Randolph Eugene Smith v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, O’Brien and Fulton
UNPUBLISHED
Argued by videoconference
RANDOLPH EUGENE SMITH
MEMORANDUM OPINION* BY
v. Record No. 0523-21-2 JUDGE JUNIUS P. FULTON, III
MARCH 1, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Richard Strouse Wallerstein, Jr., Judge
John G. LaFratta for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Mark R.
Herring,1 Attorney General, on brief), for appellee.
Randolph Eugene Smith appeals his convictions, following a jury trial, of first-degree
murder and use of a firearm in the commission of a felony for the murder of his stepson, Neal
Matthew Waters. Appellant challenges the sufficiency of the evidence to convict him, arguing that
he acted in self-defense, in the heat of passion, or without premeditation. For the reasons stated
herein, we affirm.
I. BACKGROUND
Because appellant challenges the sufficiency of the evidence, “we review the evidence in the
‘light most favorable’ to the Commonwealth, the prevailing party in the trial court.”
Commonwealth v. Cady, 300 Va. 325, ___ (2021) (quoting Commonwealth v. Hudson, 265 Va. 505,
514 (2003)). In doing so, we discard any conflicting evidence and regard as true all credible
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
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Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022.
evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from
that evidence. Gerald v. Commonwealth, 295 Va. 469, 472 (2018).
On October 9, 2019, appellant resided with Michelle Waters-Smith, his wife, Neal Matthew
Waters, the victim who was Waters-Smith’s forty-year-old son, and E.W., Waters’ seven-year-old
son. That morning, while Waters-Smith was helping E.W. get ready for school, an argument
ensued which ultimately resulted in appellant shooting Waters four times with a pump action,
twelve-gauge shotgun, causing Waters’ death.
When police arrived at the home, Waters’ body was located in the dining room at the
doorway to the kitchen on the middle floor of the tri-level house. A chef’s knife was found in
Waters’ outstretched right hand. Although the knife was swabbed for fingerprints, a laboratory
analysis failed to identify any fingerprints of value, meaning police could not determine who may
have touched or not touched it. Police found three shotgun shells and wadding on the kitchen floor
near the steps leading up into the kitchen. Another shotgun casing was “just inside the living room
at the doorway that goes into the kitchen.” In the master bedroom on the third floor of the house, a
dresser and bed frame were tilted on their side. In another third-floor bedroom, a chair was tilted on
its side and the shotgun used to kill Waters was found in the closet.
Appellant made a statement to police, a recording of which was played at trial. Throughout
his interview, appellant described Waters as violent and physically and verbally abusive toward
both himself and Waters-Smith. On the morning in question, appellant stated that Waters-Smith
was helping E.W. get ready for school when Waters went on a “rampage,” cursing and shouting at
Waters-Smith and shoving her down the steps. Shortly before 7:30, Waters-Smith left to take E.W.
to school. When she returned, Waters continued his rampage, prompting appellant and his wife to
retreat upstairs to the bedroom and shut the door in an attempt to avoid confrontation or separate
themselves from Waters but Waters followed them and pushed through the door, knocking
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Waters-Smith back. Once inside the bedroom, Waters began knocking over furniture, turning over
the dresser and turning the bed frame up on end. At that point, Waters-Smith left the residence and
drove away, leaving appellant and Waters behind. According to appellant, after Waters-Smith left
he remained upstairs in the bedroom while Waters continued “spouting off” downstairs.
Appellant stated that he went downstairs to get a bottle of water and encountered Waters
waving around a kitchen knife, and saying he was going to “put [him] in the ground,” “cut [him]
from ear to ear,” and “cut [his] throat.” Taking Waters “at [his] word,” appellant told detectives that
he felt his life was threatened, so he went upstairs and retrieved his loaded shotgun from the closet.
Waters continued yelling and screaming as appellant returned with his shotgun. Appellant stated
that when he returned downstairs, Waters came at him with the knife, threatening to kill him.
Although he told Waters to calm down and put down the knife, Waters kept advancing toward him,
so appellant shot Waters three or four times, “until he stopped. Until the threat was gone.”
Appellant said he was not going to “wait ‘til [Waters] gets right here with the knife,” gesturing
toward his chest.
