David Lee Jones v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia
DAVID LEE JONES
MEMORANDUM OPINION * BY
v. Record No. 1393-97-3 JUDGE RUDOLPH BUMGARDNER, III
JUNE 16, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
William N. Alexander, II, Judge
J. Patterson Rogers, 3rd (Jon I. Davey, on
brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
David Lee Jones was indicted for murder, use of a firearm in
the commission of murder, and possession of a firearm after
having been convicted of a felony. The defendant pleaded guilty
to possession of a firearm after having been convicted of a
felony and not guilty to the other two charges. A jury convicted
him of second degree murder and use of a firearm in the
commission of murder. He appeals the conviction on the grounds
there was insufficient evidence to prove murder. Finding no
error, we affirm the judgment of conviction.
Where an appellant challenges the sufficiency of the
evidence, the evidence must be viewed in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
fairly deducible from it. See Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975). This Court does not
substitute its judgment for that of the trier of fact. See Cable
v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992).
Unless that finding is plainly wrong, or without evidence to
support it, it shall not be disturbed on appeal. Code
§ 8.01-680; George v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d
12, 20 (1991), cert. denied, 503 U.S. 973 (1992).
The victim, Marguerite Whitfield, was a seventeen-year-old
girlfriend of the defendant. She picked him up at 4:30 p.m.
after she finished work. They went to her mother's trailer.
Justin Rowland, a twelve year old who lived in the trailer park,
testified he heard running through the trailer, saw the back door
open and then close. Then he heard hollering before and after
running, a "pop" within 10-15 seconds, and more running. Another
resident of the trailer park heard a commotion and heard the
defendant yell, "I didn't mean to do it." Robert Paggans heard
the defendant yell for help, observed blood on his shirt and
heard him hysterically say, "I shot my girlfriend, it was an
accident."
The police found the victim on the floor of the trailer.
Six inches from her head was a handgun, a 25-caliber automatic,
with a live projectile stuck in the action of the gun holding the
receiver half way back. The defendant made three statements to
the police. On the day of the shooting he told them that he had
-2-
brought the loaded pistol to the trailer. He placed it on the
counter. The victim became distraught over breaking up with him,
picked up the gun, and said she intended to kill herself. Before
he could reach her, the gun fired and she fell to the floor.
Later in that first interview, the defendant told police that he
had tried to grab the gun and it went off. Eventually, he said
he pulled the gun and it went off.
At a second interview, the defendant told police that he was
going to scare the victim. He pulled the gun, pulled the hammer
back, and it went off. He admitted pointing the gun, but said it
was not loaded. During a third statement he repeated the version
he had given at the second interview.
The medical examiner testified that a single gunshot wound
killed the victim. It pierced her temple and traveled through
her brain. The muzzle of the gun was touching her skin at the
time it discharged.
The defendant testified in his defense. He stated that he
had borrowed the gun from his brother because he felt threatened,
although he never checked to see if the gun was loaded. He did
not specify the reasons for the threat against him. Jones went
on to state that he had never fired the weapon and was not
familiar with its operation. He equivocated about whether the
gun was loaded. Eventually he stated that he knew there were
bullets in the magazine but did not know that one was chambered.
Jones said he was messing around with the gun. When asked why
-3-
he was doing that, he answered, "I don't know why." On
cross-examination he admitted pointing the gun at the victim and
trying to scare her. He pulled the hammer back to dry fire it,
but he insisted that he did not know a round was in the chamber.
He had no explanation for why he was dry firing it. The
defendant did not recall making his first statement to police and
denied that he and the victim were breaking up.
The evidence in this case presents a classic case of
conflicting, at times confusing, pieces of evidence from which
differing inferences may be made and varying conclusions drawn.
Determining what happened in fact from the pieces of evidence
presented at trial can only be determined by the jury
conscientiously hearing and evaluating the credibility, weight
and value of that evidence.
Suffice it to say, that the evidence and the
reasonable inferences therefrom were
sufficient to present the question, whether
the death of [the victim] was a result of the
criminal agency of the defendant, or was
merely an accident for which the defendant
was not responsible. If the jury believed
that the evidence disclosed the criminal
agency of the defendant, they were further to
ascertain, under the instructions, the grade
of the offense. These issues were peculiarly
for the consideration of a jury.
Harrison v. Commonwealth, 183 Va. 394, 401, 32 S.E.2d 136, 140
(1944).
There is evidence from which reasonable men could find
beyond a reasonable doubt that the defendant murdered Marguerite
Whitfield in the second degree. The weapon discharged the fatal
-4-
bullet when it was pressed against the victim's head. The
defendant's own words put the gun in his hand when it discharged.
The permissible inference that malice may be found from the
deliberate use of a deadly weapon, Satcher v. Commonwealth, 244
Va. 220, 257, 421 S.E.2d 821, 843 (1992), cert. denied, 507 U.S.
933 (1993), alone is sufficient to permit the jury to find the
act was done with malice.
Finding that there is sufficient credible evidence to
support the finding of the jury, we affirm.
Affirmed.
-5-
Benton, J., dissenting.
I would hold that the evidence in this record is
insufficient to support a finding of malice. Although David Lee
Jones used a firearm to kill the victim, the circumstances were
such that the jury could not have inferred beyond a reasonable
doubt that Jones acted with malice.
"Malice is an essential element of murder and is what
distinguishes it from the crime of manslaughter." Canipe v.
Commonwealth, 25 Va. App. 629, 642, 491 S.E.2d 747, 753 (1997).
