Timothy James Tratzinski v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued at Richmond, Virginia
TIMOTHY JAMES TRATZINSKI
MEMORANDUM OPINION * BY
v. Record No. 0419-02-2 JUDGE JAMES W. BENTON, JR.
MARCH 25, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Learned D. Barry, Judge
John A. March, Jr., Assistant Public Defender
(Craig W. Stallard, Assistant Public
Defender, on briefs), for appellant.
Paul C. Galanides, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
A trial judge convicted Timothy James Tratzinski of second
degree murder. Tratzinski contends the evidence was insufficient
to support the conviction because malice was not proved and
because he proved self-defense. We affirm the conviction.
I.
The evidence proved that Timothy James Tratzinski and Julius
Smith were co-tenants in a house. Smith testified that he was in
his bedroom on the main floor of the house at 11:30 p.m. watching
television when he heard a "crashing" sound. He opened his
bedroom door and listened. Hearing nothing more, he closed his
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
door and continued watching television. Ten minutes later, he
heard several "thumping" sounds and went to the bathroom. While
there, he heard the front door open. When he left the bathroom,
he noticed the front door was ajar, he closed it, and he went to
bed. The next morning, Smith saw drops of blood in the bathroom
and reported this discovery to his lessor. Smith testified he had
never been in the basement where Tratzinski's bedroom is located.
The City of Richmond Police went to the house in response to
a call from the lessor. They discovered blood in Tratzinski's
basement bedroom, blood on the patio carpet and couch outside
Tratzinski's bedroom, and blood in other areas. A trained dog led
the police from the patio, through woods behind the house, and to
an automobile repair shop. Behind the shop, police discovered the
nude body of Jermaray Johnson in a trash can.
Later that morning, a police officer saw Tratzinski at a
convenience store across from the house. Tratzinski had blood on
his pants, shoes, and hands. After Tratzinski accompanied the
officer to the house, Tratzinski told the officer he met Johnson
in the convenience store the previous night. He did not know
Johnson before this meeting. He said he "beat [Johnson] in the
head with something" after Johnson attacked him with a hammer.
Tratzinski said he did not know what he used to hit Johnson.
The pathologist who performed an autopsy identified five
skull fractures on the back of Johnson's head, nine blunt
lacerations on the right side of his head, and eight blunt
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lacerations on the left side of his head. Numerous superficial
contusions and abrasions were on Johnson's face. The front of
Johnson's neck had been torn apart. The pathologist testified
that he saw no defensive injuries on Johnson's body.
The testimony and exhibits proved the blood on Tratzinski's
clothing was Johnson's. A mixture of Tratzinski's blood and
Johnson's blood was found outside the house. DNA analysis
established that the blood of two distinct large stain patterns on
the patio carpet came from Johnson. An analyst testified that one
large stain was produced when Johnson's blood had drained and
pooled; the other stain reflected a pooling of blood and also a
splattering of blood that radiated from Johnson's body as a result
of force. Smaller blood stains on the carpet inside the basement
door contained both Johnson's and Tratzinski's blood. Johnson's
blood also was on a couch where a bag of cocaine was found. Some
neatly folded clothing was next to Tratzinski's bed.
Tratzinski's blood was found on the stairs leading to the
first floor, on the front entrance porch, and at various places on
the first floor. In one of the attic bedrooms, the police found
under a mattress a cocaine pipe wrapped in a towel. Tratzinski's
blood was on the towel and in various locations in the attic.
None of the blood on the first floor level or bedrooms came from
Johnson.
At the conclusion of the Commonwealth's evidence, Tratzinski
testified he had been "drinking a lot" of alcohol the day he met
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Johnson in a chance encounter. He and Johnson established through
their conversation that they were interested in a sexual encounter
with each other and walked to Tratzinski's house. In Tratzinski's
bedroom, Johnson removed his clothes. Tratzinski fondled Johnson,
kissed his body, and then informed Johnson he needed a condom
because he was HIV positive. Tratzinski testified that Johnson
became upset and loudly accused Tratzinski of wanting to infect
him. He testified Johnson obtained a hammer that was among other
tools in the basement, swung at him, and threatened to kill him.
According to Tratzinski, he tried to escape through the patio
door after Johnson struck him on his hand and shoulder with the
hammer. Because he was slow and too intoxicated to go farther, he
began "tussling" with Johnson. During the struggle, Tratzinski
seized the hammer from Johnson and began swinging the hammer.
