Canipe v. Com.

• Decision Date: 14 October 1997
• Docket Number: No. 1669-96-2,1669-96-2
• Citation: 491 S.E.2d 747,25 Va.App. 629
• Parties: Michael John CANIPE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 747

491 S.E.2d 747

25 Va.App. 629

Michael John CANIPE v. COMMONWEALTH of Virginia.

Record No. 1669-96-2.

Court of Appeals of Virginia,

Richmond.

Oct. 14, 1997.

Francis McQ. Lawrence (Charles Y. Sipe; St. John, Bowling & Lawrence, on briefs), Charlottesville, for appellant.

Eugene Murphy, Assistant Attorney General (James S. Gilmore, III, Attorney General; Margaret Ann B. Walker, Assistant Attorney General, on brief), for appellee.

Present: ELDER, FITZPATRICK and ANNUNZIATA, JJ.

ELDER, Judge.

Michael John Canipe (appellant) appeals his conviction of second degree murder. He contends (1) that the trial court erred when it prohibited him from offering testimony and making arguments regarding the crime of "hit and run"; (2) that the trial court erred when it excluded the testimony of a potential witness regarding the victim's character for aggression; and (3) that the evidence was insufficient to prove that he was guilty of murder. For the reasons that follow, we affirm.

I. FACTS

Around 7:30 p.m. on February 14, 1995, both appellant and the victim were driving on the "250 bypass" near Charlottesville to a local shopping mall. Appellant was driving with his wife and child, and the victim was driving to meet his wife at the mall.

The cars were near each other as they approached the exit for Park Street, which was the road that eventually led to the mall. The victim was in the right lane preparing to exit onto Park Street. Appellant was in the left lane next to the victim, traveling "fast" and talking with his wife. Appellant suddenly realized he was passing the Park Street exit and, from the left lane, "made a quick right-hand turn to get over to the ramp." In doing so, appellant "cut off" the victim and forced the victim to sharply apply his brakes. Both cars proceeded up the exit ramp and turned right onto Park Street.

The portion of Park Street on which appellant and the victim initially traveled is a two-lane road with a painted, "double yellow" line separating the two lanes. Shortly after turning onto Park Street, the victim sped past appellant by moving his car across the double yellow line and into the lane designated for oncoming traffic. The victim then pulled his car in front of appellant's and slowed down to a speed of between 15 and 20 miles per hour. The speed limit for Park Street is at least 35 miles per hour. Appellant proceeded to drive close to the victim's rear bumper, and at one point, the victim sharply applied his brakes, causing appellant to sharply apply his.

When appellant and the victim reached the point where Park Street becomes a four-lane road with two lanes designated for traffic in each direction, appellant passed the victim in the left lane, pulled in front of him, and slowed his car down. Appellant and the victim then engaged in a "cat and mouse game." The victim would move his car over to the left lane in an attempt to pass appellant, and appellant would move over to the left lane and block the victim's path. The victim responded by driving close to appellant's rear bumper. Appellant and the victim continued driving in this fashion until they reached the left hand turning lane at the intersection that led to the parking lot of the shopping mall. A driver who passed appellant and the victim during this time testified that "you could tell they were mad." Appellant later testified that he was upset because the victim had passed him by crossing a double yellow line.

When appellant and the victim reached the stoplight adjacent to the shopping mall, appellant Appellant returned to his car and turned left into the parking lot of the shopping mall, which was "basically empty." Appellant's wife started yelling at him about the incident. Appellant drove his car by the mall, turned into an area of the parking lot, "circled back around," and stopped his car. He remained in his car with the motor running. Less than a minute later, the victim pulled up in his car. The victim "jumped" out without turning off his headlights, "threw down" his jacket, and started walking toward appellant's car. The victim did not display a weapon and was unarmed. Appellant became scared when he noticed that the victim was much larger than him and that the victim's face looked angry.

pulled into the left-hand turning lane and stopped his car several feet short of the intersection. The victim pulled in behind him. Appellant exited his car and walked back to the victim's car. He yelled at the victim, kicked his driver's side door, and told him to get out of his car. The victim remained in his car and motioned to the mall parking lot. Appellant later testified that he was "pretty mad" and "angry" at the victim and "might have been ready to fight" him.

