Pugh v. Com.
| Decision Date | 18 June 1982 |
| Docket Number | No. 810917,810917 |
| Parties | Dianna Mickels PUGH v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Supreme Court |
William O. Roberts, Jr., Lexington, for appellant.
Robert H. Anderson, III, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.
Before CARRICO, C. J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.
Indicted for killing her three-year-old daughter, defendant Dianna Mickels Pugh was found guilty in a bench trial of murder of the second degree and sentenced to a term of 20 years' imprisonment. The principal issue on appeal is whether the evidence is sufficient to support a finding of malice.
On July 15, 1980, about 3:00 p. m., the victim, Mary Elizabeth Pugh, was brought by ambulance from her home in Buena Vista to a Lexington hospital. The child was dead on arrival. The cause of death was acute laryngotrachael obstruction by black pepper.
The autopsy showed she had sustained multiple abrasions and contusions "of varying ages" about her face, arms, chest, back, buttocks, and legs. Even though three years old, the child weighed merely 17 pounds and was two and one-half feet tall, having the stature of a two-year-old and the weight of an average nine-months-old infant. The child's torso "was skin and bones" with no subcutaneous fat. "It looked like the baby had been starved," testified a physician in attendance at the hospital.
According to the medical examiner's report, the child's trachea was completely occluded "by large quantities of black pepper" extending downward into both bronchial branches. The respiratory passages were also blocked by pepper. In addition, the stomach was "completely packed with large quantities of black pepper."
The record shows that the defendant, about 30 years of age with a seventh-grade education, lived separate from her husband under poor economic conditions in Buena Vista with four of her young children. During the early afternoon of the "extremely hot" day in question, defendant was at home with her mother and children when the victim "just kept fretting and crying." Defendant's mother noticed her daughter was very nervous and saw her smack the victim, observing bruises about the child's body. The mother left defendant's home about 12:30 p. m.
Shortly thereafter, the victim was still crying, "whining," and was attempting to drink from "the baby's bottle," contrary to defendant's instructions to her. According to a statement made by defendant to the police the day following the crime, the victim "got on my nerves and I just hit her." Defendant used her hands, "sometimes [her] fist" to strike the child.
Then defendant forcibly put pepper into the child's mouth, stating she "just poured it from the box in her mouth." When asked the reason for placing the pepper in the child's mouth, defendant stated to the investigator, "Well, people always told me to put soap or something like that in their mouth when they cuss ... to keep her from doing it." Defendant told the police, "I didn't mean to kill her."
About 2:45 p. m., "a young boy" telephoned the Buena Vista police dispatcher and reported "his sister was asleep and they could not wake her up." The dispatcher, having difficulty understanding the caller, asked to talk to anyone else at the home. Then defendant came to the telephone and said, "This is Mrs. Pugh, my daughter is unconscious and I cannot wake her up." When asked whether the defendant was "frantic" during her request for help, the dispatcher testified the "request was as matter of fact as though she was telling me the time of day."
Shortly thereafter, defendant's nephew arrived at her home and found defendant giving the victim mouth-to-mouth resuscitation. Defendant was "very upset," was crying, and was saying, "Mary, please breathe." In a few minutes, the first-aid squad arrived. Efforts to revive the child were unsuccessful. The victim then was taken to the hospital and defendant remained at home.
Defendant contends on appeal the evidence was insufficient to show she was "motivated" by malice and thus the trial court erroneously convicted her of second-degree murder. Referring to the evidence, defendant notes that the day in question was "uncomfortably hot;" that the children were "fussy because of the heat;" that she was extremely upset; that she did not realize the quantity of pepper administered was a lethal dose; and that she used the pepper to make the child behave without the intent to cause death.
Defendant also argues that other evidence rebuts the existence of malice. She points to her efforts to revive the child, and says the attempt inadvertently packed pepper into the respiratory system rather than cleared the air passages so the child could breathe. She also notes the medical testimony by physicians who examined and treated her at Central State Hospital, where she was sent for a court-ordered examination. One physician said she was a very unhappy, depressed, and frustrated person living an impoverished existence who, in his opinion, lacked the "intent to do harm to the child." We do not agree with defendant's contentions.
When sufficiency of the evidence is attacked, the judgment of the trial court sitting without a jury is entitled to the same weight as a jury verdict, and will not be disturbed on appeal unless plainly wrong or without evidence to support it. Code § 8.01-680; Evans v. Commonwealth, 215 Va. 609, 613, 212 S.E.2d 268, 271 (1975). When, as here, conflicting inferences flow from the undisputed evidence, principles of appellate procedure require us to adopt those conclusions most favorable to the Commonwealth if fairly deducible from the proven facts.
In Virginia, every unlawful homicide is presumed to be murder of the second degree. When the Commonwealth proves an unlawful homicide and establishes the accused as the criminal agent, the presumption, which is no more than an inference, arises, and the defendant has the burden of going forward with some evidence to show circumstances of "justification, excuse, or alleviation." Hodge v. Commonwealth, 217 Va....
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§ 33.05 EXCITED UTTERANCES: FRE 803(2)
...also noted that the child's statements were made "within minutes" of arriving back at the crime scene. See also Pugh v. Commonwealth, 292 S.E.2d 339, 342 (Va. 1982) (holding that the father's statement, "Oh, no, not again," when told about the death of his child, was admissible under the ex......
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§ 33.05 Excited Utterances: FRE 803(2)
...also noted that the child's statements were made "within minutes" of arriving back at the crime scene. See also Pugh v. Commonwealth, 292 S.E.2d 339, 342 (Va. 1982) (holding that the father's statement, "Oh, no, not again," when told about the death of his child, was admissible under the ex......