Eric R. Cooke, s/k/a Eric Rodney Cooke v. CW ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Overton ∗
Argued at Norfolk, Virginia
ERIC R. COOKE, S/K/A
ERIC RODNEY COOKE
MEMORANDUM OPINION ∗∗ BY
v. Record No. 2206-97-1 JUDGE JAMES W. BENTON, JR.
MARCH 23, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
(J. Edgar Demps, on brief), for appellant.
Appellant submitting on brief.
(Mark L. Earley, Attorney General; Ruth Ann
Morken, Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
A jury convicted Eric R. Cooke of attempted second degree
murder, use of a firearm while attempting to commit murder, and
accessory after the fact of attempted robbery. Although Cooke
was also charged with attempted robbery, the jury acquitted him
of that charge. The issue on appeal is limited to whether the
evidence was sufficient to prove beyond a reasonable doubt the
offenses of attempted second degree murder and use of a firearm
∗
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
while attempting to commit murder. For the reasons that follow,
we affirm those convictions.
I.
In reviewing the sufficiency of the evidence, "we must view
all the evidence in the light most favorable to the Commonwealth
and accord to the evidence all reasonable inferences fairly
deducible therefrom." Traverso v. Commonwealth, 6 Va. App. 172,
176, 366 S.E.2d 719, 721 (1988). Whether the evidence so viewed
is sufficient to prove guilt beyond a reasonable doubt is a
question of law, not fact. Bridgeman v. Commonwealth, 3 Va.
App. 523, 528, 351 S.E.2d 598, 601 (1986).
Viewed in the light most favorable to the Commonwealth, the
evidence proved that at 9:00 a.m. Cooke's brother approached a
bank in Portsmouth, pulled a mask over his face, and attempted
to enter the bank. A teller saw him approaching the bank with a
gun and locked the front doors before he could enter. Cooke's
brother then ran across the street, through a wooded field, and
toward a parking lot behind another building. The teller lost
sight of Cooke's brother as he passed behind the building.
However, a man outside the bank saw these events, drove to a
street behind the other building, and saw Cooke's brother enter
a burgundy colored car. When the car sped away, the man
returned to the bank and notified one of the bank's employees of
the car's license plate number.
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A few minutes later, Officer Ciccone, who was in uniform
and driving a marked police vehicle, saw Cooke's car and noted
that it matched the description given by the man who reported
the car's license number. When the officer activated his
emergency lights, the car stopped. Cooke was the driver, and
his brother was the only passenger. The officer stepped out of
his vehicle, drew his gun, and ordered Cooke and his brother to
place their hands on top of their heads. However, Cooke
speedily drove away through a parking lot and into an adjacent
field. As the officer pursued them, Cooke lost control of the
car in the field and crashed into a fallen tree.
Cooke's brother first exited the car. He crouched and
fired at the officer several times with a revolver. As this was
occurring, Cooke came out the driver's side window. The officer
testified "I'm not at this point certain if [Cooke] had a gun at
all. In my mind I saw two guns, but I just trained on the one
[Cooke's brother] had, because he was the one firing at me."
The officer took cover, concentrated on Cooke's brother, and
fired his gun four times.
Cooke and his brother ran across the field pursued by the
officer. Cooke's brother, who was running approximately five
feet from Cooke, turned and again pointed his gun at the
officer. The officer fired his gun two times, striking Cooke's
brother in the leg. Cooke's brother dropped his gun and
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continued to run. At the end of the field, Cooke and his
brother ran in different directions. The officer lost sight of
Cooke's brother and continued to chase Cooke.
Cooke ran through the backyards of several residences. As
the officer followed Cooke around a corner, he saw Cooke turn
and point something at him. The officer testified that he "felt
threatened [and] . . . thought [he] saw a gun in his hand
again." The officer fired his gun twice at Cooke, who ran away.
Other officers captured Cooke in a nearby neighborhood. Cooke
was not armed when the officers seized him. The officers
recovered the gun Cooke's brother dropped in the field.
The jury acquitted Cooke of the robbery charge but
convicted him of being an accessory after the fact of attempted
robbery, attempted second degree murder, and use of a firearm
while attempting to commit murder.
II.
Second degree murder "is defined simply as a malicious
killing." Turner v. Commonwealth, 23 Va. App. 270, 274, 476
S.E.2d 504, 506 (1996). To convict an accused of attempted
second degree murder, the Commonwealth must prove that the
accused (1) specifically intended to kill and (2) performed an
overt but ineffectual act toward the killing's commission. See
Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810
(1977); Barrett v. Commonwealth, 210 Va. 153, 156, 169 S.E.2d
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449, 451 (1969). This act "'must be some appreciable fragment
of the crime committed, it must be in such progress that [the
crime] will be consummated unless interrupted by circumstances
independent of the will of the attempter.'" Lewis v.
Commonwealth, 15 Va. App. 337, 340, 423 S.E.2d 371, 373 (1992)
(citation omitted). The Commonwealth argues on brief that
Cooke's guilt was established either as a principal in the first
degree or as a principal in the second degree.
Cooke contends the evidence failed to prove he had a gun.
The Commonwealth first argues the evidence proved Cooke had a
gun and aimed it at the officer. In support of that position,
the Commonwealth notes that the officer fired his gun at Cooke
because he believed that Cooke pointed a gun at him. The
Commonwealth also points to evidence that proved the officer was
prohibited, pursuant to police policy, from using deadly force
except in self-defense or in defense of another person. The
Commonwealth argues that the "jury was entitled to infer from
this evidence that [Cooke] had a gun." We disagree.
