Bell v. Com., 0080-84

• Decision Date: 18 March 1986
• Docket Number: No. 0080-84,0080-84
• Parties: Richard Keith BELL v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 654

341 S.E.2d 654

2 Va.App. 48

Richard Keith BELL v. COMMONWEALTH of Virginia.

Record No. 0080-84.

Court of Appeals of Virginia.

March 18, 1986.

Vincent A. Bertolini, Norfolk, for appellant.

Thomas C. Daniel, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.

Present: BAKER, BARROW and HODGES, JJ.

BAKER, Judge.

This is an appeal by Richard Keith Bell (Bell) from a judgment of the Circuit Court of the City of Norfolk which approved a jury verdict convicting Bell of second-degree murder and the use of a firearm in the commission of a felony. Bell first alleges that the trial court erred in holding that the evidence was sufficient to convict him of second-degree murder and in ruling that his claim of self-defense did not as a matter of law excuse or justify his shooting and fatally wounding Kenton Dean Smith (decedent). He further alleges that even if the trial court was correct in those rulings, it erred when it failed to properly instruct the jury on the issue of self-defense. We find that both contentions are without merit and affirm.

There was substantial disparity in the testimony presented at trial; however, because the jury found adversely to Bell, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the Commonwealth. Stockton v. Commonwealth, 227 Va. 124, 145-46, 314 S.E.2d 371, 385, cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984); Patler v. Commonwealth, 211 Va. 448, 457, 177 S.E.2d 618, 624 (1970), cert. denied, 407 U.S. 909, 92 S.Ct. 2445, 32 L.Ed.2d 682 (1972). Thusly viewed that evidence is as follows:

During the early morning hours of Sunday, March 11, 1984, Bell fired the shot that fatally wounded the decedent. The medical examiner established decedent's cause of death as internal bleeding stemming from a single gunshot wound to the chest. The bullet, recovered inside decedent's chest, traversed his chest from right to left. It injured the lungs, ribs, vertebra and spinal cord. The medical examiner opined that the spinal cord injury would have caused decedent to fall down immediately upon receiving the wound.

For several years prior to March 1984, Bell and decedent had been rivals in a triangle consisting of those two and Patricia Lee Smith (Patricia). In that affair, decedent had prevailed and he and Patricia were married in November 1981. The marriage was not successful. In February 1983, the parties separated and Patricia filed for divorce. The divorce was never finalized.

During this period, Bell moved to California. After Patricia's separation from the decedent, she resumed her relationship with Bell, including a visit to California to see him. Shortly after her visit she and Bell returned to Norfolk, Virginia, and the triangle was revived.

At the beginning of the renewed rivalry, angry and threatening words were passed between the men and from Bell to Patricia. The threatening words heightened in mid-January 1984 when Patricia's interest again favored decedent as they began to consider reconciliation. Approximately one month prior to decedent's death, Patricia told Bell of her intent and he answered her by saying: "[I]f you go back to Kenton (decedent), you are a fool and I am going to kill him and you, too." This threat was repeated to Patricia by Bell at her place of work on March 10, 1984, the evening immediately prior to the firing of the shot which fatally wounded decedent. Patricia repeatedly asked Bell to leave decedent and her alone.

During the time of the latest rivalry, Bell purchased a .380 caliber automatic pistol and carried it in the glove compartment of his van. It was this gun that fired the fatal shot.

Decedent arrived at Patricia's place of employment around 11:45 p.m. on March 10, 1984, and assisted her in stocking merchandise and closing the store. The two departed together between 12:30 a.m. and 12:45 a.m. on March 11, 1984. Upon their departure, decedent handed Patricia a .22 caliber pistol and asked that she put it in her purse. They traveled to the parking lot of a local tavern adjacent to East Little Creek Road. Patricia then placed the pistol on the vehicle's front seat. She testified that she placed the pistol on the seat in anticipation of locking it in the trunk when they entered the tavern. They delayed entering the tavern until they finished consuming cans of beer they had opened.

As they drank together, Patricia told decedent that she thought she saw Bell's van pass by, traveling east on Little Creek Road. He then drove their car from the tavern lot and into eastbound traffic. The two lost sight of what they thought was Bell's van and returned to the tavern lot.