Tratzinski testified that the struggle lasted five or six minutes
and that he could not remember anything after the struggle. He
said he awoke the next morning in the woods and did not know why
he was there or why he was bruised and covered with blood.
Tratzinski testified he did not know how Johnson's body got into
the trash can and did not know what he did with the hammer.
At the conclusion of all the evidence, the trial judge ruled
that the evidence was insufficient to prove first degree murder
and did not prove voluntary manslaughter. He convicted Tratzinski
of second degree murder.
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II.
Tratzinski contends the evidence was insufficient to prove
malice because it did not negate heat of passion. The
Commonwealth argues the evidence proved malice beyond a reasonable
doubt.
"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) (citation omitted).
Malice inheres in the intentional doing of a
wrongful act without legal justification or
excuse. Malice is not confined to ill will,
but includes any action flowing from a
wicked or corrupt motive, done with an evil
mind or wrongful intention, where the act
has been attended with such circumstances as
to carry in it the plain indication of a
heart deliberately bent on mischief. Malice
is implied from any willful, deliberate and
cruel act against another.
Williams v. Commonwealth, 13 Va. App. 393, 398, 412 S.E.2d 202,
205 (1991).
"Malice . . . is the element that distinguishes [murder]
from manslaughter." Moxley v. Commonwealth, 195 Va. 151, 157,
77 S.E.2d 389, 393 (1953). That distinction is explained as
follows:
Every malicious homicide is murder.
Manslaughter, on the other hand, is the
unlawful killing of another without malice.
To reduce a homicide from murder to
voluntary manslaughter, the killing must
have been done in the heat of passion and
upon reasonable provocation.
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Heat of passion is determined by the
nature and degree of the provocation, and
may be founded upon rage, fear, or a
combination of both. Malice and heat of
passion are mutually exclusive; malice
excludes passion, and passion presupposes
the absence of malice.
A plea of self-defense and a claim of
provoked heat of passion do not conflict
with each other.
Generally, whether a killing was done in
the heat of passion upon reasonable
provocation is a jury question. "Only when
the trial court, giving the defendant the
benefit of every reasonable inference from
the evidence, can say that the minds of
reasonable men could not differ does the
question become [one] of law."
Barrett v. Commonwealth, 231 Va. 102, 105-06, 341 S.E.2d 190,
192-93 (1986) (citations omitted).
Viewed in the light most favorable to the Commonwealth,
Harward v. Commonwealth, 5 Va. App. 468, 479, 364 S.E.2d 511,
516 (1988), the evidence proved Tratzinski struck the back of
Johnson's head five times with an object, causing "impressed
skull fractures." He struck the sides of Johnson's head
seventeen times and struck Johnson's neck so many times that the
pathologist could not quantify the number of wounds. The blows
to the neck damaged Johnson's arteries and transected his
trachea, muscles, thyroid, and cartilage. The brutal and
vicious nature of the killing is evidence from which the trial
judge could have inferred malice. See Near v. Commonwealth, 202
Va. 20, 32, 116 S.E.2d 85, 93 (1960) (holding that a killing
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caused by vicious blows that caused "a gouge" in the throat was
unjustified by the claimed provocation and was not evidence of
sudden killing in the heat of passion).
The evidence also proved Tratzinski used an instrument to
kill Johnson. The instrument, which he said was a hammer, was
last held by Tratzinski and never found. "'"A deadly weapon is
one which is likely to produce death or great bodily injury from
the manner in which it is used, and whether a weapon is to be
regarded as deadly often depends more on the manner in which it
has been used than on its intrinsic character. . . ."'"
Quintana v. Commonwealth, 224 Va. 127, 140, 295 S.E.2d 643, 649
(1982) (citations omitted). In view of the manner in which
Tratzinski used the instrument to kill Johnson, the judge was
entitled to find that it was a deadly weapon. See id. (holding
that, in view of "the manner in which it was used, and the
result of its use, . . . the hammer was a deadly weapon").
Indeed, the principle is well established that "[t]he trier of
fact may infer malice from the deliberate use of a deadly weapon
unless the evidence raises a reasonable doubt whether malice
existed." Elliot v. Commonwealth, 30 Va. App. 430, 436, 517
S.E.2d 271, 274 (1999).
We hold that the evidence was sufficient to establish a
prima facie showing of malice.
