Opinion
Record No. 0579-92-1
Decided: August 30, 1994
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK, Robert W. Stewart, Judge
Affirmed.
Robert L. Bohannon (Bohannon, Bohannon Hancock, P.C., on brief), for appellant.
Richard B. Smith, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this appeal, Larry Fitzgerald Sutton (appellant) challenges the sufficiency of the evidence to support his conviction of first degree murder, whether an instruction on second degree murder and manslaughter should have been given, and whether appellant should have been permitted either to treat a witness he called as adverse or to introduce a prior inconsistent statement of the witness. We conclude that the trial court did not err in its decision on these questions and affirm the convictions.
FIRST DEGREE MURDER
Viewed in the light most favorable to the Commonwealth, the evidence revealed that appellant shot the victim three or four times. The victim had just left a party following an argument. Appellant, who was also at the party, asked for a gun and followed the victim outside, where he shot him. An accomplice then stabbed the victim, who was holding his side and moving away. The victim did not have a weapon, nor did he move toward appellant before appellant fired. After the shooting, appellant put the gun in his pocket and walked away.
Appellant testified in his own defense. He said that he ran outside when he noticed fighting and commotion. He said that the victim turned and brandished something resembling a nightstick. Appellant said that he then shot over the victim's head three or four times and that the victim ran. He said that he did not intend "to kill or murder" the victim, only "to scare him off." Another defense witness testified that the victim had picked up an 18- to 24-inch pole and "charged" at them, when appellant fired his gun four or five times over the victim's head. This witness further testified that the victim ran away upright.
The victim's body had three gunshot wounds and several stab wounds in it. The bullet wounds were in the victim's upper middle back, left buttock, and right hip. The bullet in the back had penetrated his right lung and heart. Either the gunshot wounds or the stab wounds would have been fatal.
A firearms expert testified that the bullets in the victim's body were .25 caliber and fired from the same automatic gun. A police investigator testified that appellant had admitted firing his .25 caliber gun in the direction of the victim, and that then the victim had run off.
"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). The Commonwealth bears the burden of elevating the grade of the offense to murder in the first degree. Id. Premeditation is generally "a question for the jury to determine from all the facts and circumstances, [and the] intention to kill need not exist for any specified length of time prior to the actual killing." Mundy v. Commonwealth, 11 Va. App. 461, 479, 390 S.E.2d 525, 535, aff'd en banc, 11 Va. App. 461, 399 S.E.2d 29 (1990), cert. denied, 112 S.Ct. 127 (1991). "A design to kill may be formed only a moment before the fatal act is committed provided the accused had time to think and did intend to kill." Clozza v. Commonwealth, 228 Va. 124, 134, 321 S.E.2d 273, 279 (1984), cert. denied, 469 U.S. 1230 (1985) (citation omitted). "Premeditation and formation of an intent to kill seldom can be proved by direct evidence. A combination of circumstantial evidence may be sufficient." Rhodes v. Commonwealth, 238 Va. 480, 486, 384 S.E.2d 95, 98 (1989).
Evidence that appellant shot the victim in the back three times while the victim was running away from appellant sufficiently supports a finding that he did so with malice and with premeditation.
PRIOR INCONSISTENT STATEMENT
Detectives interviewed witness Randolph Harvey (Harvey) on the night of the shooting. In his statement, Harvey claimed to have seen a man named "Archie" running down the road and shooting a gun at someone. No other witness identified Archie or any other man shooting a gun, other than appellant.
The Commonwealth provided appellant with a copy of the statement several weeks before trial; however, appellant was unable to find Harvey until the day before the trial. Harvey then denied making the statement about Archie.
At trial, appellant wanted to call Harvey as an adverse witness, and the Commonwealth objected. Out of the presence of the jury, Harvey testified that he had seen a crowd running, but he could not see what they were doing. When asked about Archie, Harvey testified that Archie was running but with nothing in his hand. Appellant then read Harvey's prior statement to him. Harvey denied making the statement regarding Archie shooting a gun.
