David Lewis Goode v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bumgardner
Argued at Richmond, Virginia
DAVID LEWIS GOODE, JR.
MEMORANDUM OPINION * BY
v. Record No. 1578-97-2 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 6, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHARLOTTE COUNTY
Charles L. McCormick, III, Judge
Maureen L. White (Theodore N. I. Tondrowski,
on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
A jury convicted David Lewis Goode, Jr. of voluntary
manslaughter. The defendant appeals contending that the evidence
is insufficient to prove his guilt. Finding the evidence is
sufficient to sustain the verdict, we affirm.
On appeal, we view the evidence in the light most favorable
to the Commonwealth and grant to it all reasonable inferences
fairly deducible therefrom. See Higginbotham v. Commonwealth,
216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). Voluntary
manslaughter is the unlawful killing of another without malice,
while in the heat of passion upon reasonable provocation or
mutual combat. See Barrett v. Commonwealth, 231 Va. 102, 105-06,
341 S.E.2d 190, 192 (1986). "[W]hether a killing was done in the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
heat of passion upon reasonable provocation is a question of
fact." Canipe v. Commonwealth, 25 Va. App. 629, 643, 491 S.E.2d
747, 754 (1997) (citation omitted).
The evidence shows that a group of people including the
victim, Daniel Clark, was drinking outside a store in Charlotte
County. The defendant drove up and parked. His passenger got
out, went over, and spoke to the victim. The victim then went to
the defendant's car and got in it. From the point that the
victim got in the defendant's car, the stories of the witnesses
vary. The witnesses differed over who was the aggressor and the
timing and sequence of events.
One Commonwealth witness, Joanne Townsend, who was only
three feet from the car, stated that as soon as the victim sat in
the car, the defendant raised a gun. The victim knocked it down,
and the gun discharged as the two fought over it. After the gun
discharged, the witness accounts converged again. The victim got
out of the car complaining of a wound to the lower abdomen. He
bled to death from the single gunshot wound. The other injuries
inflicted were a small cut over the defendant's eye and seven
semicircular abrasions to the victim's face. Those abrasions
could not be caused by a fist.
Joanne Townsend's testimony alone would prove the elements
of the crime. The jury believed it, and it was not contrary to
human experience or inherently incredible. Great deference is
given to the fact finder who, having seen and heard the
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witnesses, assesses their credibility and weighs their testimony.
See Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735,
736-37 (1985); Daung Sam v. Commonwealth, 13 Va. App. 312, 318,
411 S.E.2d 832, 835 (1991). The fact finder's determination that
a witness is credible "may only be disturbed on appeal if this
Court finds that [the witness'] testimony was 'inherently
incredible, or so contrary to human experience as to render it
unworthy of belief.'" Robertson v. Commonwealth, 12 Va. App.
854, 858, 406 S.E.2d 417, 419 (1991) (quoting Fisher v.
Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984)).
A trial court's judgment will not be disturbed unless it is
plainly wrong or without evidence to support it. See Code
§ 8.01-680; Traverso v. Commonwealth, 6 Va. App. 172, 176, 366
S.E.3d 719, 721 (1988).
The defendant argues that he is entitled to an acquittal
based on justifiable homicide because he retrieved the gun in
self-defense. See Bailey v. Commonwealth, 200 Va. 92, 96, 104
S.E.2d 28, 31 (1958). The defendant has the burden of going
forward with evidence of self-defense, and the jury is entitled
to accept or reject any testimony offered. See Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
The defendant told the investigating officer that the victim
entered the passenger side of his car and had hit him with
something. The defendant originally claimed that the gunshot
came from outside the car. After the investigator told him the
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victim was dead and he had spoken to other witnesses, the
defendant changed his story. He said that to protect himself he
reached under his seat and got the gun to frighten the victim.
He claimed that the victim took the gun from him, they had
scuffled, the defendant got the gun back, and it fired.
The jury did not accept the defendant's version of the
evidence nor his claim of self-defense. Other evidence permitted
the jury to find that the defendant was the aggressor, see Lamb
v. Commonwealth, 141 Va. 481, 488, 126 S.E. 3, 5 (1925), and no
evidence suggested that he retreated after he provoked the fight.
See Dodson v. Commonwealth, 159 Va. 976, 979-80, 167 S.E. 260,
261 (1933) (citation omitted). We hold that the evidence is
sufficient to sustain the defendant's conviction of voluntary
manslaughter. Accordingly, we affirm the conviction.
Affirmed.
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