James Douglas Riley v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Argued at Richmond, Virginia
JAMES DOUGLAS RILEY
v. Record No. 1781-94-2 MEMORANDUM OPINION * BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA DECEMBER 29, 1995
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Prescott L. Price, for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
James Douglas Riley appeals his conviction for second degree
murder in the death of Chamont Brownlee, a seven-month-old
infant. Riley argues that there was insufficient evidence to
support his conviction, that the trial judge erred in failing to
consider certain evidence, and that the trial judge improperly
considered his own opinion on water temperature as a basis of the
verdict. We affirm the conviction.
On the evening of January 22, 1994, Bridget Brownlee left
her seven-month-old son, Chamont, in the care of her boyfriend
Riley. Also left with Riley were Chamont's brother Chris, two
years old, and his brother LaQuinn, seven years old. Chris was
Riley's son, but Chamont was not. Riley frequently complained to
Ms. Brownlee about the fact that Chamont was not his son.
According to Riley's statement to the police, both of the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
younger boys "messed on themselves" after their mother left and
he decided to give them a bath. He stated that he ran about six
inches of water, tested the temperature of the water, and placed
both children in the tub. He at first told police that he had
shut the water off before leaving the children in the tub, but
when it became apparent that the police did not believe his
account, he said that he might have left the water running. He
said that he went downstairs for several minutes, heard crying,
and went upstairs to find Chris beside the tub pointing, and
Chamont in the bathtub "laying on his side." The children had
been in Riley's care for less than an hour and a half.
Riley went to a neighbor's house to call 911, stayed at the
neighbor's for about twenty minutes, and then returned to the
apartment. He appeared upset, but would not tell his neighbors
what was wrong.
When Chamont arrived at the hospital, he had full thickness
burns over 90% of his body. The only areas spared were his
armpits, the back of his scalp, and a small area at the back of
the neck. According to the pathologist, the burns were
consistent with his being placed face down in the water.
The burn specialist testified that it would take
approximately fifteen seconds for water at a temperature of 120
degrees to burn a child so severely. At a lower temperature,
such burns would take longer. In the specialist's opinion,
Chamont's burns were the result of exposure to a very high
temperature for a short time. An engineer from the Richmond
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Redevelopment and Housing Authority tested the water in the
apartment and found that it could reach a temperature of 131
degrees.
The medical examiner who performed the autopsy agreed that
the burns were likely caused by a short period of exposure to
very hot water. He based this on Chamont's clenched position and
also the lack of any evidence of drowning.
In addition to the burns, Chamont had two bruised areas on
his head. Due to the extensive burns, the medical examiner could
not see the bruises until he began the autopsy. The bruises were
very severe -- the brain surface itself was bruised. The medical
examiner testified that these injuries would produce significant
behavior changes, and indeed were potentially fatal. The medical
examiner concluded that the most likely cause of death was a
combination of the burns and the head trauma. The trauma likely
took place between four and thirty-six hours before examination.
Chamont lived four hours after he arrived at the hospital.
Ms. Brownlee testified that Chamont had no bruises on his
head when she left the house and had behaved normally throughout
the day. Because the bruises had not yet been detected when
Riley was questioned, the police did not ask him to explain the
bruises.
I.
Riley was initially convicted of first degree murder. After
considering legal memoranda on first degree murder versus second
degree murder, the judge reduced the conviction to second degree
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murder, based on Rhodes v. Commonwealth, 238 Va. 480, 384 S.E.2d
95 (1989).
On appeal, we view the evidence in the light most favorable
to the Commonwealth, granting it all reasonable inferences fairly
deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975). The decision of the trial
court, sitting without a jury, is afforded the same weight as a
jury's verdict and therefore will not be disturbed on appeal
unless plainly wrong or without evidence to support it. Pugh v.
Commonwealth, 223 Va. 663, 667, 292 S.E.2d 339, 341 (1982).
To sustain a conviction for second degree murder, the
Commonwealth must prove an unlawful killing done with malice.
Wooden v. Commonwealth, 222 Va. 758, 762, 284 S.E.2d 811, 814
(1981). "'Malice inheres in the doing of a wrongful act
intentionally or without just cause or excuse, or as a result of
ill will.'" Id. (quoting Dawkins v. Commonwealth, 186 Va. 55,
61, 41 S.E.2d 500, 503 (1947)). Malice may be implied when any
purposeful, cruel act is committed by one individual against
another. Pugh, 223 Va. 663, 292 S.E.2d at 341.
Although second degree murder requires proof of malicious
intent, it does not require proof of specific intent to kill. If
it can be reasonably inferred from the evidence that the killer
intended to do great bodily harm, then the killer is guilty of
murder in the second degree. Rhodes v. Commonwealth, 238 Va.
480, 486, 384 S.E.2d 95, 98 (1989).
