Brown v. Commonwealth

• Decision Date: 01 August 2017
• Docket Number: Record No. 0507-16-2
• Citation: 802 S.E.2d 190,68 Va.App. 44
• Parties: George Ellis BROWN, Jr. v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

68 Va.App. 44

802 S.E.2d 190

George Ellis BROWN, Jr.

v.COMMONWEALTH of Virginia

Record No. 0507-16-2

Court of Appeals of Virginia, Richmond.

AUGUST 1, 2017

Craig S. Cooley, Richmond, for appellant.

Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Huff, Judges Petty and Beales

OPINION BY JUDGE RANDOLPH A. BEALES

In a bench trial, the trial court convicted George Ellis Brown, Jr. ("appellant") of one count of common law involuntary manslaughter related to the death of Philip Whitaker. The court sentenced appellant to ten years in prison, with eight years suspended. In his first assignment of error, appellant argues that the trial court erred "by applying a less demanding legal definition of ‘criminal negligence’ than required by Virginia case law." In his second assignment of error, appellant contends that the "evidence was insufficient as a matter of law to establish the element of criminal negligence in the offense of involuntary manslaughter." For the following reasons, we affirm the trial court.

I. BACKGROUND

We consider the evidence on appeal "in the light most favorable to the Commonwealth, as we must since it was the prevailing party" in the trial court. Beasley v. Commonwealth , 60 Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth , 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004) ). So viewed, the evidence established that appellant worked as a security guard at the VCU Health System Ambulatory Care Center Pharmacy ("the pharmacy"). Whitaker, the victim in this matter, was a 64-year-old man suffering from heart disease. At the time of his death, Whitaker was taking blood thinner medication. On August 7, 2015, Whitaker arrived at the pharmacy to pick up a prescription that he had been told would be available for pickup at 2:00 p.m. When Whitaker arrived, his medication was not yet ready. Whitaker became agitated and asked to speak with a supervisor.

Ronald LeFever, a pharmacist, responded to Whitaker's complaint. LeFever had known Whitaker for "a number of years" and described him as "one of my friendlier patients." Whitaker told LeFever that he was waiting for a prescription and that he was in a hurry because his ride was waiting for him outside. LeFever agreed to investigate why Whitaker's medication was not yet ready so that it could be taken care of quickly. LeFever informed Whitaker that he could wait at the front window or he could have a seat and return when his name was called. Once LeFever verified the order, he called Whitaker's name on the pharmacy's intercom, directing him to join the back of the pickup line.

Appellant was working as a security guard at the pharmacy on the afternoon of August 7, 2015. When Whitaker's name was called, appellant was standing between the front of the pickup line and the front window. Appellant's job responsibilities included keeping the peace in the line area of the pharmacy by making sure that people did not cut in line. Appellant's job training and instructions required him to resolve disturbances verbally and precluded him from placing his hands on anyone inside the pharmacy.

Appellant had observed Whitaker's interactions with the cashier and LeFever. When Whitaker's name was called on the intercom, Whitaker began to walk back to the cashier window to pick up his medication. On his way to the front window, Whitaker walked in front of appellant. Witnesses testified that appellant ordered Whitaker to go to the back of the pickup line. One witness testified that appellant "clutched his fist" when he issued the directive. Whitaker informed appellant that he would not wait in line because he had already spent a long time waiting for his medication.

Whitaker then took a couple of steps away from appellant toward the front window to pick up his medication. Appellant followed Whitaker from a position behind and to the right of Whitaker. Appellant then suddenly reached out and grabbed Whitaker from behind with both arms. Appellant used his right hand to grab Whitaker's chest right below the neck—pinning Whitaker's right arm against his body. At the same time, appellant used his left arm to grab and hold on to Whitaker's left arm. One witness described appellant's hold as a "bear hug." Another witness stated that it appeared that appellant's teeth were clenched at the time. Appellant then violently threw Whitaker backwards and down to the floor. Vicki Fields, a witness in the prescription pickup line, testified, "At that point, I saw Mr. Whitaker coming up into the air. His head kind of hit first. I was stunned. I looked over at Mr. Brown like what have you done." Ms. Fields added, "He flew in front of me. I kind of backed up, but he fell in front of me. He was directly at my feet." The trial court found, "[Appellant's] hurling of the decedent was, in fact, so forceful that [appellant's] arms were cast out up and away from his body after he let go of the decedent from the very momentum and force by which he threw him or hurled him."

