Tizon v. Commonwealth

• Decision Date: 03 April 2012
• Docket Number: Record No. 1967–10–4.
• Parties: Maria De Las Mercedes TIZON v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

60 Va.App. 1

723 S.E.2d 260

Maria De Las Mercedes TIZON

v.COMMONWEALTH of Virginia.

Record No. 1967–10–4.

Court of Appeals of Virginia, Alexandria.

April 3, 2012.

Peter D. Greenspun (Greenspun Shapiro, PC, on brief), Fairfax, for appellant.

Josephine F. Whalen, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: HUMPHREYS, KELSEY and ALSTON, JJ.

KELSEY, Judge.

A jury convicted Maria De Las Mercedes Tizon of second-degree murder and use of a firearm in the commission of a felony. On appeal, Tizon challenges the sufficiency of the evidence, the denial of her mistrial and suppression motions, and two jury instructions. Finding none of Tizon's challenges persuasive, we affirm her convictions.

I.

On appeal, we review the evidence in the “light most favorable” to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle requires us to “discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted). In determining whether there is sufficient evidence to sustain a conviction, moreover, an appellate court must consider “all the evidence” admitted at trial that is contained in the record. Hamilton v. Commonwealth, 279 Va. 94, 103, 688 S.E.2d 168, 173 (2010) (quoting Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008)).

From this perspective, the evidence at trial proved Tizon referred to Ahmed Chouaib as her boyfriend. In early 2009, Tizon told a neighbor that her boyfriend had hit her after a quarrel. In July 2009, Tizon purchased a .38 caliber revolver and a box of ammunition. Five weeks later, on August 15, 2009, Tizon shot Chouaib to death in her condominium. One shot hit him in the side, the other in the back. Either wound, a medical examiner testified, would have been fatal. The medical examiner also determined the revolver was fired less than three feet from Chouaib's body.

After shooting Chouaib, Tizon went to her neighbor's condominium. Visibly upset, Tizon said she had just killed her boyfriend and showed her neighbor the revolver she used to shoot him. The neighbor took Tizon inside and called 911. During the call, the neighbor asked Tizon if Chouaib had hurt her. Tizon said he “hit” or “pushed” her “in the heart.” App. at 631–32. While saying this, Tizon placed her hand on her chest in a pushing motion.

Accompanied by other officers, Fairfax County Police Officer William Coulter arrived while the neighbor was still on the phone with the 911 operator. Armed with a shotgun in the “ready position,” id. at 711, Officer Coulter first attempted to determine the location of the revolver. The neighbor pointed to the handgun which Tizon had dropped outside the residence. Officer Coulter then asked what had happened. In reply, the neighbor relayed Tizon's statement that she had just shot her boyfriend. “He messed with my head,” Tizon added. Id. at 697. Tizon appeared to the officer to be distraught but physically unharmed.

The neighbor then directed the officer to Tizon's residence. Officer Coulter found Chouaib on the floor, motionless, with a bullet hole in his chest. Concluding Chouaib was probably dead, Officer Coulter allowed other officers to secure the murder scene. He returned to the neighbor's condominium to speak with Tizon. Officer Coulter holstered his shotgun in a sling on his back so it was no longer visible to the neighbor. He asked again what was “going on” and whether everyone was okay. Id. at 702. The neighbor again told him Tizon had said she shot her boyfriend. Tizon interjected, “He messed with my head. He takes my car and never returns it.” Id. at 703. She repeated this explanation two or three times. Seeing no evidence that Tizon had been attacked or injured, Officer Coulter arrested Tizon and read her Miranda warnings.¹

Officer Coulter secured Tizon in a police cruiser and later drove her to the station house. En route, Tizon volunteered, “He takes my car. He messes with my head.” Id. at 705. During this time, the officer asked no questions of Tizon.

At the police station, a detective again read Tizon her Miranda rights. Tizon asked for a Spanish translator. She also asked to use the bathroom. The detective tested Tizon's hands for gunshot primer residue and called for a female officer. Before going to the bathroom, Tizon asked for a lawyer. Accompanied by a female officer in the bathroom, Tizon said she was dizzy, her heart was racing, and she found it difficult to breathe. The female officer called for a rescue squad and waited with Tizon in the bathroom. During the wait, the female officer asked Tizon about her physical condition but asked no questions concerning the investigation. Tizon nonetheless volunteered additional incriminating statements before the rescue squad arrived and transported her to the hospital.²

Back at the scene of the crime, investigating officers observed no signs of a struggle. They found the box for Tizon's revolver along with a box of bullets. When purchased, the ammunition box contained fifty bullets. Only forty-five bullets were still in the box. Tizon used two bullets to kill Chouaib and three remained in the cylinder of Tizon's revolver. No other weapons or ammunition were found in Tizon's residence.