On two additional occasions that night, Bell returned to the area of the tavern lot where decedent and Patricia were parked. Each time they made an attempt to follow Bell's van but failed to find it. They then decided to abandon the chase and selected a different place to park. They drove to and parked on a bank lot away from the tavern. Patricia then sighted Bell driving his van past the bank lot. She observed him turn his vehicle, jump the median strip while making a U-turn, and drive into the bank lot where she and the decedent were parked.

As Bell drove onto the lot, seated beside him was his friend and passenger, Eddie Copeland. Bell asked Copeland to remove the gun from the van's glove compartment. The loaded gun was placed on the van's floor next to Bell's seat. He proceeded to drive in circles around decedent's car, calling out insulting words and daring decedent to show "[w]hat he was going to do about it." As he circled their car, both decedent and Patricia asked Bell to leave them alone. Instead, Bell parked his vehicle parallel to decedent's car approximately twenty-five feet away, with the motor still running. He then took the gun into his hand, cocked it and awaited the decedent's response to the challenge he had made.

The decedent left his car with his pistol held by his side, and took two or three steps toward Bell's van. Bell, still seated behind the wheel of his van with the motor running, raised his gun and fired at the decedent, inflicting the fatal wound. Bell immediately drove his vehicle from the lot. A passing police officer heard gun shots and observed Bell drive from the lot at a high rate of speed. He pursued and apprehended Bell a short while later.

Bell's testimony was inconsistent. At one point he claimed that he entered the bank lot because he was afraid that the decedent might be doing some harm to Patricia. Later he stated that he entered the lot because the decedent had been calling him on the telephone and threatening his life. Bell gave a transcribed statement to the Norfolk police in which he confirmed the latter as his reason for entering the bank parking lot. In that statement he also described the encounter as a "freak accident" but acknowledged circling decedent's car.

In his testimony, Copeland admitted telling the police that Bell had followed decedent's vehicle for approximately thirty minutes prior to the shooting and acknowledged that Bell had used vile and taunting language toward decedent while circling decedent's vehicle.

I.

Bell argues that there was not sufficient evidence at trial to support a verdict of second-degree murder. The record disclosed that the Commonwealth proved that Bell was the person who deliberately fired the shot which fatally wounded the decedent.

When the Commonwealth has proved the commission of a homicide, and has pointed out the accused as the criminal agent, then it may rest its case, and unless the accused shows circumstances of justification, alleviation or excuse, a verdict of murder in the second degree will be warranted.

Boone v. Commonwealth, 195 Va. 708, 712, 80 S.E.2d 412, 414 (1954) (quoting Johnson v. Commonwealth, 188 Va. 848, 853-54, 51 S.E.2d 152, 154 (1949)); see also Braxton v. Commonwealth, 195 Va. 275, 279, 77 S.E.2d 840, 842 (1953).

In Virginia, every unlawful homicide is "presumed" to be murder in the second-degree. Blankenship v. Commonwealth, 193 Va. 587, 591, 70 S.E.2d 335, 337 (1952). The so-called "presumption," however amounts to no more than an "inference" which the trier of fact is permitted, but is not required, to draw from proven facts. Hodge v. Commonwealth, 217 Va. 338, 343, 228 S.E.2d 692, 695 (1976). The constitutional guarantee of due process is protected if the evidence necessary to invoke the presumption or inference is sufficient for a rational juror to find the presumed or inferred fact beyond a reasonable doubt. Hodge, 217 Va. at 344, 228 S.E.2d at 695.

Even with the operation of the presumption or inference, the ultimate burden of persuasion of defendant's guilt remains upon the Commonwealth throughout the trial and never shifts; however, the burden of producing some evidence contesting the otherwise presumed or inferred fact may shift to the defendant once he is shown to be the criminal agent who killed the decedent. Id. at 341-42, 228 S.E.2d at 695.

The trial court apparently concluded that the defendant had met his burden of producing some evidence contesting the presumption or inference of second-degree murder since it did instruct the jury on the issues of excusable or justified homicide. It does not follow, however, that just because the burden of producing some evidence of justification or excuse has been met that the Commonwealth, as a matter of law, has failed to carry its burden of proof on the question of guilt. "If the evidence so offered by the accused is shown to be false, and is insufficient to cause the jury to have a reasonable doubt as to his guilt, the case so made by the Commonwealth is not overcome, and a verdict of second-degree murder is still warranted." Johnson v. Commonwealth, 188 Va. 848, 853-54, 51 S.E.2d 152, 154 (1949). If from the improbability of his story and his manner of relating it, or from the contradictions within itself...