McCauley v. Commonwealth
| Decision Date | 07 February 2023 |
| Docket Number | 0202-22-4 |
| Parties | NIGEL EMANUEL MCCAULEY v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY KIMBERLY A IRVING, JUDGE
Robert Bennett (Ashton, Walla & Associates, P.C., on briefs) for appellant.
Katherine Quinlan Adelfio, Assistant Attorney General (Jason S. Miyares, Attorney General, on briefs), for appellee.
Present: Judges Malveaux, Fulton and White Argued at Fredericksburg, Virginia
Following a jury trial, the trial court convicted Nigel Emanuel McCauley of aggravated malicious wounding and using a firearm in the commission of a felony. The trial court also convicted McCauley, upon his guilty plea, of possessing a firearm after conviction of a felony. McCauley was sentenced to a total of fifty-eight years of imprisonment with forty-five years and eight months suspended. McCauley argues that the trial court erred in denying his motion to strike the aggravated malicious wounding and felonious use of a firearm charges because the evidence was insufficient to sustain them, granting the Commonwealth's jury instruction on express and implied malice, and denying his proposed jury instruction on flight. McCauley also argues that the trial court erred in excluding "information" about, and statements made by, the victim to demonstrate that he was the aggressor and McCauley acted in self-defense. We cannot consider McCauley's arguments concerning the sufficiency of the evidence and the jury instructions because he did not timely file, and thus make a part of the appellate record, a transcript which we find to be indispensable to the disposition of these issues. We further conclude that the trial court did not abuse its discretion in excluding McCauley's proposed evidence regarding the victim, and affirm the judgment.
"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Gerald v. Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381 (2016)). In doing so, we discard any of McCauley's conflicting evidence, and regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence. Id. at 473.
At about 8:00 a.m. on May 28, 2019, Howard Shaver, who lived in Apartment 1 at 8188 Peakwood Court in Prince William County, invited Michael Richards for a drink at the apartment. At about 8:45 a.m., Shaver also invited McCauley, who lived with his mother in the apartment above, to join him for a drink. McCauley joined Shaver, Richards, and another man on Shaver's balcony.
The men conversed casually about motorcycles as they drank beer. McCauley "jumped into" the conversation with a comment about the "outrageous size" of motorcycle engines. Richards said McCauley was "stupid" because such motorcycles did not exist. McCauley asked Richards in an angry manner if he had "a problem with" McCauley. Richards said he had no problem, then went inside and sat at the dining room table.
At some point, Shaver and the other man went to the store for more beer. McCauley left without speaking to Richards. When Shaver returned to the apartment from the store, Richards was there alone.
About five minutes later, McCauley knocked on Shaver's door. After answering the door, Shaver told Richards that McCauley wanted to speak to him. Richards, who was unarmed, walked out the door and saw McCauley walking away. McCauley then was about ten feet from Shaver's front door. When McCauley turned around to face Richards, Richards saw a gun in McCauley's hand. Shaver and Richards heard four gunshots. Richards, who was standing just outside the door, fell back into the apartment. Shaver asked McCauley why he had shot Richards, but McCauley said nothing, went to his car, and drove away. Shaver called 911 and went outside to wait for the police.
In a nearby apartment, Matthew Schaffer, a Fairfax County police officer, was awakened by the sound of two gunshots. From his window, Officer Schaffer saw a maroon sedan driving out of the parking lot of the apartment complex. Officer Schaffer heard a neighbor screaming for help because someone had been shot. Schaffer dressed quickly, grabbed his gun, and went to help. Outside, Officer Schaffer encountered Shaver. Officer Schaffer went to Shaver's apartment and found Richards in a pool of blood on the living room floor. Richards had been shot multiple times and injured in the groin, hip, and right arm. Officer Schaffer also called 911.
Prince William County police officers found two cartridge casings on the concrete breezeway leading to Shaver's apartment. Blood was smeared on the walls outside the apartment, and there was blood on the floor leading to the apartment door.