After shooting Waters, appellant stated he was in shock. He called Waters-Smith to get her
to return to the house, but was unable to reach her, so he texted her “911.” Appellant then called
911 who told him to put the gun upstairs and go outside. After returning the gun to the closet,
appellant changed clothes and put on deodorant before heading downstairs to meet police. When
asked, appellant initially said he did not know why he did not call the police instead of shooting
Waters. He later said he did not call the police because Waters had threatened to beat or kill him
and Waters-Smith if they ever called the police on him. When asked why he did not leave the house
during Waters’ rampage, appellant replied, “Why would I leave my own house . . . and wait” until
the “next time where he does cut my throat.” He also stated that his life had been threatened and he
was “not waiting for the blade to produce blood,” or for Waters to throw things and destroy the
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house. When asked where he aimed the shotgun, appellant replied that he was not “looking to shoot
[Waters] in the leg,” he was “looking to stop a deadly force.” “Enough is enough,” appellant
reiterated numerous times throughout his interview.
James Bullock, a firearms examiner with the Virginia Department of Forensic Science,
testified that the weapon appellant used to kill Waters was a twelve-gauge pump action shotgun,
meaning appellant had to “physically move the slide back and forward to extract and eject the fired
shot shell and load a shot shell . . . in the chamber for further shooting.” Bullock further testified
that the shotgun had a rifled barrel, meaning the shotgun pellets start to spread quicker, at around
three feet.
Dr. Jeffrey J. Gofton, an assistant chief medical examiner, testified regarding four wounds to
Waters’ body. Wound 12 was a shotgun wound to the right leg, fired from an indeterminate range,
which fractured Waters’ femur and would have made him unable to effectively stand, walk, or run.
Wound 2 was a shotgun wound to Waters’ right flank and back, also fired from an indeterminate
range. The pellets causing Wound 2 entered Waters’ body on the right side and passed through the
soft tissue of the right flank. Some pellets entered Waters’ abdominal cavity, injuring his small and
large bowels, as well as the right kidney. Wound 3 was a shotgun wound to Waters’ back upper
head and upper neck, fired from an intermediate range. When the shotgun pellets passed through
Waters’ neck, they hit his cervical spinal cord, perforating the spine and spinal cord, likely
paralyzing him and causing quadriplegia. This shotgun wound would have affected Waters’ ability
to hold an item in his hands and to stand. Wound 4 was a shotgun wound to the head, fired from
close range. Dr. Gofton detected soot embedded on the surface of Waters’ tongue and stippling on
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The order in which the injuries were inflicted on Waters’ body was undetermined and
the labeling of those wounds by number in this opinion is not intended to indicate the order they
were received.
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his severely wounded face. Wadding was recovered within Wound 4. Wounds 3 and 4 were
“immediately life threatening.”
II. ANALYSIS
A. The evidence was sufficient to conclude that appellant did not act in self-defense.
The jury was instructed to consider the charges of first-degree murder, second-degree
murder, and voluntary manslaughter. Appellant argues that the trial court erred by not striking
the first-degree murder and use of a firearm charges because he acted in self-defense when he
shot Waters.
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (quoting Commonwealth v.
Perkins, 295 Va. 323, 327 (2018)). “In such cases, ‘[t]he Court does not ask itself whether it
believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Secret v.
Commonwealth, 296 Va. 204, 228 (2018) (quoting Pijor v. Commonwealth, 294 Va. 502, 512
(2017) (emphasis in original)). “Rather, the relevant question is, upon review of the evidence in
the light most favorable to the prosecution, whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Pijor, 294 Va. at
512). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted to
substitute its own judgment, even if its opinion might differ from the conclusions reached by the
finder of fact at the trial.’” Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018) (quoting
Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)).
“Self-defense is an affirmative defense to a charge of murder, and in making such a plea,
a ‘defendant implicitly admits the killing was intentional and assumes the burden of introducing
evidence of justification or excuse that raises a reasonable doubt in the minds of the jurors.’”
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Jones v. Commonwealth, 71 Va. App. 70, 86 (2019) (quoting Commonwealth v. Sands, 262 Va.
724, 729 (2001)). “In order to establish self-defense, a defendant must show that he . . .
‘reasonably believed that [he] was in danger of serious bodily harm or death.’” Id. (quoting
Sands, 262 Va. at 730). “A defendant must also demonstrate ‘that he was in imminent danger of
harm’ by showing ‘an overt act or other circumstance that affords an immediate threat to
safety.’” Id. (quoting Carter v. Commonwealth, 293 Va. 537, 544 (2017)).
