Haskell v. Com.
| Decision Date | 21 April 1978 |
| Docket Number | Nos. 770695,770713 and 770721,s. 770695 |
| Citation | 243 S.E.2d 477,218 Va. 1033 |
| Parties | James Brian HASKELL v. COMMONWEALTH of Virginia. Earle Bradley BIGGERSTAFF v. COMMONWEALTH of Virginia. Kevin LENDEN v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Supreme Court |
Charles E. Jenkins, II, Norfolk (Goldblatt, Lipkin, Cohen, Anderson & Jenkins, Norfolk, on brief), for plaintiff in error, Haskell.
Peter G. Decker, Jr., Norfolk (Chris A. Christie, Decker, Zoby, Collins & Christie, Norfolk, on brief), for plaintiff in error, Biggerstaff.
William L. Perkins, III, Norfolk (Stanley E. Sacks, Sacks & Sacks, Norfolk, on brief), for plaintiff in error, Lenden.
Linwood T. Wells, Jr., Asst. Atty. Gen. (Anthony F. Troy, Atty. Gen., on brief), for defendant in error, Com.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN and COMPTON, JJ.
In each of these appeals, arising from the same series of events, the dispositive question for our determination is whether the evidence is sufficient to sustain the conviction of felony-murder, 1 i. e., murder committed during commission of a felony.
James Brian Haskell, Earle Bradley Biggerstaff, and Kevin Lenden were indicted for attempted robbery and felony-murder of William M. Kantor. Haskell pleaded guilty to attempted robbery and not guilty to the murder charge. Tried by the court without a jury, he was found guilty under both indictments, and was sentenced to serve six years in the penitentiary for attempted robbery and 20 years for murder, the sentences to run concurrently. Biggerstaff pleaded not guilty to both charges. He was tried by a jury, which found him guilty under both indictments, and fixed his punishment at two years and 20 years, respectively. The trial court entered judgment on the verdicts, and ordered the sentences to run concurrently. Lenden pleaded guilty to attempted robbery and not guilty to the murder charge. He was tried by the court without a jury, was found guilty of both charges, and was sentenced to serve five years and 20 years, respectively, the sentences to run concurrently.
The evidence, viewed in the light most favorable to the Commonwealth, shows that Haskell, Biggerstaff, Lenden, and Rodney Gaynor, who had been shooting pool together on the evening of April 30, 1976, decided to commit a robbery. They rode around in a car which, although the others did not know it, Gaynor had stolen. Searching for a store to rob that had only one or two people inside, they could not find an acceptable target. After riding up and down Hampton Boulevard in the City of Norfolk, looking in vain for sailors to pick up and rob, they proceeded to a tavern on East Little Creek Road where Gaynor's wife worked, and stopped outside in the parking lot. By this time, it was after midnight in the early morning of May 1.
Observing a suitable prey, an intoxicated sailor hitchhiking in the road, the four men decided to rob him. The sailor, William M. Kantor, a Petty Officer First Class in the U.S. Navy, accepted Biggerstaff's invitation to ride home, entered the car, and went to sleep on the back seat while Gaynor drove to a quiet street. By prearrangement, at Biggerstaff's request, Gaynor stopped the car, and Haskell ordered Kantor to get out. As Kantor left the car, Gaynor hit the victim with his fist; then Haskell hit him with his fist, threw him to the ground, and struck him in the back of the head with Gaynor's .38 calibre pistol. The pistol fell to the ground, Kantor reached for it, but was overpowered by Gaynor and Haskell. Lenden picked up the pistol and twice struck Kantor in the head with it. Gaynor kicked Kantor in the groin, Haskell kicked him in the face, and both held him on the ground while Biggerstaff and Lenden searched in his back pockets for his wallet. They found neither wallet nor money.
In each case, the foregoing facts, established by the post-arrest statements given to an investigating officer by Gaynor and the defendant who was on trial in the case, were sufficient to sustain the attempted robbery conviction.
In his statement introduced into evidence in each case by the Commonwealth, Gaynor described the events which followed the beating and unsuccessful search of Kantor. Gaynor said that he and his companions planned to drive away and leave Kantor in the street. As they tried to get back into the car, however, Kantor attempted to reenter the vehicle "to get hold of somebody." Gaynor trained his pistol on Kantor and threatened to shoot him if he did not go away. Kantor refused to leave and told Gaynor "to go ahead and shoot" him. Lenden also warned Kantor that Gaynor would shoot him if he did not leave, but again Kantor did not move. Telling Haskell that "he was dead," Kantor swung at Gaynor and ran after Haskell, while Gaynor and Lenden got into the car. When he saw that Gaynor was trying to start the motor, Kantor ran to the passenger side and attempted to enter the vehicle. Gaynor stated, "I knew . . . what he would do to me" if he got into the car, so "that's when I shot him" in the chest. Gaynor said that, although Kantor had tried to get back into the car "(t)o get his hands on one of us," particularly Haskell, "I wouldn't of shot the dude, if he hadn't tried to hurt me." The impact of the bullet propelled Kantor backward into a fence along the street. "After he hit the fence, everybody ran into the car," and the four assailants sped away. 2
In his statement, introduced into evidence against him at his trial, Haskell said that Kantor came after him and the others as they returned to the car; that Kantor got to his feet and "grabbed the back" of Haskell's shirt but Haskell broke away and ran to the car; that Kantor opened the door on the passenger side and said he was going to kill the men; that Lenden told Kantor he was "crazy"; and that he and Lenden were climbing into the back seat of the vehicle when he heard the fatal shot. After they returned to their living quarters, Gaynor, Haskell, and Biggerstaff wiped Kantor's blood off the car.
