Barry E. Sollars v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia
BARRY E. SOLLARS
MEMORANDUM OPINION * BY
v. Record No. 2246-95-1 JUDGE JERE M. H. WILLIS, JR.
OCTOBER 1, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
Ruthie Litvin (Kevin M. Diamonstein;
Diamonstein, Becker & Staley, on brief), for
appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Barry E. Sollars was convicted in a bench trial of voluntary
manslaughter, possession of cocaine with intent to distribute,
and possession of a firearm while in possession of cocaine. On
appeal, he contends that the evidence is insufficient to support
his conviction of voluntary manslaughter. We disagree and affirm
the judgment of the trial court.
On appeal, we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom. Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975). "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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
from the evidence that the judgment is plainly wrong or without
evidence to support it." Josephs v. Commonwealth, 10 Va. App.
87, 99, 390 S.E.2d 491, 497 (1990) (en banc) (citation omitted).
On January 21, 1995, Randy Fodrie drove Richard Barkley from
his home in Mathews County to Newport News in an attempt to buy
cocaine from Sollars in exchange for a .22 rifle. They did not
have enough cash to buy the cocaine, but Barkley estimated the
value of the rifle to be $70. Barkley transported the rifle by
wrapping the barrel in a green shirt and placing it on the
floorboard of Fodrie's truck pointing towards the passenger door.
The rifle was not loaded. En route, Barkley phoned Sollars to
ask whether he would accept the rifle in exchange for the
cocaine. Sollars replied, "No."
In Newport News, Fodrie and Barkley drove to the apartment
complex where Sollars lived. They saw him outside and motioned
him over to the truck. Sollars got in the truck and Barkley
asked him for a "sixteenth" of cocaine which sold for $70.
Sollars told Fodrie to drive across the street to the McDonald's
parking lot. Sollars handed Barkley the cocaine and requested
payment. Barkley handed the cocaine to Fodrie and then began
pushing on Sollars' shoulders saying, "Hey, I got something for
you, M___ F___." As Barkley reached down to the floorboard to
pick up the rifle, Sollars opened the door to the truck and
jumped out. Sollars then shot Barkley in the neck.
Fodrie "hit the gas and took off" because he was afraid
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Sollars would shoot him. By the time Fodrie arrived at a nearby
hospital, Barkley was dead from the gunshot wound. Fodrie
disposed of the rifle behind the hospital, where it was later
recovered by the police still wrapped in the green shirt.
After his arrest, Sollars admitted shooting Barkley but
claimed he did so in self-defense. He acknowledged that the
gun recovered from his person was the gun used to shoot Barkley.
The trial court rejected Sollars' claim that he acted in
self-defense. It found that Sollars had the opportunity to
retreat when he opened the truck door. It also rejected Sollars'
testimony that his gun just went off. It specifically found that
there was no evidence that Barkley had the "imminent intent to
kill [Sollars]."
Sollars contends that the evidence fails to sustain his
conviction of voluntary manslaughter. Voluntary manslaughter is
an intentional killing committed in the heat of passion upon
reasonable provocation. See Belton v. Commonwealth, 200 Va. 5,
9, 104 S.E.2d 1, 4 (1958). Heat of passion may be founded upon
fear, rage, or a combination of both. McClung v. Commonwealth,
215 Va. 654, 657, 212 S.E.2d 290, 292 (1975). Sollars argues
that the trial court erred in finding that the killing did not
occur in self-defense. He contends that he was in fear for his
own life when he shot Barkley.
Self-defense is an affirmative defense, which the accused
must prove by introducing evidence sufficient to raise a
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reasonable doubt about his guilt. McGhee v. Commonwealth, 219
Va. 560, 562, 248 S.E.2d 808, 810 (1978). Whether an accused
proves circumstances sufficient to create a reasonable doubt that
he acted in self-defense is a question of fact. Yarborough v.
Commonwealth, 217 Va. 971, 979, 234 S.E.2d 286, 292 (1977).
Credible evidence supports the trial court's finding that
the killing of Barkley was voluntary manslaughter and not
justifiable homicide. Sollars was involved in a drug deal with
Barkley and when he had the opportunity to retreat safely, he
chose instead to shoot Barkley. The evidence proved that after
Sollars handed the cocaine to Barkley, he exited the truck while
Barkley was leaning over to pick up the rifle from the
floorboard. He then stood outside the truck and shot Barkley.
This is consistent with the autopsy report which disclosed that
the direction of fire was right to left and slightly downward.
However, it is contradictory to Sollars' testimony that Barkley
had the rifle pointed at his face in the truck and that his gun
just went off accidentally after he exited the truck. The trial
court was not required to believe the defendant and was entitled
to infer that he lied to conceal his guilt. See Black v.
Commonwealth, 222 Va. 838, 840, 284 S.E.2d 608, 609 (1981).
The judgment of the trial court is affirmed.
Affirmed.
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