Gooden v. Com., 822046

• Decision Date: 20 January 1984
• Docket Number: No. 822046,822046
• Citation: 311 S.E.2d 780,226 Va. 565
• Parties: Howard Richard GOODEN v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 780

311 S.E.2d 780

226 Va. 565

Howard Richard GOODEN v. COMMONWEALTH of Virginia.

Record No. 822046.

Supreme Court of Virginia.

Jan. 20, 1984.

Halford I. Hayes, Richmond (J. Randolph Smith, Layne, Hayes, Smith & Gonet, Richmond, on brief), for appellant.

Roscoe C. Roberts, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, STEPHENSON, RUSSELL and THOMAS, JJ.

COMPTON, Justice.

Howard Richard Gooden was found guilty in a bench trial of involuntary manslaughter. He was sentenced to six months in jail and ordered to pay a fine of $1,000.00. Execution of the sentence was suspended upon condition defendant pay the fine and not hunt with a firearm or have a firearm in his possession under any circumstances for five years. The issue on appeal is whether the evidence is sufficient to support the August 1982 judgment of conviction.

The facts basically are undisputed, although they are susceptible to conflicting inferences. Applying settled principles, we will state the evidence in the light most favorable to the Commonwealth, the party prevailing below.

On November 16, 1981, the first day of hunting season, the victim, James Everette Wyant, and his 13-year-old brother-in-law, Robert Eugene Sipe, were hunting deer in Rockingham County. Near 5:00 p.m., they were standing together "on top of a knoll" in the "clear" upon a north-south power line easement, which runs generally parallel to and one-half mile east of Route 340. There was no precipitation, but "it was getting close to dark."

Sipe and the victim were facing west, Sipe being two or three feet to Wyant's right side. Sipe was wearing an orange hat and coat. Wyant wore a red hat and red bandannas pinned to the front and back of his jacket.

Suddenly, as Wyant looked "over into the thickets," thinking he heard a deer, he was shot and fell to the ground. According to Sipe, Wyant "hollered, 'Don't shoot no more,' " as he went to his knees and "just laid down." Sipe testified he heard "about five" shots, two or three before Wyant yelled and two after the shout. One of the last shots "went past" Sipe's ear. Sipe answered "no" to a question by the trial court whether he saw "any deer anywhere close to" him in the minute or so before the firing or while he was hearing the shots.

When the firing began, Sipe dropped to the ground, where he remained for "a couple minutes" to determine "if they'd quit shooting." Sipe stood up and immediately sought help, shouting, "Somebody shot my buddy." He ran in the direction of Larry Shiflett, who was about 175 yards south of where the victim fell and to the east of the right-of-way.

Shiflett had been hunting in the area during that afternoon with two brothers. He had observed "too many" hunters along the easement and told his brothers to "get off the power line here a little bit," fearing "somebody might get shot." After Shiflett moved away from the easement and had been "sitting there maybe a half an hour," he heard Sipe shouting. Shiflett and Sipe ran back to Wyant. Shiflett determined "there was no pulse" and that Wyant was dead.

Wyant died from a single bullet wound. The fatal shot entered the right upper chest, travelling from right to left backward without significant upward or downward deviation. The shell exited at the posterior aspect of the left upper arm, lodging between the undershirt and the skin.

After Shiflett determined Wyant was dead, he and Sipe observed two unidentified individuals "take off and start running" from a position in a "hollow" along the power-line easement. This position was approximately 390 yards north of and downhill from the point where Wyant fell. Shiflett observed the individuals move first in a northerly direction. Next, they turned and moved south toward where Shiflett and Sipe were standing. Fearing "trouble," Shiflett and Sipe left the area in the opposite direction and reported the incident to police.

The Sheriff of Rockingham County arrived at the scene near 6:00 p.m. and found Wyant's body where he had fallen on the knoll, "right on the edge of a trail" that the Sheriff considered to be the power company's right-of-way.

Two days after the incident, Detective Daniel Comer of the Rockingham County Sheriff's Department interviewed the defendant twice in Chesterfield County. Defendant, a resident of Chesterfield County but a native of Rockingham County, had been hunting on the day in question in the area where Wyant was shot. Comer "believed that either [defendant] or someone in his hunting party may have known something about the death of the victim."

