Opinion
Record No. 1677-91-1
June 22, 1993
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON JOHN D. GRAY, JUDGE.
Lesa J. Yeatts for appellant.
Eugene Murphy, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Benton.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
George Nathaniel Taylor, III (appellant) appeals from his bench trial convictions by the Circuit Court of the City of Hampton (trial court) for first degree murder, two counts of malicious wounding and three counts of use of a firearm in the commission of a felony. The issues presented by this appeal are: (1) whether the evidence is sufficient to sustain his conviction for first degree murder; and (2) whether the trial court erroneously rejected his self-defense plea.
"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (citation omitted). "The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Id.; Code § 8.01-680. Moreover, in our review, "[a]ll evidence of the accused which is in conflict with the Commonwealth's evidence must be discarded, and all credible evidence of the Commonwealth must be regarded as true." Boblett v. Commonwealth, 10 Va. App. 640, 651, 396 S.E.2d 131, 137 (1990) (citation omitted). In accord with those principles, the burden is on appellant to show by the record that reversal of the trial court's judgment is the remedy to which he is entitled. Finding no error, we affirm.
On March 11, 1991, Emanuel Spain, Melvin Davis and Vincent Davis (jointly referred to as victims) were visiting some girls in Hampton at the Anne Lee Apartments. After remaining at the apartments for approximately thirty minutes, the victims and two of the girls walked toward "the pool hall on Lincoln Street." En route, they were confronted by four males — whom they did not know — who asked which one of the victims had a problem with appellant. Vincent Davis responded that if any of the victims had a problem with appellant, appellant should be the one to address the victims. An argument ensued and two of the males began fighting with the Davis brothers, requiring the police to stop it. Appellant was not present at this confrontation. At the time, Vincent Davis did not have a weapon. Pursuant to police direction, the victims and the girls returned to the apartments.
A short while later, the three girls and the victims left the girls' apartment and were walking through an alleyway when appellant confronted them and asked if they were looking for him. The victims told him that they were not. Appellant took five or six steps back, reached inside his coat, then turned back toward the victims and flashed a gun. Appellant and Vincent Davis began arguing about the fight that had earlier occurred. Appellant told Vincent Davis that if you are "looking for me, here I am," then invited him to "come on around the corner." They walked around the corner where appellant's four friends were waiting. When appellant was ten to fifteen feet away from the victims, he turned, said, "here niger [sic]," and fired five shots at the victims. Two of the shots killed Melvin Davis and two shots struck Vincent Davis in his abdomen and side. One shot struck Emanuel Spain as he was attempting to help Melvin Davis.
None of the victims displayed or were in possession of a gun. Vincent Davis had a knife in his jacket pocket, but, during the shooting episode, did not have it in his hand. Melvin Davis was holding a forty ounce bottle of beer that the victims had purchased earlier. When Melvin Davis was shot, he was holding the bottle against his chest in both hands.
Code § 18.2-32 provides that murder by any willful, deliberate and premeditated killing is murder in the first degree. "To premeditate means to adopt a specific intent to kill,"Smith v. Commonwealth, 220 Va. 696, 700, 261 S.E.2d 550, 553 (1980), and the Commonwealth must prove that the accused acted with malice. See Moxley v. Commonwealth, 195 Va. 151, 77 S.E.2d 389 (1953).
"[M]alice [may be] implied by law from any willful, deliberate and cruel act against another, however sudden." Epperly v. Commonwealth, 224 Va. 214, 231, 294 S.E.2d 882, 892 (1982). The intent "may be formed only a moment before the fatal act is committed provided the accused had time to think and did intend to kill." Giarratano v. Commonwealth, 220 Va. 1064, 1074, 266 S.E.2d 94, 100 (1980) (citation omitted). It is the evidence that shows "the will and purpose to kill, not necessarily the interval of time," which determines whether the killing is first degree murder. Akers v. Commonwealth, 216 Va. 40, 48, 216 S.E.2d 28, 33 (1975). That will and purpose may be implied by the degree of turpitude reflected in the conduct of the criminal agent. See Pugh v. Commonwealth, 223 Va. 663, 669, 292 S.E.2d 339, 341-42 (1982). Because premeditation and formation of intent to kill seldom can be proved by direct evidence, a combination of circumstantial facts may be sufficient to prove the killing was in the first degree. See Epperly, 224 Va. at 232, 294 S.E.2d at 892-93. Whether appellant willed, deliberated, and premeditated the killing of Melvin Davis is a question for the fact finder to determine from all the facts and circumstances. Smith, 220 Va. at 701, 261 S.E.2d at 553.
In this case, appellant inflicted gunshot wounds on Melvin Davis, resulting in his death. The degree of homicide is a question of fact. Williamson v. Commonwealth, 180 Va. 277, 281, 223 S.E.2d 240, 241 (1942). The trial court reasonably could infer from the evidence that after appellant's friends deliberately had encountered and engaged the victims in a fight, appellant armed himself and, intending to do them bodily harm, went in search of the victims, found and enticed them to a place where his four friends were waiting and, without provocation, killed one and maliciously wounded the other two. The fact finder was at liberty to reject the conflicting evidence presented on behalf of appellant. See Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980),cert. denied, 450 U.S. 1029 (1981); Boblett, 10 Va. App. at 651, 396 S.E.2d at 137. The record sufficiently supports the trial court's judgments.
"In order to justify an accused in striking another with a deadly weapon, as the accused admits he did in this case, a threatening attitude [of the victim] alone affords no justification." Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955). The victims must have made some overt act indicative of imminent danger to the accused at the time. The fact finder did not believe a justifiable overt act occurred and we cannot say that finding was plainly wrong or without evidence to support it.
For the reasons stated, we affirm the judgments of the trial court.
Affirmed.