Kevin Wayne Harris v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Senior Judge Coleman ∗
Argued at Richmond, Virginia
KEVIN WAYNE HARRIS
MEMORANDUM OPINION ∗∗ BY
v. Record No. 2493-99-2 JUDGE SAM W. COLEMAN III
JANUARY 16, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Carl C. Muzi for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Kevin Wayne Harris was convicted in a jury trial of
voluntary manslaughter and possession of a firearm by a
juvenile. On appeal, Harris argues that the evidence is
insufficient to support his voluntary manslaughter conviction.
We disagree and affirm the conviction.
∗
Judge Coleman participated in the hearing and decision of
this case prior to the effective date of his retirement on
December 31, 2000 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
∗∗
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
Viewed from the Commonwealth's perspective, the evidence
proved that on April 1, 1999, the defendant, Kevin Harris, shot
Timothy Wilhite four times, killing him.
The events which preceded and precipitated the shooting are
that on March 31, 1999, Wilhite's younger brother, Reheim
Balthrop, and Harris' younger brother, David Harris, had a
fistfight. The next day, the day of the shooting, Balthrop and
David Harris fought again. Balthrop's older brother, Peter
Boone, broke up the fight by pushing David Harris and Balthrop
to the ground. As David Harris left crying, he stated, "when I
come back my brother is going to kill all of you." Later that
day, David and Kevin Harris went back to the area where the
fight had occurred, where Kevin Harris told Boone not to "touch"
David Harris again. Kevin Harris told Boone, "I will deal with
y'all when I come back," and he left walking toward the nearby
Amoco store.
Wilhite, Boone, and Wilhite's sister and mother followed
Harris to the Amoco store. Several other boys, who were also
Wilhite's friends, ran toward the Amoco store, chasing Harris.
Harris entered the store and immediately asked the store clerk
to call the police. Wilhite followed Harris into the store
where Wilhite and Harris began arguing about the fighting
between their brothers. Wilhite then struck Harris and they
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began to fight until the store clerk and a patron broke up the
fight. A store clerk testified that after the fight was broken
up, she thought "everything was all right" and that she saw
Harris hurriedly leave the store. Wilhite's mother walked out
of the store about the same time as Harris, and Wilhite followed
both of them. Outside the store, Harris turned to face Wilhite,
and Wilhite took a step toward Harris. Harris told Wilhite to
"get back." Harris then pulled a gun from his pocket and fired
five shots, striking Wilhite four times and killing him. After
he was shot the first time, Wilhite fell backwards.
No weapon was found on or near Wilhite after the shooting,
and, aside from the defendant's testimony, there was no evidence
that Wilhite had or reached for a weapon before being shot.
Kevin Harris' version of the evidence differed from the
Commonwealth's. He testified that on his way to the store, he
encountered two people that had beaten his brother earlier that
day. Harris testified that the two boys told him they were
going to "beat [him] to death." Harris did not threaten either
of them. Rather, he proceeded to the Amoco store. Before
arriving there, Harris noticed several other people were
"running up the street behind [him]." Harris recognized Wilhite
as one of the "gang members." Harris stated that Wilhite had a
reputation for fighting and dealing drugs. Harris entered the
store and immediately asked the store clerk to call the police.
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Harris testified that he attempted to leave the store through a
back exit, but five or six of the "gang members" were blocking
the exit. Harris decided to wait in the Amoco store until the
police arrived. Wilhite came in the store and began striking
Harris. After the store clerk separated them, Harris ran out of
the store to escape. Harris testified that, when he got
outside, several of Wilhite's friends were standing there and
when he turned to go back in the store, he saw Wilhite standing
there facing him. Harris testified that Wilhite again hit him
in the face. He said that he then saw Wilhite pull a gun from
his pants, at which point Harris pulled his gun and shot Wilhite
four times. Harris testified that he continued to fire the gun
because he did not believe that he hit Wilhite and Wilhite
continued to "come" at him.
ANALYSIS
"On review of a challenge to the sufficiency of the
evidence, we view the evidence in the light most favorable to
the Commonwealth, the prevailing party, and grant to it all
reasonable inferences fairly deducible therefrom." Robertson v.
Commonwealth, 31 Va. App. 814, 820, 525 S.E.2d 640, 643 (2000)
(citing Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d
263, 265 (1998)). "If there is evidence to support the
conviction, an appellate court is not permitted to substitute
its own judgment for that of the finder of fact, even if the
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appellate court might have reached a different conclusion."
Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72
(1998) (citations omitted). "The credibility of the witnesses
and the weight accorded the evidence are matters solely for the
fact finder who has the opportunity to see and hear that
evidence as it is presented." Sandoval v. Commonwealth, 20 Va.