[W]hen the Commonwealth makes a prima facie
showing that malice exists, it thereby
establishes prima facie that heat of passion
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is absent. In a given situation, the
accused, without producing evidence, may be
entitled to an instruction on manslaughter,
or even to a verdict on that lesser charge,
if it can reasonably be inferred from the
Commonwealth's evidence that he acted in the
heat of passion. Where the Commonwealth's
evidence does not permit such an inference,
however, the burden of production shifts to
the accused. [If] . . . he produces some
credible evidence that he acted in the heat
of passion, he is entitled to an instruction
on manslaughter and also, if the evidence as
a whole raises a reasonable doubt that he
acted maliciously, to a verdict on the
lesser charge of homicide.
Hodge v. Commonwealth, 217 Va. 338, 345, 228 S.E.2d 692, 697
(1976).
The salient evidence that Tratzinski relies upon to support
his claim of heat of passion is his testimony that Johnson
confronted him with a hammer and then initiated an attack by
swinging the hammer at him. Tratzinski testified that he feared
for his life, attempted to deflect the hammer, and fought
Johnson for control of the hammer. After gaining control of the
hammer, he killed Johnson in a struggle.
The evidence is not inconsistent with Tratzinski's
testimony that Johnson came to his home voluntarily to engage in
a sexual encounter with Tratzinski and that Johnson voluntarily
disrobed. In his "role of judging witness credibility,"
however, the trial judge was "entitled to disbelieve the
self-serving testimony" of Tratzinski about the events that
followed. Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500
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S.E.2d 233, 235 (1998). Tratzinski's version of events that led
to the brutal killing is a matter that rested solely upon the
credit the trial judge determined to give to his testimony. No
other evidence in the record supports Tratzinski's testimony of
a provocation that justified his brutal response. Although
Tratzinski was injured in the course of the event, those
injuries are not inconsistent with an unprovoked killing.
Moreover, the trial judge had to weigh Tratzinski's
testimony that he remembered nothing after the struggle against
the evidence that indicates Tratzinski attempted to conceal his
participation in the killing by hiding Johnson's body in another
location. In addition, proof that cocaine was found on the
couch on the patio and inside a bloody towel in the attic was
evidence from which the trial judge could conclude that other
circumstances existed beyond Tratzinski's explanation. The
weapon also was not evidenced to support Tratzinski's claim. In
short, the trial judge had "the right to reject that part of the
evidence believed . . . to be untrue and to accept that found
. . . to be true." Belton v. Commonwealth, 200 Va. 5, 9, 104
S.E.2d 1, 4 (1958). Because the trial judge was not required to
accept Tratzinski's version of the killing, we hold that the
evidence did not raise a reasonable doubt about the existence of
malice.
"The authorities are replete with definitions of malice,
but a common theme running through them is a requirement that a
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wrongful act be done 'wilfully or purposefully.'" Essex v.
Commonwealth, 228 Va. 273, 280, 322 S.E.2d 216, 220 (1984)
(citation omitted). Tratzinski admitted to the police that he
beat Johnson. The evidence proved his assault on Johnson was
vicious and brutal. Although he said Johnson attempted to
assault him, no evidence beyond Tratzinski's testimony supports
his version of the events. In view of all the circumstances,
the trial judge could find beyond a reasonable doubt that the
killing was malicious. "Malice excludes passion." Belton, 200
Va. at 10, 104 S.E.2d at 5. Thus, the evidence was sufficient
to sustain a finding beyond a reasonable doubt of second degree
murder.
III.
Tratzinski contends the evidence proved he acted in
self-defense. We agree with the Commonwealth that the record
does not contain adequate evidence of self-defense to raise a
reasonable doubt about his guilt.
"Self-defense is an affirmative defense which the accused
must prove by introducing sufficient evidence to raise a
reasonable doubt about his guilt. Whether an accused proves
circumstances sufficient to create a reasonable doubt that he
acted in self-defense is a question of fact." Smith v.
Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993)
(citations omitted).
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Tratzinski's testimony alone supports his self-defense
argument. The trial judge disbelieved his testimony and could
conclude that other evidence did not suggest Johnson actually
attacked him. Thus, absent any credible evidence that created a
reasonable doubt, the evidence was sufficient to support the
conviction of second degree murder.
Accordingly, we affirm the conviction.
Affirmed.
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