Marcus A. White v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
MARCUS A. WHITE
v. Record No. 1984-94-2 MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA FEBRUARY 20, 1996
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.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
A jury convicted Marcus A. White of both voluntary
manslaughter and the use of a firearm in the commission of
murder. On appeal, White alleges that the evidence is
insufficient to support his conviction for the firearm offense on
the ground that the evidence was insufficient to support a
conviction for murder. We disagree and affirm.
White contends that the evidence is insufficient, as a
matter of law, to support a finding of malice. Malice is a
necessary element of murder. He argues that the Commonwealth
relied solely on circumstantial evidence to prove malice, and, in
so doing, failed to exclude the hypothesis that White acted in
the heat of passion.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
We view the evidence in a light most favorable to the
Commonwealth. See Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975). Here, the victim, by car,
approached White, who was on foot, and engaged White in a
discussion relating to a prior confrontation between the two.
The victim was the first to pull his gun. White's girlfriend
pled with the victim not to shoot White. The victim told White
that he would kill him the next time he saw him, placed his gun
back under the seat of his car, and began to drive away. Once
the car had passed White completely, White opened fire, shooting
four times in the direction of the victim's departing car. Only
after White began firing did the victim reach again for his gun.
While reaching over, the victim was struck in the back by a
bullet fired from White's gun.
The jury was properly instructed that it could infer malice
from the deliberate use of a deadly weapon unless, from all the
evidence, they had a reasonable doubt as to whether malice
existed. See, e.g., Satcher v. Commonwealth, 244 Va. 220, 257,
421 S.E.2d 821, 843 (1991), cert. denied, 113 S. Ct. 1888 (1993).
"Circumstantial evidence . . . is evidence of facts or
circumstances not in issue from which facts or circumstances in
issue may be inferred." Charles E. Friend, The Law of Evidence
in Virginia § 12-1 (4th ed. 1993); see also Ryan v. Maryland Cas.
Co., 173 Va. 57, 62, 3 S.E.2d 416, 418 (1939). Direct evidence,
on the other hand, is "[e]vidence that directly proves a fact,
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without an inference or presumption, and which in itself, if
true, conclusively establishes that fact." Id.
Here, the Commonwealth relied solely on circumstantial
evidence to prove malice, the fact in issue. Cf. Cirios v.
Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988)
("[I]n some cases, such as proof of intent or knowledge,
[circumstantial evidence] is practically the only method of
proof.") (citations omitted). Direct evidence showed that White
shot the victim, but no direct evidence established that he did
so maliciously. The jury had to infer White's malicious state of
mind through his use of a deadly weapon.
"[W]here the Commonwealth's evidence as to an element of an
offense is wholly circumstantial, ``all necessary circumstances
proved must be consistent with guilt and inconsistent with
innocence and exclude every reasonable hypothesis of innocence.'"
Moran v. Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553
(1987); see also Dukes v. Commonwealth, 227 Va. 119, 122, 313
S.E.2d 382, 383 (1984); Wilkins v. Commonwealth, 18 Va. App. 293,
298, 443 S.E.2d 440, 444 (1994); cf. Bishop v. Commonwealth, 227
Va. 164, 313 S.E.2d 390 (1984) (applying rule to entire case
where entire case based on circumstantial evidence). However,
the Commonwealth "is not required to disprove every remote
possibility of innocence, but is, instead, required only to
establish guilt of the accused to the exclusion of a reasonable
doubt." Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373
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S.E.2d 328, 338 (1988), cert. denied, 496 U.S. 911 (1990)
(quoting Bridgeman v. Commonwealth, 3 Va. App. 523, 526-27, 351
S.E.2d 598, 600 (1986)). "The hypotheses which the prosecution
must reasonably exclude are those ``which flow from the evidence
itself, and not from the imagination of defense counsel.'" Id.
at 289-90, 373 S.E.2d at 338-39 (quoting Black v. Commonwealth,
222 Va. 838, 841, 284 S.E.2d 608, 609 (1981)).
Determining whether White's explanation that he acted in the
heat of passion is a "reasonable hypothesis of innocence" is a
question of fact. Id. at 290, 373 S.E.2d at 339. Based on
familiar principles, this Court does not substitute its own
judgment for that of the trier of fact. Cable v. Commonwealth,
243 Va. 236, 239, 415 S.E.2d 218, 220 (1992). The jury's verdict
will not be set aside unless it appears that it is plainly wrong
or without supporting evidence. Code § 8.01-680; Traverso v.
Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
Here, the evidence shows that the victim had placed his gun
under the seat of his car, began to drive away, and had
completely passed White, before White opened fire, shooting him
in the back. Based on this evidence, we cannot conclude that the
jury was plainly wrong in finding that the Commonwealth had met
its burden of establishing the requisite intent to support a
conviction of murder beyond a reasonable doubt and that the
evidence excluded the hypothesis that White acted in the heat of
passion.
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Accordingly, the appellant's conviction for use of a firearm
in the commission of murder is affirmed.
Affirmed.
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