James Douglas Riley v. Commonwealth ( 1995 )


Menu:
  •                     COURT OF APPEALS OF VIRGINIA
    Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
    Argued at Richmond, Virginia
    JAMES DOUGLAS RILEY
    v.   Record No. 1781-94-2                MEMORANDUM OPINION * BY
    CHIEF JUDGE NORMAN K. MOON
    COMMONWEALTH OF VIRGINIA                   DECEMBER 29, 1995
    FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
    James B. Wilkinson, Judge
    Prescott L. Price, for appellant.
    Michael T. Judge, Assistant Attorney General
    (James S. Gilmore, III, Attorney General, on
    brief), for appellee.
    James Douglas Riley appeals his conviction for second degree
    murder in the death of Chamont Brownlee, a seven-month-old
    infant.    Riley argues that there was insufficient evidence to
    support his conviction, that the trial judge erred in failing to
    consider certain evidence, and that the trial judge improperly
    considered his own opinion on water temperature as a basis of the
    verdict.   We affirm the conviction.
    On the evening of January 22, 1994, Bridget Brownlee left
    her seven-month-old son, Chamont, in the care of her boyfriend
    Riley.    Also left with Riley were Chamont's brother Chris, two
    years old, and his brother LaQuinn, seven years old.     Chris was
    Riley's son, but Chamont was not.   Riley frequently complained to
    Ms. Brownlee about the fact that Chamont was not his son.
    According to Riley's statement to the police, both of the
    *
    Pursuant to Code § 17-116.010 this opinion is not
    designated for publication.
    younger boys "messed on themselves" after their mother left and
    he decided to give them a bath.   He stated that he ran about six
    inches of water, tested the temperature of the water, and placed
    both children in the tub.   He at first told police that he had
    shut the water off before leaving the children in the tub, but
    when it became apparent that the police did not believe his
    account, he said that he might have left the water running.     He
    said that he went downstairs for several minutes, heard crying,
    and went upstairs to find Chris beside the tub pointing, and
    Chamont in the bathtub "laying on his side."   The children had
    been in Riley's care for less than an hour and a half.
    Riley went to a neighbor's house to call 911, stayed at the
    neighbor's for about twenty minutes, and then returned to the
    apartment.   He appeared upset, but would not tell his neighbors
    what was wrong.
    When Chamont arrived at the hospital, he had full thickness
    burns over 90% of his body.   The only areas spared were his
    armpits, the back of his scalp, and a small area at the back of
    the neck.    According to the pathologist, the burns were
    consistent with his being placed face down in the water.
    The burn specialist testified that it would take
    approximately fifteen seconds for water at a temperature of 120
    degrees to burn a child so severely.    At a lower temperature,
    such burns would take longer.   In the specialist's opinion,
    Chamont's burns were the result of exposure to a very high
    temperature for a short time.   An engineer from the Richmond
    - 2 -
    Redevelopment and Housing Authority tested the water in the
    apartment and found that it could reach a temperature of 131
    degrees.
    The medical examiner who performed the autopsy agreed that
    the burns were likely caused by a short period of exposure to
    very hot water.   He based this on Chamont's clenched position and
    also the lack of any evidence of drowning.
    In addition to the burns, Chamont had two bruised areas on
    his head.   Due to the extensive burns, the medical examiner could
    not see the bruises until he began the autopsy.   The bruises were
    very severe -- the brain surface itself was bruised.   The medical
    examiner testified that these injuries would produce significant
    behavior changes, and indeed were potentially fatal.   The medical
    examiner concluded that the most likely cause of death was a
    combination of the burns and the head trauma. The trauma likely
    took place between four and thirty-six hours before examination.
    Chamont lived four hours after he arrived at the hospital.
    Ms. Brownlee testified that Chamont had no bruises on his
    head when she left the house and had behaved normally throughout
    the day.    Because the bruises had not yet been detected when
    Riley was questioned, the police did not ask him to explain the
    bruises.
    I.
    Riley was initially convicted of first degree murder.       After
    considering legal memoranda on first degree murder versus second
    degree murder, the judge reduced the conviction to second degree
    - 3 -
    murder, based on Rhodes v. Commonwealth, 
    238 Va. 480
    , 
    384 S.E.2d 95
    (1989).
    On appeal, we view the evidence in the light most favorable
    to the Commonwealth, granting it all reasonable inferences fairly
    deducible therefrom.     Higginbotham v. Commonwealth, 
    216 Va. 349
    ,
    352, 
    218 S.E.2d 534
    , 537 (1975).     The decision of the trial
    court, sitting without a jury, is afforded the same weight as a
    jury's verdict and therefore will not be disturbed on appeal
    unless plainly wrong or without evidence to support it.      Pugh v.
    Commonwealth, 
    223 Va. 663
    , 667, 
    292 S.E.2d 339
    , 341 (1982).
    To sustain a conviction for second degree murder, the
    Commonwealth must prove an unlawful killing done with malice.
    Wooden v. Commonwealth, 
    222 Va. 758
    , 762, 
    284 S.E.2d 811
    , 814
    (1981).    "'Malice inheres in the doing of a wrongful act
    intentionally or without just cause or excuse, or as a result of
    ill will.'"     
    Id. (quoting Dawkins
    v. Commonwealth, 
    186 Va. 55
    ,
    61, 
    41 S.E.2d 500
    , 503 (1947)).    Malice may be implied when any
    purposeful, cruel act is committed by one individual against
    another.     Pugh, 
    223 Va. 663
    , 292 S.E.2d at 341.
