Bowling v. Com., 1572-88-3

• Citation: 12 Va.App. 166,403 S.E.2d 375
• Decision Date: 02 April 1991
• Docket Number: No. 1572-88-3,1572-88-3
• Parties: , 3 A.L.R.5th 1119 Thomas Franklin BOWLING v. COMMONWEALTH of Virginia. Record
• Court: Court of Appeals of Virginia

Page 375

403 S.E.2d 375

12 Va.App. 166, 3 A.L.R.5th 1119

Thomas Franklin BOWLING v. COMMONWEALTH of Virginia.

Record No. 1572-88-3.

Court of Appeals of Virginia.

April 2, 1991.

Royston Jester, IV (Jester and Jester, P.C., on brief), Lynchburg, for appellant.

Leah A. Darron, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and KEENAN and MOON, JJ.

KEENAN, Judge.

Thomas Bowling appeals his convictions in a bench trial for capital murder and use of a firearm during the commission of murder. He raises the following issues on appeal: (1) whether the trial court erred in prohibiting him from introducing evidence of his mental capacity at the time of the offense; (2) whether the evidence was sufficient to establish premeditation; (3) whether the trial court erred in admitting statements made by the victim immediately after the shooting, under the excited utterance exception to the hearsay rule; (4) whether the trial court erred in admitting statements made by the victim while at the hospital, under the dying declaration exception to the hearsay rule; and (5) assuming that the victim's statements at the hospital were admissible, whether the trial court erred in relying on these statements in determining his guilt on the firearms charge. We find no error in the rulings of the trial court and accordingly affirm Bowling's convictions.

I.

This case arises from a robbery at a Fisca Station on Timberlake Road in Lynchburg on December 24, 1987. The victim, Glenn West, was the manager of the station.

At 8:13 p.m., West called the Lynchburg 911 operator and stated that he had been shot in the stomach with either a .25 or a .32 and robbed by a black male who ran off in the direction of the Fort Cinema. Kim Layne, another 911 operator, called West back at 8:16 p.m. A tape of the first 911 call was admitted into evidence.

Mrs. West arrived at the station at 8:25 pursuant to arrangements she had made with West earlier in the day. When she arrived, there were several police vehicles, an ambulance, and medical personnel at the station. West was inside, lying on his back. West was taken out of the station on a stretcher. Mrs. West testified that he was in great pain at the time.

While at the hospital, West told his wife that he could not breathe. He asked her to say a prayer for him and requested a minister, requests that Mrs. West stated were out of character for West since he was not a religious person. West then told her that he was cold and that he could not stand the pain in his stomach.

After Mrs. West wrapped a blanket around him, he wished her Merry Christmas and told her that the presents for her and their daughter were on the table at the station. Mrs. West told him they would wait Christmas until he got home, but West responded that he would not see Christmas. Mrs. West testified that she begged him not to die. West told her to take care of their daughter and go on the best that they could. He then called his daughter over, wished her a Merry Christmas, and told her to be strong and take care of her mother.

While West was talking with his daughter, the minister arrived. West told the minister that he wanted to be saved and they prayed together. Mrs. West testified that she had never seen her husband pray before. Shortly thereafter, Officer McCane spoke with West about the robbery at the station.

West was then taken into surgery. He did not regain consciousness after surgery and died at approximately 2:50 a.m. The cause of death was determined to be hemorrhage and shock secondary to a .25 caliber gunshot wound to the abdomen.

While at the hospital, West told his wife that the robber had called him by name and knew that he was the manager of the station. When Officer McCane spoke with West, West indicated that while he was waiting for his wife to pick him up at the station, he saw somebody walking across the station driveway. The individual called West by name, asked him if he was the manager, and then asked him if he could open the safe. West told the individual that he was the manager but that he could not open the safe.

West informed McCane that the robber then told West to open the safe or he would shoot him. West told the robber that he could not open the safe because it had a time delay lock on it. The robber again told West to open the safe or he would shoot him. West begged the robber not to shoot him, then reached into his pocket and gave him approximately $50 that he had in his pocket. He again told the robber that he could not get the safe open and begged him not to shoot. The robber responded, "Well, I guess I will have to kill you then," and shot West in the stomach.