Because appellant had pinned both of Whitaker's arms, Whitaker was unable to break his fall when he was hurled to the ground. When Whitaker hit the ground, his head struck either the hard linoleum floor or the circular metal base of one of the posts that formed the pickup line. Witnesses testified that Whitaker's impact with the floor or the metal base caused a very loud clap or thump sound. Onlookers collectively gasped and moved away from the area where appellant had thrown Whitaker. Appellant then walked over to the area near Whitaker's head. After kneeling down to look at Whitaker, appellant looked around and threw his hands up in the air. After checking Whitaker's pulse, appellant told one of the pharmacists to call 911.

First responders transported Whitaker to the emergency room and then to an operating room to be treated for a severe head injury caused by blunt force trauma. Dr. William Broaddus, a neurosurgeon at Virginia Commonwealth University's Medical College of Virginia, treated Whitaker's injuries. He testified that Whitaker's most serious injury was a large acute subdural hemorrhage, which is a collection of blood that develops from a torn blood vessel. Whitaker ultimately died from his injuries.

VCU Police Lieutenant Jonathan Siok observed surveillance footage of the incident prior to speaking with appellant. Appellant told Siok that he was monitoring the pickup line when Whitaker approached him. Appellant told Siok that Whitaker refused to wait in line like the other customers at the pharmacy. When Whitaker walked toward the cashier, appellant claimed that he put his hand in front of Whitaker to stop him. Appellant also claimed that Whitaker turned towards him and lunged at him. At that point, Siok informed appellant that he had previously viewed the surveillance video. Siok then informed appellant that he should carefully consider his statements because those statements would go into the police report. Appellant then changed his story by stating that Whitaker had not lunged at him. Appellant claimed he was only trying to keep control of the pickup line and that he did not intend to hurt Whitaker.

Appellant was later questioned by Richmond Police Detective Michael Gouldman. Appellant admitted that Whitaker had annoyed him by complaining about his medication to the staff of the pharmacy. He told Detective Gouldman that he pushed Whitaker, but that he did not know Whitaker was going to fall to the ground. When the detective asked appellant if he would have liked to have handled things differently, appellant admitted he probably should not have pushed or even touched Whitaker.

Appellant testified in his own defense at trial. Appellant admitted that he overreacted when he put his hands on Whitaker. Appellant maintained that he did not have any intention to harm Whitaker—and that he did not think his actions were likely to cause injury to him. On cross-examination, appellant denied being annoyed by Whitaker just prior to the altercation. He also denied telling Lieutenant Siok that Whitaker had lunged at him. Instead, appellant claimed that he told the officer that Whitaker had lunged forward—but not toward appellant.

II. ANALYSIS

A. Legal Standard for Criminal Negligence

Appellant argues that the trial court erred "by applying a less demanding legal definition of ‘criminal negligence’ " than that which is required by law in Virginia. The trial court's conclusions as to questions of law are subject to de novo review. Rusty's Welding Serv., Inc. v. Gibson , 29 Va. App. 119, 127, 510 S.E.2d 255, 259 (1999).

As a common law crime, involuntary manslaughter is not defined by statute in Virginia. The Supreme Court has defined "the common law crime of involuntary manslaughter as ‘the killing of one accidentally, contrary to the intention of the parties, in the prosecution of some unlawful, but not felonious, act; or in the improper performance of a lawful act.’ " Noakes v. Commonwealth , 280 Va. 338, 345, 699 S.E.2d 284, 288 (2010) (quoting Mundy v. Commonwealth , 144 Va. 609, 615, 131 S.E. 242, 244 (1926) ). In Darnell v. Commonwealth , 6 Va. App. 485, 491, 370 S.E.2d 717, 720 (1988), this Court held that "criminal negligence is an essential element of involuntary manslaughter." The Court explained, "In the absence of a controlling statute, we are persuaded that there should be but one standard of conduct applicable in these involuntary manslaughter cases. Culpable conduct should require proof of recklessness, that is, conduct evidencing either a willful or wanton disregard for the safety of others." Id. (quoting State v. Kernes , 262 N.W.2d 602, 605 (Iowa 1978) ). Accordingly, this Court's decision in Darnell held for the first time that criminal negligence must be proven under both theories of common law involuntary manslaughter¹ —(1) the prosecution of an unlawful, but not felonious, act² and (2) the prosecution of an improper performance...