Landeck v. Commonwealth, Record Nos. 0332–11–2

• Decision Date: 13 March 2012
• Docket Number: 0365–11–2.,Record Nos. 0332–11–2
• Citation: 59 Va.App. 744,722 S.E.2d 643
• Parties: David Gregory LANDECK v. COMMONWEALTH of Virginia.Christopher Todd Landeck v. Commonwealth of Virginia.
• Court: Virginia Court of Appeals

59 Va.App. 744

722 S.E.2d 643

David Gregory LANDECK

v.COMMONWEALTH of Virginia.Christopher Todd Landeck

v.Commonwealth of Virginia.

Record Nos. 0332–11–2

0365–11–2.

Court of Appeals of Virginia, Richmond.

March 13, 2012.

Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, P.C., Richmond, on briefs), for appellants.

Benjamin H. Katz, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on briefs), for appellee.

Present: PETTY, BEALES and HUFF, JJ.

BEALES, Judge.

A jury convicted Christopher Todd Landeck and David Gregory Landeck (collectively, appellants) of aggravated malicious wounding, in violation of Code § 18.2–51.2. On appeal, appellants argue that the trial court erred when it: (1) admitted evidence of a racial epithet attributed to Christopher Landeck; (2) denied appellants' motion for a mistrial following the prosecution's rebuttal argument to the jury; (3) overruled appellants' objection to the Commonwealth's proposed jury instruction concerning the heat of passion; and (4) denied appellants' motion to set aside the jury's guilty verdicts based on what appellants claim is insufficient evidence to prove malice. Finding no error by the trial court, we affirm the convictions.

I. Background

On appeal, we consider “the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party” in the trial court. Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004). So viewed, the evidence at trial established that A.F.¹ intended to walk to a bus stop on Robinson Street in the City of Richmond at about noon on January 1, 2010. While A.F. was on the way to the bus stop, A.F. testified, he “was approached” on foot by appellants near the corner of Davis Avenue and Cary Street. According to the record in this case, A.F. is five feet four inches tall and 140 pounds, whereas appellants are significantly larger—Christopher Landeck is six feet two inches tall and 240 pounds, and David Landeck is six feet four inches tall and 275 pounds.

A.F. testified that David Landeck called A.F. “a name,” and then they “got to arguing.” A.F. continued to walk in the direction of the bus stop, but David Landeck “pulled [a] knife out.” A.F. “tried to go around him,” but then Christopher Landeck “got right behind me.” This initial confrontation ended when David Landeck put away the knife. A.F. walked away from appellants and in the direction of Mule Barn Alley, which connects Davis Avenue and Robinson Street. According to A.F., appellants told him to “go back and smoke some crack. Go sell some drugs. Stuff like that.”

A second confrontation between appellants and A.F. occurred moments later in Mule Barn Alley. Christopher Landeck was driving appellants' vehicle at that time, with David Landeck in the passenger seat. A.F. testified that Christopher Landeck shouted from the vehicle, “There go that no good n* *ger right there.” Defense witness D.E., a building contractor, testified that Christopher Landeck shouted, “[Y]ou're still a no good f* *king n* *ger.” After Christopher Landeck uttered those words, according to A.F., appellants “[j]umped out the truck and came up towards me.” A.F. testified that he then picked up a wooden board from D.E.'s materials trailer in the alley “to keep [appellants] away from me.” According to A.F.'s trial testimony, Christopher Landeck had also picked up a wooden board. A.F. testified that he “lunged the board at them to keep them away from me” and, in so doing, struck Christopher Landeck with the board. A.F. then began running down the alley, but he stumbled in some potholes, and David Landeck caught up with him and grabbed him in a “bear hug.” A.F. testified that he escaped momentarily, but stumbled again, and Christopher Landeck then hit him with a wooden board.

At trial, A.F. described being overwhelmed and beaten by appellants, testifying:

[David Landeck] laid on top of me in the street while [Christopher Landeck] was hitting me with the board. I tried to get up and I couldn't get up, because he was so heavy laying on me. And he kept on hitting me. Kept hitting me with the board. Kept hitting me.

A.F. testified that the beating continued even though he “daze[d] out” three or four times. Each time he returned to consciousness, appellants would continue to strike him. A.F. testified that he was beaten in his face, causing him to bleed significantly. A.F. also testified that he was beaten in his left arm and shoulder, causing significant and permanent injury to that arm. A.F. spent two days in the hospital and underwent surgery to insert a plate and pins in his left arm, which still did not “work right” and had not improved at the time of trial.