During the first interview, conducted in the morning at the Chesterfield Police Department in the presence of defendant's attorney, defendant indicated he had been hunting during the afternoon in question along the right-of-way with his brother-in-law. Evidence presented by defendant at the trial showed defendant was downhill and north of the victim's position, at a distance of approximately 636 yards. According to the officer, defendant stated "he had seen a deer cross the Vepco right-of-way, the cleared right-of-way, about a hundred yards south of where he was standing sometime before 5:00 P.M., and that he had shot at the deer with a rifle." Defendant told Comer the rifle was a .30-caliber carbine.

During the second interview, conducted in the afternoon in the office of Gooden's attorney, defendant revealed that when he "fired at the deer that he saw crossing the right-of-way, that he had actually been carrying and had fired two different rifles." Defendant stated "he was about fifty yards west of the--or generally west of the right-of-way in the brushy area when he fired at the deer." He told Comer he was carrying a lever-action rifle and fired at the deer once with that weapon. Defendant said "he dropped that ... rifle, and shot at the deer additionally three or four times with the thirty caliber carbine." Defendant stated "he felt that he had not hit the deer and that he did not know that he had hit anything."

During the second interview, defendant surrendered the lever-action weapon, a Marlin .30-.30 Winchester rifle. Defendant had delivered the other rifle to a Chesterfield detective on the day after the shooting. Comer also obtained possession of that weapon, a U.S. Military, auto-loading, .30-caliber, M1 carbine. Defendant explained to Comer that he initially did not volunteer information about two weapons because he was afraid he had violated the hunting laws by use of more than one rifle.

According to subsequent laboratory analysis, the bullet that killed Wyant was fired from the .30-.30 Winchester.

Within a week of the homicide, four shell casings were found "very close together" and "a couple of feet" from the right-of- way. They were located approximately 430 yards north of the point where Wyant was shot. Laboratory analysis revealed that the shells had been fired in defendant's M1 carbine.

At trial, defendant presented the testimony of Gary A. Judd, a Harrisonburg surveyor. Defendant had accompanied the surveyor to the scene and pointed out where he had been standing as he shot at the deer. Judd had been advised of the place where the victim's body was found.

From a plat drawn by Judd, as well as from aerial and ground-level police photographs of the entire scene, the following facts appear. The pertinent area of the right-of-way follows a straight line and is approximately 60 feet wide. Photos taken six days after the incident show the easement to be relatively clear of high brush on both sides of utility poles that stand in the center of the right-of-way.

The plat contains a profile of the land. The terrain southwardly, from the point where defendant told Judd he was standing when he shot, slopes gradually downhill for about 140 yards to a stream. The land becomes level for about 220 more yards and then rises 20 feet vertically on the south side of a gully, continuing gradually uphill for approximately 276 yards to the point where Wyant was shot. According to the survey, the difference in elevation between the points where defendant and Wyant were standing was 41.9 feet. The plat shows that defendant told the surveyor he shot at the deer from a point on the western edge of the right-of-way as the deer was on the eastern edge, approximately 70 yards south of defendant.

At the May 1982 trial, defendant, age 40, testified he had hunted regularly for 25 to 30 years. He stated that on the day in question at about 4:00 p.m., he went to the right-of-way with a hunting companion because it was "pretty much" a popular place to hunt. The pair had entered the area by truck from Route 340 along a dirt road. Defendant observed approximately 10 or 15 vehicles, apparently belonging to hunters, as he moved to the right-of-way. The companion went in a northerly direction and defendant proceeded to the point illustrated on the plat.

Defendant testified he "had no more and got there ... on the edge of the power line" when he saw a deer "coming out" onto the right-of-way approximately 75 yards to the south. He stated that he shot once with the .30-.30 lever-action Winchester diagonally across the easement. The deer "took off," moving east to west. He said that he laid the gun down, took the M1 carbine, and shot approximately three or four times "at the deer when he run through here." Testifying all the shooting took place in 15 or 20 seconds, defendant said he walked a short distance looking for the deer. Defendant stated that because the hour was late, he then proceeded to his truck, still looking along the way for the deer. When he arrived at the truck, parked about 200 yards from the power line, defendant met his companion and they left the area. Defendant testified he was "on" the right-of-way about "ten or fifteen minutes."

On cross-examination, when asked to explain his statement to Detective Comer that he was 50 yards west of the...