Haskell's testimony did not vary significantly from his earlier statement. He supplied the additional information that he, Gaynor, Lenden, and Biggerstaff were shipmates on the U.S.S. Josephus Daniels, and shared an apartment at Ocean View. He also testified that the Gaynor car was about five feet away from Kantor during the time that the victim was being beaten and searched, and that Haskell and his friends neither assisted Kantor after the shooting nor reported the crime.
In his statement, introduced against him at his trial, Biggerstaff asserted that when Haskell released Kantor after no money had been found, Kantor said "he was going to get us," chased Haskell, "started arguing," and said he was going to "get" Haskell. Gaynor pointed his pistol at Kantor and threatened to shoot him. Kantor said, "Go ahead and shoot me," and, "Look at my face," and chased Haskell again, seizing him by the shoulder. Haskell freed himself, Kantor fell down, and Gaynor tried to start the engine. When Kantor got up and attempted to enter the passenger side, Gaynor shot him. Biggerstaff stated that he did not intend to harm Kantor. He did not think Gaynor would actually use the pistol except as a threat and that was the only reason he "went along with what they wanted to do." After the shooting, the four men returned to two apartments at Ocean View, he and Haskell sharing one, and Gaynor living in the apartment next door.
Testifying in his own defense, Biggerstaff agreed with his counsel that, in spite of his not guilty plea, he was probably guilty of attempted robbery. He maintained that he got back into the car after Kantor threatened to kill Haskell, and the others argued with Kantor on the street. When Haskell escaped from Kantor's grasp, Kantor opened the door on the passenger side of the front seat and came towards Gaynor. Gaynor ordered him to get out and then shot him. Upon Biggerstaff's return to his apartment with Lenden, they drank beer.
In his statement, introduced against him at his trial, Lenden said that when he and his friends started to reenter the car, Kantor got in front of Gaynor. Lenden seized Kantor by the arm and "tried to tell him to go away, that he might get shot." Kantor then chased Haskell around the car, fell down, regained his feet, and came back to where Lenden was standing. Gaynor and Biggerstaff were inside the car, Biggerstaff sitting on the back seat, when Kantor "started crawling" into the front. Lenden heard the pistol shot and saw Kantor fall back to the fence and to the ground.
Lenden's testimony at trial enlarged somewhat upon his statement. He testified that when he intervened between Gaynor and Kantor and attempted to convince Kantor that the altercation had ended, Kantor said, "Look at my face," and Lenden saw that it was bleeding. Lenden told Kantor that his face would "be all right in a little while," but that if he persisted in his actions he might get shot. According to Lenden, Kantor did not try to hit him, although Lenden was within reach and was holding Kantor's arm. In further answer to his counsel's questions, however, Lenden asserted that he had released Kantor's arm during their conversation, and that they continued to stand close to each other without incident until Kantor saw Haskell and followed him around the car, threatening to kill him.
Haskell, Biggerstaff, and Lenden argue that as a matter of law the homicide did not occur during the commission of a felony, because the attempted robbery had been abandoned before the altercation between Kantor and Gaynor ended in the fatal shooting of Kantor. Ancillary to this argument is Biggerstaff's contention that the trial court in his case erred in refusing his proffered Instruction "D", which provides as follows:
"The Court instructs the jury that the felony-murder doctrine does not apply where the killing takes place while the defendant is attempting to escape; and unless you...
To continue reading
Request your trial
-
Turner v. Com.
...to the felony in time, place, and causal connection as to make it a part of the same criminal enterprise." Haskell v. Commonwealth, 218 Va. 1033, 1044, 243 S.E.2d 477, 483 (1978). In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed to a felon fo......
-
Flanders v. Commonwealth
...the initial felony and is an emanation thereof, it is committed in the perpetration of that felony." (quoting Haskell v. Commonwealth , 218 Va. 1033, 1041, 243 S.E.2d 477 (1978) )). Thus, the felony-homicide statute "applies where the killing is so closely related to the felony in time, pla......
-
State v. Sims
...91 (1972); State v. Bragg, 140 W.Va. 585, 87 S.E.2d 689 (1955); State v. Williams, 98 W.Va. 458, 127 S.E. 320 (1925); Haskell v. Commonwealth, 243 S.E.2d 477 (Va.1978); Akers v. Commonwealth, 216 Va. 40, 216 S.E.2d 28 While the foregoing authorities hold that malice, specific intent and pre......
-
Metheny v. State
...gestae approach to determine if the accused committed a crime within the scope of the felony-murder rule. See Haskell v. Commonwealth, 218 Va. 1033, 243 S.E.2d 477, 482 (1978). The Court of Appeals of Virginia has Under the res gestae theory, the felony murder doctrine applies when the "ini......
-
§ 31.06 Murder: Felony-Murder Rule
...away in parking lot, and struck and accidentally killed a supermarket employee who was attempting to stop B); Haskell v. Commonwealth, 243 S.E.2d 477, 483 (Va. 1978) (several assailants attacked a sailor in an effort to rob him; he had no money, so they fled; the sailor sought to prevent th......