Gallimore v. Com., 921786

• Decision Date: 05 November 1993
• Docket Number: No. 921786,921786
• Citation: 436 S.E.2d 421,246 Va. 441
• Parties: Lisa Gail GALLIMORE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 421

436 S.E.2d 421

246 Va. 441

Lisa Gail GALLIMORE v. COMMONWEALTH of Virginia.

Record No. 921786.

Supreme Court of Virginia.

Nov. 5, 1993.

A. Ellen White, Lynchburg, for appellant.

Janet F. Rosser, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: All the Justices.

LACY, Justice.

James Glen Branscome was killed during a scuffle by a bullet fired from a gun held by Keith Southern. Southern pled guilty to involuntary manslaughter. Lisa Gail Gallimore was tried and convicted of involuntary manslaughter in the shooting death of Branscome and was sentenced to 10 years' imprisonment with five years suspended by the Circuit Court of Pulaski County. The Court of Appeals affirmed her conviction. Gallimore v. Commonwealth, 15 Va.App. 288, 422 S.E.2d 613 (1992).

On appeal Gallimore argues that the evidence is insufficient to support her conviction for involuntary manslaughter and that her conviction should be reversed because her negligence was not a proximate or concurring cause of Branscome's death.

A.

Under well recognized principles, we state the facts in the light most favorable to the prevailing party, in this case the Commonwealth. On January 13, 1990, Gallimore, Wanda Southern and her husband Keith, Keith's sister Connie Southern, William Dean Reichner, Kenny Gray, and Renee Miller attended a party in Mount Olivet. They left the party around 9:30 p.m. and went to Wanda and Keith Southern's home. Connie Southern returned to her home with Kenny Gray. About 11:45 p.m. Gallimore and Wanda Southern left in Wanda's Subaru to get Connie Southern and bring her back to Wanda's home with them.

Along the way they passed a truck driven by Kenny Jones. Recognizing Jones, Wanda drove the Subaru into a parking lot and the truck pulled in beside her. Jones wanted to speak with Wanda. Wanda agreed and the two vehicles were driven to the top of Draper's Mountain. When they arrived at the top of the mountain, the passengers in the truck, Barry Gregory and Branscome, got out of the truck. Branscome began talking with Gallimore and Wanda got into the truck with Jones. Shortly thereafter, Jones suggested that he and Wanda drive to the Skyline Motel to avoid being seen on the mountain. Wanda agreed, and shouted to Gallimore to follow them. Gallimore, with Branscome in the passenger seat, agreed to follow the truck in Wanda's car. Gregory returned to the truck with Wanda and Jones. Gallimore and Branscome, however, never rejoined the group at the motel.

About 2:00 a.m. Branscome dropped Gallimore off approximately one mile from Wanda and Keith Southern's residence. She ran to the house and entered through the basement where Keith Southern, Glen Lyons, Dean Reichner, and Renee Miller were playing pool. Gallimore was hysterical, out of breath, panting, and flushed. She exclaimed, "Oh, my God, you've got to do something. Some guys have got Wanda. You've got to do something." She kept repeating that they had to help Wanda. Southern grabbed her by the shoulders and shook her to get more details. Gallimore said that three men in a truck had met her and Wanda, had pushed Gallimore out of the car, and had taken Wanda. The incident happened near the Jennings Trailer Court, she said. She repeated her admonition that they help Wanda and suggested that they call the police.

The group proceeded upstairs to the kitchen and Renee Miller called the police. Wanda's brother Lyons and Reichner prepared to leave to look for Wanda. Lyons asked Keith Southern, who was standing only three or four feet from Gallimore, if he thought they should take a gun. Southern replied that they should, because "[w]e didn't really know what we were getting into." Lyons retrieved Keith Southern's .22 caliber pistol from Southern's bedroom and left with the gun in his hand, passing within a few feet of Gallimore.

Lyons and Reichner had driven only about a third of a mile when they saw a car approaching. The driver, Branscome, whom they did not know, stopped the car and asked for directions. Recognizing the car as Wanda's Subaru, Lyons asked Branscome where Wanda was and ordered him out of the car. While Lyons held Branscome at gunpoint, Reichner returned to the house to get Keith Southern.

