Bailey v. Com.

• Decision Date: 26 April 1985
• Docket Number: No. 840357,840357
• Citation: 329 S.E.2d 37,229 Va. 258
• Parties: Joseph A. BAILEY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 37

329 S.E.2d 37

229 Va. 258

Joseph A. BAILEY v. COMMONWEALTH of Virginia.

Record No. 840357.

Supreme Court of Virginia.

April 26, 1985.

David J. Damico, Martin R. Willis, Roanoke (Willis, Damico & Apgar, Roanoke, on briefs), for appellant.

Margaret Poles Spencer, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., Russell C. Williams, Asst. Atty. Gen., on brief), for appellee.

Present: All the Justices.

CARRICO, Chief Justice.

Indicted for involuntary manslaughter, Joseph A. Bailey was convicted in a jury trial and sentenced in accordance with the jury's verdict to serve six months in jail and to pay a fine of $1,000. The question on appeal is whether it was proper to convict Bailey of involuntary manslaughter when, in his absence, the victim was killed by police officers responding to reports from Bailey concerning the victim's conduct.

The death of the victim, Gordon E. Murdock, occurred during the late evening of May 21, 1983, in the aftermath of an extended and vituperative conversation between Bailey and Murdock over their citizens' band radios. During the conversation, which was to be the last in a series of such violent incidents, Bailey and Murdock cursed and threatened each other repeatedly.

Bailey and Murdock lived about two miles apart in the Roanoke area. On the evening in question, each was intoxicated. Bailey had consumed a "twelve-pack" of beer and a "fifth of liquor" since mid-afternoon; a test of Murdock's blood made during an autopsy showed alcoholic content of ".271% ... by weight." Murdock was also "legally blind," with vision of only 3/200 in the right eye and 2/200 in the left. Bailey knew that Murdock had "a problem with vision" and that he was intoxicated on the night in question.

Bailey also knew that Murdock owned a handgun and had boasted "about how he would use it and shoot it and scare people off with it." Bailey knew further that Murdock was easily agitated and that he became especially angry if anyone disparaged his war hero, General George S. Patton. During the conversation in question, Bailey implied that General Patton and Murdock himself were homosexuals.

Also during the conversation, Bailey persistently demanded that Murdock arm himself with his handgun and wait on his front porch for Bailey to come and injure or kill him. Murdock responded by saying he would be waiting on his front porch, and he told Bailey to "kiss [his] mother or [his] wife and children good-bye because [he would] never go back home."

Bailey then made two anonymous telephone calls to the Roanoke City Police Department. In the first, Bailey reported "a man ... out on the porch [at Murdock's address] waving a gun around." A police car was dispatched to the address, but the officers reported they did not "see anything."

Bailey called Murdock back on the radio and chided him for not "going out on the porch." More epithets and threats were exchanged. Bailey told Murdock he was "going to come up there in a blue and white car" ¹ and demanded that Murdock "step out there on the ... porch" with his gun "in [his] hands" because he, Bailey, would "be there in just a minute."

Bailey telephoned the police again. This time, Bailey identified Murdock by name and told the dispatcher that Murdock had "a gun on the porch," had "threatened to shoot up the neighborhood," and was "talking about shooting anything that moves." Bailey insisted that the police "come out here and straighten this man out." Bailey refused to identify himself, explaining that he was "right next to [Murdock] out here" and feared revealing his identity.

Three uniformed police officers, Chambers, Beavers, and Turner, were dispatched to Murdock's home. None of the officers knew that Murdock was intoxicated or that he was in an agitated state of mind. Only Officer Beavers knew that Murdock's eyesight was bad, and he did not know "exactly how bad it was." Beavers also knew that Murdock would get "a little 10-96 (mental subject) occasionally" and would "curse and carry on" when he was drinking.

When the officers arrived on the scene, they found that Murdock's "porch light was on" but observed no one on the porch. After several minutes had elapsed, the officers observed Murdock come out of his house with "something shiny in his hand." Murdock sat down on the top step of the porch and placed the shiny object beside him.

Officer Chambers approached Murdock from the side of the porch and told him to "[l]eave the gun alone and walk down the stairs away from it." Murdock "just sat there." When Chambers repeated his command, Murdock cursed him. Murdock then reached for the gun, stood up, advanced in Chambers' direction, and opened fire. Chambers retreated and was not struck.

All three officers returned fire, and Murdock was struck. Lying wounded on the porch, he said several times, "I didn't know you was the police." He died from "a gunshot wound of the left side of the chest." In the investigation which followed, Bailey stated that he was "the hoss that caused the loss."

In an instruction granted below and not questioned on appeal, the trial court told the jury it should convict Bailey if it found that his negligence or reckless conduct was so gross and culpable as to indicate a callous disregard for human life and that his actions were the proximate cause or a concurring cause of Murdock's death. Bailey concedes that the evidence at trial, viewed in the light most favorable to the Commonwealth, would support a finding that his actions constituted negligence so gross and culpable as to indicate a callous disregard for human life. He contends, however, that he "did not kill Murdock."

Bailey argues that his conviction can be sustained only if he was a principal in the first degree, a principal in the second degree, or an accessory before the fact to the killing of Murdock. The Attorney General concedes that Bailey was not a principal in the second degree or an accessory before the fact, but maintains that he was a principal in the first degree.

Countering, Bailey argues he was not a principal in the first degree because only the immediate perpetrators of crime occupy that status. Here, Bailey says, the immediate perpetrators of Murdock's killing were the police officers who returned Murdock's fire. ² He was in his own home two miles away, Bailey asserts, and did not control the actors in the confrontation at Murdock's home or otherwise participate in the events that occurred there. Hence, Bailey concludes, he could not have been a principal in the first degree.

We have adopted the rule in this Commonwealth, however, that one who effects a criminal act through an innocent or unwitting agent is a principal in the first degree. Collins v. Commonwealth, 226 Va. 223, 233, 307 S.E.2d 884, 890 (1983) (undercover policewoman ruled innocent agent to collect fees...