The victim continued to walk toward appellant's car, and appellant decided to abandon the confrontation and drive away from the parking lot. Although appellant could have left the scene by backing away from the victim or by driving to the left or right of him, appellant drove toward the victim, accelerated his car to a speed of 15 miles per hour, and hit him. Appellant did not apply the brakes or attempt to turn before striking the victim. The impact of the victim's right shoulder on the windshield made a large indention of shattered glass in the shape of a half moon. The victim rolled off of appellant's hood and landed on the pavement. He died of a "closed head" injury three days later. Appellant sped from the parking lot without stopping to check on the victim's condition.

Appellant drove straight to his home and parked his car in his driveway. He became aware of media coverage of the incident involving him and the victim, and the next day he parked his car in his garage and closed the garage door. A few days after the incident, appellant called a local glass shop to purchase a windshield to replace the one damaged by the impact of the victim's body. He later testified that he planned to install the windshield himself "so [he] could correct the damage before anybody found it." Appellant enlisted the help of a friend to complete this project. He told his friend that the windshield had been damaged "during a fight out at the mall" when his opponent had confronted him with a crowbar and struck his windshield with the tool.

Appellant and his friend purchased a replacement windshield from the glass shop on February 17. Unknown to appellant, an array of police officers in plain clothes and unmarked cars were surveilling the glass shop when he made the purchase. After appellant and his friend left the glass shop, several officers followed them as they drove to appellant's house. Appellant was arrested at his home later in the day on February 17 and taken to the police station. Later that evening, appellant falsely told a police officer that the victim was carrying a tire iron when he approached appellant in the parking lot.

Appellant was charged with murdering the victim. At his trial, appellant's lawyer made several references to the crime of "hit and run." During his voir dire of the jury, appellant's counsel asked:

The evidence will show that [appellant] was guilty of a serious crime, and that's the crime of hit and run, leaving the scene of a personal injury. Would any of you have difficulty acquitting [appellant] of any crime, that is finding him not guilty, even though you believe he committed a serious crime, but it's not a crime he's charged with?

Appellant's counsel referred to this question during his opening statement. Then, during his motion to strike following the conclusion of the Commonwealth's evidence, appellant's counsel argued:

[W]e think even in the light most favorable to the Commonwealth that the Commonwealth fails to present a prima facie case. We have ample evidence in this case, Your The trial court responded by saying:

Honor, as I suggested at voir dire, of a ... serious charge of hit and run.

Hit and run is not before this Court. I don't think you should argue some other crime when we're addressing only a charge of murder.

The Commonwealth subsequently made a motion in limine to prohibit appellant's counsel from eliciting testimony or making arguments regarding the crime of "hit and run." Appellant conceded that he should not offer any evidence or testimony regarding "hit and run" but argued that prohibiting him from referring to this crime unduly restricted the scope of his closing argument. The trial court ruled that appellant's counsel could not use the term "hit and run" in his closing argument but that he could "argue that [appellant] did something else wrong." Appellant's counsel objected to this ruling. The Commonwealth's attorney then moved the court to order appellant's witnesses to refrain from referring to "hit and run," and the trial court responded:

Well, [appellant's counsel has] already agreed to that and I so ruled that his witnesses won't address an offense of hit and run or use the words hit and run.

Appellant's counsel did not disagree with the trial court's characterization of his position.

Near the end of his case, appellant's counsel informed the trial court that he had recently learned of a witness who would testify regarding the victim's character for aggression. He proffered her testimony for the record. He stated that the witness would testify that twice within the six months prior to the victim's death, the victim had followed the witness home in his automobile and confronted her about her driving in excess of the speed limit. The witness would also testify that the victim's demeanor was "angry and abrupt" and "confrontive and abusive" and that she was "frightened by what he did." Appellant argued that even though "[t]his is not a self-defense case," evidence of the victim's character for aggression is admissible because the issue of who was the aggressor in the mall parking lot--appellant or the victim--was a material issue for the jury. The trial court denied appellant's request to...