Opinion
Record No. 1699-90-4
August 10, 1993
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY PORTER R. GRAVES, JR., JUDGE.
Dabney Overton, Jr. for appellant.
Thomas C. Daniel, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Barrow and Koontz.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Benjamin Franklin Kirtley, Jr. (Kirtley) appeals from his jury trial convictions of involuntary manslaughter of his wife, Mary Kirtley, and second degree murder of Horace Masters. He contends on appeal that the evidence is insufficient to support these convictions. We disagree and affirm.
Because the parties are familiar with the facts of this case, we restate only those facts necessary to explain our holding.
I. STANDARD OF REVIEW
In reviewing the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the Commonwealth and grant to the evidence all reasonable inferences fairly deducible therefrom. Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). "The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it." Id. We have recognized that a criminal offense may be established by wholly circumstantial evidence where "'all the necessary circumstances proved [are] consistent with guilt and inconsistent with innocence.'" Harrell v. Commonwealth, 11 Va. App. 1, 9, 396 S.E.2d 680, 684 (1990) (quoting Harward v. Commonwealth, 5 Va. App. 468, 478-79, 364 S.E.2d 511, 516 (1988)). All the circumstances of time, place, motive, means, opportunity and conduct proved must concur in linking the defendant to the crime beyond a reasonable doubt.Potts v. Commonwealth, 12 Va. App. 1093, 1097, 408 S.E.2d 256, 258 (1991); Boothe v. Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987).
II. MARY KIRTLEY HOMICIDE
Kirtley first contends that his conviction for involuntary manslaughter must be reversed because the evidence was insufficient to prove the elements of that offense. Without deciding whether the evidence was sufficient to prove involuntary manslaughter, we hold that because the evidence proved that Kirtley was guilty beyond a reasonable doubt of voluntary manslaughter, a greater degree of homicide, Kirtley is not entitled to a reversal of his conviction. See Blankenship v. Commonwealth, 193 Va. 587, 70 S.E.2d 335 (1952);Burton v. Commonwealth, 108 Va. 892, 62 S.E. 376 (1908).
"Involuntary manslaughter is an accidental homicide, contrary to the intention of the parties, occurring during the performance of an unlawful, but not felonious, act or during the improper performance of a lawful act." Bolyard v. Commonwealth, 11 Va. App. 274, 276, 397 S.E.2d 894, 895 (1990).
In Blankenship, the Virginia Supreme Court recognized a long line of cases holding that a jury verdict of guilty on a lesser degree of homicide will not be disturbed where the evidence tends to prove a greater degree of homicide, rather than the lesser degree upon which the defendant was convicted.
"[T]he rule supported by the weight of authority seems to be that if the evidence demands or warrants a conviction of a higher degree of homicide than that found by the verdict, and there is either no evidence in support of acquittal or, if there is, it is not sufficient to warrant or require acquittal, or is disbelieved by the jury, the defendant is not entitled to a reversal or a new trial on the ground that the court instructed on the lower degree of homicide, as to which there was no evidence, the theory being that he is not prejudiced thereby and cannot complain."
Blankenship, 193 Va. at 593, 70 S.E.2d at 338 (citation omitted). The rationale for this principle is that "owing to the tenderness of juries and their reluctance to impose the highest penalty, many crimes would go wholly unpunished, and thus the rigor of the law would tend rather to the promotion than to the prevention of crime." Burton, 108 Va. at 900, 62 S.E. at 377 (refusing to reverse conviction for lesser degree of homicide even though the evidence tended to prove first degree murder only). Moreover, where the jury finds the defendant guilty of a lesser degree of homicide than that proved by the evidence, "it is difficult to see how the mitigation is harmful to the accused." Blankenship, 193 Va. at 593, 70 S.E.2d at 338.
The evidence proved beyond a reasonable doubt that Kirtley was guilty of voluntary manslaughter. The evidence showed that Kirtley and his wife were estranged and that Kirtley knew his wife was having a relationship with Horace Masters (Masters). Kirtley arrived at the house in an emotional state in search of his wife and Masters. Shortly after Kirtley and his wife went outside, a shot was fired and Mary Kirtley was killed by a shot to her chest. Kirtley's son testified that Mary Kirtley was pushing Kirtley and that Kirtley reached in the direction of his holster just seconds before the shot was fired. This evidence establishes that Kirtley unlawfully killed Mary Kirtley "in the heat of passion and upon reasonable provocation."See Barrett v. Commonwealth, 231 Va. 102, 105-06, 341 S.E.2d 190, 192 (1986). We will not disturb Kirtley's conviction for involuntary manslaughter, a lesser degree of homicide, where the evidence clearly supports a jury verdict of guilty for voluntary manslaughter. The jury's mitigation of the degree of the offense did not harm Kirtley. See Blankenship, 193 Va. at 593, 70 S.E.2d at 338.
III. HORACE MASTERS HOMICIDE
The evidence was sufficient to support the jury's verdict of guilty of murder in the second degree for the death of Masters. Because Kirtley presented only the criminal agency question to the trial court, only that issue has been preserved for appeal.See Hogan v. Commonwealth, 5 Va. App. 36, 45, 360 S.E.2d 371, 376 (1987) (citing Rule 5A:18). "In every prosecution for the commission of a homicide the Commonwealth must prove that the party alleged to have been murdered is dead, and that death resulted from the criminal act or agency of another."Spain v. Commonwealth, 7 Va. App. 385, 393, 373 S.E.2d 728, 732 (1988). "In Virginia, every malicious killing is prima facie second degree murder." Willis v. Commonwealth, 10 Va. App. 430, 442, 393 S.E.2d 405, 411 (1990).
Before arriving at the house, Kirtley asked his daughter where her mother was and demanded, "Is she with that man?" When Kirtley entered the house, he said, "I want to see what this Goddamn man looks like." After Mary Kirtley was shot, Masters left the living room through the back exit of the house. When Kirtley appeared in the doorway, he was holding a gun in his right hand. He looked at the couch where Masters had been sitting, and then hurriedly left the house in the same direction Masters had left. Seconds later, three shots were fired in the back of the house. Masters' body was found at the back of the house, with three gunshot wounds. All the circumstances of time, place, motive, means, opportunity and conduct proved pointed to Kirtley as the criminal agent in Masters' death. See Potts, 12 Va. App. at 1097, 408 S.E.2d at 258. "[T]he evidence as a whole . . . exclude[s] all reasonable conclusions inconsistent with guilt." See Harrell, 11 Va. App. at 10, 396 S.E.2d at 684. Accordingly, sufficient evidence supports Kirtley's conviction for second degree murder.
Affirmed.