Opinion
Record No. 1365-92-2
November 9, 1993
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND THOMAS N. NANCE, JUDGE.
Jody Ann Jacobson, Assistant Public Defender (David J. Johnson, Public Defender of Richmond, on brief), for appellant.
Marla Lynn Graff, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Barrow, Benton and Coleman.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Wilbur Bruce Allen appeals his conviction of second degree murder and use of a firearm during the commission of a murder. He asserts that the evidence was insufficient to support his conviction because it failed to prove criminal agency. We hold that the evidence supports the finding that, beyond a reasonable doubt, the defendant committed the crime.
When the sufficiency of evidence for a criminal conviction is challenged on appeal, we will consider all evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975); Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). The credibility of witnesses, the weight accorded the testimony, and the inferences to be drawn from proven facts are matters for the fact finder's determination. Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986). It is for the jury to resolve any conflicts in the evidence.Lewis v. Commonwealth, 8 Va. App. 574, 582, 383 S.E.2d 736, 741 (1989). They may reject that part of the evidence which they believe to be untrue and accept that which they believe to be true. Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986).
A conviction may be supported by circumstantial evidence alone when such evidence excludes all reasonable hypotheses of innocence. Stockton v. Commonwealth, 227 Va. 124, 146, 314 S.E.2d 371, 385, cert. denied 469 U.S. 873 (1984). When a conviction is supported by only circumstantial evidence, "[t]he chain of necessary circumstances must be unbroken," but it is for the jury to determine "what inferences are to be drawn from proved facts, provided the inferences are reasonably related to those facts." Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567-68 (1976). The Commonwealth bears the burden of proving "beyond a reasonable doubt that motive, time, place, means, and conduct concur in pointing out the accused as the perpetrator of the crime." Id. at 366, 228 S.E.2d at 568.
Each of these five circumstances need not be proved beyond a reasonable doubt. Cantrell v. Commonwealth, 229 Va. 387, 397, 329 S.E.2d 22, 29 (1985), cert. denied, 469 U.S. 911 (1990). However, "those circumstances which are proved must each be consistent with guilt and inconsistent with innocence, and . . . must also be consistent with each other" in pointing to the defendant's guilt beyond a reasonable doubt. Id. at 398, 329 S.E.2d at 29.
In this case, the Commonwealth met its burden of proof. The jury could have reasonably found beyond a reasonable doubt that the defendant had a motive to kill the victim. The defendant, who had been involved with Betty Edwards for several months, was aware of the victim's prior threats and harassment of Edwards. On the night of the killing, only the defendant, the victim, Edwards, and her nine-year-old son were present in Edwards' apartment. The victim began arguing and fighting with Edwards, who sent her son to his grandmother's home to call the police. The defendant then became involved in the altercation just before the victim was killed.
The Commonwealth also proved "means." Edwards had seen the defendant with a revolver a few months before the shooting. Although she did not see the defendant with a gun on the night of the murder, Edwards saw a flame or flash come from the area between the defendant's waist and chest, by his side. Within minutes, the victim's body was found with six gunshot wounds, all from the same .32 revolver. An expert testified that a .32 revolver emits a flash of flame upon firing. The use of a revolver is consistent with the fact that no bullet casings were found at the scene. Although Edwards testified that she saw only one flash and did not see the victim fall, she also testified that she ran upon seeing that flash. In addition, she testified that she was "upset" and that she did not remember hearing a gunshot associated with the flash.
Perhaps most important is the defendant's later conduct. About a minute after Edwards arrived at her mother's home, the defendant arrived and told her mother to cancel the call to the police because the victim was "gone." Within minutes, the police discovered the victim dead where he was last seen with the defendant. In addition, in a taped interview, the defendant claimed that he did not know the victim and that he and Edwards were mere acquaintances. Three credible witnesses testified to the contrary. In this interview, the defendant also denied having been present that night, claiming that he watched Judy Gay's children every night. Gay testified that the defendant sometimes left the children with their grandmother.
A defendant's "words and deeds following the crime are factors equally as important as his earlier conduct," and may lead the jury reasonably to infer that a defendant is trying to conceal his guilt. Pearson v. Commonwealth, 221 Va. 936, 946, 275 S.E.2d 893, 900 (1981). In this case, the jury could have reasonably concluded that the defendant's later conduct demonstrated an effort to conceal his involvement in the murder, as there was no reasonable hypothesis consistent with innocence to explain his later conduct.
Edwards' account of the events, when viewed in the light most favorable to the Commonwealth, supports a finding by the jury that she did not shoot the victim. She testified that, having been pushed by the victim, she was descending the stairs to the residence when she saw a flame come from the direction of the defendant. Edwards ran immediately to her mother's home; she did not turn around, nor did she see the victim get injured or fall.
We hold that the evidence was sufficient to support a conviction of second degree murder beyond a reasonable doubt and affirm the decision below.
Affirmed.
