Opinion
Record No. 0142-93-2
Decided: September 13, 1994
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND, Jose R. Davila, Jr., Judge
Affirmed.
Craig S. Cooley for appellant.
Marla Lynn Graff, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Benton, Willis and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Angel A. Betancourt appeals his convictions for use of a firearm and for second degree murder following the death of his wife, Ramona. He contends (1) the evidence was insufficient to support a finding of malice, as required for his second degree murder conviction; and (2) the trial court erred in admitting the hearsay statement made by the victim immediately after the shooting. For the reasons that follow, we affirm appellant's convictions.
I.
Appellant contends the evidence was insufficient to show he acted with the malice necessary to support his conviction for second degree murder. "Express malice is evidenced when 'one person kills another with a sedate, deliberate mind, and formed design.' Implied malice exists when any purposeful, cruel act is committed by one individual against another without any . . . provocation." Pugh v. Commonwealth, 223 Va. 663, 668, 292 S.E.2d 339, 341 (1982) (citation omitted). Whether appellant acted with malice is a question of fact. Branch v. Commonwealth, 14 Va. App. 836, 841, 419 S.E.2d 422, 426 (1992).
In considering this issue on appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. "The judgment of a trial court will not be set aside unless it appears from the evidence that [it] is plainly wrong or without evidence to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing Code Sec. 8.01-680). "[T]he finding of the judge, upon the credibility of the witnesses and the weight to be given their evidence, stands on the same footing . . . ." Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987). The court "is not required to accept in toto an accused's statement, but may rely on it in whole, in part, or reject it completely." Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991). Finally, "circumstantial evidence is as acceptable to prove guilt as direct evidence, and in some cases, such as proof of intent . . ., it is practically the only method of proof." Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988) (citations omitted). In this type of situation, "[a]ll necessary circumstances proved must be consistent with guilt and inconsistent with innocence and must exclude every reasonable hypothesis of innocence." Boothe v. Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987) (citation omitted).
Viewed in the light most favorable to the Commonwealth, the evidence was clearly sufficient to support the trial court's finding of malice. Malice may be inferred "from the deliberate use of a deadly weapon." Perricllia v. Commonwealth, 229 Va. 85, 91, 326 S.E.2d 679, 683 (1985). The finder of fact may also consider the "defendant's conduct and words at the time of the [shooting] and thereafter," including evidence of flight, to determine whether the shooting was accompanied by malice. Slusher v. Commonwealth, 196 Va. 440, 445, 83 S.E.2d 719, 721 (1954); Langhorne v. Commonwealth, 13 Va. App. 97, 102-04, 409 S.E.2d 476, 479-80 (1991).
Here, appellant's wife, Ramona, died as a result of a gunshot wound to the chest inflicted at close range. Appellant admitted that the gun went off in his hands. A neighbor, Pierce, testified that she heard a gunshot and then heard a woman moan and say, "I can't believe you did that to me." Appellant then immediately fled the scene without administering aid, disposed of the weapon, and failed to report the incident when stopped by the police a short time later.
This evidence is sufficient to support a finding of malice. Although appellant argues that the evidence failed to exclude every reasonable hypothesis of innocence, he bases this assertion on his own testimony that the shooting was accidental and on equivocal forensic evidence. As discussed above, the trial court was free to reject appellant's testimony as incredible and to conclude that he was lying to conceal his guilt. See Wright v. West, 112 S.Ct. 2482, 2492 (1992); Speight, 4 Va. App. at 88, 354 S.E.2d at 98. Although the forensic evidence showed that the victim had gunpowder residue on her right hand which was "more consistent with [her] having fired a weapon than with a defensive action," it did not exclude defensive action. The evidence also established that the victim was left-handed.
II.
Appellant also contends the trial court erred in admitting into evidence Pierce's testimony that the victim said, "I can't believe you did that," immediately after she was shot.
Pierce initially testified that the victim said, "I can't believe you did that." During the discussion of whether this statement was inadmissible hearsay, which took place in Pierce's presence, the prosecutor and judge both added the words, "to me," at the end of the victim's statement. Subsequently, Pierce also added the words, "to me," to her account of the victim's statement, testifying that Ramona said, "I can't believe you did that to me." On cross-examination, Pierce testified that the second statement, which included the words "to me," was the accurate one.
