Michael Jennings Maddox v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia
MICHAEL JENNINGS MADDOX
MEMORANDUM OPINION * BY
v. Record No. 1129-99-4 JUDGE JERE M. H. WILLIS, JR.
AUGUST 1, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CLARKE COUNTY
John R. Prosser, Judge
Alexander N. Levay (Michael D. Sawyer;
Moyes & Levay, P.L.L.C., on briefs), for
appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from his conviction of second degree murder, in
violation of Code § 18.2-32, Michael Jennings Maddox contends
(1) that the evidence was insufficient to support his conviction
of murder, (2) that the trial court erred in admitting evidence
concerning his relationship with the victim, Evelyn Jane
Tumblin, and (3) that the trial court erred in admitting
evidence that he refused to take an alkasensor test. We reverse
the judgment of the trial court and remand the case for further
proceedings, if the Commonwealth be so advised.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. Sufficiency of the Evidence
Maddox contends that because the Commonwealth did not prove
that he killed Tumblin maliciously, the evidence failed to
support his conviction of murder. See Code § 18.2-32. "Where
the sufficiency of the evidence is challenged after conviction,
it is our duty to consider it in the light most favorable to the
Commonwealth and give it all reasonable inferences fairly
deducible therefrom." Higginbotham v. Commonwealth, 216 Va.
349, 352, 218 S.E.2d 534, 537 (1975).
"Second degree murder does not require a willful,
deliberate, and premeditated act; it is defined simply as a
malicious killing." Turner v. Commonwealth, 23 Va. App. 270,
274, 476 S.E.2d 504, 506 (1996). "Whether or not an accused
acted with malice is generally a question of fact . . . ."
Canipe v. Commonwealth, 25 Va. App. 629, 642, 491 S.E.2d 747,
753 (1997).
Tumblin and Maddox lived together in a long term
relationship. On the afternoon of February 5, 1998, they went
for a ride in Maddox's four-wheel drive Ford Bronco. The
Shenandoah River had flooded its banks, covering nearby roadways
with water. With Maddox driving, the couple "drove through the
water playing around." They then went to Leesburg to run
various errands. Maddox had been drinking all day and was
intoxicated. A little before dark they returned to the river
and stopped under a bridge abutment, where they engaged in
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sexual intercourse. For a short while thereafter, Maddox let
Tumblin drive but then resumed driving. Ignoring signs and
barricades warning that the road was closed due to flooding, he
drove down the flooded portion of Route 606. The Bronco began
sliding on the submerged roadway and Maddox lost control. The
Bronco became stuck on an embankment, about two hundred yards
down the road and about twenty yards from the closest shore.
Frigid water flooded the passenger compartment.
Rescue personnel were dispatched to the scene. Upon
arrival, Terrell Davis saw Maddox sitting in the driver's seat
of the Bronco smoking a cigarette and saw him toss a beer bottle
out of the window. When asked, Maddox initially replied that he
was alone. About fifteen minutes after the rescue workers
arrived, Maddox told them that Tumblin was with him and that she
had drowned. He lifted her body from behind the front seats of
the Bronco. Rescue workers testified that he said, "She is
dead. I killed her. She is dead." A state trooper testified
that Maddox, when asked what had happened, "stated that he had
been in the water horsing around with his truck and he had
killed his girlfriend." At the same time, however, Maddox asked
whether she was alright.
Maddox told witnesses that Tumblin was afraid of the water
and that she "freaked out" when the Bronco slid off the road and
became stuck. He admitted hitting Tumblin, because, he
explained, she was hysterical and he was attempting to calm her.
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Melody Houff, Tumblin's sister, testified that Maddox told her
Tumblin never spoke after he struck her, but that her eyes
remained open. The medical examiner determined that Tumblin
died of drowning with hypothermia as a possible contributing
factor. He testified that he saw no sign that she had been
struck on her face or that she had been rendered unconscious by
a blow. The only evidence that she had been struck was Maddox's
statement and Houff's testimony that she noticed a bruise on her
sister's right cheek at her funeral, four days after her death.
Several witnesses testified that Maddox behaved strangely
at the scene of the accident, that he said he had killed Tumblin
and that she had drowned, and then asked whether she was
alright. By the time the rescue workers arrived, Tumblin and
Maddox had been in the frigid water long enough that both were
suffering from hypothermia. Upon his removal from the water,
Maddox's oral temperature was 89.8°. At the hospital, Tumblin's
core body temperature was 89.1°, so low it was necessary to warm
her body several degrees before the fact of her death could be
determined. Maddox was intoxicated, and testimony disclosed
that intoxication can exacerbate the effects of hypothermia.
