Danny Ricardo Jones v. Commonwealth of Virginia ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Moon *
Argued at Salem, Virginia
DANNY RICARDO JONES
MEMORANDUM OPINION** BY
v. Record No. 2489-96-3 JUDGE JAMES W. BENTON, JR.
DECEMBER 9, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
James J. Angel for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Danny Ricardo Jones was indicted and tried for murder and
use of a firearm in the commission of murder. A jury convicted
him of voluntary manslaughter and use of a firearm in the
commission of murder. Jones contends that the Commonwealth
failed to prove beyond a reasonable doubt malice, an essential
element of murder, and, therefore, the evidence is insufficient
to support the conviction for use of a firearm in the commission
of murder.
I.
The Commonwealth's evidence proved that Jones gave a
statement to the police admitting that he shot and killed Robert
*
When the case was argued Judge Moon presided. Judge
Fitzpatrick was elected Chief Judge effective November 19, 1997.
Judge Moon participated in the hearing and decision of this case
prior to his retirement on November 25, 1997.
**
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Lewis Allen on January 21, 1996, in the parking lot of a
nightclub. His statement indicated that Allen approached him
"mouthing off" in the parking lot, hit Jones without provocation,
and knocked Jones to the pavement. Allen and other men then
beat, stomped, kicked, and hit him in the testicles. Jones told
the police that, while he was on the ground, he saw a gun on the
pavement and shot Allen.
Jones' friend, Gary Smith, testified that before the
shooting occurred he saw Jones outside the nightclub after
closing. Smith saw what looked like the handle of a revolver
tucked inside Jones' pants. Fifteen minutes later, Robert Lewis
Allen and a group of men approached Jones and Smith, yelling
vulgarities. When Allen approached Jones, Jones told Allen that
Jones had no problem with Allen and that Jones was "no punk."
Jones and Allen shook hands. However, Allen then punched Jones.
When Jones fell to the icy pavement, "everyone started
fighting."
The nightclub's security guard testified that before the
nightclub closed he observed that Allen had been rowdy inside the
nightclub. He testified that Allen had forcefully bumped several
people and that he had to speak to Allen about his conduct.
After the nightclub closed, the security guard went to
investigate a report of a fight in the parking lot. He testified
that more than one hundred people were in the parking lot. As he
approached the crowd, he heard a gunshot and saw Jones with a
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gun. Allen was lying on the ground wounded. When the security
guard asked Jones to stop, Jones got in a car and drove away.
At trial, Jones testified in his own defense. He stated
that when the club began to close, he got his coat and went out
to the parking lot, looking for his cousin and a friend. While
he was in the parking lot, Allen started yelling vulgarities at
him. After Jones told him that he didn't have a problem with
Allen, they shook hands. Allen then swung and hit Jones,
knocking him to the ground. While Jones was on the ground, Allen
and his companions attacked Jones. Jones felt a series of blows,
stomps, and kicks to his head, his testicles, and body. Jones
testified that he saw a gun in a holster lying on the ground and
reached for the gun. He testified, "I was fearful for my life.
I was scared that somebody else might pick [the gun] up and use
it on me and I was terrified." Jones shot and killed Allen.
Jones testified that he did not aim at Allen.
Jones testified that as he walked to his car, a security
guard from the club approached him and told him to "freeze."
Jones got into his car and fled. He threw the gun and holster
out of the window. Jones denied that the gun was his and
testified that earlier he only had a large brush in his pocket.
Charles Reaves, Jr., Jones' cousin, testified that he saw
Jones and Allen talking and then shake hands. Allen struck
Jones, and Jones fell to the ground. At that point, five or six
other men around Allen started punching and kicking the fallen
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Jones. Several other witnesses testified to the same chain of
events.
At the conclusion of the evidence, Jones made a motion to
strike the indictments, arguing that there was no evidence of
malice. The trial judge overruled the motion. The jury found
Jones guilty of voluntary manslaughter and use of a firearm in
the commission of murder.
II.
"The Constitution prohibits the criminal conviction of any
person except upon proof of guilt beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 309 (1979). It follows from
this principle that "the prosecution is burdened with proving
beyond a reasonable doubt each and every constituent element of a
crime before an accused may stand convicted of that particular
offense." Martin v. Commonwealth, 13 Va. App. 524, 529, 414
S.E.2d 401, 403 (1992). To support a conviction of use of a
firearm in the commission of murder, the Commonwealth must prove
all of the elements of murder.
Murder is the unlawful killing of another with malice. See
Jenkins v. Commonwealth, 244 Va. 445, 457, 423 S.E.2d 360, 368
(1992). Malice, an essential element of murder, see Essex v.
Commonwealth, 228 Va. 273, 280, 322 S.E.2d 216, 219 (1984), "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.