Here, considerable evidence exists to prove that Riley
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harbored malice when he killed Chamont. Two expert witnesses
testified that Chamont was burned as the result of being placed
face down in extremely hot water. Chamont also had received
trauma to his head so severe that the surface of his brain was
bruised. Riley was Chamont's sole caretaker during the period
when Chamont sustained these injuries. Riley acknowledged that
he placed Chamont in the water, and there is no evidence that
either of Chamont's brothers touched him during the period in
question.
The judge inferred that Riley committed the acts that
injured Chamont, and the evidence supports this inference to the
exclusion of any other reasonable hypothesis. Intentionally
submerging an infant in scalding water, even for a short time,
and striking him with force sufficient to injure the brain are
willful and cruel acts from which one can reasonably infer an
intent to cause great bodily harm or death. Also, Riley's
expressed ill-will toward Chamont because Chamont was not his
child shows a potential for malicious behavior toward Chamont.
Riley's son Chris, although he had also "messed himself" and was
purportedly placed in the bathtub, received no burns.
Riley maintains that the evidence does not preclude the
hypothesis that Chamont was injured accidentally. 1 In a case
based on circumstantial evidence, the circumstances proved must
1
The Commonwealth contends that Riley has conceded the
sufficiency of the evidence for second degree murder. We find no
merit in this contention.
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be consistent with guilt and exclude every reasonable hypothesis
of innocence. Cantrell v. Commonwealth, 229 Va. 387, 397, 329
S.E.2d 22, 28 (1985). However, "the Commonwealth is only
required to exclude hypotheses of innocence that flow from the
evidence, and not from the imagination of the accused's counsel."
Fordham v. Commonwealth, 13 Va. App. 235, 239, 409 S.E.2d 829,
831 (1991).
Here, the hypotheses of accidental injury suggested by the
defendant either have no factual basis in the record, are
directly contradicted by the medical evidence, or are based on
selective use of Riley's contradictory statements to the police.
As to the latter, where the defendant gives contradictory
accounts, the trial judge can reject the self-serving statements
and conclude that the defendant was lying to conceal his guilt.
Price v. Commonwealth, 446 S.E.2d 642, 647, 18 Va. App. 760, 768
(1994); Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d
95, 98 (1987) (en banc). The trial judge properly rejected the
hypotheses of accidental injury. Moreover, the trial judge's
finding that Riley placed Chamont in scalding water and that he
did so as a malicious act is amply supported by other evidence in
the record.
II.
The Commonwealth placed the transcript of Riley's police
interrogation into evidence. On defense counsel's motion and
over the Commonwealth's objection, the trial judge admitted the
videotape of Riley's interrogation into evidence as well. At the
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close of the evidence and during his summation, defense counsel
requested that the trial judge view the tape. The trial judge
refused, and decided the case immediately.
While defense counsel's requests that the court view the
tape were sufficient to preserve his objection, see Code
§ 8.01-384, we find no reversible error in the trial court's not
viewing the videotape because the evidence on the video was
merely cumulative of other evidence. The transcript of the
interrogation was placed in evidence and the detective testified
from the transcript. Riley has not identified a particular
statement omitted from the transcript that was relevant to his
defense. His primary objection to the court's failure to
consider the tape is that the tape showed his highly emotional
state during the latter part of the interrogation. However, this
point was brought out on cross-examination of the detective, and
the transcript itself indicates that Riley broke down during the
interview. The transcript contains Riley's statement that he
never meant to hurt Chamont, and the detective also testified
about Riley's denials. Therefore, the videotape was merely
cumulative of other evidence, and the court's failure to view it
was not reversible error. See Pace v. Richmond, 231 Va. 216,
227, 343 S.E.2d 59, 65 (1986).
During defense counsel's summation, he stated that the water
could have been too hot by accident. The trial judge responded
that water at 120 degrees is steaming, to which defense counsel
responded that he did not know whether it was or not. The trial
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judge stated that he was not supposed to leave his common sense
at home, and defense counsel responded "No, Your Honor."
When the trial judge made oral findings of fact, he again
stated that water steams at 120 degrees. When the judge finished
his findings, defense counsel asked that his exception to the
findings be noted, but he made no objection to any particular
finding. Defense counsel now argues that the court erred in
taking judicial notice of the appearance of water at 120 degrees.
Defense counsel did not object when the court first noted
the temperature at which water steams, and indeed seemed to
acquiesce in the judge's comment that it was a matter of common
sense. Acquiescence does not preserve an objection. See Boblett
v. Commonwealth, 10 Va. App. 640, 650-651, 396 S.E.2d 131,
136-137 (1990). Also, defense counsel made only a general
objection after the findings of fact. Such objections are not
sufficient to satisfy Rule 5A:18.
For these reasons, we affirm the judgment of the circuit
court.
Affirmed.
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