Joseph Dale Bowler v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia
JOSEPH DALE BOWLER
MEMORANDUM OPINION * BY
v. Record No. 0404-99-4 JUDGE JERE M. H. WILLIS, JR.
MARCH 21, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Thomas S. Kenny, Judge
(William D. Pickett, on brief), for
appellant. Appellant submitting on brief.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from his jury-trial conviction of second degree
murder, in violation of Code § 18.2-32, Joseph Dale Bowler
contends (1) that the trial court erred in refusing his
proffered self-defense instruction, and (2) that the evidence
was insufficient to support his conviction. We find no error
and affirm the judgment of the trial court.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted).
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
On the morning of February 5, 1998, Bowler knocked on a
neighbor's door and said there was a dead woman in his apartment
upstairs. His pants were bloody, and he requested aid "to take
something downstairs before the police" arrived. The neighbor
called the police. The first officer on the scene found
Bowler's girlfriend, Ruby Kibler, lying dead just inside
Bowler's apartment. She had been stabbed twice.
Bowler initially told the police that he heard Kibler
banging on the downstairs door and that upon opening the door,
he found her stabbed and bleeding from an attack by an unknown
assailant. He said that he carried her upstairs to his
apartment, where she died. Later, after the police pointed out
several inconsistencies in his story, Bowler admitted that he
and Kibler had been together in his apartment, that they had
been drinking heavily, and that they had begun to argue. He
said that she attacked him with a knife and they fought over the
knife. He said that in the struggle, they fell down the stairs,
and Kibler was wounded when she fell on the knife. Bowler said
that he passed out at the foot of the stairs and did not awake
until the next morning.
II. Jury Instruction
Bowler contends that the trial court erred in refusing to
instruct the jury on self-defense. He argues that his proffered
instruction was supported by credible evidence.
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"We are bound by the principle that the accused is
entitled, on request, to have the jury instructed on a lesser
included offense [or affirmative defense] that is supported by
more than a 'scintilla of evidence' in the record." Bunn v.
Commonwealth, 21 Va. App. 593, 599, 466 S.E.2d 744, 746 (1996)
(citation omitted). "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).
"'In determining whether to instruct the jury on a
lesser-included offense [or affirmative defense], the evidence
must be viewed in the light most favorable to the accused's
theory of the case.'" Hunt v. Commonwealth, 25 Va. App. 395,
400, 488 S.E.2d 672, 674 (1997) (citation omitted).
Bowler relies on his assertion that Kibler attacked him and
they both fell down the stairs in the ensuing struggle. He does
not claim that he stabbed Kibler to protect himself but asserts
rather that she was stabbed accidentally.
Bowler's original story, blaming an unknown assailant, does
not support a self-defense instruction. His subsequent account
supports an instruction on accident, which was given. At trial,
Bowler argued that he was entitled to a self-defense instruction
because: "[I]f [the jurors] accept the fact that [Kibler] did,
in fact, pull out a knife on [Bowler] and, as a result of
pulling out the knife, he grabbed the knife and plunged it in
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her, that's self-defense. . . . I think from the evidence that
[the jurors] can accept the fact that Mrs. Kibler picked up the
knife." The trial court ruled that such a theory presupposed
that Bowler wrested the knife away from Kibler and stabbed her,
an assumption unsupported by the record. The evidence supports
no other conclusion.
"The defense that a killing was accidental presents a
different issue from a claim that a killing was done in
self-defense. . . . In making [a claim of self-defense] 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 jurors."
McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810
(1978). Bowler never contended that he stabbed Kibler to defend
himself. His assertion that she was stabbed accidentally while
falling down the stairs did not support a self-defense
instruction and that instruction was properly refused.
We recognize that death may result accidentally from action
taken in self-defense. Under such circumstances, defenses of
accident and self-defense are not mutually exclusive and
instructions on both defenses should be given upon request. See
Farrow v. Commonwealth, 197 Va. 353, 89 S.E.2d 312 (1955); Jones
v. Commonwealth, 196 Va. 10, 82 S.E.2d 482 (1954); Braxton v.
Commonwealth, 195 Va. 275, 77 S.E.2d 840 (1953); Valentine v.
Commonwealth, 187 Va. 946, 48 S.E.2d 264 (1948). However, the
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evidence in this case does not support a claim of self-defense
or the giving of a self-defense instruction.
III. Sufficiency of the Evidence
Bowler next contends that because no credible evidence
proved malice, the evidence was insufficient to support a
conviction for second degree murder.
"Where the sufficiency of the evidence is challenged after
conviction, it is our duty to consider it in the light most
favorable to the Commonwealth and give it all reasonable
inferences fairly deducible therefrom." Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
"'The test of murder is malice. Every malicious killing is
murder either in the first or second degree -- the former if
deliberate and premeditated, and the latter if not.'" Wooden v.
Commonwealth, 222 Va. 758, 762, 284 S.E.2d 811, 814 (1981)
(citation omitted). "The trier of fact may infer malice from
the deliberate use of a deadly weapon." Utz v. Commonwealth, 28
Va. App. 411, 415, 505 S.E.2d 380, 382 (1998). "Circumstantial
evidence is as competent and is entitled to as much weight as
direct evidence, provided it is sufficiently convincing to
exclude every reasonable hypothesis except that of guilt."
Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876
(1983).
Rosetta Jones testified that Bowler and Kibler argued about
whether Kibler was going home to Washington, D.C. She testified
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that Bowler angrily refused to allow Kibler to leave. The
medical evidence showed that Kibler suffered two deep stab
wounds. One wound perforated her left arm. The other
penetrated her chest to a depth of five or six inches and hit
her aorta. Although her body was found in Bowler's apartment,
there was a pool of blood at the foot of the stairs, and
bloodstains were found on the walls of the stairwell. Bowler
did not call for help until Kibler was dead. He gave the police
inconsistent versions of the incident.
Sufficient evidence supports a finding that Bowler stabbed
Kibler. Such an act imputes malice. Under the evidence, the
jury could reasonably have believed that he stabbed her and
disbelieved that she died by accident. "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).
The judgment of the trial court is affirmed.
Affirmed.
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