Omar Vincent Craddock v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia
OMAR VINCENT CRADDOCK
MEMORANDUM OPINION * BY
v. Record No. 1846-95-2 JUDGE LARRY G. ELDER
AUGUST 6, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Cullen D. Seltzer, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Omar Vincent Craddock (appellant) appeals his conviction for
first degree murder in violation of Code § 18.2-32. Appellant
contends that the trial court erred in refusing to instruct the
jury that it should acquit him of first degree murder if it found
that he was sufficiently intoxicated to preclude premeditation
and deliberation. We disagree and affirm appellant's conviction.
I.
FACTS
Appellant and Cassandra Finney were involved in a four-year
relationship which ended shortly before May 19, 1995. According
to Finney's testimony, appellant told her on May 19, 1995, that
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
he was going to "get" her, and "if he had to go back to jail it
was going to be for something serious." The same day, Finney
took her three children and went to stay at the apartment of her
friend, Susan Haskell, who was appellant's cousin.
At approximately 6:00 a.m. on May 20, 1995, appellant kicked
in the door to Haskell's apartment and said to Finney, "you don't
want me no more, you took a warrant out on me." After asking
Finney two questions, appellant pulled out a gun and began
shooting. Haskell was struck and killed, and Finney was injured
by multiple gunshot wounds.
Police arrested appellant later that morning, after Finney
identified appellant as the man who shot her. Beginning at 10:00
a.m., police questioned appellant. Detective R. M. House
testified that appellant stated, in his grandmother's presence,
"yes, grandma, I did this." Appellant also said that he was
"high all night, his mind was running a thousand miles an hour, a
million miles an hour, and that [Haskell and Finney] were against
him." Appellant told his grandmother, "they hurt me,
grandmother, they hurt me, grandma, I was high and when I get
high, grandmother, your mind be running a million miles per
hour." Detective House also testified that appellant dozed off
during questioning, his eyes were "kind of glazed or watered,"
but that the detective did not know "if he was high or sleepy or
what. He didn't appear to be abnormal."
Appellant told police that after the shootings, he dropped
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his gun "near a big field" as he fled the apartment complex.
However, because appellant could not recall precisely where he
had dropped the gun, police failed to locate the weapon.
Appellant was indicted on one count of first degree murder
and other related charges. At trial on August 11, 1995,
appellant testified that he had been a cocaine addict and started
using heroin after midnight on May 20, 1995. Appellant testified
that his personality changed when he used drugs, and he stated
that heroin "slows you down. It's like a downer. Your reactions
are slow." Appellant also testified that he never went to
Haskell's apartment on May 20, 1995 and denied telling his
grandmother that he shot the women.
Appellant requested that the trial court give the following
jury instruction: "If you find that the defendant was so greatly
intoxicated by the voluntary use of alcohol and/or drugs that he
was incapable of deliberating or premeditating, then you cannot
find him guilty of murder in the first degree." The trial court
refused to give this instruction, stating that appellant
presented no evidence to establish what effect, if any, the
heroin had on him. The jury found appellant guilty of all
charges on which he had been indicted. Appellant now appeals his
conviction to this Court.
II.
JURY INSTRUCTION
We hold that the trial court properly denied appellant's
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proffered instruction.
"A defendant is entitled to have the jury instructed only on
those theories of the case that are supported by the evidence."
Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280
(1986). More than a scintilla of evidence must be present to
support an instruction. Frye, 231 Va. at 388, 345 S.E.2d at 280.
"[T]he weight of the credible evidence that will amount to more
than a scintilla of evidence is a matter to be resolved on a
case-by-case basis." Brandau v. Commonwealth, 16 Va. App. 408,
412, 430 S.E.2d 563, 565 (1993). This determination "is largely
a factor of determining the weight of that evidence [supporting
the defendant's proposition] in comparison to the weight of the
other credible evidence that negates the proposition in
question." Id. at 411-12, 430 S.E.2d at 565.
"When a [defendant] has become so greatly intoxicated as not
to be able to deliberate and premeditate, he cannot commit murder
of the first degree, or that class of murder under our statute
denominated a wilful, deliberate and premeditated killing."
Johnson v. Commonwealth, 135 Va. 524, 531, 115 S.E. 673, 675
(1923). "In Virginia, mere intoxication from drugs or alcohol is
not sufficient to negate premeditation." Duncan v. Commonwealth,
2 Va. App. 717, 731, 347 S.E.2d 539, 547 (1986); Giarratano v.
Commonwealth, 220 Va. 1064, 1073, 266 S.E.2d 94, 99 (1980).