Noting that appellant was not "surprised," the court refused to allow him to treat Harvey as adverse. In addition, the court stated, "a party may not call a witness solely for the purpose of impeaching that witness." However, the court allowed Harvey to testify and suggested that appellant address the prior statement by asking, "Isn't it a fact that you said at an earlier time . . . ." Appellant did not attempt this line of questioning. Code Sec. 8.01-403 provides that if a witness "prove[s] adverse," the party may "prove that he has made at other times a statement inconsistent with his present testimony." The prior statement is not to be considered as substantive evidence, but only as it affects the witness's credibility. Id.; Roberts v. Commonwealth, 230 Va. 264, 269, 337 S.E.2d 255, 258-59 (1985). In this case, Harvey was known in advance to have made a conflicting statement; he was neither an adverse party nor a party to the litigation. Appellant was not entitled to call Harvey as an adverse witness.
Appellant also argues that he should have been allowed to introduce Harvey's prior inconsistent statement at trial during direct examination. The statement was made out of court, was not under oath, and was neither proofread nor signed by Harvey. Thus, it was not admissible to prove the truth of the matter asserted.
Appellant next argues that he should have been allowed to introduce the relevant portion of the statement into the record after trial so that this Court could accurately determine whether Harvey was adverse. However, appellant questioned Harvey outside the presence of the jury; thus, the relevant portions of the statement are contained in the record. Appellant has not been harmed by the trial court's refusal to make the actual statement a part of the record.
JURY INSTRUCTIONS
At trial, appellant proposed instructions on second degree murder, voluntary manslaughter, and involuntary manslaughter, all of which the trial judge refused. Appellant argues that the trial court erred in refusing to give jury instructions on second degree murder and voluntary manslaughter.
Upon reviewing jury instructions, this Court must "view the evidence pertinent to [defendant's] refused instruction in the light most favorable to [defendant]." Martin v. Commonwealth, 13 Va. App. 524, 526, 414 S.E.2d 401, 401 (1992) (en banc). The refusal of a proffered instruction is reversible error if it finds any support in the credible evidence. Id. at 528, 414 S.E.2d at 403. However, the instruction "must be supported by more than a mere scintilla of evidence." Boone v. Commonwealth, 14 Va. App. 130, 132, 415 S.E.2d 250, 251 (1992) (citations omitted). "[T]he weight of the credible evidence that will amount to more than a scintilla of evidence is a matter to be resolved on a case-by-case basis." Brandau v. Commonwealth, 16 Va. App. 408, 412, 430 S.E.2d 563, 565 (1993). This evidence must not be viewed in a vacuum. See id. at 413, 430 S.E.2d at 565 (holding that defendant's statement that he intended only to scare the person outside his door did not support an instruction on assault and battery where the bullet holes in the door were positioned to strike a person of average height standing at the door).
In a prosecution for first degree murder, a defendant is not automatically entitled to an instruction on the lesser degrees of offense. Buchanan v. Commonwealth, 238 Va. 389, 409, 384 S.E.2d 757, 769 (1989), cert. denied, 493 U.S. 1063 (1990). See Frye v. Commonwealth, 231 Va. 370, 345 S.E.2d 267 (1986) (holding defendant in capital murder case was not entitled to an instruction on first degree murder where the only issue was whether the defendant did the killing).
In order to reduce a murder charge to manslaughter, the homicide must occur during a sudden heat of passion upon reasonable provocation, Jenkins v. Commonwealth, 244 Va. 445, 457, 423 S.E.2d 360, 368 (1992) (voluntary manslaughter), cert. denied, 113 S.Ct. 1862 (1993); or "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, 895-96 (1990) (involuntary manslaughter).
The conflict in the evidence was whether appellant shot the victim. Appellant did not testify that he shot the victim accidentally, negligently, or without premeditation. Instead, he contended that he did not shoot the victim, even though he admitted shooting at him. Upon reviewing this record, we cannot find a scintilla of evidence to support giving an instruction on second degree murder or involuntary manslaughter. The trial court did not, therefore, err in failing to give such instructions.
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.
In my opinion, the jury on the evidence presented could have found that the defendant, angry at the victim but not in a heat of passion, shot him maliciously, but without premeditation. Therefore, I believe an instruction on second degree murder should have been given. See Painter v. Commonwealth, 210 Va. 360, 366-67, 171 S.E.2d 166, 171 (1969). Consequently, although I concur with the majority in all other respects, I would reverse the defendant's convictions and remand the matter for a new trial.