Matthew Charles Bass v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, AtLee and Raphael
UNPUBLISHED
Argued at Norfolk, Virginia
MATTHEW CHARLES BASS
MEMORANDUM OPINION* BY
v. Record No. 0706-21-1 JUDGE ROBERT J. HUMPHREYS
FEBRUARY 21, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Mary Jane Hall, Judge
Andrew M. Sacks (Stanley E. Sacks; Sacks & Sacks, P.C., on briefs),
for appellant.
Suzanne Seidel Richmond, Assistant Attorney General (Jason S.
Miyares, Attorney General; David M. Uberman, Assistant Attorney
General, on brief), for appellee.
Following a jury trial, the circuit court convicted Matthew Charles Bass of second-degree
murder. On appeal, Bass contends that the circuit court erred by denying his motions to strike and
set aside the verdict “on the grounds that the evidence established self-defense as a matter of law.”
He also argues that the evidence “at best, supported only a submissible issue as to voluntary
manslaughter and not as to second degree murder.” Finally, Bass asserts that the circuit court erred
by refusing to admit certain evidence of the victim’s prior bad acts. Finding no error, we affirm
Bass’s conviction.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Poole v. Commonwealth,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In
doing so, we discard any of Bass’s conflicting evidence, and regard as true all credible evidence
favorable to the Commonwealth and all inferences that may reasonably be drawn from that
evidence. Gerald, 295 Va. at 473.
On the night of August 27, 2019, Dennis Berry attended a small gathering at a friend’s
apartment. He fell asleep during the evening and awoke to find Bass and Darrell Long arguing.
Bass called Long “various names” and struck him in the chin. The two men punched each other and
fell to the floor. Long rose and said, “you cut me” and “you stabbed me” before he fell to the floor
by a bedroom door. Berry did not see either of the men with a weapon.
Another attendee of the party testified that Bass’s girlfriend, Charlotte, was in the apartment
and testified that when Bass arrived, he found Charlotte asleep in a bedroom naked and became
“upset,” “assumed something was going on,” and threatened to “cut all your . . . fucking heads off.”
Long responded that “nobody’s messing with that girl back there,” but Bass, still angry, pushed
Long onto the couch as he told Long that he was going to “fuck [him] up.” Bass and Long
“tussled” briefly before an attendee separated them. Moments later, Long stated, “I think he stuck
me” and fell to the floor. The witness did not see either man with a knife, but did see Bass holding
his hand behind his back before he left the apartment. Long suffered five stab wounds to his chest
and abdomen and died as a result of a stab wound that punctured his heart.
Norfolk Police Officer Zayas encountered Bass later that day. Bass approached Officer
Zayas, stated that he knew the police were looking for him, and “surrendered himself.” When he
searched Bass, Officer Zayas found a knife in Bass’s pocket.
Bass testified that he went to the apartment next door to look for Charlotte after she went out
for the night and found her “passed out” naked on the bed. Bass heard arguing in the living room
and when he went to investigate, Long was “in [his] face,” which Bass found threatening. Bass
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admitted that he pushed Long. When Long rose, Bass saw another man at the apartment who Bass
feared was going to help Long “beat [him] up.” Bass then brandished the knife and warned, “If you
jump on me, I’m going to hurt you.” Despite Bass’s warning, Long approached him and repeatedly
punched him. Bass stated that he stabbed Long to defend himself.
The jury convicted Bass of second-degree murder. The circuit court denied Bass’s motion
to set aside the verdict and sentenced him to seventeen years’ incarceration. Bass now appeals.
ANALYSIS
I. Self-Defense and Heat of Passion
Bass argues that the circuit court erred by denying his motions to strike and to set aside
the verdict because “the evidence established as a matter of law that [he] acted in self-defense.”
We disagree.
“Self-defense is an affirmative defense which the accused must prove by introducing
sufficient evidence to raise a reasonable doubt about his guilt.” Hughes v. Commonwealth, 39
Va. App. 448, 464 (2002) (quoting Smith v. Commonwealth, 17 Va. App. 68, 71 (1993)).
“Whether an accused proves circumstances sufficient to create a reasonable doubt that he acted
in self-defense is a question of fact.” Bell v. Commonwealth, 66 Va. App. 479, 486 (2016)
(quoting Smith, 17 Va. App. at 71). Accordingly, the jury’s factual findings “regarding a claim
of self-defense ‘will not be disturbed on appeal unless plainly wrong or without evidence to
support them.’” Meade v. Commonwealth, 74 Va. App. 796, 807 (2022) (quoting Smith, 17
Va. App. at 71).