Appellant offered several reasons for the shooting, including that he was trying to protect
Waters-Smith, who was not home at the time of the shooting; he was not “waiting for the blade
to produce blood”; he was not looking to shoot the victim in the leg but was “looking to stop a
deadly force”; and “enough [was] enough.” Appellant also stated that he shot the gun until the
threat was gone. When asked why he shot Waters instead of leaving the house, appellant asked
the detective, “Why would I leave my own house?” “Wait until the next time where he does cut
my throat? Where he does throw stuff around that’s gonna hurt . . . all that furniture?”
Appellant likewise questioned what he would do if he called 911 and Waters denied his
behavior. Indeed, he told detectives that it never occurred to him to call the police because
Waters had told him before that “when [he] get[s] out [he’s] gonna come back and . . . beat [our]
asses” and “kill [them]. . . . Enough is enough.” Many of appellant’s responses as to why he
shot Waters expressed his intent to stop Waters’ future conduct rather than apprehension about
an immediate deadly threat and his own immediate safety.
Moreover, the force used in self-defense “must not be excessive and must be reasonable
in relation to the perceived threat.” Foster v. Commonwealth, 13 Va. App. 380, 383 (1991).
Appellant had superior weaponry than Waters; appellant carried a shotgun, which is capable of
hitting its target at a distance, while Waters allegedly held a kitchen knife, which is only useful
in close quarters, unless thrown. One of the shots that appellant fired paralyzed Waters, and one
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shot fired from close range caused significant damage to Waters’ face. The medical examiner
testified that these shotgun wounds were “immediately life threatening.” Another shot fractured
Waters’ femur and one shot was to Waters’ back and rear flank and injured several of his organs.
It is unlikely that appellant, if he ever faced an imminent threat from Waters, faced an imminent
threat after he shot Waters even once with the shotgun. Yet appellant shot Waters four times.
There was clearly sufficient evidence for the jury to conclude that appellant used significantly
more force than was necessary during the confrontation and did not act in self-defense.
B. The evidence was sufficient to conclude that appellant did not act in the heat of passion.
Appellant next argues, in the alternative, that the trial court erred by not finding that he acted
in the heat of passion, thus warranting a conviction of, at most, voluntary manslaughter, and an
acquittal on the use of a firearm charge.
“Malice inheres in the ‘doing of a wrongful act intentionally, or without just cause or
excuse, or as a result of ill will.’” Tizon v. Commonwealth, 60 Va. App. 1, 11 (2012) (quoting
Dawkins v. Commonwealth, 186 Va. 55, 61 (1947)). “Malice may be inferred from the
deliberate use of a deadly weapon.” Luck v. Commonwealth, 32 Va. App. 827, 834 (2000). “To
reduce a homicide from murder to voluntary manslaughter, the killing must have been done in
the heat of passion and upon reasonable provocation. Malice and heat of passion are mutually
exclusive; malice excludes passion, and passion presupposes the absence of malice.” Dandridge
v. Commonwealth, 72 Va. App. 669, 681 (2021) (quoting Canipe v. Commonwealth, 25 Va. App.
629, 643 (1997)). “[Heat of passion] excludes malice when provocation reasonably produces
fear that causes one to act on impulse without conscious reflection.” Id. (quoting Witherow v.
Commonwealth, 65 Va. App. 557, 567 (2015)). “‘[W]hether provocation, shown by credible
evidence, is sufficient to engender the furor brevis necessary to rebut the presumption of malice
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arising from a homicide is a question of fact’ to be decided by the jury.” Id. at 682 (quoting
Woods v. Commonwealth, 66 Va. App. 123, 131-32 (2016)).
The evidence in this case clearly supported a finding that appellant acted maliciously in
shooting Waters four times with the shotgun. “Heat of passion requires the simultaneous
‘reasonable provocation’ by the victim and resulting passion by the defendant, such that the
defendant acts ‘on impulse without conscious reflection.’” Williams v. Commonwealth, 64
Va. App. 240, 252 (2015) (quoting Graham v. Commonwealth, 31 Va. App. 662, 671 (2000)).
