Graham v. Com.

• Citation: 525 S.E.2d 567,31 Va. App. 662
• Decision Date: 07 March 2000
• Docket Number: Record No. 2154-98-3.
• Parties: Mark Anthony GRAHAM v. COMMONWEALTH of Virginia.
• Court: Court of Appeals of Virginia

525 S.E.2d 567

31 Va. App. 662

Mark Anthony GRAHAM v. COMMONWEALTH of Virginia.

Record No. 2154-98-3.

Court of Appeals of Virginia, Salem.

March 7, 2000.

James R. Henderson IV (Henderson and DeCourcy, on brief), Tazewell, for appellant.

John H. McLees, Jr., Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: BENTON, BRAY, and BUMGARDNER, JJ.

BUMGARDNER, Judge.

A Tazewell County jury convicted Mark Anthony Graham of statutory burglary, grand larceny of a firearm, shooting into an occupied building, and possession of a firearm after being convicted of a felony. He was acquitted of four other felonies: aggravated malicious wounding, attempted malicious wounding, use of a firearm in the commission of aggravated malicious wounding and use of a firearm in the commission of attempted malicious wounding. On appeal, the defendant argues the trial court erred (1) by refusing his instruction on heat of passion, (2) by refusing his instruction on the burden of proving affirmative defenses, (3) by denying his motion for a continuance, (4) by shackling him during trial, and (5) by holding the hearing on whether to shackle in his absence. Finding no error, we affirm.

The events all occurred in the Hash Hollow area of Tazewell County. Swanson and Linda Mullins lived in a house along the public road at the mouth of the narrow, fairly steep hollow. Approximately 200 to 300 feet behind them, their daughter, Pam, and her husband, Doug Gates, lived in a trailer. One hundred seventy-five yards farther up the hollow, Steven and Tammy Hash lived in their trailer. The ground between the trailers was open, but woods and a creek ran along the right side of the hollow.

The defendant arrived unannounced at the Gateses' trailer and stated that he wanted to stay there. Doug Gates was the defendant's uncle, but Gates told him he could not stay because the police had been there several times looking for him. They told the defendant to leave, and when he would not, Doug Gates called Swanson Mullins at his home. He asked Mullins to call the sheriff or to send someone to help get rid of the defendant. The defendant retrieved a shotgun from a bedroom and pointed it at Gates's face. Gates knocked the gun away, they scuffled, but the defendant left. Two or three minutes later, bullets started hitting the trailer.

Several people were at the Mullinses' house when Gates called. One of them, Donald Keene, went to investigate. As he entered the Gateses' trailer, "someone started shooting through the trailer," breaking a window, and piercing the exterior. Everyone in the trailer took cover while Gates again called Mullins for help. Keene found a shotgun and shells, went outside, and took cover behind a cinder block wall located a few feet from the Gateses' trailer. Keene heard the defendant hollering from the woods and saw him move from the woods toward the Hashes' trailer.

After receiving Gates's first call for help, Mullins got his pistol and went to the trailer to check on them. On his way, he heard the defendant call his name from the vicinity of the Hashes' trailer. After checking at the trailer, Mullins returned to his house, got his rifle, and went into the woods heading towards the Hashes' trailer. His son and a friend, who were also armed, went with him.

When the call came to the Mullinses' house, Lewis Collins grabbed a shotgun and made his way to a utility pole near the Gateses' trailer. While there, Collins was shot in the shoulder and stomach with double aught buckshot. He yelled to the defendant that he had been hit and to stop shooting before someone else got hurt. The defendant responded that he was not going to give up. Collins moved to better cover behind the cinder block wall where Keene was hiding.

During the episode, the defendant called Mullins's name from the vicinity of the Hashes' trailer and said, "I've come to die this time." The defendant hollered that he could see Mullins "real good." The shooting did not stop until sheriff's deputies arrived and took charge. They found that numerous bullets and buckshot penetrated the trailer on the side that faced the Hashes' trailer. They also determined that numerous shots hit the cinder block wall but particularly around the vent window which Keene used as his vantage point. They found no gunshot damage to the Hash trailer.