The police arrested McCauley later that day and found a nine-millimeter handgun and a magazine in the trunk of his car. Three bullets remained in the magazine. Forensic testing proved that the two cartridge casings found at the crime scene were fired from the gun retrieved from McCauley's trunk.
Testifying in his own behalf, McCauley said that he returned to the apartment complex at about 7:30 a.m. on May 28, 2019, after finishing his overnight shift at Walmart. He saw Shaver, Richards, and the other male at Shaver's apartment. McCauley had known both Shaver and Richards for several years. At Shaver's insistence, McCauley went to Shaver's apartment and joined him and the others to drink beer. They talked about a barbecue that occurred at the apartment complex the previous night. During the conversation, Richards pulled out a knife to clean his fingernails.[1] McCauley admitted that he left the apartment shortly after he arrived, went outside to his car, obtained his gun and a pack of "Black & Milds," and returned to Shaver's place.
According to McCauley, Richards made two trips to the store that morning for more beer, returning the second time with someone named "Josh." Shaver and Richards were drinking steadily. McCauley believed that Richards was becoming intoxicated and said Richards became "more aggressive" as they were talking in Shaver's apartment.
McCauley claimed that, as he was preparing to leave the apartment for good, Richards accused him of being in a gang. As McCauley was walking toward the door, Richards said, McCauley claimed that Richards "charged" after him out the door and accused him of being in a rival gang. Richards had his hand in his pocket, and said he was going to kill McCauley. McCauley testified that he feared for his life. When Richards was within arm's reach of him, McCauley pulled out his gun and fired it twice. McCauley testified that he was not trying to kill Richards but only wanted to protect himself from a knife attack.
As relevant to McCauley's claim of self-defense, the trial court permitted McCauley to testify that Richards admitted he was a member of the Bloods gang and that McCauley had heard Richards bragging about stabbing his brother in 2017. However, the trial court excluded any testimony from McCauley that Richards had maintained that he was "untouchable" by the police so others should fear him, concluding that this evidence did not constitute "a prior act of violence that is contemplated within the law." Also, testimony that in 2015 McCauley heard Richards' girlfriend screaming that Richards had been violent toward her was also excluded as "too remote in time." And McCauley's testimony that he had known Richards to be "accosting" and "belligerent" when intoxicated was ruled inadmissible as failing to show a specific act of threatening behavior.
The trial court convicted McCauley after the jury's verdict. This appeal followed.
The trial court entered its order sentencing McCauley on February 7, 2022.[2] Under Rule 5A:8(a), a "transcript of any proceeding is a part of the record when it is filed in the office of the clerk of the trial court within 60 days after entry of the final judgment." Thus, the transcripts in this case were due to be filed on or before April 8, 2022.
The transcript of the final day of McCauley's jury trial on July 15, 2021, was filed late on April 14, 2022. McCauley did not obtain an extension of time to file the July 15, 2021 transcript. See Rule 5A:8(a). The timely filed transcripts do not contain argument on a motion to strike after McCauley presented his own evidence. Nor does the record contain a motion to set aside the verdict. See Commonwealth v. Bass, 292 Va. 19, 33 (2016) (). Further, the timely filed transcripts do not contain the argument regarding the jury instructions that were granted or refused.
Having reviewed the record and the parties' briefs, we conclude that the July 15, 2021 transcript or written statement of facts is indispensable to a review of the sufficiency of the evidence, the claims McCauley raises regarding jury instructions, and a determination of whether these issues were properly preserved for appellate review under Rule 5A:18. See Smith v. Commonwealth, 32 Va.App. 766 772 (2000); Turner v. Commonwealth, 2 Va.App. 96, 99-100 (1986). McCauley failed to ensure that the record contains a transcript or written statement of facts necessary to permit us to resolve the assignments of error challenging the sufficiency of the...
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