Perricllia v. Com.

• Decision Date: 08 March 1985
• Docket Number: No. 840352,840352
• Citation: 229 Va. 85,326 S.E.2d 679
• Parties: Rex Allen PERRICLLIA v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 679

326 S.E.2d 679

229 Va. 85

Rex Allen PERRICLLIA v. COMMONWEALTH of Virginia.

Record No. 840352.

Supreme Court of Virginia.

March 8, 1985.

W.R. Broadwell, Cedar Bluff (Donnie W. Salyers, Grundy, on brief), for appellant.

Leah A. Darron, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen.; Robert Q. Harris, Asst. Atty. Gen., on brief), for appellee.

Present: All the Justices.

COCHRAN, Justice.

Tried by a jury under an indictment charging him with the first-degree murder of James E. Mercer, Rex Allen Perricllia was found guilty of murder of the second degree. The trial court sentenced him in accordance with the jury verdict to confinement in the penitentiary for 20 years. At trial, Perricllia admitted having shot Mercer but testified that he did so in self-defense. On appeal, Perricllia contends that the evidence was insufficient to support the verdict and that the trial court improperly instructed the jury.

The chief witness for the Commonwealth was Mark Anthony Wilson, age 19, a friend of Mercer. Wilson testified that about 11:15 p.m. on January 28, 1983, he and Mercer were standing on the sidewalk by Mercer's truck, which was parked in the street near Mercer's home in the village of Raven. After consuming two or three drinks of liquor, they decided to walk down the street to the B.P. Club. As they proceeded along the sidewalk, they saw Perricllia in his car turn left from the street and pull slowly into an alley running between an apartment house on one side and a junkyard on the other. The B.P. Club was next to the apartment house. There was no light in the alley, but the area in front of the B.P. Club was lighted.

Wilson testified that the window was down on the driver's side of Perricllia's car and Perricllia mumbled something which Wilson could not understand, but Mercer got "mad." Wilson and Mercer walked over to the car, walking beside the car as it moved slowly down the alley, and Mercer asked Perricllia, "Have you got a problem?" When Mercer repeated the question, Wilson heard Perricllia answer, "No, have you got one?" Mercer said, "You step out of that car, I'll be your problem," or words to that effect. Perricllia, putting his car in "park," replied, "I'll get out of this car and whip your ass, boy." Wilson said that Perricllia put his hand on the door handle but did not open the door. While Perricllia and Mercer were still "cussing each other," Wilson turned his head toward the B.P. Club for a "split second." When he turned back, he saw flames coming from a firearm, heard three shots, and saw Mercer hold his chest, stagger, and fall against the car. Wilson estimated that he and Mercer were standing about a foot from the car on the driver's side when the shooting occurred. Perricllia drove off; Wilson ran to the B.P. Club for help.

Wilson asserted that there was no one else in the alley at the time of the shooting. He was aware that the alley was the only way to go to Perricllia's house by automobile. He did not see Mercer reach into the car or strike Perricllia, but he conceded that Mercer could have done so while Wilson was looking away. Wilson also conceded that Mercer's voice was threatening "in a way." Wilson was not sure there was going to be a fight, however, because Perricllia would not get out of his car. So far as Wilson knew, Mercer did not have a weapon in his possession.

Lethia Vance, who lived on the second floor of the apartment house overlooking the alley, testified that when she heard voices in the alley she went on her porch in time to hear three shots fired. She saw Perricllia in his car. Mercer, who had been standing on the driver's side, staggered back and fell against a gate behind the car. Rushing to the scene, Vance saw Wilson standing across the alley in the shadow of the junkyard building. Mercer fell close to Wilson. Before the shooting, Vance heard someone ask Perricllia why he did not get out of the car. After the shooting, Vance saw Perricllia drive away.

Geraldine Mercer, the victim's mother, testified that she was at home when the shooting occurred. Her house was across the fence from the junkyard. She heard her son twice tell Perricllia to get out of his car; she then heard Mercer tell him to get out and raise the hood. Going to her porch, which faced the alley, she saw Mercer standing beside the car with his left arm on top of the vehicle. She heard a shot, saw her son turn, and then heard two more shots. She watched as Perricllia drove his car in the alley to the corner beyond the apartment house, turned right, and continued in the alley for a short distance to the place where he parked below his parents' home.