Meanwhile, Keith Southern had taken the telephone from Miller and was talking to the police. He told the dispatcher that his wife had been abducted and tried to explain where he thought it had happened. While Southern was talking on the telephone, Reichner returned and told Southern, "We've got some guy. We've got this dude up the road driving Wanda's car. Let's go." Reichner was excited and talking in a loud voice. Southern ended his conversation with the police, stating that they had better arrive soon because he wanted "to get the goddamn people responsible!" Southern then left his house with Reichner to rejoin Lyons and Branscome.

During Southern's conversation with the police, Gallimore was sitting only a few feet away from the telephone. At no time did she tell anyone that her statements about the kidnapping were not true, nor did she attempt to stop Southern, Lyons, or Reichner from leaving the house.

When Southern and Reichner arrived at the place where Lyons was holding Branscome at gun point, Southern took the gun from Lyons. He placed a bullet in the pistol's chamber and put the safety on. When Southern asked Branscome where Wanda was, Branscome denied knowing her. While Branscome would not tell Southern how he got Wanda's car, he finally agreed to take them to Wanda. Southern opened the driver's door to allow Branscome to drive, but Branscome appeared reluctant. Southern tugged at Branscome's shoulder. Branscome jerked back and swung his arm at Southern, who, in turn, swung at Branscome with the hand in which he was holding the gun. The gun discharged and the bullet hit Branscome in the head. Southern declared, "Oh, my God. I shot this man."

Seeing that Branscome was dead, Lyons and Reichner returned to the Southern home to notify the police. Lyons told Gallimore and Miller that Southern shot a man. The police arrived at the scene of the shooting and were advised of the abduction as described by Gallimore and the circumstances of Branscome's death. At the request of the police, Gallimore gave Reichner a picture of Wanda to assist in the abduction investigation.

About 2:30 a.m. Jones dropped Wanda off at Connie Southern's house. Wanda called her own house and talked to Gallimore, who told Wanda that she had to tell Keith the same story that Gallimore had told him. When Wanda asked Gallimore why they could not tell Keith the truth, Gallimore replied that Keith had shot Branscome and that she thought he was dead.

Later, at the sheriff's department, Gallimore admitted that she had fabricated the story of Wanda's kidnapping. When Wanda told Gallimore that Southern could go to prison, Gallimore said, "I don't care. The bastard [Branscome] got what he deserved. He tried to rape me." Gallimore did not report any attempted rape to the police, but when confronted with the fact that the lie she told "got an innocent man killed," Gallimore replied, "So--I didn't know the son-of-a-bitch."

B.

To convict Gallimore of involuntary manslaughter, the Commonwealth was required to prove that Gallimore committed "acts of commission or omission of a wanton or wilful nature, showing a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his acts." Bell v. Commonwealth, 170 Va. 597, 611-12, 195 S.E. 675, 681 (1938). The Commonwealth must also prove that Gallimore's criminally negligent acts were a proximate cause of the victim's death. Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992). The fact finder concluded that the Commonwealth satisfied its burden of proof in this case. On review we must affirm that judgment unless it is plainly wrong or without evidence to support it. Code § 8.01-680. ^* Gallimore knew that the actions of Wanda's husband, friend, and brother were based on the fabricated abduction story. She knew or should have known the danger and probable physical harm inherent in the situation and that this danger was heightened when Lyons took Southern's gun. She also knew that she could avoid this danger by telling the truth and retracting the abduction story. As stated by the Court of Appeals:

After Reichner returned to the Southern home and reported to Keith Southern in Gallimore's presence that "we got a dude driving Wanda's car," Gallimore knew or should have known that the situation she created had escalated and was fraught with imminent danger that someone might be killed or seriously injured, yet she took no steps to defuse the danger that she knowingly and purposefully set in motion.

Gallimore, 15 Va.App. at 293-94, 422 S.E.2d at 616. This conduct supports a finding that Gallimore's acts constituted criminal negligence.

Gallimore argues, however, that even if her actions "initiated a chain of events which ultimately ended in Branscome's death," the death was caused by the scuffle between Branscome and Southern in which the gun accidently discharged. This struggle, Gallimore contends, was the proximate cause of Branscome's death. The scuffle was an independent, intervening act which alone caused Branscome's death, she concludes.

In addressing Gallimore's argument, we consider the principles applicable to a finding of proximate cause. These principles are constant whether considered in a civil or criminal context. There can be more than one proximate cause and liability attaches to each person whose negligent act results in the victim's injury or death. Maroulis v. Elliott, 207 Va. 503, 510, 151 S.E.2d 339, 344 (1966). To be an intervening cause as Gallimore argues it was, the...