“Virginia law recognizes two forms of self-defense to criminal acts of violence:
self-defense without fault (‘justifiable self-defense’) and self-defense with fault (‘excusable
self-defense’).” Jones v. Commonwealth, 71 Va. App. 70, 94 (2019) (quoting Bell, 66 Va. App.
at 487). “Justifiable homicide in self-defense occurs where a person, without any fault on his
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part in provoking or bringing on the difficulty, kills another under reasonable apprehension of
death or great bodily harm to himself.” Id. (quoting Bell, 66 Va. App. at 487). “If an accused ‘is
even slightly at fault’ in creating the difficulty leading to the necessity to kill, ‘the killing is not
justifiable.’” Id. (quoting Smith, 17 Va. App. at 71). “Any form of conduct by the accused from
which the fact finder may reasonably infer that the accused contributed to the affray constitutes
‘fault.’” Id. at 94-95 (quoting Smith, 17 Va. App. at 71).
Excusable homicide in self-defense occurs where an accused, “although in some fault in
the first instance in provoking or bringing on the difficulty, when attacked retreats as far as
possible, announces his desire for peace, and kills his adversary from a reasonably apparent
necessity to preserve his own life or save himself from great bodily harm.” Id. at 95 (emphasis
omitted) (quoting Avent v. Commonwealth, 279 Va. 175, 200 (2010)).
Here, the evidence proved that Bass initiated the hostility. Angry at finding Charlotte
naked in the bedroom, Bass confronted the men in the apartment and threatened to “cut” them.
When Long tried to calm Bass, Bass pushed him onto the sofa. Long rose, and the two men
briefly fought. During the brief tussle, Bass stabbed Long repeatedly in the chest and abdomen,
killing him. Long was unarmed and made no threats. The jury rejected Bass’s claim that he
feared for his life and only stabbed Long because Long continued to advance towards him. “In
its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving
testimony of the accused and to conclude that the accused is lying to conceal his guilt.” Speller
v. Commonwealth, 69 Va. App. 378, 388 (2018). Indeed, the jury “was at liberty to . . . treat
such prevarications as ‘affirmative evidence of guilt.’” Sierra v. Commonwealth, 59 Va. App.
770, 784 (2012) (quoting Armstead v. Commonwealth, 56 Va. App. 569, 581 (2010)). Bass
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failed to prove that he acted in self-defense. Instead, the evidence proved that Bass was the
aggressor, initiated the confrontation, and stabbed the unarmed Long without provocation.1
Bass also argues that “the evidence, at best, supported the submission of only voluntary
manslaughter, not second-degree murder” because he “was provoked into a reaction that
ultimately resulted in mutual combat” during which Bass stabbed Long as the culmination of that
“mutual altercation.” He contends that he acted in the heat of passion and without malice.
“Whether violence was completed in the heat of passion and due to a reasonable provocation is
generally a question for the fact finder.” Washington v. Commonwealth, 75 Va. App. 606, 619
(2022). Accordingly, we will not set aside the fact finder’s factual determinations unless plainly
wrong or without evidence to support them.
“Manslaughter is the ‘unlawful killing’ of another person ‘without malice.’” Jones, 71
Va. App. at 96 (quoting Canipe v. Commonwealth, 25 Va. App. 629, 642 (1997)). “To reduce a
homicide from murder to voluntary manslaughter, the killing must have been done in the heat of
passion and upon reasonable provocation.” Id. (quoting Canipe, 25 Va. App. at 643). To
establish “heat of passion,” “the evidence must show both ‘reasonable provocation’ and
‘passion’ occurring simultaneously.” Id. (quoting Canipe, 25 Va. App. at 643). The lodestar
which distinguishes murder from manslaughter is malice; malice is a requisite element of
murder, but it is not required for manslaughter. Essex v. Commonwealth, 228 Va. 273, 280
(1984).
“Whether or not an accused acted with malice is generally a question of fact and may be
proved by circumstantial evidence.” Canipe, 25 Va. App. at 642. “Malice . . . may be directly
1
The Virginia Supreme Court recently noted in Colas v. Tyree, ___ Va. ___, ___ (Jan.
26, 2023), that a defendant proved self-defense as a matter of law when the plaintiff’s own
uncontradicted evidence established the elements of the defense. Here, however, the
Commonwealth’s evidence clearly negated Bass’s claim of self-defense and Colas is, therefore,
inapplicable.
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evidenced by words, or inferred from acts and conduct which necessarily result in injury.”
Burkeen v. Commonwealth, 286 Va. 255, 259 (2013) (quoting Dawkins v. Commonwealth, 186
Va. 55, 61 (1947)). Heat of passion “excludes malice when provocation reasonably produces
fear [or anger] that causes one to act on impulse without conscious reflection.” Rhodes v.
Commonwealth, 41 Va. App. 195, 200 (2003) (alteration in original) (quoting Graham v.