At trial, a weapons expert testified Tizon's revolver could be fired in only two ways. Tizon had to either cock the hammer and thereafter squeeze the trigger (the single action method), or she could squeeze the trigger hard enough to bring back the hammer and release it (the double action method). The single action method required three and one-half pounds of pressure on the trigger, while the double action required fourteen pounds of pressure. In neither scenario could a single squeeze of the trigger fire two rounds. The revolver was also equipped with an internal safety device, referred to as a transfer bar, which prevented the handgun from accidently firing if dropped or knocked about.

A jury convicted Tizon of second-degree murder and of using a firearm to commit the murder. She now appeals to us, contending:

• the evidence was insufficient to prove her guilt;

• the trial court should have declared a mistrial because the prosecutor improperly commented on her invocation of the right to counsel;

• the trial court should have suppressed her incriminating statements to police because she was arrested without probable cause and her statements to the police violated her Miranda rights; and

• two of the jury instructions misstated the law.

II.

A. SUFFICIENCY OF THE EVIDENCE

An appellate court does not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)); see also Cavazos v. Smith, –––U.S. ––––, ––––, 132 S.Ct. 2, 3, 181 L.Ed.2d 311 (2011) (reaffirming Jackson standard).³ “Rather, the relevant question is whether ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Williams, 278 Va. at 193, 677 S.E.2d at 282 (quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789). Thus, when a jury has rendered its verdict, “it is not for this court to say that the evidence does or does not establish his guilt beyond a reasonable doubt because as an original proposition it might have reached a different conclusion.” Cobb v. Commonwealth, 152 Va. 941, 953, 146 S.E. 270, 274 (1929). Suffice it to say, an “appellate court is no substitute for a jury.” Id.⁴

This deferential appellate standard “applies not only to findings of fact, but also to any reasonable and justified inferences the fact-finder may have drawn from the facts proved.” Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63–64 (2010); see also Clanton v. Commonwealth, 53 Va.App. 561, 566, 673 S.E.2d 904, 907 (2009) ( en banc ). Thus, a factfinder may “draw reasonable inferences from basic facts to ultimate facts,” Haskins v. Commonwealth, 44 Va.App. 1, 10, 602 S.E.2d 402, 406 (2004) (citation omitted), unless doing so would push “into the realm of non sequitur,” Thomas v. Commonwealth, 48 Va.App. 605, 608, 633 S.E.2d 229, 231 (2006) (citation omitted).

Applying this standard of review, we find ample evidence supporting the jury's verdicts finding Tizon guilty of second-degree murder and of using a firearm during the commission of that murder. “In Virginia, every unlawful homicide is presumed to be murder of the second degree.” Pugh v. Commonwealth, 223 Va. 663, 667, 292 S.E.2d 339, 341 (1982). “Murder at common law is a homicide committed with malice, either express or implied.” Id.; see also Canipe v. Commonwealth, 25 Va.App. 629, 642, 491 S.E.2d 747, 753 (1997). Second-degree murder does not require a specific intent to kill. See Rhodes v. Commonwealth, 238 Va. 480, 486, 384 S.E.2d 95, 98 (1989). “It is quite clear that one may slay maliciously without actually intending to kill.” Ronald J. Bacigal, Criminal Offenses and Defenses 339 (2011–12). If he acts with malice, the accused need only intend “to perform the conduct” causing the victim's death. Id. at 340.

Malice inheres in the “doing of a wrongful act intentionally, or without just cause or excuse, or as a result of ill will.” Dawkins v. Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500, 503 (1947). “Implied malice may be inferred from ‘conduct likely to cause death or great bodily harm, wilfully or purposefully undertaken.’ ” Canipe, 25 Va.App. at 642, 491 S.E.2d at 753 (quoting Essex v. Commonwealth, 228 Va. 273, 281, 322 S.E.2d 216, 220 (1984)). It necessarily follows that malice may be “inferred from the...