By appellant’s own words, when allegedly confronted with the knife, he left the first floor where
Waters remained and went to the closet located on another floor of the house to obtain the
loaded, deadly weapon. He then deliberately returned downstairs where Waters was located,
allegedly with a knife. After firing one shot at Waters, appellant manually pumped and
consciously fired the shotgun three additional times. Waters was likely immobilized after any
one of the gunshots, yet appellant shot him four times. The evidence was sufficient for a jury to
conclude that appellant acted with malice when killing Waters.
C. The evidence was sufficient to support a finding of premeditation.
Appellant argues in the alternative that the trial court erred by not setting aside the verdict
because there was no evidence of premeditation, meaning the most serious offense appellant could
be convicted of was second-degree murder.
Premeditation, or the “adopt[ion] [of] a specific intent to kill . . . is what distinguishes
first and second degree murder.” Smith v. Commonwealth, 239 Va. 243, 259 (1990) (quoting
Rhodes v. Commonwealth, 238 Va. 480, 485 (1989)). “[I]t is necessary that the killing should
have been done on purpose, and not by accident, or without design.” Smith v. Commonwealth,
220 Va. 696, 700 (1980) (quoting Pannill v. Commonwealth, 185 Va. 244, 255 (1946)).
Although the accused need not have planned the killing for any specific period of time, “[t]he
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intent to kill must come into existence at some time before the killing.” Id. By its very nature,
“premeditation . . . seldom can be proved by direct evidence” and must instead be established
circumstantially. Rhodes, 238 Va. at 486. Circumstantial factors related to the killing itself,
including the “brutality of the attack, and whether more than one blow was struck,” can support a
reasonable inference of premeditation. Avent v. Commonwealth, 279 Va. 175, 208 (2010).
Whether a murder is willful, deliberate, and premeditated is an issue of fact to be resolved by the
jury. Beavers v. Commonwealth, 245 Va. 268, 283 (1993).
Here, there was evidence from which the jury could have found that appellant acted
intentionally and with premeditation when he shot Waters four times with a pump action,
twelve-gauge shotgun. According to appellant, Waters became angry with Waters-Smith while
she was getting E.W. ready for school. Waters cursed at Waters-Smith, pushed her, and threw
furniture. After Waters-Smith left the house the second time, Waters continued the argument
with appellant. When appellant went downstairs to retrieve a bottle of water, Waters allegedly
waved a knife at him and threatened to put appellant “in the ground,” cut him from ear to ear,
and cut his throat. Appellant did not call the police but instead went to a closet located on
another level of the house, retrieved his loaded, pump action, twelve-gauge shotgun, and went
back downstairs where Waters was located. Appellant claimed that when he went downstairs
with the shotgun, Waters advanced toward him with the knife and threatened to kill him.
Appellant stated that he told Waters to calm down and put down the knife, but Waters continued
toward him. Appellant then shot Waters four times.
In deciding whether an accused acted with premeditation, “the jury may properly
consider the brutality of the attack.” Epperly v. Commonwealth, 224 Va. 214, 232 (1982).
“Simply put, [appellant]’s deliberate acts of getting a loaded gun, bringing it [downstairs to
where the victim was located], . . . shooting the victim, and continuing to [shoot] the victim . . .
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all indicate a ‘deliberate mind and formed design’ rather than ‘impulse without conscious
reflection.’” Williams, 64 Va. App. at 253 (quoting Graham, 31 Va. App. at 672).
“[P]remeditation and reasonable provocation cannot co-exist.” Turner v. Commonwealth, 23
Va. App. 270, 277 (1996), aff’d, 255 Va. 1 (1997). From this evidence, the jury reasonably
could have concluded that appellant intended to kill the victim and deliberately and
premeditatedly did so, all while intentionally dismissing opportunities to avoid reengaging in the
altercation altogether.
III. CONCLUSION
The record in this case reveals a brutal shooting, where appellant shot Waters, his stepson,
four times with a twelve-gauge shotgun, pumping the gun between each shot, including shooting
him once in the head from close range. Appellant admitted that he separated himself from the
immediate threat Waters posed while allegedly armed with a knife, went upstairs to retrieve a
shotgun, and returned to Waters and shot him over and over again, including nearly blowing off
his face from close range, even after having immobilized him. The Commonwealth’s evidence
was competent, was not inherently incredible, and was sufficient to prove beyond a reasonable
doubt that appellant was guilty of first-degree murder and the use of a firearm in the commission
of a felony.
Affirmed.
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