Ramon Antwain Page v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Duff
Argued at Richmond, Virginia
RAMON ANTWAIN PAGE
MEMORANDUM OPINION * BY
v. Record No. 1230-97-2 JUDGE JAMES W. BENTON, JR.
JULY 14, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Ernest P. Gates, Judge Designate
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Ramon Antwain Page was convicted by a jury of second degree
murder and use of a firearm in the commission of murder. On
appeal, he contends that the evidence was insufficient to prove
malice. We disagree and affirm his convictions.
I.
When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in the light
most favorable to the Commonwealth and gives it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). So
viewed, the evidence proved that on the morning of Monday, August
5, 1996, Aaron Wallace, the owner and founder of A-1 Technical
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Services, was scheduled to travel to Maryland with Janet
Williams, the company's marketing director, to sign documents for
the largest contract the company had received during Williams'
tenure as marketing director. Wallace had discussed the trip
with Williams over the weekend.
Wallace arrived at his office at 8:15 a.m. accompanied by
Ramon Page. Barbara Hoover, the office manager who kept
Wallace's calendar, testified that Wallace was not scheduled to
meet with Page that morning. Page, who was described as
Wallace's business partner, had worked with Wallace on various
asbestos removal projects during the previous two years. Page
did not have an office in the building but was a frequent visitor
to the office, usually arriving without an appointment.
Hoover testified that Wallace and Page appeared angry by the
way they walked and the looks on their faces. Wallace dropped a
receipt on Hoover's desk and told her he needed to be reimbursed.
As Wallace and Page walked to Wallace's office, they were not
talking to each other.
After Wallace and Page entered Wallace's office and shut the
door, Hoover and Christina Devine, another employee, immediately
heard the men shouting and arguing. Although the shouting
continued for about five minutes, Hoover and Devine did not
specifically hear anything either of the men was saying. They
did not hear any sounds of a physical struggle. Suddenly, Hoover
heard Wallace loudly shout, "Man, are you crazy?" Hoover and
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Devine then heard a popping noise followed by several more
popping noises.
Hoover and Devine ran out of the building and stood in the
alcove of the adjacent office. When Williams and another
co-worker arrived in the parking lot, Hoover and Devine shouted a
warning to them not to enter the building. After a period of
silence, Page exited the building carrying a gun. He closed the
door behind him, walked "calmly, looking straight ahead," and
glanced at Hoover and Devine. Page then entered his car and
drove away.
After Page departed, the employees entered the building
shouting for Wallace. Williams went into Wallace's office and
found Wallace face up in the shower stall of the bathroom
adjacent to his office. She checked for a pulse but found none.
Devine saw shell cases on the floor and smelled an odor similar
to burning sulfur. Devine also checked for a pulse and noticed
blood on Wallace's shirt.
The forensics officer who analyzed and photographed the
office testified that he saw no signs of a physical altercation.
No furniture was overturned in Wallace's office, and no papers
were sprawled about the floor. Bullet cases were found
throughout the office leading to the adjacent bathroom. Bullets
were lodged in various places around the room. The desk was
scarred by a bullet, and two bullet holes were found in the
shower stall.
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A forensic scientist testified that he found gunpowder
residue on both of Wallace's hands. The forensic scientist
testified that residue might be found on a person's hands if the
person fired a weapon, handled a weapon which had been
discharged, or was in close proximity to the discharge of a
weapon. The scientist testified that because it is so common to
find residue on the hands of a shooting victim, he typically does
not analyze such residue, especially if the victim has been shot
multiple times.
The medical examiner testified that Wallace was shot a
minimum of twelve times. The medical examiner further testified
that the direction and placement of the wounds were consistent
with movement by Wallace and Page during the shooting. Wallace
was shot in the head, chest, side of the body, arms, back,
abdomen, leg, and hand. None of the wounds were contact wounds
made by a gun being discharged against Wallace's skin. The
medical examiner found no abrasions or bruises on Wallace's body,
including his hands, or any other evidence to indicate a
struggle. He testified that Wallace died from a gunshot wound
through his heart that caused him to bleed to death.
The jury found Page guilty of second degree murder and use
of a firearm in the commission of murder, and the jury
recommended a sentence of twenty-two years on the murder
conviction. The judge entered judgment on that verdict and
sentenced Page to a mandatory three years on the firearm
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conviction.
II.
Page contends that the evidence was insufficient to prove
malice. He argues that the Commonwealth did not exclude the
reasonable hypothesis that he acted in the heat of passion upon
reasonable provocation. We disagree.