West described the individual who shot and robbed him as wearing a dark jacket and blue jeans, with short hair and no facial hair. He said the robber had a . 22 or .25 automatic pistol and that he did not remember having seen the individual prior to that evening. West also told McCane that he saw a yellow van with mag wheels and some type of rack on top go up and down the street several times.

Steve Johnson testified that several days before Christmas Eve, he had spoken with Dock Hall about robbing the Fisca station. On the morning of the robbery, Hall, James Ward, Bowling and Tracy Brown pulled up in a yellow van and Brown told Johnson that Bowling had agreed to rob the station. About 7:00 p.m. that evening, Hall and Ward picked up Johnson and Brown in the van and drove to pick up Bowling. Thereafter, Ward drove the van to the Fort Cinema, circled around the parking lot a few times and parked across the street from the Fisca station.

While they were all in the van, Hall told Bowling that the manager's name was West. Hall also told Bowling that after the robbery, he should run through the Cinema, go across the parking lot, and meet the van in front of the church. Ward gave Bowling a gun and told him that it was loaded. The gun was not cocked when Ward gave it to Bowling. Johnson testified that Bowling asked Hall: "What if I have to jinx him?" Hall responded: "I am not telling you to shoot him, but if you have to, shoot him. ..."

Bowling exited the van and crossed the street toward the station. Ward drove the van from the Fort Cinema to the church. Within five or six minutes, Bowling returned to the church. He told Hall that several customers came into the station so he just bought a soda and left. After some discussion, Bowling agreed to try again.

After Bowling left, Ward drove the van along Timberlake Road, passing the station several times, before returning to the church. Bowling came back to the van, threw about $50.00 on the table and stated that he shot West. He told the others that West could not open the safe because it had some kind of lock on it. Bowling then gave the gun to Hall, who unloaded it. Johnson testified that as he unloaded the gun, Hall indicated that he had loaded the gun with seven rounds and only four remained.

Officer McCane spoke with Bowling at the Lynchburg police department on January 22, 1988. A tape recording of the conversation was admitted into evidence. Bowling told McCane that Ward, Hall and Brown picked him up in a black and yellow van on Christmas Eve. They drove over to the Fort Cinema, across the street from the Fisca station and Ward gave Bowling a .25 automatic.

Bowling stated that when he encountered West outside the station, he told him to open up the safe. Bowling indicated that he had the gun by his side. West told him that the safe could only be opened in the morning. Bowling again told West to open the safe, and West said that he could not. Bowling then asked West how much money he had in his pocket. West said about $45.00. Bowling told West to give him the money. He stated that as he was putting the gun back into his pocket, it went off, hitting West in the stomach. Bowling then ran across the street to the cinema and cut through the church yard.

Prior to trial, Bowling moved the trial court to admit evidence at trial concerning his mental state at the time of the offense. Counsel proffered that the evidence she sought to admit included the fact that Bowling functioned at the lower limits of the borderline range of the Adult Intelligence Scale and that Bowling did not have developed problem solving skills or elaborate abstract thinking capability. The trial court denied Bowling's motion.

II.

Bowling argues that the trial court erred in denying his motion to introduce psychiatric evidence bearing on his mental state at the time of the offense. He claims that evidence of diminished capacity is relevant to the elements of premeditation and deliberation involved in capital cases. Thus, the trial court should have considered evidence of Bowling's borderline mental capacity in determining whether or not he acted with premeditation.

In Stamper v. Commonwealth, 228 Va. 707, 324 S.E.2d 682 (1985), the Supreme Court held:

For the purposes of determining criminal responsibility a perpetrator is either legally insane or sane; there is no sliding scale of insanity. The shifting and subtle gradations of mental illness known to psychiatry are useful only in determining whether the borderline of insanity has been crossed. Unless an accused contends that he was beyond that borderline when he acted, his mental state is immaterial to the issue of specific intent.

Id. at 717, 324 S.E.2d at 688. Stamper sought to introduce evidence that he was a manic-depressive who was in a manic state on the date of the offense and that this mental condition rendered him incapable of forming the intent to distribute narcotics.

Bowling argues that this case is distinguishable from Stamper because the evidence he sought to introduce was intended to negate the element of premeditation. He argues that the Supreme Court has previously recognized proof of voluntary intoxication as a defense to premeditation in capital and first degree murder cases, even though...