In addition, Commonwealth's witness K.D., a tenant of a second-story apartment overlooking Mule Barn Alley, testified that she observed the appellants' beating of A.F. occur while he was “in a fetal position, kind of balled up in the street.” K.D. called 9–1–1 during the beating, and her contemporaneous description of the beating was received into the trial evidence and played for the jury. At trial, K.D. testified:

[A.F.] was basically trying to protect his head and his face as they were hitting him with the board, almost like a baseball bat. They were swinging it as hard as they could, and hitting him in the head. And you could hear the board hit his head. And as the board would hit his head, it would splinter into pieces. They were hitting him that hard. Then one would hit with a board and then the other one would kind of reposition his body and kick him in the ribs and punch him....

Referring to a diagram of the area that was shown to the jury, K.D. also testified that appellants “were kind of walking in and out of Mule Barn Alley, right here, as they were coming back towards him, and kicking him, and punching him, and beating him with the board in the head.” K.D. testified that she “just knew that they were going to kill him, just the way they were hitting him,” adding that she had “never seen anything so graphic or horrifying in my life.”

Appellants contended at trial that the evidence was insufficient as a matter of law to support convictions for aggravated malicious wounding because the evidence failed to prove that they acted with malice. Appellants claimed that they were provoked by A.F.'s act of striking Christopher Landeck with the wooden board—and that this provocation by A.F. created a heat of passion within appellants that negated any malice on their part. Thus, appellants asserted that the Commonwealth's evidence established, at most, unlawful wounding—a crime for which malice is not a required element. However, the trial court ruled that the presence of malice was an issue for the jury to decide, and the jury convicted appellants of aggravated malicious wounding.

II. Analysis

A. Admission of Racial Epithet from Mule Barn Alley Confrontation

In their first assignment of error, appellants argue that the trial court abused its discretion when it admitted evidence of Christopher Landeck's statement that A.F. was “a no good f* *king n* *ger.” Christopher Landeck made this statement during the same confrontation in Mule Barn Alley that resulted in the brutal beating received by A.F. Appellants contend that evidence of this racial epithet was irrelevant and was more prejudicial than probative.

“We review a circuit court's decision to admit or exclude evidence under an abuse of discretion standard and, on appeal, will not disturb a circuit court's decision to admit evidence absent a finding of abuse of that discretion.” Herndon v. Commonwealth, 280 Va. 138, 143, 694 S.E.2d 618, 620 (2010). “ ‘Only when reasonable jurists could not differ can we say an abuse of discretion has occurred.’ ” Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009) (quoting Thomas v. Commonwealth, 44 Va.App. 741, 753, 607 S.E.2d 738, 743 (2005)).

In this case, appellants filed a pretrial motion in limine seeking to prevent the Commonwealth “from making any direct or indirect reference to any racial slurs, epithets or other racially insensitive remarks made by any defendant or witness in this case.” The trial court ruled that it would permit the admission of evidence of racial epithets “that surround[ed] the happening at the fight, not before that.” In other words, the trial court refused to admit any evidence of racial epithets that were alleged to have been made during the first confrontation between appellants and A.F. on Davis Avenue. However, the trial court ruled that the racial epithet attributed to Christopher Landeck during the second confrontation in Mule Barn Alley was admissible.

The trial court found that evidence of Christopher Landeck's racial epithet directed at A.F. during the Mule Barn Alley confrontation—immediately preceding the beating of A.F.—was relevant to prove appellants' malice toward A.F.² “It is prejudicial,” the trial court explained, “but it may go to prove an element that is necessary for the Commonwealth.” Thus, the trial court found that evidence of this particular racial epithet was relevant to prove the required element of malice, was not more prejudicial than probative, and, therefore, was properly admissible. We agree with the reasoning and conclusion of the trial court.

“Evidence which bears upon and is pertinent to matters in issue, and which tends to prove the offense, is relevant and should be admitted” unless it is more prejudicial than probative. Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986). Clearly, evidence that Christopher Landeck shouted a racial epithet at A.F. during the same confrontation that resulted in the brutal beating of A.F. was relevant. See Christian v. Commonwealth, 221 Va. 1078, 1081, 277 S.E.2d 205, 207 (1981) (“Malice inheres in the doing of a wrongful act intentionally, or without just cause or excuse, or as a result of ill will.” (emphasis added)). This evidence tended to cast...