Mrs. Mercer said that her son took Lufyllin, a drug for his asthma, about 6:30 or 7:00 p.m. on January 28. She also said she did not permit her son to drink alcoholic beverages inside the house; if he engaged in such drinking, he did it outside.

Deputy Sheriff J.A. Barber and Investigator Clarence Tatum, of the Tazewell County Sheriff's Department, were two of the investigating officers. Their testimony established that they went to Perricllia's home, located about 300 yards from the scene of the shooting, about 4:45 a.m. on January 29. Finding Perricllia in bed, they arrested him under a warrant charging him with Mercer's murder. After receiving his Miranda warnings, Perricllia stated that he did not know anything about the shooting. Before leaving the house in the custody of the officers, Perricllia woke his mother, informed her that he was charged with murder, and said, "He died." After arriving in Tazewell, Perricllia signed a statement, introduced in evidence, in which he again denied any knowledge of Mercer's shooting.

About 7:40 p.m. on January 29, Perricllia informed Tatum of his desire to give another statement. In this second signed statement, also introduced in evidence, Perricllia said that as he drove into the alley to return home he saw two people. When one yelled something to him, he stopped and rolled down the car window on the driver's side. He recognized Mercer and thought it was Wilson standing nearby. Mercer tried to get Perricllia to leave the car, but he refused to do so. Threatening to drag him out, Mercer reached through the window and hit him below the left eye. Perricllia picked up his father's loaded .22-caliber revolver which was on the seat beside him. Mercer then reached through the window and "grabbed" him by the shirt. Perricllia stated that he was leaning toward the passenger side to get away from Mercer. Fearing for his life, Perricllia pointed the revolver at Mercer and fired probably two or three times, not to kill Mercer but only to "get him off." Perricllia did not know whether any of the shots had struck Mercer but he drove home and told his parents what had happened.

At the time the second statement was taken, Perricllia tried to show Tatum a place on the left side of his face where he said Mercer had hit him, but Tatum was unable to see any mark or bruise.

Dr. Mario Stefanini testified that he examined Mercer's body at 12:10 a.m. on January 29, and an autopsy was conducted later that morning. The autopsy revealed that Mercer, 24 at the time of his death, had been shot three times, once in his right arm and twice in his torso. A blood-alcohol test conducted at the time of the initial examination revealed an alcohol level of .163 per cent and the presence of Amitriptyline, also known as Elavil, a drug occasionally prescribed to relieve the anxiety of asthma. Dr. Stefanini testified that alcohol and Elavil do not have a synergistic effect upon each other, i.e., the combination of the two does not intensify the effect of either. The autopsy report showed a blood-alcohol level of .15 per cent under a test conducted at the Bureau of Forensic Science in Roanoke.

The evidence was undisputed that one bullet entered Mercer's chest and descended at a 45-degree angle through his left lung, liver, stomach, and pancreas. A residue of powder was found on the left front of Mercer's jacket where this bullet passed through; tests indicated that the bullet was fired from a distance of 12 to 24 inches. Another bullet entered Mercer's back and moved upward through his left lung and heart; according to Dr. Stefanini, this bullet caused the most damaging of the three wounds. There was no evidence as to the order in which the shots were fired.

When presentation of the Commonwealth's evidence had been completed, Perricllia moved to strike the evidence as insufficient. On the basis of the testimony of Wilson and Mrs. Mercer, the trial court denied the motion.

Deputy Sheriff Barber, called as a witness for Perricllia, testified that Perricllia did not have a reputation in the community of being a violent person.

Perricllia attempted to show that Mercer's mother, contrary to her testimony, could not have seen the shooting from her porch because bags of aluminum cans stacked against the fence in the junkyard and vines on the fence would have obstructed her view. Jim Lawson, operator of the junkyard, testifying for the defendant, stated that he had hauled several loads of cans to the property and sometimes stacked them to a height of seven or eight feet next to the six-foot chain link fence. However, he could not say how high the bags were stacked on the night of the shooting. He also testified that there were no leaves on the vines and rose bushes growing along the fence around the property.

Perricllia's parents, Louis and Reba, testified as witnesses for their son. Louis testified that he was in bed on the night of January 28 when he heard "hollering and whooping" outside. Going to the front door, he switched on the light as his son's car approached pursued by four or five persons, one of whom looked like Wilson. Perricllia entered the house, went into his mother's room, examined the side of his head, and said, "They knocked me in the head down there and tried to pull me out of my car." Reba put rubbing...