Malice is the element that distinguishes murder from
manslaughter. See Canipe v. Commonwealth, 25 Va. App. 629, 642,
491 S.E.2d 747, 753 (1997). "Malice is evidenced either when the
accused acted with a sedate, deliberate mind, and formed design,
or committed any purposeful and cruel act without any or without
great provocation." Branch v. Commonwealth, 14 Va. App. 836,
841, 419 S.E.2d 422, 426 (1992). Malice "'may be directly
evidenced by words, or inferred from acts and conduct which
necessarily result in injury.'" Christian v. Commonwealth, 221
Va. 1078, 1081, 277 S.E.2d 205, 207 (1981) (citation omitted).
The trier of fact may infer malice from the deliberate use of a
deadly weapon unless the evidence raises a reasonable doubt
whether malice existed. See Compton v. Commonwealth, 219 Va.
716, 730, 250 S.E.2d 749, 758 (1979); Morris v. Commonwealth, 17
Va. App. 575, 578, 439 S.E.2d 867, 870 (1994). The
uncontradicted evidence proved Page fired the gun that killed
Wallace and shot Wallace twelve times.
"To reduce a homicide from murder to voluntary manslaughter,
the killing must have been done in the heat of passion and upon
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reasonable provocation." Barrett v. Commonwealth, 231 Va. 102,
105-06, 341 S.E.2d 190, 192 (1986). "Virginia has long
recognized that malice and heat of passion [are mutually
exclusive]." Hodge v. Commonwealth, 217 Va. 338, 345, 228 S.E.2d
692, 697 (1976). Heat of passion refers to "the furor brevis,
which renders a man deaf to the voice of reason." Hannah v.
Commonwealth, 153 Va. 863, 870, 149 S.E. 419, 421 (1929). "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." Barrett, 231 Va. at 106, 341 S.E.2d at 192 (citations
omitted).
The evidence proves that both Wallace and Page appeared
angry as they entered the building. They began arguing loudly
once inside Wallace's office. However, anger alone is not enough
to prove heat of passion. To establish heat of passion, the
evidence must prove both that the act was committed with passion
and that it was based upon reasonable provocation. See Martin v.
Commonwealth, 184 Va. 1009, 1016, 37 S.E.2d 43, 46 (1946);
Canipe, 25 Va. App. at 643, 491 S.E.2d at 753. To determine
whether provocation is reasonable, "it is necessary to consider
the nature and degree of the provocation as well as the manner in
which it was resisted." Miller v. Commonwealth, 5 Va. App. 22,
25, 359 S.E.2d 841, 842 (1987).
Page contends that the evidence permits the reasonable
inference that he was angered and reasonably provoked because
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Wallace was taking Williams, the marketing director, and not
Page, with Wallace to execute the contract documents in Maryland.
Although the evidence proves that Wallace and Williams intended
to travel to Maryland in connection with the contract and that
Wallace and Williams had discussed the trip the weekend prior to
the killing, nothing in the record supports Page's hypothesis
that Wallace was excluding Page either from the business trip or
from the benefits of the contract.
The record is silent regarding the nature of the dispute
between the men. There is no evidence in the record from which
the fact finder could have inferred that Wallace and Page had
planned to travel to Maryland together, that Wallace had invited
Williams instead, and that Wallace had deliberately excluded Page
from the trip. No evidence proved that either the contract or
the business trip was the source of Page and Wallace's argument.
"'A reasonable provocation is always necessary to reduce a
[murder] . . . to . . . manslaughter; and especially where the
offense is committed with a deadly weapon.'" Martin, 184 Va. at
1017, 37 S.E.2d at 46 (citation omitted) (emphasis deleted). The
principle is long standing that "'[w]ords alone, however
insulting or contemptuous, are never a sufficient provocation'"
for one to kill another and claim that the act arose from the
heat of passion. Id. (citation omitted). See Caudill v.
Commonwealth, 27 Va. App. 81, 85, 497 S.E.2d 513, 515 (1998).
The evidence proved only that Wallace and Page shouted and argued
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before Page shot Wallace.
Page further contends that the evidence is consistent with
the men having struggled over control of the weapon and the
weapon discharging during the struggle. Page points to an
indentation found on the desk in Wallace's office and the
gunpowder residue on Wallace's hands to support this contention.
Although no evidence proved that Page had the gun with him when
he entered the office, the hypothesis of a struggle does not flow
from the evidence.
The witnesses heard no sounds of a struggle. No furniture
was overturned. No papers were strewn about. The medical
examiner's testimony together with the location of the bullet
cases and bullets tend to prove that Wallace was shot while he
retreated from his office into the adjacent bathroom. Wallace
had no physical markings on his body, such as bruises or
scratches, to indicate a struggle for a weapon. While tests
indicated that Wallace did have gunpowder residue on both hands,
the forensic scientist testified that residue commonly is found
on the hands of persons who have been shot multiple times. Based
on the evidence in the record, we cannot conclude that the
evidence was insufficient to prove malice beyond a reasonable
doubt. Accordingly, we affirm the convictions.
Affirmed.
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