Commonwealth, 31 Va. App. 662, 671 (2000)). “Malice may be inferred from the ‘deliberate use
of a deadly weapon unless, from all the evidence, [there is] reasonable doubt as to whether
malice existed.’” Fletcher v. Commonwealth, 72 Va. App. 493, 507 (2020) (alteration in
original) (quoting Strickler v. Commonwealth, 241 Va. 482, 495 (1991)).
The evidence in this case amply supports the jury’s conclusion that Bass acted
maliciously and not in the heat of passion. The jury accepted the Commonwealth’s evidence and
rejected Bass’s testimony. “The fact finder, who has the opportunity to see and hear the
witnesses, has the sole responsibility to determine their credibility, the weight to be given their
testimony, and the inferences to be drawn from proven facts.” Rams v. Commonwealth, 70
Va. App. 12, 26-27 (2019) (quoting Hamilton v. Commonwealth, 279 Va. 94, 105 (2010)).
“Where credibility issues are resolved by the jury in favor of the Commonwealth, those findings
will not be disturbed on appeal unless plainly wrong.” Smith v. Commonwealth, 56 Va. App.
711, 718 (2010). The fact finder “[i]s free to believe or disbelieve, in part or in whole, the
testimony of any witness.” Bazemore v. Commonwealth, 42 Va. App. 203, 213 (2004) (en banc).
The Commonwealth’s witnesses’ testimony established that Bass, armed with a deadly
weapon, threatened to stab the men in the apartment and then acted on his stated intent despite
Long’s attempt to defuse the confrontation. Long was unarmed and only fought with Bass after
Bass initiated the affray by shoving him onto the sofa. Bass’s threats, and his actions consistent
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with those threats, proved that he acted with malice. Accordingly, we find no error with the
circuit court’s denial of Bass’s motions to strike and to set aside the jury’s verdict.
II.
Bass contends that the circuit court abused its discretion by excluding evidence of Long’s
“prior bad acts of belligerence and aggression in the form of a 1990 malicious wounding
conviction as relevant to the issue of self-defense.” The circuit court allowed Bass to introduce
Long’s 2009 conviction for unlawful wounding and his 2014 convictions for assault and public
drunkenness, but the court held that “the 1990 conviction was too remote.”
“Decisions regarding the admissibility of evidence ‘lie within the trial court’s sound
discretion and will not be disturbed on appeal absent an abuse of discretion.’” Blankenship v.
Commonwealth, 69 Va. App. 692, 697 (2019) (quoting Michels v. Commonwealth, 47 Va. App
461, 465 (2006)). “A court has abused its discretion if its decision was affected by an error of
law or was one with which no reasonable jurist could agree.” Tomlin v. Commonwealth, 74
Va. App. 392, 409 (2022).
“[W]here an accused adduces evidence that he acted in self-defense, evidence of specific
acts is admissible to show the character of the decedent for turbulence and violence, even if the
accused is unaware of such character.” Carter v. Commonwealth, 293 Va. 537, 546 (2017)
(alteration in original) (quoting Barnes v. Commonwealth, 214 Va. 24, 25 (1973)). Indeed,
Virginia Rule of Evidence 2:404(a)(2) provides that “evidence of a pertinent character trait or
acts of violence by the victim of the crime offered by an accused who has adduced evidence of
self-defense” is admissible. “Evidence pertaining to the victim’s prior acts of violence, however,
must be ‘sufficiently connected in time and circumstances . . . as to be likely to characterize the
victim’s conduct toward the defendant.’” Anderson v. Commonwealth, 69 Va. App. 396, 402
(2018) (alteration in original) (quoting Carter, 293 Va. at 546-47). “[T]he test is whether the
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evidence of prior character is so distant in time as to be void of real probative value in showing
present character.” Id. (alteration in original) (quoting Carter, 293 Va. at 547).
We find no basis to disturb the circuit court’s finding that evidence of the 1990 malicious
wounding conviction was insufficiently connected in time and circumstances to characterize
Long’s conduct toward Bass nearly thirty years later. Further, the contested evidence was
merely cumulative of the other trial evidence; the circuit court admitted three other conviction
orders pertaining to Long’s prior violent acts, including a 2009 conviction for unlawful
wounding and 2014 convictions for assault and public drunkenness. A circuit court does not
abuse its discretion by limiting a victim’s charges and convictions entered into evidence to only
those charges and convictions that are relevant to a defendant’s self-defense claim. See id. at
405. Therefore, we find no abuse of discretion in the circuit court’s ruling.
CONCLUSION
For the foregoing reasons, there was evidence in the record to support the jury’s
conclusion that Bass did not act in either self-defense or in the heat of passion. Additionally, we
find no abuse of discretion with the circuit court’s refusal to admit the 1990 conviction.
Accordingly, we affirm the judgment.
Affirmed.
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