"[S]o long as [a defendant] retains the faculty of willing,
deliberating and premeditating, though drunk, he is capable of
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committing murder in the first degree; and if a drunk man is
guilty of wilful, deliberate and premeditated killing, he is
guilty of murder in the first degree." Duncan, 2 Va. App. at
731, 347 S.E.2d at 547. "The question is whether the facts
indicate that the defendant was intoxicated to such an extent
that he did not know what he was doing or did not know right from
wrong," id., not whether appellant was merely intoxicated.
To determine whether more than a mere scintilla of evidence
established appellant's intoxication to a degree to which he
could not premeditate or deliberate, this Court must view the
facts in the light most favorable to appellant. Brandau, 16 Va.
App. at 411, 430 S.E.2d at 564-65. We hold that although
appellant claimed to have consumed a substantial quantity of
heroin after midnight on May 20, 1995, "the evidence was
insufficient to show that he was so intoxicated as to render him
incapable of committing a wilful, deliberate and premeditated act
designed to kill the victims." Jenkins v. Commonwealth, 244 Va.
445, 458, 423 S.E.2d 360, 368 (1992), cert. denied, 507 U.S. 1036
(1993)(emphasis added); Hatcher v. Commonwealth, 218 Va. 811, 241
S.E.2d 756 (1978); Waye v. Commonwealth, 219 Va. 683, 251 S.E.2d
202, cert. denied, 442 U.S. 924 (1979). The issue is not merely
whether a scintilla of evidence showed that appellant had
consumed heroin or whether appellant was intoxicated.
Appellant points to various pieces of evidence in support of
his contention. First, appellant asserts that his testimony and
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the Commonwealth's evidence showed that he was so highly
intoxicated due to heroin consumption that he could not
premeditate or deliberate. We disagree. Appellant testified at
trial that he consumed a large quantity of heroin at
approximately 12:15 a.m. on May 20, 1995. Although appellant
testified that heroin affected him "like a downer" or a "sleeping
pill," he specifically stated in response to direct questioning
that heroin did not make him "out of his mind." At no other
point did appellant present evidence that he suffered from
intoxication to such a degree that he was unable to premeditate
or deliberate on May 20, 1995. While police officers testified
that appellant told them that he had consumed heroin and that the
drug caused his mind to "run a million miles per hour," appellant
denied these statements on the stand. Indeed, appellant denied
on the stand that he had been near Haskell's apartment on May 20,
1995 and denied ever committing murder that morning.
Next, appellant asserts that evidence proved that he was
intoxicated when interviewed by the authorities. Detective House
testified that while he questioned appellant on the morning of
May 20, 1995, appellant started "to doze off," and appellant's
eyes became watery. However, according to House and appellant
himself, appellant was emotional during questioning, and he had
been awake for many hours. Furthermore, House stated that
nothing about appellant's behavior appeared to be abnormal. This
evidence, even when added to the other evidence appellant wishes
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us to consider, was insufficient to require an intoxication
instruction.
Next, appellant asserts that because he could not recall
where he had dropped his weapon, the jury could infer that he had
been highly intoxicated. A careful reading of the record shows
that, in fact, appellant did remember that he dropped his gun in
a nearby field as he fled the apartment complex. Again, this
evidence did not support appellant's theory of the case, namely,
that he was too intoxicated to commit first degree murder.
As the trial court stated:
This instruction about intoxication, I
don't think the Court has any credible
evidence he was intoxicated at the time.
His actions were pretty irrational. He
said he used some heroin that night after he
got off of work. He probably used right
much. . . . [Nevertheless,] I will refuse
the instruction. . . . There is no evidence
of what effect heroin has on him, none
whatsoever.
The trial court correctly ruled in this regard. The facts, which
show premeditation and deliberation, reveal that appellant
threatened Finney a day before the shootings, that he armed
himself with a gun, that he located her at his cousin's apartment
on May 20, 1995, that he explained to Finney why he was going to
shoot her, that he asked Finny two questions before shooting her,
that he shot Finney and Haskell numerous times, and that he told
the police that he discarded his gun in a field near the
apartment complex.
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Because no more than a scintilla of evidence supported a
voluntary intoxication instruction, we find no error in the trial
court's ruling. For these reasons, we affirm appellant's
conviction.
Affirmed.
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Benton, J., dissenting.
Craddock proffered the following instruction which the trial
judge refused to give:
If you find that the defendant was so greatly
intoxicated by the voluntary use of alcohol
and/or drugs that he was incapable of
deliberating or premeditating, then you
cannot find him guilty of murder in the first
degree.
"The overriding purpose of jury instructions is to 'inform
the jury as to the law.'" Allen v. Commonwealth, 20 Va. App.
630, 639, 460 S.E.2d 248, 252 (1995) (citations omitted), rev'd
on other grounds, ___ Va. ___, ___ S.E.2d ___ (1996).
Premeditation is a factual question to be determined by the jury
upon competent evidence. Beavers v. Commonwealth, 245 Va. 268,
281, 427 S.E.2d 411, 420, cert. denied, 114 S. Ct. 171 (1993).
