Kenneth McKae Peele v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Lemons
Argued at Norfolk, Virginia
KENNETH McKAE PEELE
MEMORANDUM OPINION * BY
v. Record No. 1792-97-1 JUDGE DONALD W. LEMONS
SEPTEMBER 22, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
James A. Cales, Jr., Judge
Dianne G. Ringer, Senior Assistant Public
Defender, for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Kenneth McKae Peele was convicted in a bench trial of
malicious wounding. On appeal, he contends that the evidence was
insufficient to support his conviction. We disagree and affirm
the conviction.
On March 20, 1996 at approximately 9:30 p.m., Kevin
Brantley, the victim, drove into the drive-through lane at a
Bojangles restaurant located in the City of Portsmouth. After
placing his order, Brantley drove around the corner of the
building to the pick-up window. Peele was standing in the
drive-through lane. When Brantley approached the window, Peele
told him that he had almost been hit by Brantley's car. Brantley
stated that he had not expected anyone in the drive-through lane.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Then Peele leaned into the pick-up window and remained in the
drive-through lane. Brantley leaned out of his car window and
asked if there was a problem. There was no response from Peele,
and he continued to stand at the window. A few moments later,
Brantley stepped out of the car to "see what was going on."
Brantley testified that Peele circled around the car and
approached him from behind the car. Brantley stated that Peele
and another man attacked him, hitting and kicking him beside
Brantley's car. Brantley testified that Peele knocked him to the
ground, striking him with his fists and feet. As a result of
this beating, Brantley suffered a broken bone in his neck, as
well as various cuts, bruises, and scrapes on his face.
Upon routine patrol, Deputies Gerald Lee Boone and Paul A.
Ewing of the Portsmouth Sheriff's Office observed Peele and two
other men standing around Brantley. The deputies testified that
they watched Peele hit Brantley twice with his fists, and also
saw Peele use his knee to strike Brantley in the face as Brantley
fell to the ground.
In Peele's defense, Tomika Kilabrew testified that she was
working at the pick-up window at Bojangles on the night of the
incident. Kilabrew testified that she heard Peele and Brantley
exchange words, including racial epithets. She also testified
that Brantley appeared annoyed with her and her manager because
she was serving Peele, a pedestrian, at the pick-up window.
Kilabrew was preparing orders and did not observe the beginning
- 2 -
of the fight.
Peele testified on his own behalf that he had been standing
in the drive-through lane when Brantley drove toward him. Peele
stated that Brantley threatened to run him over and used racial
slurs. Peele further testified that after he refused to move
away from the window, Brantley got out of his car and approached
him. Peele stated that he acted out of self-defense.
Peele maintains that the evidence was insufficient to
convict him of malicious wounding because neither "malice" nor
"intent to permanently maim, disfigure or kill" was proven.
Additionally, he alleges that the trial court erred in rejecting
his claim of self-defense.
"When the sufficiency of the evidence is an issue on appeal,
an appellate court must view the evidence and all reasonable
inferences fairly deducible therefrom in the light most favorable
to the Commonwealth." Cheng v. Commonwealth, 240 Va. 26, 42, 393
S.E.2d 599, 608 (1990) (citing Stockton v. Commonwealth, 227 Va.
124, 145-46, 314 S.E.2d 371, 385, cert. denied, 469 U.S. 873(1984)). On appeal, the decision of a trial court sitting
without a jury is afforded the same weight as a jury's verdict
and will not be disturbed unless plainly wrong or without
evidence to support it. King v. Commonwealth, 217 Va. 601, 604,
231 S.E.2d 312, 315 (1977).
The weight which should be given to evidence
and whether the testimony of a witness is
credible are questions which the fact finder
must decide. However, whether a criminal
conviction is supported by evidence
- 3 -
sufficient to prove guilt beyond a reasonable
doubt is not a question of fact but one of
law.
Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598,
601-02 (1986).
"Intent is the purpose formed in a person's mind that may,
and often must, be inferred from the facts and circumstances in a
particular case, and may be shown by a person's conduct."
