Freddie Eugene Casey, etc v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Salem, Virginia
FREDDIE EUGENE CASEY, a/k/a
FREDDIE EUGENE OSBORNE
v. Record No. 1326-94-3 MEMORANDUM OPINION * BY
JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA JULY 25, 1995
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Donald R. Mullins, Judge
Daniel R. Bieger, (Copeland, Molinary &
Bieger, P.C. on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Freddie Eugene Casey (appellant) was convicted of first
degree murder. On appeal, appellant contends that the trial
court erred in refusing to instruct the jury on second degree
murder because the testimony of two witnesses for the prosecution
supported such an instruction. We disagree and affirm the
judgment of the trial court.
I.
On January 23, 1991, the decomposed body of Troy Lee
Stanford (Stanford) was discovered, covered with underbrush, a
tire, and a leather jacket, in the woods in Russell County. At
the autopsy, the medical examiner counted 117 stab wounds to the
body and noted that several of the stab wounds had punctured
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
internal organs. The medical examiner determined the cause of
death to be "very massive, rapid internal bleeding," and
estimated that Stanford had been dead "anywhere from a week to
three or four months."
Keith Stanford, the victim's brother, testified that he last
saw Stanford alive on December 13, 1990. On that day, the
brothers gave a ride to appellant, and appellant had borrowed
twenty dollars from Stanford. Samuel Goodman saw Stanford alive
between 5:00 and 6:00 p.m. on December 14, 1990.
Darrell Crabtree testified that he went to Brian Rowe's
trailer on Daw Road around 1:00 a.m. on December 15, 1990. Bobby
Shortridge opened the trailer door, but told him to come back
later. Crabtree, however, pushed his way into the trailer and
heard Barbie Clendenin crying. He saw another woman washing
blood from the trailer walls and the kitchen table. When
Crabtree asked what was going on, appellant said, "I killed the
son of a bitch." Crabtree asked "who," to which appellant
replied, "that narcing son of a bitching Troy Stanford."
Crabtree did not see a body. As Crabtree was leaving the
trailer, appellant and Brian Rowe told him that he "didn't see
nothing," and told him not to tell anyone. Later, while
incarcerated in the Russell County jail, Crabtree saw appellant
again and appellant insisted that he not say anything about the
killing.
Appellant told Ricky Fletcher and Yvonne Lester that he had
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cut someone on Daw Road because he had a habit to support.
Later, while in the Bristol jail, appellant told Fletcher that he
had stolen $350 to $400 from the man he killed. William Lester
testified that, while in the Bristol jail, appellant told other
inmates that he stabbed Stanford in the chest several times.
Appellant said that Stanford had been lured to the trailer and
appellant had "killed the snitching bastard."
Richard Hurt and Robert Hill also testified in the
Commonwealth's case in chief. Hurt stated that he had talked to
appellant in the Russell County jail about the murder. Appellant
told Hurt that Stanford had come to the trailer to collect some
money that appellant owed him, and "an argument broke out."
Appellant said he stabbed Stanford and, when he stabbed him, he
did not want to quit. It was only the screaming of others in the
trailer that brought appellant back to his "attention."
Appellant told Hurt that watching someone take his last breath
was "real excitement." Appellant also told Hurt that he required
everyone at the trailer to cut the body at least one time so that
no one would tell what happened.
Robert Hill testified that, while in the Tazewell County
jail, appellant showed him a "forensic picture" of Stanford's
body, showing the stab wounds. Appellant told Hill that he had
borrowed money from Stanford and, when Stanford came to collect
it, appellant did not have the money. Appellant said they had an
argument, a knife was pulled, and there was a struggle.
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Appellant said he "just kept stabbing him," and then he and Brian
Rowe took the body to the woods and covered it with brush and
tires.
Several witnesses testified for the defense that appellant
was not present at Brian Rowe's trailer on the evening of
December 14 and early morning of December 15, 1990. Other
witnesses testified as to appellant's whereabouts at that time.
Appellant testified that he did not kill Stanford and had no
knowledge of how Stanford was killed. Appellant claimed that the
witnesses for the prosecution were lying and were receiving some
benefit from the Commonwealth for their false testimony.
Appellant tendered jury instructions which included a
finding of second degree murder. The Commonwealth objected to
the instructions and the court refused them.
II.
Appellant's theory at trial was that he was not responsible
for Stanford's death and was not present at Rowe's trailer the
night of December 14 through the morning of December 15.
However, he contends on appeal, as he did at trial, that he was
entitled to a second degree murder instruction because
Commonwealth witnesses Hurt and Hill testified that he said he
and Stanford argued before he stabbed him, and Hill stated that
he said there was a struggle. 1
1
On brief, appellant also argues that the presence of 117
stab wounds "provides a credible basis for an inference that the
stabbing was committed insanely, or in a heat of passion, and not
as a result of a premeditated act." Appellant, however, did not
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Although the Commonwealth prevailed in the trial court, we
must review the evidence relevant to appellant's refused
instructions in the light most favorable to him. Martin v.
Commonwealth, 13 Va. App. 524, 526, 414 S.E.2d 401, 401 (1992)
(en banc) (citing Blondel v. Hays, 241 Va. 467, 469, 403 S.E.2d
340, 341 (1991)). Moreover, it has long been established that a
jury need not accept "in toto" the theory of the Commonwealth or
the defendant, but may reject parts of the evidence it believes
to be untrue and accept the parts it believes to be true. Belton
v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958).
An accused, however, "is entitled to have the jury
instructed only on those theories of the case that are supported
by evidence." Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d
267, 280 (1986). Evidence asserted in support of a lesser
included instruction "'must amount to more than a scintilla.'"
Buchanan v. Commonwealth, 238 Va. 389, 409, 384 S.E.2d 757, 769
(1989), cert. denied, 493 U.S. 1063 (1990) (citations omitted).
See Brandau v. Commonwealth, 16 Va. App. 408, 411, 430 S.E.2d
563, 564-65 (1993).
If the jury based its verdict only on the evidence of Hill
and/or Hurt, the evidence does not require the giving of an
instruction on second degree murder.
make this argument to the trial court and we will not consider it
for the first time on appeal. See Jacques v. Commonwealth, 12
Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule
5A:18).
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Neither witness testified that appellant claimed that he was
provoked into killing Stanford, or that he did not intend to kill
Stanford when he stabbed him. "A design to kill may be formed
only a moment before the fatal act is committed provided the
accused had time to think and did intend to kill." Giarratano v.
Commonwealth, 220 Va. 1064, 1074, 266 S.E.2d 94, 100 (1980).
The fact that a killer and his victim argue prior to the
murder does not, of itself, mandate that a second degree murder
instruction be given. See Buchanan, 238 Va. at 409-12, 384
S.E.2d at 769-71. Nor does testimony that there was a struggle,
without more, provide more than a scintilla of evidence that the
accused lacked premeditation. The evidence on which appellant
relies falls short of establishing "provocation, anger, passion,
or any other fact that might serve to convince a jury that [he]
acted without premeditation." Id. at 412, 384 S.E.2d at 771.
Thus, the trial court did not err in refusing to instruct the
jury on second degree murder. The judgment of the trial court is
affirmed.
Affirmed.
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