The malicious infliction of injury can be shown through
circumstantial evidence, but "[t]he Commonwealth is . . .
required to exclude hypotheses of innocence that flow from the
evidence . . . ." Fordham v. Commonwealth, 13 Va. App. 235,
239, 409 S.E.2d 829, 831 (1991).
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Tumblin died of drowning. To convict Maddox of her murder,
the Commonwealth must prove either that he maliciously drowned
her or that he maliciously committed some act against her that
caused her to drown. The Commonwealth contends that Maddox's
admission that he struck Tumblin in the face, his odd and
misleading behavior when the rescue workers arrived on the
scene, and his statements after his rescue that he had killed
Tumblin, sufficiently prove that he killed her maliciously. We
disagree.
Maddox admitted that he struck Tumblin in the face.
However, he said that he did so when she "freaked out" after the
Bronco became stuck and began to fill with water. Although
Houff observed a bruise on Tumblin's face at her funeral, four
days after the incident, the medical examiner saw no sign of a
serious blow to her face and saw no evidence that the blow would
have caused her to lose consciousness. In admitting that he
struck Tumblin, Maddox said that while she stopped talking, her
eyes remained opened. No evidence established that the blow
caused Tumblin to lose consciousness. While it might be argued
that, even under the circumstances, striking Tumblin in the face
was a malicious act, nothing in the record proves that it was a
lethal act. The blow itself did not kill Tumblin. The record
fails to prove that it caused her to drown.
Maddox was rude and abusive in his conversation with rescue
workers. Initially, he stated that he was alone in the truck.
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Not until about fifteen minutes later did he acknowledge
Tumblin's presence. He may, for any of several reasons, have
denied Tumblin's presence, but it does not follow from that
denial that he drowned her.
In talking with rescue workers, Maddox repeatedly stated
that he had killed Tumblin. However, at the same time, he asked
whether she was alright. Under the circumstances, including
Maddox's own condition, these statements were just as consistent
with a remorseful acknowledgment of responsibility for having
placed Tumblin in peril as a confession of murder.
Maddox's statements that he had killed Tumblin were
ambiguous and were not specific acknowledgments that he had
drowned her. Only by applying an interpretation supplied by
imagination can those statements be construed as acknowledgments
that Maddox drowned Tumblin. Nothing in the record supplies
that interpretation. Under the circumstances, including her
hypothermia, Tumblin could have drowned other than through
Maddox's agency. Other than the single blow, which left no
significant mark, the record is devoid of evidence that she
suffered violence.
The evidence is insufficient, as a matter of law, to
support a finding that Maddox killed Tumblin maliciously.
Reckless conduct, however gross, is not murder. See Essex v.
Commonwealth, 228 Va. 273, 280-81, 322 S.E.2d 216, 220 (1984).
Without such a finding, the conviction of second degree murder
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cannot stand. Accordingly, we reverse the murder conviction and
remand to the trial court for further proceedings consistent
with this opinion, if the Commonwealth be so advised.
II. Admission of Relationship/Prior Bad Acts
Maddox's next assignments of error relate to the admission
of certain evidence. As these issues may arise in a future
proceeding, we will address them briefly. Maddox contends that
the trial court erred in admitting evidence: (1) that he was a
"mad man" after he had been drinking, (2) that he and Tumblin
were observed fighting during the spring of 1992 through fall
1997, (3) that he had a drinking problem, (4) that he once tore
up pieces of Tumblin's clothing, (5) that he was afraid of the
magistrate, (6) that he had no fear of going to jail, (7) that
he had brandished a shotgun and then shot at two inflatable
animals, (8) that he carried a gun and would kill anyone who
crossed him, (9) that he was on probation, (10) that he had
prior DUI convictions, (11) that he was awaiting trial and
sentencing on other unrelated crimes, (12) that he had attempted
suicide, (13) that he had routinely degraded Tumblin, (14) that
upon becoming angry, he had thrown automobile tags in Tumblin's
face, (15) that he had been stopped the morning of Tumblin's
death for speeding, and (16) that he often assaulted Tumblin
verbally.
Maddox objected contemporaneously and properly at trial
only to items, 2, 4, 7, and 14, all contained in the testimony
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of Susan Fields. See Rule 5A:18. However, because any further
proceedings will concern only whether Maddox committed
manslaughter, evidence of his prior relationship with Tumblin
will be irrelevant and should not be admitted.