The defendant testified about the incident. A few days before, he had argued with Mullins after telling him that Gates had abused him as a child. Mullins threatened to kill the defendant for "talking trash." Because he was wanted for a probation violation, the defendant had been living in his car. He went to the Gateses' trailer to take a shower and do laundry. While doing so, Gates touched the defendant's behind, and they began arguing. Gates telephoned Mullins telling him to send some armed men to the trailer. The defendant then grabbed a gun from the bedroom, pretended it was loaded, and pointed it in Gates's face. They wrestled until the defendant told Gates to let him go. When Gates did, the defendant left the trailer. As he left, he did not see anyone coming from the Mullinses' house.

The defendant walked up the hollow to get away without going past the Mullinses' house. Halfway to the Hashes' trailer, he saw four armed men, including Mullins and Collins, walking toward him. Two men seemed to be coming around each side of the Gateses' trailer. He turned to continue running up the hollow. When he reached the Hashes' trailer, he decided to get help there. As he went by the window to the utility room he saw guns and burst through the window. He did not know whether anyone was home and did not see a car there. He broke through the window without ever going to the door or calling out to anyone for help. The defendant armed himself with a shotgun and a .22 caliber rifle, found the ammunition kept at the other end of the trailer, and went back outside.

The defendant saw three men down the hollow near the Gateses' trailer, and he fired shots in the air to warn them that he was armed. He ran back into the trailer and fired more shots into the air. The defendant started aiming at the Gateses' trailer after the others started shooting back. Eventually the defendant ran low on ammunition. He left the trailer and worked his way up the hollow and across the mountain. He went to North Carolina and turned himself in six days later to the Pulaski sheriff's office.

The trial court refused two defense instructions. The first¹ would have instructed the jury that they could not find that the defendant acted with malice if they found he acted in a heat of passion upon reasonable provocation. The trial court gave the first paragraph of the instruction which defined malice. The defendant was acquitted of the primary charges that contained the element, malice: aggravated malicious wounding of Lewis Collins, attempted malicious wounding of Donald Keene, use of a firearm in the commission of aggravated malicious wounding, and use of a firearm in the commission of attempted malicious wounding. The issue is moot as to those offenses.

Only the conviction of shooting into an occupied dwelling required a finding of malice. When considering whether a trial court erred in refusing to give a proffered instruction, "we view the evidence with respect to the refused instruction in the light most favorable to the defendant." Boone v. Commonwealth, 14 Va.App. 130, 131, 415 S.E.2d 250, 251 (1992). Viewed in that manner, the facts do not support a defense that the defendant acted in a heat of passion when he fired into the Gateses' trailer.

After the defendant left the Gateses' trailer, he was halfway to the Hashes' trailer before he saw anyone. Instead of continuing his escape up the mountain, he broke through the trailer window when he saw weapons inside. Arming himself and finding ammunition, he went outside. The men he saw were near the Gateses' trailer, a distance of about 175 yards; no one was coming up the hill, and no shots had been fired. The defendant fired warning shots but yelled that he "didn't have a problem with them." He went back into the trailer and resumed firing while dodging from window to window to avoid detection. He aimed shots at the Gateses' trailer and the wall after shots were fired from that direction.

"`Heat of passion' refers to `the furor brevis which renders a man deaf to the voice of reason.' An accused must show that he committed the crime with `passion' and upon `reasonable provocation.'" Caudill v. Commonwealth, 27 Va.App. 81, 85, 497 S.E.2d 513, 514-15 (1998) (citations omitted). The law requires the simultaneous occurrence of both reasonable provocation and passion. See Canipe v. Commonwealth, 25 Va.App. 629, 643, 491 S.E.2d 747, 753 (1997)

.

Heat of passion excludes malice when provocation reasonably produces fear that causes one to act on impulse without conscious reflection. By his own testimony, the defendant consciously abandoned his escape, armed himself, and started shooting. He did so before any other shots were fired or any words exchanged. Mullins's threat was made two days earlier and not at the time of the incident. The defendant did not act on sudden provocation or from passion. He acted upon reflection and deliberation. We find the evidence insufficient as a matter of law to justify a heat of passion instruction.

The trial court refused a second defense instruction.² It would have instructed that affirmative defenses need only be proved sufficiently to raise a reasonable doubt. The defendant asserted two affirmative defenses, self-defense and duress. The defendant was acquitted of the crimes against which self-defense applied: aggravated malicious wounding of Lewis Collins, attempted malicious wounding of Donald Keene, use of a firearm in the commission of aggravated malicious wounding and use of a firearm in the commission of attempted malicious wounding. The issue is moot as to...