Gary Lamont Walker v. Commonwealth of Virginia ( 1999 )


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  •                      COURT OF APPEALS OF VIRGINIA
    Present: Judges Benton, Bumgardner and Frank
    Argued at Richmond, Virginia
    GARY LAMONT WALKER
    MEMORANDUM OPINION * BY
    v.   Record No. 1200-98-2              JUDGE JAMES W. BENTON, JR.
    JUNE 15, 1999
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
    Robert W. Duling, Judge
    Gregory W. Franklin, Assistant Public
    Defender (David J. Johnson, Public Defender,
    on brief), for appellant.
    Steven A. Witmer, Assistant Attorney General
    (Mark L. Earley, Attorney General, on brief),
    for appellee.
    A jury convicted Gary Lamont Walker of second degree murder
    and use of a firearm in the commission of murder.   Walker contends
    (1) that the trial judge erred in refusing to give the jury an
    instruction explaining the effect of heat of passion and (2) that
    the evidence was insufficient to prove second degree murder.   For
    the reasons that follow, we affirm the convictions.
    I.
    Steve Stevenson testified that on the evening of October 28,
    1997, he, Gary Lamont Walker, and Ruan King were drinking beer and
    "hanging around" with several people outside an apartment
    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
    this opinion is not designated for publication.
    building.    Walker was "playing with" a 9mm pistol he had purchased
    that day.    Stevenson, who had been shot about six months earlier,
    became nervous and repeatedly asked Walker to put the gun away.
    Stevenson testified that Walker put the gun away but then "just
    snapped" and began to argue with Stevenson.    As Stevenson and
    Walker argued, Walker began referring to Stevenson, King, and the
    others in a harsh and profane manner.    When King objected, Walker
    told him, "You need to just shut up."    Walker then cursed, removed
    the gun from his pocket, and shot King twice, from a distance of
    five to six feet.    The first shot hit King in the arm, the second
    in the chest.    Walker then said "Ya'll . . . don't know me," paced
    around the men, and walked away.
    After the shooting, Stevenson backed away until Walker left
    the area.    Stevenson then lifted King's shirt to see where King
    had been shot, removed keys from King's pocket, and telephoned for
    help.    Later that night, after informing King's parents of the
    shooting, Stevenson told the police what had happened.    The
    autopsy report established that King's blood alcohol level was
    .12% by weight by volume and urine alcohol level was .17% by
    weight by volume.
    Stevenson testified that the shooting shocked him because
    there was no physical contact between King and Walker before the
    shooting.    Stevenson had known King for several years and was his
    friend.    He had known Walker for several months and occasionally
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    "hung out" with Walker.    Stevenson testified that he had not known
    of any enmity existing between King and Walker.
    In his defense, Walker offered the testimony of six-year-old
    William Scott.   The child's mother, Wanda Scott, lived with Walker
    and is the mother of Walker's child.    The child testified that he
    knew Walker, King, and Stevenson, and saw them from the second
    floor of his mother's apartment.   He testified that he saw King
    "fighting with [Walker] and playing."    He said they were joking
    and kidding, and he characterized the encounter as "play
    fighting."   He testified that King put Walker in a "headlock" and
    that Walker "wiggled" to get loose.     Once loose, Walker shot King
    twice.   He further testified that he saw Stevenson take keys and a
    gun from King's pocket after Walker shot King.
    Wanda Scott testified that King was intoxicated when she saw
    him that evening.   She testified that after she heard gunshots
    outside, she opened the door to Stevenson who wanted her to
    telephone 911 because King had been shot.    She also testified that
    she saw Walker walk away and that she saw Stevenson lift King's
    shirt and take King's keys.   She testified that Stevenson took
    something else out of King's pocket and put it under his arm.     She
    admitted, however, that she did not tell the police she saw
    Stevenson take those items.   When interviewed by the police after
    the shooting, she said only that Stevenson came to the door and
    said King had been shot.
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    In the Commonwealth's case-in-rebuttal, Stevenson denied that
    Walker and King were "playing or tussling" or that King ever
    touched Walker.   He also denied that King had a gun or that he
    removed a gun from King's clothing.     He testified that he removed
    King's car keys so that he could drive King's nephew home.
    At the conclusion of the evidence, the jury convicted Walker
    of murder in the second degree and use of a firearm in the
    commission of murder.   This appeal followed.
    II.
    Walker contends the trial judge erroneously refused to give
    the jury the following instruction:
    If, upon being assaulted, the passion of the
    assaulted person becomes greatly excited,
    and under that impulse, he kills his
    attacker with a deadly weapon, the offense
    is manslaughter.
    The Commonwealth argues that the instruction was redundant of
    instructions already given.   We agree with the Commonwealth's
    argument.
    "If the principles set forth in a proposed instruction are
    fully and fairly covered in other instructions that have been
    granted, a trial [judge] does not abuse [his or her] discretion
    in refusing to grant a repetitious instruction."      Joseph v.