Evidence of an excited utterance is admissible to prove the truth of the matter asserted, as an exception to the hearsay rule, provided the extrajudicial statement is "spontaneous and impulsive." The reliability of the statement, ordinarily guaranteed by oath and cross-examination, is furnished by its spontaneity. . . . The test is whether the statement is the transaction speaking through the declarant or the declarant speaking about the transaction.
Clark v. Commonwealth, 235 Va. 287, 292, 367 S.E.2d 483, 485-86 (1988) (citations omitted). The admissibility of such evidence rests in the sound discretion of the trial court. Id. at 292, 367 S.E.2d at 486. Because the uncontradicted evidence shows that the victim uttered these words immediately after she had been shot, we hold that the court did not abuse its discretion in admitting the statement into evidence under the excited utterance exception.
For these reasons, we affirm appellant's convictions.
Affirmed.
The only testimony concerning the events that led to the shooting came from the defendant. He testified that he and his wife were playing in bed after they drank alcohol. His wife obtained her pistol from under the mattress, and they began playing with it. As he attempted to take the gun from her, it discharged. His wife died from a single bullet wound to her right chest. No evidence proved malice or an intentional killing.
When the Commonwealth seeks to prove intent by circumstantial evidence, "[a]ll necessary circumstances proved must be consistent with guilt and inconsistent with innocence and must exclude every reasonable hypothesis of innocence." Boothe v. Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987) (citation omitted). See also Dickerson v. City of Richmond, 2 Va. App. 473, 477, 346 S.E.2d 333, 335 (1986).
The authorities are replete with definitions of malice, but a common theme running through them is a requirement that a wrongful act be done "wilfully or purposefully." This requirement of volitional action is inconsistent with inadvertence. Thus, if a killing results from negligence, however gross or culpable, and the killing is contrary to the defendant's intention, malice cannot be implied. In order to evaluate the crime to second-degree murder, the defendant must be shown to have wilfully or purposefully, rather than negligently, embarked upon a course of wrongful conduct likely to cause death or great bodily harm.
Essex v. Commonwealth, 228 Va. 273, 280-81, 322 S.E.2d 216, 220 (1984) (citation omitted).
The forensic evidence was consistent with the defendant's testimony that the shooting was accidental. The forensic evidence proved, and the Commonwealth conceded, that the victim had gunpowder residue on her right hand which "was more consistent with [her] having fired a weapon than with a defensive action." This evidence was insufficient to prove beyond a reasonable doubt that Betancourt acted with malice in killing his wife.
Furthermore, even if the fact finder disbelieved Betancourt's explanation that the shooting was accidental, no evidence rebutted the forensic finding, to which the Commonwealth stipulated, that powder residue on the victim's hand was "more consistent" with her having fired the weapon. The weapon that fired the shot that killed the victim can hold a maximum of five cartridges. When the weapon was discovered, it contained five cartridges, but only one was spent. No witness testified that more than one shot was fired. Therefore, when viewed in the light most favorable to the Commonwealth, the evidence was "more consistent" with the victim firing the fatal shot than with Betancourt firing the weapon.
"It is not sufficient that facts and circumstances proved be consistent with the guilt of the accused." Strawderman v. Commonwealth, 200 Va. 855, 860, 108 S.E.2d 376, 380 (1959). In a circumstantial evidence case, all circumstances must be consistent with guilt and inconsistent with innocence. Id. (emphasis added). Indeed, "[t]he circumstantial evidence of criminal agency must 'point unerringly' to the defendant." Harward v. Commonwealth, 5 Va. App. 468, 478, 364 S.E.2d 511, 516 (1988). That a circumstance "did not exclude defensive action," the Commonwealth's theory of a reasonable hypothesis of guilt, is not proof that all reasonable hypotheses of innocence have been excluded. In view of the forensic evidence, this conviction is not founded on proof beyond a reasonable doubt. Harward, 5 Va. App. at 479, 380 S.E.2d at 516. "[W]e cannot on review disregard credible, unimpeached evidence of the Commonwealth which exculpates the defendant and creates a reasonable doubt." Id. at 479, 380 S.E.2d at 516. The evidence of powder residue on the victim's hand creates a reasonable doubt because it was "more consistent" with her having fired the weapon than with someone else firing the weapon.
I dissent.