Hernandez v. Commonwealth, 15 Va. App. 626, 632, 426 S.E.2d 137,
140 (1993) (citing Long v. Commonwealth, 8 Va. App. 194, 379
S.E.2d 473 (1989)). Even in an unarmed assault, the intent to
maim, disfigure or kill can be inferred from the grievous nature
of the injuries inflicted. Hernandez, 15 Va. App. at 631, 426
S.E.2d at 140 (citing Roark v. Commonwealth, 182 Va. 244, 250, 28
S.E.2d 693, 695-96 (1944)).
"The element in malicious wounding that distinguishes it
from unlawful wounding is malice, expressed or implied, and
malice in its legal acceptation, means any wrongful act done
willfully or purposefully." Hernandez, 15 Va. App. at 631, 426
S.E.2d at 140 (citing Williamson v. Commonwealth, 180 Va. 277,
280, 23 S.E.2d 240, 241 (1942)). Proof of malice may, and most
often must, be inferred by the fact finder from the facts and
circumstances of a particular case, which may be shown by a
person's conduct. Long, 8 Va. App. at 198, 379 S.E.2d at 475-76.
Peele contends that the evidence revealed reasonable
provocation sufficient to negate malice. "[M]alice and heat of
passion are mutually exclusive; malice excludes passion, and
- 4 -
passion presupposes the absence of malice." Barrett v.
Commonwealth, 231 Va. 102, 106, 341 S.E.2d 190, 192 (1986).
"[I]n order to determine whether the accused acted in the heat of
passion, it is necessary to consider the nature and degree of
provocation as well as the manner in which it was resisted." Id.Words alone are never sufficient to constitute provocation. See
Martin v. Commonwealth, 184 Va. 1009, 1021, 37 S.E.2d 43, 48
(1946).
Finally, Peele argues that he was entitled to use force
against Brantley on the basis of self-defense. "[A] person who
reasonably apprehends bodily harm by another is privileged to
exercise reasonable force to repel the assault." Diffendal v.
Commonwealth, 8 Va. App. 417, 421, 382 S.E.2d 24, 25 (1989). The
amount of force used to defend oneself, however, must not be
excessive and must be reasonable in relation to the perceived
threat. Id.The evidence before the trial court was in conflict.
According to Brantley, there was no provocation, no uttering of
racial slurs, and no physical movement toward Peele. Brantley
testified that Peele and another man approached Brantley,
trapping him between themselves and his open car door. According
to Brantley, Peele knocked him to the ground and continued to
strike him with fists and feet. The officers corroborated
Brantley's testimony, and also stated that they observed Peele
strike Brantley in the face with his knee. Brantley sustained
- 5 -
cuts and bruises, including a broken bone in his neck and
bleeding from his nose, forehead and cheek.
Conversely, Peele testified that Brantley got out of his car
and began to move toward Peele in a threatening manner, as if to
strike him, using abusive language. Peele testified that the
fight took place in front of the car as Brantley approached him.
The court also heard the testimony of a witness who stated that
she heard Brantley utter racial slurs toward Peele. This
witness, however, by her own admission, did not see the inception
of the fight.
The trial judge resolved questions of credibility against
the appellant.
"In testing the credibility and weight to be
ascribed to the evidence, we must give [the]
trial court[]. . . the wide discretion to
which a living record, as distinguished from
a printed record, logically entitles them.
The living record contains many guideposts to
the truth which are not in the printed
record; not having seen them ourselves, we
should give great weight to the conclusions
of those who have seen and heard them."
Swanson v. Commonwealth, 8 Va. App. 376, 379, 382 S.E.2d 258, 259
(1989) (quoting Bradley v. Commonwealth, 196 Va. 1126, 1136, 86
S.E.2d 828, 834 (1955)).
The credible evidence presented was sufficient to allow the
court to conclude that Peele did not act in self-defense or in
response to sufficient provocation and that he did act with
malicious intent to maim, disfigure or kill his victim.
Accordingly, the conviction is affirmed.
- 6 -
Affirmed.
- 7 -