"Express malice is evidenced when 'one person
kills another with a sedate, deliberate mind,
and formed design.' . . . Implied malice
exists when any purposeful, cruel act is
committed by one individual against another
without any, or without great provocation;
. . . ."
Essex v. Commonwealth, 228 Va. 273, 280, 322 S.E.2d 216, 220
(1984) (citations omitted). Implied malice "may only be
[inferred] from conduct likely to cause death or great bodily
harm, wilfully or purposefully undertaken." Id. at 281, 322
S.E.2d at 220. Thus, it necessarily follows that "if a killing
results from negligence, however gross or culpable, and the
killing is contrary to the defendant's intention, malice cannot
be [inferred]." Id. at 280, 322 S.E.2d at 220. "Whether or not
an accused acted with malice is generally a question of fact and
may be proved by circumstantial evidence." Canipe, 25 Va. App.
at 642, 491 S.E.2d at 753. However, the principle is well
established that "[i]n making the determination whether malice
-6-
exists, the fact-finder must be guided by the quality of the
defendant's conduct, its likelihood of causing death or great
bodily harm, and whether it was volitional or inadvertent."
Essex, 228 Va. at 282, 322 S.E.2d at 221.
The Commonwealth relied solely on circumstantial evidence to
prove malice. Direct evidence proved that Jones shot Marguerite
Whitfield, his romantic friend, but no direct evidence proved
that he did so maliciously. The jury could only have inferred
Jones' malicious state of mind through his use of a deadly
weapon. See Morris v. Commonwealth, 17 Va. App. 575, 578, 439
S.E.2d 867, 870 (1994) (trier of fact may infer malice from the
use of a deadly weapon unless the evidence raises a reasonable
doubt whether malice existed). No other evidence tended to prove
malice. Indeed, the evidence raised a reasonable doubt that
malice existed.
The only evidence concerning the events that led to the
shooting came from the statements and testimony of Jones. Jones
testified that he and Whitfield had been dating for two years.
The day before the killing, Jones and Whitfield had an argument;
however, they had resolved their differences that night. Jones
testified that on the day of the killing, Whitfield drove him
from a convenience store to Whitfield's mother's trailer where
they watched videos. Jones had a pistol in his back pocket while
he and Whitfield watched the videos.
Jones testified that his brother had given him the pistol
-7-
the previous day because Whitfield had told Jones that her cousin
and brother were threatening to harm him. She told him to "watch
his back." Jones testified that he had had "problems" with
Whitfield's cousin and brother. Jones also testified that he had
never handled this particular gun before, that he did not know if
the gun was loaded, and that he knew the magazine had bullets in
it because he assumed his brother wouldn't give him an empty gun
for protection.
Jones testified that after he and Whitfield watched videos,
they decided to go outside because it was hot in the trailer.
When he stood to go outside, Jones took the gun out of his pocket
and was "just messing around with it." As Jones and Whitfield
walked toward the back door, Whitfield told Jones to stop playing
with the gun. Jones told her "there weren't nothing in it" and
pulled the hammer back on the gun. He testified the gun "just
went off," killing Whitfield.
In a taped statement to the police after the incident, Jones
related several versions of the circumstances surrounding the
shooting. He said he had the gun because Whitfield's cousin had
accused him of informing the police of the cousin's drug
distributions. He initially stated Whitfield grabbed the gun
from the counter where Jones had left it after removing it from
his pocket. When Whitfield had the gun, she threatened to kill
herself and ran towards the back door. Jones ran after her.
However, the gun fired before he reached her. Later, Jones
-8-
stated that the gun fired when he tried to grab it from
Whitfield. Eventually, Jones told the police that he and
Whitfield were just playing and that he was displaying the gun to
scare her when the gun fired.
In a second taped interview, Jones stated that after he and
Whitfield watched videos, they began to walk to the door to go
outside because the trailer was hot. As they got to the door, he
removed the gun from his back pocket playfully to scare
Whitfield. He was "messing around" with the gun, pointing it at
her, and stating nothing was in it. He was about an arm's
distance away from her when he pulled the hammer, killing her.
In a third interview with police, he essentially related the same
events.
Although Jones' testimony and statements are confused and
somewhat contradictory, they provide the only evidence of the
events surrounding the shooting. Neither of the conflicting
versions tends to prove a malicious killing. Furthermore,
although the conflicting statements may raise a suspicion that
the killing occurred in another manner, "a suspicion of guilt,
however strong, or even a probability of guilt, is insufficient
to support a criminal conviction." Bishop v. Commonwealth, 227
Va. 164, 170, 313 S.E.2d 390, 393 (1984).
This evidence fails to prove beyond a reasonable doubt that
Jones "willfully and deliberated engaged in a cruel act that was
likely to cause great bodily harm to the victim." Canipe, 25 Va.
-9-
App. at 644, 491 S.E.2d at 754. "[W]here the Commonwealth's
evidence as to an element of an offense is wholly circumstantial,
'all necessary circumstances proved must be consistent with guilt
and inconsistent with innocence and exclude every reasonable
hypothesis of innocence.'" Moran v. Commonwealth, 4 Va. App.
310, 314, 357 S.E.2d 551, 553 (1987) (citation omitted). This
evidence fails to exclude the reasonable hypothesis that Jones
acted "carelessly and negligently, but without malice." Mundy v.
Commonwealth, 144 Va. 609, 615, 131 S.E. 242, 244 (1926); see
also Essex, 228 Va. at 281, 322 S.E.2d at 220.
Because I believe a reasonable jury could not have found
malice under these circumstances, I would reverse the conviction
and remand for a new trial.
-10-