"It can be safely said that in Virginia there is no principle more firmly imbedded in the body of law, or one that has been more often stated, than the principle that in every criminal case the evidence of the Commonwealth must show, beyond a reasonable doubt, every material fact necessary to establish the offense for which a defendant is being tried." McGhee v. Commonwealth, 219 Va. 560, 561, 248 S.E.2d 808, 810 (1978). The facts in this case create only a suspicion and, thus, leave uncertain the identity of the person who shot Michael Babb.
All necessary circumstances proved must be consistent with guilt and inconsistent with innocence. It is not sufficient that the evidence create a suspicion of guilt, however strong, or even a probability of guilt, but must exclude every reasonable hypothesis save that of guilt. To accomplish that the chain of circumstances must be unbroken and the evidence as a whole must be sufficient to satisfy the guarded judgment that both the corpus delicti and the criminal agency of the accused have been proved to the exclusion of any other reasonable hypothesis and to a moral certainty.
Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963).
The evidence proved that Babb went to Betty Edwards' residence while intoxicated and threatened to harm Edwards, Edwards' nine year old son, and her mother. After Edwards told her son to go to her mother's residence to call the police, Babb began to curse at and fight with Edwards. Edwards testified that Wilbur Allen, a friend who was visiting at her residence, was outside and was standing where he could see Babb pushing her. Edwards also testified that in her struggle to leave Babb she was pushed by Babb and saw "a flame" in the direction of Allen. Allen was standing at the bottom of the stairs outside the multi-family residence. The area was dark. Babb was behind Edwards in the hallway of the residence.
Edwards did not see Allen with a gun, did not hear the sound of a gun, and did not hear Babb scream or fall. Edwards testified that she left and went to her mother's residence. She saw Allen as she was en route to her mother's residence but expressed uncertainty as to exactly where she saw him. She testified as follows:
THE COURT: All right. Now you said when you saw the flame or the fire, you immediately left; is that correct?
WITNESS EDWARDS: Yes.
THE COURT: Headed for your mama's house. What did Allen do?
WITNESS EDWARDS: Left, too.
THE COURT: Were y'all together?
WITNESS EDWARDS: A part of the time, we were together, but he didn't tell me nothing.
THE COURT: Well, I understand that.
WITNESS EDWARDS: Well, it's —
THE COURT: Where did you — did you see him in route to your mother's house?
WITNESS EDWARDS: Oh, yeah. He was going that way.
THE COURT: Did he catch up with you or did you leave together or what? Tell me about it.
WITNESS EDWARDS: We left together.
THE COURT: You left together? You left the scene together?
WITNESS EDWARDS: Yes.
THE COURT: You don't seem to be —
WITNESS EDWARDS: Maybe just before I got to my mom's, I'm not sure.
THE COURT: So you didn't leave together?
WITNESS EDWARDS: No. Some of this stuff happened so fast. All I know he told me — told my mom to cancel the police.
The police received a call at 9:03 p.m. and arrived at the residence within minutes. Babb was found on the floor inside the hallway to the multi-family residence. He had received six gunshot wounds. Some of the shots were fired when the gun was about an inch away from Babb.
No evidence proved that Allen was the only person standing in the night outside the residence. No evidence proved that Allen had a gun, that Allen shot Babb, or that Allen was close enough to shoot Babb from the distance proved by the evidence. "[B]etween the fact of opportunity and the actuality of the [shooting], there exists a serious void in the proof, filled only with the suspicion that [Allen] may have been the guilty agent; and suspicion is never enough to sustain a conviction."Simmons v. Commonwealth, 208 Va. 778, 783, 160 S.E.2d 569, 573 (1968).
The evidence did not prove that Allen harbored ill will against Babb. If Babb was killed by someone because of anger or fear, Edwards was as likely a candidate as any other person. She was the person who was the victim of Babb's cruelty. Indeed, Edwards testified that a few days before this event Babb placed a gun to her head and threatened to kill her. By her own testimony, Edwards, who was struggling and arguing with Babb, was the only person who was close enough to shoot Babb with a gun held less than an inch from his body. Edwards' testimony proved that Allen was down the steps and some distance from Babb. The proof does not tend to establish that Allen rather than she shot Babb.
Allen's conduct after Babb was shot also does not tend to establish that he shot Babb. Allen's statement to Edwards' mother to cancel the call to the police because Babb was "gone" only suggests that he knew Allen had been shot. It does not exclude the reasonable hypotheses of Allen's innocence. In addition, that Allen may have lied about his relationship with Edwards does not mean he was guilty. See Stover v. Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197 (1981). Although the circumstantial evidence concerning Allen's conduct "creates a strong suspicion that he was the criminal agent . . . [, s]uspicion, however, no matter how strong, is insufficient to sustain a criminal conviction." Id. "[T]he evidence is insufficient to exclude a reasonable hypothesis that someone other than [Allen] was the criminal agent." Christian v. Commonwealth, 221 Va. 1078, 1083, 277 S.E.2d 205, 208 (1981).
For these reasons, I would reverse the conviction.