III. Admission of Refusal to Submit to Alkasensor Test
Maddox finally contends that the trial court erred in
admitting testimony that he refused an alkasensor test at the
accident scene. We agree.
Maddox was indicted for aggravated involuntary
manslaughter. The indictment specified that he:
[B]y conduct so gross, wanton, and culpable
as to show a reckless disregard for human
life and as a result of driving under the
influence of alcohol in violation of Section
18.2-266(ii) of the Code of Virginia, 1950
as amended, did, . . . feloniously and
unintentionally cause the death of Evelyn
Jane Tumblin in violation of Section
18.2-36.1 of the Code of Virginia, 1950 as
amended, against the peace and dignity of
the Commonwealth.
Thus, his operation of the Bronco while under the influence of
alcohol, in violation of Code § 18.2-266(ii), was an element of
the manslaughter charge lodged against him.
Code § 18.2-268.10 provides, in relevant part:
In any trial for a violation of Section
18.2-266 . . .
[t]he failure of an accused to permit a
blood or breath sample to be taken to
determine the alcohol or drug content of his
blood is not evidence and shall not be
subject to comment by the Commonwealth at
the trial of the case, except in rebuttal;
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nor shall the fact that a blood or breath
test has been offered the accused be
evidence or the subject of comment by the
Commonwealth, except in rebuttal.
Id.
Because operating the Bronco while under the influence of
alcohol is a specified element of the indictment, trial of the
indictment would be trial of a charge under Code § 18.2-266(ii).
Therefore, evidence that Maddox refused the alkasensor test
should not be admitted if Maddox is retried for manslaughter.
Accordingly, we find the evidence insufficient as a matter
of law to support Maddox's conviction of second degree murder,
in violation of Code § 18.2-32. We reverse the judgment of the
trial court, and remand the case for further proceedings in
accordance with this opinion, if the Commonwealth be so advised.
Reversed and remanded.
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Frank, J., dissenting.
I respectfully disagree with the majority's holding that
the evidence was insufficient to convict appellant of
second-degree murder and that evidence of appellant's prior bad
acts and relationship with the victim was inadmissible.
"In every criminal prosecution, the Commonwealth must prove
the element of corpus delicti, that is, the fact that the crime
charged has been actually perpetrated." Cherrix v.
Commonwealth, 257 Va. 292, 305, 513 S.E.2d 642, 651 (1999)
(citing Maughs v. City of Charlottesville, 181 Va. 117, 120, 23
S.E.2d 784, 786 (1943)). If an accused has "fully confessed
that he committed the crime, then only slight corroboration of
the confession is required to establish corpus delicti beyond a
reasonable doubt." Id. (citing Jackson v. Commonwealth, 255 Va.
625, 646, 499 S.E.2d 538, 551 (1998)). "The corpus delicti of a
homicide is proof of the victim's death from the criminal act or
agency of another person." Swann v. Commonwealth, 247 Va. 222,
236, 441 S.E.2d 195, 205 (1994) (citing Watkins v. Commonwealth,
238 Va. 341, 348-49, 385 S.E.2d 50, 54 (1989)). Corpus delicti
may be established by circumstantial evidence. See Cochran v.
Commonwealth, 122 Va. 801, 94 S.E. 329 (1917).
"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) (citing Turner v. Commonwealth, 23 Va.
App. 270, 274, 476 S.E.2d 504, 506 (1996)). "The authorities
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are replete with definitions of malice, but a common theme
running through them is a requirement that a wrongful act be
done 'wilfully or purposefully.'" Essex v. Commonwealth, 228
Va. 273, 280, 322 S.E.2d 216, 220 (1984) (citing Williamson v.
Commonwealth, 180 Va. 277, 280, 23 S.E.2d 240, 241 (1942)). In
finding a defendant guilty of second-degree murder, whether the
defendant acted with malice is a determination for the fact
finder. See Jacobs v. Commonwealth, 132 Va. 681, 111 S.E. 90(1922).
I believe the evidence, viewed in the light most favorable
to the Commonwealth, established the corpus delicti and
supported the determination by the jury that appellant acted
with malice.
Appellant was aware that the road was flooded. The road
was barricaded and signs were posted that said, "Road Closed."
Despite the apparent danger, appellant drove his vehicle onto
the flooded roadway. When the rescue workers arrived at the
scene, appellant tried to conceal the fact that the victim was
in his vehicle, initially telling them he was alone. Fifteen
minutes later, he lifted her body from behind the front seats of
the vehicle and told several rescue workers that he killed her.