    Although second degree murder requires proof of malicious
    intent, it does not require proof of specific intent to kill.       If
    it can be reasonably inferred from the evidence that the killer
    intended to do great bodily harm, then the killer is guilty of
    murder in the second degree.     Rhodes v. Commonwealth, 
    238 Va. 480
    , 486, 
    384 S.E.2d 95
    , 98 (1989).
    Here, considerable evidence exists to prove that Riley
    - 4 -
    harbored malice when he killed Chamont.      Two expert witnesses
    testified that Chamont was burned as the result of being placed
    face down in extremely hot water.       Chamont also had received
    trauma to his head so severe that the surface of his brain was
    bruised.    Riley was Chamont's sole caretaker during the period
    when Chamont sustained these injuries.      Riley acknowledged that
    he placed Chamont in the water, and there is no evidence that
    either of Chamont's brothers touched him during the period in
    question.
    The judge inferred that Riley committed the acts that
    injured Chamont, and the evidence supports this inference to the
    exclusion of any other reasonable hypothesis.      Intentionally
    submerging an infant in scalding water, even for a short time,
    and striking him with force sufficient to injure the brain are
    willful and cruel acts from which one can reasonably infer an
    intent to cause great bodily harm or death.      Also, Riley's
    expressed ill-will toward Chamont because Chamont was not his
    child shows a potential for malicious behavior toward Chamont.
    Riley's son Chris, although he had also "messed himself" and was
    purportedly placed in the bathtub, received no burns.
    Riley maintains that the evidence does not preclude the
    hypothesis that Chamont was injured accidentally. 1     In a case
    based on circumstantial evidence, the circumstances proved must
    1
    The Commonwealth contends that Riley has conceded the
    sufficiency of the evidence for second degree murder. We find no
    merit in this contention.
    - 5 -
    be consistent with guilt and exclude every reasonable hypothesis
    of innocence.   Cantrell v. Commonwealth, 
    229 Va. 387
    , 397, 
    329 S.E.2d 22
    , 28 (1985).   However, "the Commonwealth is only
    required to exclude hypotheses of innocence that flow from the
    evidence, and not from the imagination of the accused's counsel."
    Fordham v. Commonwealth, 
    13 Va. App. 235
    , 239, 
    409 S.E.2d 829
    ,
    831 (1991).
    Here, the hypotheses of accidental injury suggested by the
    defendant either have no factual basis in the record, are
    directly contradicted by the medical evidence, or are based on
    selective use of Riley's contradictory statements to the police.
    As to the latter, where the defendant gives contradictory
    accounts, the trial judge can reject the self-serving statements
    and conclude that the defendant was lying to conceal his guilt.
    Price v. Commonwealth, 
    446 S.E.2d 642
    , 647, 
    18 Va. App. 760
    , 768
    (1994); Speight v. Commonwealth, 
    4 Va. App. 83
    , 88, 
    354 S.E.2d 95
    , 98 (1987) (en banc).   The trial judge properly rejected the
    hypotheses of accidental injury.   Moreover, the trial judge's
    finding that Riley placed Chamont in scalding water and that he
    did so as a malicious act is amply supported by other evidence in
    the record.
    II.
    The Commonwealth placed the transcript of Riley's police
    interrogation into evidence.   On defense counsel's motion and
    over the Commonwealth's objection, the trial judge admitted the
    videotape of Riley's interrogation into evidence as well.    At the
    - 6 -
    close of the evidence and during his summation, defense counsel
    requested that the trial judge view the tape.    The trial judge
    refused, and decided the case immediately.
    While defense counsel's requests that the court view the
    tape were sufficient to preserve his objection, see Code
    § 8.01-384, we find no reversible error in the trial court's not
    viewing the videotape because the evidence on the video was
    merely cumulative of other evidence.     The transcript of the
    interrogation was placed in evidence and the detective testified
    from the transcript.   Riley has not identified a particular
    statement omitted from the transcript that was relevant to his
    defense.   His primary objection to the court's failure to
    consider the tape is that the tape showed his highly emotional
    state during the latter part of the interrogation.    However, this
    point was brought out on cross-examination of the detective, and
    the transcript itself indicates that Riley broke down during the
    interview.   The transcript contains Riley's statement that he
    never meant to hurt Chamont, and the detective also testified
    about Riley's denials.   Therefore, the videotape was merely
    cumulative of other evidence, and the court's failure to view it
    was not reversible error.   See Pace v. Richmond, 
    231 Va. 216
    ,
    227, 
    343 S.E.2d 59
    , 65 (1986).
    During defense counsel's summation, he stated that the water
    could have been too hot by accident.     The trial judge responded
    that water at 120 degrees is steaming, to which defense counsel
    responded that he did not know whether it was or not.    The trial
    - 7 -
    judge stated that he was not supposed to leave his common sense
    at home, and defense counsel responded "No, Your Honor."
    When the trial judge made oral findings of fact, he again
    stated that water steams at 120 degrees.   When the judge finished
    his findings, defense counsel asked that his exception to the
    findings be noted, but he made no objection to any particular
    finding.   Defense counsel now argues that the court erred in
    taking judicial notice of the appearance of water at 120 degrees.
    Defense counsel did not object when the court first noted
    the temperature at which water steams, and indeed seemed to
    acquiesce in the judge's comment that it was a matter of common
    sense.   Acquiescence does not preserve an objection.   See Boblett
    v. Commonwealth, 
    10 Va. App. 640
    , 650-651, 
    396 S.E.2d 131
    ,
    136-137 (1990).   Also, defense counsel made only a general
    objection after the findings of fact.   Such objections are not
    sufficient to satisfy Rule 5A:18.
    For these reasons, we affirm the judgment of the circuit
    court.
    Affirmed.
    - 8 -