Porter v. Com.
| Citation | 17 Va.App. 58,435 S.E.2d 148 |
| Decision Date | 14 September 1993 |
| Docket Number | No. 0224-92-1,0224-92-1 |
| Parties | Michael Lewis PORTER v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Court of Appeals |
G. Curtis Overman, Jr., Newport News (Gibson, Cowardin & Overman, on brief), for appellant.
Oliver L. Norrell, III, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: BAKER, WILLIS and BRAY, JJ.
On appeal from his bench trial conviction of second degree murder, Michael Lewis Porter contends (1) that the evidence was insufficient as a matter of law to support his conviction, and (2) that the trial court erred in denying his motion for a mistrial. We hold that the evidence was insufficient to support a murder conviction. We reverse Porter's conviction on that ground and remand the case for further proceedings on a lesser charge if the Commonwealth be so advised. We do not address the mistrial issue.
This case arises out of an incident that occurred on the night of June 30, 1991. As of that date, Porter and the victim, Jan Cooper, had been living together for about two years. On the evening of June 30, Porter came to the home of Mr. and Mrs. Caudle, Jan's mother and step-father, and told them that Jan had injured her leg and needed to go to the hospital. Mr. Caudle drove Porter and Jan to the hospital. At the hospital, Porter told Mr. Caudle that Jan fell off his car. When Mrs. Caudle arrived at the hospital, Porter told her that Jan fell off the hood of his car and hit her head. When Mrs. Caudle replied "I thought it was her leg," Porter replied, "[w]hatever, you can't see her now." Jan died at the hospital.
At the hospital, Porter told the police that he and Jan had been sitting on the hood of his car when she fell off and hit her head. He said that his car was not moving at the time. He agreed to take the police to the scene. However, he could not find the spot and the police found no evidence indicating the exact location of the incident. The officers noted that Porter was under the influence of alcohol.
The medical examiner found multiple large areas of abrasion on Jan's chest, back, legs, chin and the back of her head. She also found contusions on Jan's chest, legs, right arm and head. The abrasions and contusions showed a pattern on her skin that was described as "road burn" caused by her body's being rolled or scraped along the surface of a roadway. Examination of Jan's organs revealed a torn liver. The medical examiner found multiple impact injuries, including fractures of the skull, of ribs on both sides, and of her nasal cartilage. Jan's blood alcohol level was .10 percent. The medical examiner testified that at this level
The medical examiner testified that Jan's injuries were inconsistent with falling off a motionless vehicle. Jan suffered injuries over her entire body and marks on her skin suggested tire tread contact. The medical examiner determined the cause of death to be a fractured skull, resulting from Jan's head having been run over by a vehicle.
Examination of Porter's car revealed unidentified fingertip markings showing that a hand had slid from the windshield wiper area down to the front side of the car where the radio antenna was bent. Jan's shorts bore tire tread marks consistent with the tread on the right rear tire of Porter's car.
Donna Lester testified that two weeks before Jan's death, for a five minute period, Porter repeatedly hit Jan, threw her on the floor, and kicked her. Ms. Lester's ex-husband stopped Porter by convincing him to go outside. Ms. Lester testified that Porter said, "I'm going to have to get her out of here before I end up killing her or doing something I regret."
Mrs. Caudle testified that she called Jan on the night of her death to tell her that her pocketbook had been found. While talking to Jan, Mrs. Caudle heard Porter yell, "[b]itch, get off the phone!"
Porter first contends that the evidence is insufficient to support a murder conviction. We agree.
In Essex v. Commonwealth, 228 Va. 273, 322 S.E.2d 216 (1984), the Supreme Court considered whether the operation of a motor vehicle, under circumstances of intoxication and extreme recklessness, resulting in a fatal accident could support a second degree murder conviction. While intoxicated, Essex drove his vehicle at high speed, crossing back and forth over the center line of the road for a distance of several miles, ran a red light, and finally collided head-on with an oncoming vehicle, killing two passengers in that vehicle and a passenger in his. Finding that evidence insufficient and reversing Essex's conviction for second degree murder, the Supreme Court said:
Malice, a requisite element for murder of any kind, is unnecessary in manslaughter cases and is the touchstone by which murder and manslaughter cases are distinguished. Malice may be either express or implied by conduct....
The authorities are replete with definitions of malice, but a common theme running through them is a requirement that a wrongful act be done "wilfully or purposefully." This requirement of volitional action is inconsistent with inadvertence. Thus, if a killing results from negligence, however gross or culpable, and the killing is contrary to the defendant's intention, malice cannot be implied. In order to elevate the crime to second-degree murder, the defendant must be shown to have wilfully or purposefully, rather than negligently, embarked upon a course of wrongful conduct likely to cause death or great bodily harm.
In the absence of express malice, [malice] may only be implied from conduct likely to cause death or great bodily harm, wilfully or...
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United States v. Montgomery
... ... Ct. App. Aug. 1, 2000) ("Reckless conduct, however ... gross, is not murder." (citing Essex , 322 ... S.E.2d at 220); Porter v. Commonwealth , 435 S.E.2d ... 148, 150-51 (Va. Ct. App. 1993) (reversing second-degree ... murder conviction where the evidence failed ... ...
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Peck v. Commonwealth, Record No. 1972-02-1 (Va. App. 11/12/2003)
...or willfully committed, are consistent with a finding of malice and inconsistent with inadvertence. See Porter v. Commonwealth, 17 Va. App. 58, 61, 435 S.E.2d 148, 149 (1993). The presence of malice is a question of fact to be determined by the fact finder. See Long, 8 Va. App. at 198, 379 ......
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Luck v. Com.
...or willfully committed, are consistent with a finding of malice and inconsistent with inadvertence. See Porter v. Commonwealth, 17 Va.App. 58, 61, 435 S.E.2d 148, 149 (1993). The presence of malice is a question of fact to be determined by the fact finder. See Long, 8 Va. App. at 198,379 S.......
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King v. Commonwealth
...a finding of malice and inconsistent with inadvertence." Luck, 32 Va. App. at 833, 531 S.E.2d at 44 (citing Porter v. Commonwealth, 17 Va. App. 58, 61, 435 S.E.2d 148, 149 (1993)). Whether a defendant acts out of malice is a "question of fact to be determined by the fact finder." Id.; see a......