William L. McKeithan v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia
WILLIAM L. McKEITHAN
v. Record No. 1960-94-2 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA APRIL 2, 1996
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
John Byrum (James S. Gilmore, III, Attorney
General; Thomas C. Daniel, Assistant Attorney
General, on brief), for appellee.
William L. McKeithan (defendant) was convicted by a jury for
second degree murder. On appeal, defendant complains that the
trial court erroneously refused to instruct the jury on the
lesser included offense of voluntary manslaughter. We disagree
and affirm the judgment of the trial court.
The parties are fully conversant with the record, and we
recite only those facts necessary to a disposition of this
appeal.
In reviewing the ruling of the trial court, we consider the
evidence relating to the disputed instruction in the light most
favorable to defendant. Martin v. Commonwealth, 13 Va. App. 524,
526, 414 S.E.2d 401, 401 (1992) (en banc). The refusal of the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
proffered instruction is reversible error, provided it was
supported by "more than a mere scintilla of evidence." Boone v.
Commonwealth, 14 Va. App. 130, 132, 415 S.E.2d 250, 251 (1992).
"[T]he weight of the credible evidence that will amount to more
than a mere scintilla of evidence is a matter to be resolved on a
case-by-case basis." Brandau v. Commonwealth, 16 Va. App. 408,
412, 430 S.E.2d 563, 565 (1993).
On the morning of April 19, 1994, Tasheana 1 Lashell Ricks,
then ten years of age, discovered the body of her mother, Sheila
Ricks (decedent), on the floor of decedent's bedroom. A forensic
pathologist testified that the body was covered with "bed clothes
. . . partially soaked" with ammonia. A blood-stained baseball
bat was discovered "underneath [a] dresser," approximately two
feet from the decedent's body. The subsequent autopsy identified
"blunt trauma to the head and face," inflicted by "some heavy
blunt object," "consistent" with a baseball bat, as the cause of
death. A related analysis of decedent's body chemistries
revealed a blood alcohol concentration of .16 and "breakdown
products of cocaine."
During the preceding evening, Tasheana, decedent, and
defendant had watched television together. Tasheana retired at
approximately 9:00 p.m. and was awakened by someone pressing a
towel, which smelled of ammonia, against her mouth and nose.
Tasheana successfully resisted the attack and recognized
1
Also spelled in the record "Tasheena."
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defendant's voice when the assailant uttered an obscenity. Later
that evening, Tasheana observed defendant pass her door and enter
decedent's room, leaving "foot print[s] in blood." Tasheana
recalled that she once witnessed defendant strike decedent and,
on another occasion, heard him threaten decedent's life. She
also testified that the baseball bat was not usually kept in
decedent's room.
"'Every malicious homicide is murder. Manslaughter, on the
other hand, is the unlawful killing of another without malice.'"
Jenkins v. Commonwealth, 244 Va. 445, 457, 423 S.E.2d 360, 368
(1992), cert. denied, 507 U.S. 1036 (1993) (citation omitted).
"To reduce a homicide from murder to voluntary manslaughter, the
killing must have been done in the heat of passion and upon
reasonable provocation." Barrett v. Commonwealth, 231 Va. 102,
105-06, 341 S.E.2d 190, 192 (1986). "Malice and heat of passion
are mutually exclusive; malice excludes passion and passion
presupposes the absence of malice." Id. at 106, 341 S.E.2d at
192.
Defendant contends that the violence which precipitated
decedent's death, together with the evidence of their turbulent
relationship and the presence of alcohol and drugs in her body,
infers that he killed decedent without malice, acting upon
reasonable provocation and with passion. To the contrary,
however, the brutality of the crime, the assault on Tasheana, and
other circumstances in evidence clearly proved a malicious act,
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with no suggestion of the provocation or passion necessary to
voluntary manslaughter.
Accordingly, we find no evidence in the record to justify a
voluntary manslaughter instruction, and affirm the conviction.
Affirmed.
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