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Commonwealth, 14 Va. App. 836, 841, 419 S.E.2d 422, 426 (1992).
See also Pugh v. Commonwealth, 223 Va. 663, 668, 292 S.E.2d 339,
341 (1982).
The trier of fact may infer malice from the deliberate use
of a deadly weapon, see Doss v. Commonwealth, 23 Va. App. 679,
685-86, 479 S.E.2d 92, 96 (1996); Perricllia v. Commonwealth, 229
Va. 85, 91, 326 S.E.2d 679, 683 (1985), unless the evidence
raises a reasonable doubt whether malice existed. Morris v.
Commonwealth, 17 Va. App. 575, 578, 439 S.E.2d 867, 870 (1994).
"Proof of malice excludes the presence of passion, and proof of
passion presupposes the absence of malice." Hodge v.
Commonwealth, 217 Va. 338, 345, 228 S.E.2d 692, 697 (1976).
Thus, malice is absent when a person acts under "passion brought
on by an unlawful assault." Moxly v. Commonwealth, 195 Va. 151,
158, 77 S.E.2d 389, 393 (1953).
When the evidence proves "'a homicide committed in hot
blood, growing solely out of the combat for which a defendant was
not responsible,'" the evidence fails to prove malice. Moxly,
195 Va. at 158, 77 S.E.2d at 393 (citation omitted). Likewise,
where the killing is "committed in the course of a sudden
quarrel, in mutual combat, upon a sudden provocation, which was
unquestionably resented, and the provocation, was more than 'very
slight,'" malice cannot be presumed from the fact of the killing.
Richardson v. Commonwealth, 128 Va. 691, 695-96, 104 S.E. 788,
790 (1920). Thus, malice cannot be inferred when "upon being
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assaulted, the passion of the assaulted person become greatly
excited, and under that impulse he kill his assailant, though it
be with a deadly weapon." Moxly, 195 Va. at 158, 77 S.E.2d at
393.
Applying these principles to the record before us, we find
that the evidence, viewed in the light most favorable to the
Commonwealth, is insufficient to support a finding of malice.
Although Jones used a firearm to kill Allen, the circumstances
were such that the trier of fact could not have inferred beyond a
reasonable doubt that Jones acted with malice. The evidence
proved that the killing occurred while Allen and other men were
kicking and stomping Jones. Jones did not cause the fighting to
begin. After Jones was punched and fell, Allen and other
individuals punched and kicked Jones while he was on the ground.
A reasonable jury could not have found malice under these
circumstances. The killing "was certainly accompanied with such
circumstances of extenuation that malice . . . could not be
presumed from the fact of the killing," Richardson, 128 Va. at
695-96, 104 S.E. at 109, or from the fact of the use of a deadly
weapon. Moxly, 195 Va. at 158, 77 S.E.2d at 393.
For these reasons, we reverse Jones' conviction for use of a
firearm in the commission of murder and dismiss the indictment.
Reversed and dismissed.
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Moon, J., dissenting.
I respectfully dissent. "On appeal, we review the evidence
in the light most favorable to the Commonwealth, granting to it
all reasonable inferences fairly deducible therefrom." Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
In order for the defendant to prevail in this appeal, it must be
true that, as a matter of law, the jury could not have reasonably
inferred that he acted with malice.
The trier of fact may infer malice from the deliberate use
of a deadly weapon. Doss v. Commonwealth, 23 Va. App. 679, 686,
479 S.E.2d 92, 96 (1996). Malice and passion cannot coexist,
Turner v. Commonwealth, 23 Va. App. 270, 275, 476 S.E.2d 504, 506
(1996), but the jury reasonably could have concluded that Jones
acted not in the heat of passion but with malice.
The jury learned that Jones previously had an altercation
with Allen concerning Jones' girlfriend. Jones' friend, Gary
Smith, testified that after he expressed to Jones his concern
about a group of men in the club the night of the homicide, Jones
told him not to worry about them and then showed him what
appeared to be a gun. Jones claimed that the object was actually
a brush and that he "spotted" on the pavement the gun he used to
shoot Allen, but nevertheless he took the gun with him as he
walked away from Allen's wounded body and placed it back in its
holster before discarding it on the highway.
Furthermore, despite Jones' allegation that he was seriously
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injured by Allen's and his friends' attack, Jones had no visible
injuries other than a few bruises on his forehead. Indeed, he
shot Allen not from a crouched position on the pavement but
rather while standing. He then walked without incident toward
his car, in slick-soled shoes on icy pavement, and drove away.
The jury could reasonably infer from these facts that
contrary to Jones' allegation that he merely was defending
himself in the heat of passion from an unprovoked attack, Jones
acted with malice aforethought. Because we are required on
appeal to grant all reasonable inferences to the Commonwealth, I
would affirm the conviction.
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