Furthermore, the following principle is well established in
Virginia:
There are certain grades of crime . . . which
a drunk [person] may not be capable of
committing. When a [person] has become so
greatly intoxicated as not to be able to
deliberate and premeditate, [that person]
cannot commit murder of the first degree, or
that class of murder under our statute
denominated a wilful, deliberate and
premeditated killing.
Johnson v. Commonwealth, 135 Va. 524, 531, 115 S.E. 673, 675
(1923).
"'Both the Commonwealth and the defendant are entitled to
appropriate instructions to the jury of the law applicable to
each version of the case, provided such instructions are based
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upon the evidence adduced.'" Stewart v. Commonwealth, 10 Va.
App. 563, 570, 394 S.E.2d 509, 514 (1990) (quoting Simms v.
Commonwealth, 2 Va. App. 614, 616, 346 S.E.2d 734, 735 (1986)).
In Virginia, an instruction must be given when it is supported by
more than a scintilla of evidence. Gibson v. Commonwealth, 216
Va. 412, 417, 219 S.E.2d 845, 849 (1975), cert. denied, 425 U.S.
994 (1976). At such a low threshold, the evidence must only rise
above "a trifle." Black's Law Dictionary 1345 (6th ed. 1990).
When the question on appeal is whether the trial judge erred
in refusing a jury instruction, we must view the evidence in the
light most favorable to the appellant. Blondel v. Hays, 241 Va.
467, 469, 403 S.E.2d 340, 341 (1991). In this case, the
Commonwealth's own evidence proved that Craddock was highly
intoxicated at the time of the offense, that Craddock had been
high on drugs all night, and that his mind in that condition "was
running a million miles an hour." Moreover, the evidence proved
that Craddock could not remember where he dropped the gun or the
direction he ran from the residence. He began dozing off, while
being interrogated by the police, only a few hours after the
shootings occurred. In addition, Craddock testified that he used
a large quantity of heroin the night of the killing.
These facts are consistent with Craddock's defense that he
was greatly intoxicated the night of the killing. They provide a
sufficient evidentiary basis upon which the jury could have found
as a fact or reasonably inferred that Craddock was so intoxicated
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that he lacked the ability to premeditate.
Furthermore, the majority states that whether the evidence
provides more than a scintilla of evidence to support the giving
of an instruction "'is largely a factor of determining the weight
of that evidence [supporting the defendant's proposition] in
comparison to the weight of the other credible evidence that
negates the proposition in question.'" Brandau v. Commonwealth,
16 Va. App. 408, 412, 430 S.E.2d 563, 565 (1993). That principle
is contrary to well established principles and completely negates
the fact finding role of the jury. When considering instructions
for the jury, the trial judge must be mindful of the following
principle:
The jury is not required to accept, in
toto, either the theory of the Commonwealth
or that of an accused. They have the right
to reject that part of the evidence believed
by them to be untrue and to accept that found
by them to be true. In so doing, they have
broad discretion in applying the law to the
facts and in fixing the degree of guilt, if
any, of a person charged with a crime.
Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958).
Thus, it is well-settled that even though there was other
evidence in the record consistent with premeditation, the jury
was not required to believe that evidence. "Therefore, the trial
[judge] must instruct on both theories to guide a jury in their
deliberations as to the law applicable to the case, depending
upon how the jury decides the facts." Foster v. Commonwealth, 13
Va. App. 380, 383-84, 412 S.E.2d 198, 200 (1991). The jury, as
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fact finder, is permitted to believe or disbelieve the testimony
of any witness in whole or in part. Belton, 200 Va. at 9, 104
S.E.2d at 4.
The principle is equally well established that in order for
the refusal of an instruction to be error, the appellate court
need not find that the jury would have found in accordance with
the denied instruction, only that it could have so found.
Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193
(1986). The balancing principle that the majority would delegate
to the trial judge ignores the fundamental principle that "[i]t
is immaterial that the jury might have rejected the [defense
theory]; if there is evidence tending to support the [defense
theory], a trial [judge] errs in refusing an instruction
thereon." Id. When the trial judge gave the jury an instruction
on second degree murder but failed to instruct the jury that
intoxication may negate premeditation, the instructions clearly
failed to fully inform the jury as to the applicable law. The
trial judge's failure to give the proffered instruction,
therefore, deprived Craddock of the right to have the jury fully
instructed on the law applicable to the evidence proved at trial.
"In Virginia, the weight of the evidence or the inferences to be
drawn from circumstances, is always a matter for the jury, under
proper instructions from the court." Toler v. Commonwealth, 188
Va. 774, 781, 51 S.E.2d 210, 213 (1949).
For these reasons, I would reverse the conviction and remand
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for a new trial.
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