    Commonwealth, 
    249 Va. 78
    , 90, 
    452 S.E.2d 862
    , 870 (1995).      The
    record establishes that the trial judge granted instructions
    that included the following language:
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    INSTRUCTION NO. 9
    *     *     *     *     *      *       *
    Heat of passion excludes malice when that
    heat of passion arises from provocation that
    reasonably produces an emotional state of
    mind such as hot blood, rage, anger,
    resentment, terror or fear so as to
    demonstrate an absence of deliberate design
    to kill, or to cause one to act on impulse
    without conscious reflection. Heat of
    passion must be determined from
    circumstances as they appeared to defendant
    but those circumstances must be such as
    would have aroused heat of passion in a
    reasonable person. . . .
    INSTRUCTION NO. 11
    *     *     *     *     *      *       *
    If you find from the evidence that the
    Commonwealth has failed to prove beyond a
    reasonable doubt that the killing was
    malicious but that the Commonwealth has
    proven beyond a reasonable doubt that the
    defendant killed Raun M. King and further:
    (1) That the killing was the result
    of an intentional act; and
    (2) That the killing was committed
    while in the sudden heat of passion
    upon reasonable provocation;
    then you shall find the defendant guilty of
    voluntary manslaughter. . . .
    INSTRUCTION NO. 15
    Where homicide is committed in course of
    sudden quarrel, or mutual combat, or upon
    sudden provocation, and the killing is from
    sudden passion growing out of the quarrel,
    or combat, or provocation, it is not murder,
    but is voluntary manslaughter.
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    In its entirety, granted Instruction 9 fully and fairly
    covered the principles of heat of passion and malice.     Granted
    Instruction 11 addressed the elements of first degree murder,
    second degree murder, and manslaughter.     In addition, granted
    Instruction 15 addressed the principles of heat of passion and
    voluntary manslaughter.    Walker's instruction essentially
    covered the same legal principles as those contained in the
    granted instructions.    We also note that the language of
    Walker's instruction, which was taken from the text of Moxley v.
    Commonwealth, 
    195 Va. 151
    , 158, 
    77 S.E.2d 389
    , 393 (1953), omits
    the qualification that the use of the weapon be "justified by
    the nature of the assault."     
    Id. Therefore, we
    hold that the
    trial judge did not abuse his discretion in refusing to grant
    Walker's proffered instruction.
    III.
    "Second degree murder is defined as a 'malicious killing'
    of another person."     Lynn v. Commonwealth, 
    27 Va. App. 336
    , 351,
    
    499 S.E.2d 1
    , 8 (1998) (citation omitted), aff'd, 
    257 Va. 239
    ,
    ___ S.E.2d ___ (1999).    "Whether or not an accused acted with
    malice is generally a question of fact and may be proved by
    circumstantial evidence."     Canipe v. Commonwealth, 
    25 Va. App. 629
    , 642, 
    491 S.E.2d 747
    , 753 (1997).     The trier of fact may
    infer malice "from 'conduct likely to cause death or great
    bodily harm, willfully or purposefully undertaken.'"      
    Id. (citation omitted).
      Thus, in appropriate circumstances,
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    "[m]alice may be inferred 'from the deliberate use of a deadly
    weapon.'"     Doss v. Commonwealth, 
    23 Va. App. 679
    , 686, 
    479 S.E.2d 92
    , 96 (1996) (citation omitted).
    When a challenge is made on appeal to the sufficiency of
    evidence, "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).    So viewed, Stevenson's
    testimony established that he was an eyewitness to the events
    surrounding the killing.    Stevenson testified that he repeatedly
    asked Walker to put the gun away when Walker was "playing" with
    the gun, "cocking it back."    As Walker and Stevenson argued,
    Walker called Stevenson and King derogatory names and then shot
    King twice.    Stevenson denied that Walker and King had physical
    contact before the shooting occurred.
    The jury believed Stevenson's testimony regarding the
    incident.   "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).    Stevenson's testimony was competent and
    was not inherently incredible.    Further, even assuming that the
    jury accepted the child's testimony regarding the incident, the
    jury could reasonably find that Walker did not act in the heat
    of passion.    The child's testimony established that Walker
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    responded to "play fighting" by deliberately shooting King twice
    with a deadly weapon.
    From the evidence of Walker's anger and deliberate use of a
    deadly weapon, the jury could conclude beyond a reasonable doubt
    that Walker acted with malice and intentionally shot King
    "without legal justification or excuse."    Williams v.
    Commonwealth, 
    13 Va. App. 393
    , 398, 
    412 S.E.2d 202
    , 205 (1991).
    See also Diffendal v. Commonwealth, 
    8 Va. App. 417
    , 421, 
    382 S.E.2d 24
    , 26 (1989) (holding that the amount of force used
    always must be reasonable in relation to the harm threatened).
    Therefore, we hold that the evidence was sufficient to prove
    beyond a reasonable doubt that Walker committed second degree
    murder.
    Accordingly, we affirm the convictions for second degree
    murder and use of a firearm in the commission of murder.
    Because, however, the record reflects that the trial judge
    entered a final conviction order stating erroneously that the
    jury convicted Walker of first degree murder, we remand this
    matter to the trial judge for the sole purpose of correcting the
    final order.
    Affirmed and remanded.
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