Furthermore, he gave inconsistent statements to the police,
telling one officer the victim drove the truck into the water
and drowned while he attempted to get the truck started again
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and telling another officer that he drove the truck into the
water.
The victim's sister testified that appellant recounted the
events leading up to the victim's death several times.
Initially, he told the victim's sister that he hugged the victim
and then climbed out of the vehicle to meet the rescue people.
When he reached back into the vehicle the victim was floating.
On another occasion, appellant told the victim's sister he hit
the victim after she became hysterical when water started to
flood the passenger compartment of the vehicle. Appellant said
the victim fell over onto the seat after he hit her and did not
speak again. Appellant set the victim up and she fell over
again. Appellant told the victim's sister she drowned when she
fell out of the seat. The jury was entitled to reject the
conflicting accounts of the events and believe that appellant
rendered the victim unconscious, which would cause her to drown.
Furthermore, the jury was not required to accept appellant's
statement that the victim was hysterical. See Pugliese v.
Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993).
Further, the jury was entitled to reject the medical
examiner's testimony that there was no sign the victim had been
struck or that she had been rendered unconscious by a blow.
Such testimony created a factual inconsistency, which is within
the province of the jury.
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The majority holds that the evidence of appellant's prior
bad acts and relationship with the victim will be inadmissible
in further proceedings because it will be irrelevant to the
charge of manslaughter. Because I believe that the evidence was
sufficient to convict appellant of second-degree murder, I
address this issue. As discussed by the majority, appellant
properly objected to the admission of evidence that he and the
victim were observed fighting during the spring of 1992 through
fall 1997, that he once tore up pieces of the victim's clothing,
that he brandished a shotgun at two inflatable animals, and that
he threw automobile tags in the victim's face after becoming
angry.
Generally, evidence of prior offenses
is inadmissible because it "confuses the
issue before the jury, unfairly surprises
the accused with a charge he is not prepared
to meet, and tends to prejudice him in the
minds of the jury."
However, we have recognized specific
exceptions to the rule. We have upheld the
admission of evidence of prior offenses when
offered to prove (1) premeditation, (2)
absence of mistake or accident, (3) motive
or intent, and (4) the conduct and feelings
of the accused toward his victim.
Smith v. Commonwealth, 239 Va. 243, 256, 389 S.E.2d 871, 878
(1990) (internal citations omitted).
I believe the evidence of the fighting between appellant
and the victim, the evidence that appellant tore up the victim's
clothing, and the evidence that appellant threw automobile tags
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in the victim's face is admissible to show his conduct and
feelings toward her. This testimony belies appellant's claim
that he loved the victim.
I would exclude the evidence that appellant shot at two
inflatable animals. The evidence did not establish that the
inflatable animals belonged to the victim or that she was
present when he shot the gun. Therefore, I believe it was error
to admit the evidence that appellant shot at the inflatable
animals.
In Virginia, non-constitutional error
is harmless "[w]hen it plainly appears from
the record and the evidence given at the
trial that the parties have had a fair trial
on the merits and substantial justice has
been reached." Code § 8.01-678 (emphasis
added). "[A] fair trial on the merits and
substantial justice" are not achieved if an
error at trial has affected the verdict.
Consequently, under Code § 8.01-678, a
criminal conviction must be reversed unless
"it plainly appears from the record and the
evidence given at the trial that" the error
did not affect the verdict. An error does
not affect a verdict if a reviewing court
can conclude, without usurping the jury's
fact finding function, that, had the error
not occurred, the verdict would have been
the same.
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d
910, 911 (1991) (en banc).
Because the evidence that appellant shot at the inflatable
animals was offered to show the relationship between appellant
and the victim, I believe the error was harmless. There was
other evidence before the jury that the two had a stormy
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relationship, which at times involved violence. Therefore, the
evidence that appellant shot at the inflatable animals was
merely cumulative and did not affect the jury's verdict.
Therefore, the evidence proved the corpus delicti and
second-degree murder. Appellant concealed the victim from
rescue personnel and then admitted killing her on numerous
occasions. He also gave totally inconsistent statements to the
police. Additionally, he admitted hitting her, which the jury
was entitled to believe was to render her unconscious in the
rising water. There was a history of fighting in the
relationship, and there were specific acts of violence toward
the victim by appellant.
The majority holds the evidence that appellant refused the
alkasensor test should not be admitted if appellant is retried
for manslaughter because operating the vehicle under the
influence of alcohol is a specified element of the indictment
and trial of the indictment would be a trial of a charge under
Code § 18.2-266(ii). Because appellant was not convicted of
manslaughter, I do not address this issue.
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