reached the same decision had the refused [testimony] been admitted." Cash, 5 Va. App. at 512, 364 S.E.2d at 772.
The majority's harmless error analysis is premised in part upon the supposition that the only purpose that the additional evidence would serve to prove is malice. That is simply one view of the evidence. The additional testimony is also consistent with the appellant's argument and, if believed by the jury, tended to prove that the appellant lacked malice and only intended to scare the victim. See Wynn, 5 Va. App. at 292, 362 S.E.2d at 198. The jury could have determined from the excluded testimonies that appellant did not possess ill will, that appellant intended to shoot near Austin to frighten him, and that he accidentally shot Austin. It is well settled that the credibility of witnesses, the weight accorded witnesses' testimony, and the inferences to be drawn from proven facts are matters that initially come within the province of the fact finder. Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986). Proof that appellant intended to scare Austin is not, as the majority suggests, ipso jure proof that he also possessed the necessary malice to support a second degree murder conviction. The evidence admits of the view that appellant only intended to scare Austin.
In asserting that "[s]uch evidence would have been contrary to appellant's contention that the killing was accidental and inadvertent," the majority interprets the evidence to find that it could only prove malice, and thus, assumes the role of the jury. "Neither the trial court nor this Court may usurp the jury's role as a trier of facts and the weigher of testimony." Poole v. Hassell, 206 Va. 97, 101, 141 S.E.2d 707, 710 (1965).
The jury was instructed that it could find appellant guilty of involuntary manslaughter. By depriving appellant of the opportunity to buttress the basis upon which the jury could have found that appellant lacked malice, the trial judge committed reversible error.
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.
Washington v. Texas, 388 U.S. 14, 19 (1967).
The critical inquiry is whether the rejected testimonies "added force and strength to other evidence bearing upon the issue . . . [of involuntary manslaughter]." Cash v. Commonwealth, 5 Va. App. at 510, 364 S.E.2d at 771. If so, then the appellant "was entitled to have it considered by the jury." Id. Indeed, if the appellant "may have been prejudiced, even though it be doubtful whether in fact he was or not, that is sufficient ground for reversing the judgment." Id. at 511, 364 S.E.2d at 771. The rejected testimonies tended to support the proof of appellant's state of mind and the accidental nature of the killing. If believed by the jury, that evidence would have supported a conviction of involuntary manslaughter.
For these reasons, I believe that the trial judge's error in excluding the evidence was not harmless error. I would reverse the appellant's convictions.
Affirmed.