Mark Shawn Wallace v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Overton
Argued at Salem, Virginia
MARK SHAWN WALLACE
MEMORANDUM OPINION * BY
v. Record No. 0795-96-3 JUDGE NELSON T. OVERTON
FEBRUARY 25, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Sharon K. Eimer, Senior Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Mark Shawn Wallace was convicted by a jury of malicious
wounding and the use of a firearm in the commission of malicious
wounding. He appeals, contending (1) that the evidence does not
prove malice beyond a reasonable doubt and (2) that the trial
court erred by barring the defendant’s evidence of mitigating
circumstances at the sentencing phase. We affirm as to the first
issue but remand for resentencing as to the second.
The parties are fully conversant with the record in the
cause, and because this memorandum opinion carries no
precedential value, no recitation of the facts is necessary.
On appeal, the evidence must be viewed in a light most
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
favorable to the Commonwealth. See Higginbotham v. Commonwealth,
216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). A judgment will
not be disturbed on appeal unless it is plainly wrong or without
evidence to support it. See Traverso v. Commonwealth, 6 Va. App.
172, 176, 366 S.E.2d 719, 721 (1988). “Whether malice existed is
a question for the jury.” Branch v. Commonwealth, 14 Va. App.
836, 841, 419 S.E.2d 422, 426 (1992); Essex v. Commonwealth, 228
Va. 273, 280, 322 S.E.2d 216, 220 (1984). The defendant’s
conduct and words at the time of the incident and thereafter may
be used to show malice. See Slusher v. Commonwealth, 196 Va.
440, 445, 83 S.E.2d 719, 721 (1954).
The record contains ample evidence for the jury to conclude
that Wallace acted with malice. Wallace shot the victim at a
distance of five to six feet. He said, “Let’s go,” immediately
afterwards. He rendered no assistance to the bleeding victim
lying next to him for several minutes after the shooting. He
wiped off the gun and disposed of it. When questioned, Wallace
denied seeing or hearing anything. This evidence clearly
supports the jury’s conclusion that Wallace maliciously wounded
the victim.
Wallace also argues that he should have been allowed to
present evidence of mitigating evidence at the sentencing phase,
even though the Commonwealth presented no evidence of a criminal
record. We agree, based on our decision in Pierce v.
Commonwealth, 21 Va. App. 581, 466 S.E.2d 130 (1996). We
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therefore remand for a new sentencing proceeding to be conducted
under the revised Code § 19.2-295.1, in which the defendant may
introduce evidence relevant to punishment regardless of whether
the Commonwealth presents evidence of a criminal record.
Accordingly, we affirm the convictions and remand for
resentencing.
Affirmed in part,
reversed in part,
and remanded.
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