App. 133, 138, 455 S.E.2d 730, 732 (1995) (citations omitted).
Voluntary manslaughter is an unlawful killing done in the
heat of passion and upon reasonable provocation. Barrett v.
Commonwealth, 231 Va. 102, 105-06, 341 S.E.2d 190, 192 (1986);
Canipe v. Commonwealth, 25 Va. App. 629, 642-43, 491 S.E.2d 747,
753 (1997).
In order to show that a killing occurred in
the heat of passion, the evidence must prove
the simultaneous occurrence of both
"reasonable provocation" and "passion."
"Heat of passion is determined by the nature
and degree of the provocation and may be
founded upon rage, fear, or a combination of
both."
Id. at 643, 491 S.E.2d at 753 (citations omitted).
Here, the evidence is sufficient to support Harris'
conviction for voluntary manslaughter. While armed with a
handgun, Harris went to Wilhite's house to confront Wilhite's
brother about assaulting Harris' brother. Before leaving,
Harris threatened the boys, stating "I will deal with y'all when
I come back." Wilhite, however, followed Harris to the
convenience store, and the two argued and fought inside the
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store. When Harris left the store, before the police arrived,
the store clerk believed that "everything was all right."
Wilhite followed Harris. Harris faced Wilhite, told him to "get
back," and shot Wilhite four times. Wilhite was standing three
to five feet away from Harris, and Wilhite was unarmed. The
Commonwealth's evidence was competent and not inherently
incredible.
"Self-defense is an affirmative defense which the accused
must prove by introducing sufficient evidence to raise a
reasonable doubt about his guilt." Smith v. Commonwealth,
17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993) (citation
omitted). "Whether the evidence raises such a reasonable doubt
is a question of fact that will not be disturbed on appeal
unless plainly wrong or unsupported by the evidence." Utz v.
Commonwealth, 28 Va. App. 411, 415, 505 S.E.2d 380, 382 (1998)
(citation omitted).
Killing in self-defense may be either
justifiable or excusable. If it is either,
the accused is entitled to an acquittal.
"Justifiable homicide in self-defense
occurs [when] a person, without any fault on
his part in provoking or bringing on the
difficulty, kills another under reasonable
apprehension of death or great bodily harm
to himself."
Smith, 17 Va. App. at 71, 435 S.E.2d at 416 (citations omitted).
Harris' evidence does not prove as a matter of law that he
acted in self-defense. See Nelson v. Commonwealth, 168 Va. 742,
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747, 191 S.E. 620, 622-23 (1937) (recognizing principle that
undisputed facts may establish self-defense as a matter of law);
Hensley v. Commonwealth, 161 Va. 1033, 1034-35, 170 S.E. 568,
568-69 (1933) (finding self-defense as a matter of law where
accused shot and killed victim after victim, in an unprovoked
attack, stabbed the accused in the face); Smith v. Commonwealth,
17 Va. App. 68, 72-73, 435 S.E.2d 414, 417 (1993) (finding
self-defense as a matter of law where defendant arguably
provoked the initial confrontation, attempted to withdraw from
the conflict, had no other reasonable avenue of escape, and took
the only action available to prevent his death or serious bodily
harm); Foote v. Commonwealth, 11 Va. App. 61, 67-69, 396 S.E.2d
851, 855-56 (1990) (finding self-defense as a matter of law
where defendant, who was the victim of an unlawful arrest, used
reasonable force to repel his attacker, who confronted him with
deadly force). Whether Harris was acting in self-defense was a
factual issue for the jury. The jury was properly instructed on
the law of self-defense.
Although Harris contends that Wilhite was the aggressor and
that he, Harris, acted in self-defense, the jury was not
required to believe this testimony. See Rollston v.
Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991).
Moreover, even if the jury believed that Wilhite in some manner
had threatened Harris, by striking Harris again outside the
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store or by advancing toward him, on this evidence, the jury
could have found that Harris used more force than necessary to
repel the threat. See Cook v. Commonwealth, 219 Va. 769, 773,
250 S.E.2d 361, 364 (1979) (stating that one "may use only such
force as appears to him reasonably necessary to repel the
attack"); Foote, 11 Va. App. at 69, 396 S.E.2d at 856 (same).
The evidence does not prove as a matter of law that Harris acted
in self-defense. The jury was instructed on the law of
self-defense and implicitly rejected that claim.
Accordingly, we find the evidence is sufficient beyond a
reasonable doubt to support the conviction. We, therefore,
affirm.
Affirmed.
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