Where the Commonwealth, in a criminal
case, undertakes to prove the guilt of the
accused by circumstantial evidence, as it
did in the present case, not only must it
prove the circumstances, but it must
overcome the presumption of innocence and
establish his [or her] guilt beyond a
reasonable doubt. All necessary
circumstances proved must be consistent with
guilt and inconsistent with innocence. It
is not sufficient that the evidence create a
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suspicion of guilt, however strong, or even
a probability of guilt, but must exclude
every reasonable hypothesis save that of
guilt. To accomplish that the chain of
circumstances must be unbroken and the
evidence as a whole must be sufficient to
satisfy the guarded judgment that both the
corpus delicti and the criminal agency of
the accused have been proved to the
exclusion of any other reasonable hypothesis
and to a moral certainty.
Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963).
The officer testified that when Cooke and his brother first
exited their vehicle, he focused on Cooke's brother who had a
gun in his hand. The officer testified "I saw the gun in
[Cooke's brother's] hand. I'm not at this point certain if
[Cooke] had a gun at all. In my mind I saw two guns, but I just
trained on the one [Cooke's brother] had, because he was the one
firing at me at that time." In the following testimony on
cross-examination, the officer confirmed his doubt:
Q And you're not telling us, the jury,
under oath that you actually saw a gun in
his hand?
A No. Like I say, I don't recall seeing
one, but in the back of my mind, I saw two
weapons, but I couldn't swear that [Cooke]
had one.
Later, when the officer had lost sight of Cooke's brother
and was chasing Cooke, he turned the corner near an apartment
and saw Cooke pointing "something." The officer then shot twice
at Cooke. The officer testified however that he was not "able
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to determine what [Cooke] pointed at [him]" and shot because he
"thought [he] saw a gun." No gun, other than the one dropped by
Cooke's brother, was ever recovered.
The Commonwealth's proof cannot rise above the officer's
uncertainty. "[T]he fact that [the officer] merely thought or
perceived that [Cooke] was armed is insufficient to prove that
[Cooke] actually possessed a firearm." Yarborough v.
Commonwealth, 247 Va. 215, 219, 441 S.E.2d 342, 344 (1994)
(footnote omitted). "'It is, of course, a truism of the
criminal law that evidence is not sufficient to support a
conviction if it engenders only a suspicion or even a
probability of guilt. Conviction cannot rest upon conjecture.
The evidence must be such that it excludes every reasonable
hypothesis of innocence.'" Foster v. Commonwealth, 209 Va. 326,
330-31, 163 S.E.2d 601, 604 (1968). In view of the officer's
uncertainty, the jury could not have concluded that Cooke
pointed a gun at the officer. Thus, the Commonwealth has failed
to prove that Cooke pointed a gun and thereby performed an overt
act necessary to consummate the crime of attempted second degree
murder.
The Commonwealth next argues that Cooke may be held liable
as a principal in the second degree.
"A principal in the second degree is one not
the perpetrator, but present, aiding and
abetting the act done, or keeping watch or
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guard at some convenient distance." As for
what constitutes "aiding and abetting," it
is clear that mere presence and consent will
not suffice. The defendant's conduct must
consist of "inciting, encouraging, advising
or assisting in the murder." It must be
shown that the defendant procured,
encouraged, countenanced, or approved
commission of the crime. "To constitute one
an aider and abettor, he must be guilty of
some overt act, or he must share the
criminal intent of the principal."
Rollston v. Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823,
825 (1991) (citations omitted). The Commonwealth argues that
because the evidence was sufficient to support the conviction of
Cooke as an accessory after the fact of attempted robbery, the
evidence was therefore sufficient to convict Cooke of attempted
second degree murder based on the actions of his brother. We
agree.
Cooke testified that he was not aware that his brother had
attempted to rob a bank until after the officer stopped them.
When the officer approached with his gun drawn, Cooke's brother
told Cooke that he had done "something real stupid . . . tried
to rob a bank." He told Cooke, "I'm not going to jail . . . I'm
going to bust," a phrase Cooke understood to mean "shoot
somebody." Cooke testified that he drove away from the officer
so that his brother would not shoot the officer.
The jury's finding of not guilty on the attempted robbery
indictment signifies that the jury believed Cooke was not aware
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of the robbery until his brother made the disclosure in the car.
However, Cooke's testimony was sufficient to prove his guilt as
a principal in the second degree because Cooke knowingly
assisted his brother to resist arrest. While he may not have
shared the specific intent of his brother to shoot the officer,
the Commonwealth is not required to prove specific intent. Id.
at 540, 399 S.E.2d at 826. All the Commonwealth need prove was
that Cooke "'share[d] the criminal intent'" of his brother,
which "mean[s] that '[Cooke] must [have] either know[n] or ha[d]
reason to know of the principal's criminal intention and . . .
intend[ed] to encourage, incite, or aid the principal's
commission of the crime.'" Id.Cooke was aware that his brother intended to resist arrest.
The jury's finding of guilt on the accessory after the fact
indictment indicates that they chose to disbelieve Cooke's
testimony that his actions justifiably arose out of a concern
for the safety of his brother and the officer.
The jury is not required to accept, in toto,
either the theory of the Commonwealth or
that of an accused. They have the right to
reject that part of the evidence believed by
them to be untrue and to accept that found
by them to be true. In so doing, they have
broad discretion in applying the law to the
facts and in fixing the degree of guilt, if
any, of a person charged with a crime.
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Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958).
The jury chose to believe that Cooke's intent was to assist his
brother escape.
As a principal in the second degree, Cooke's criminal
liability is not limited solely to acts committed by him in
furtherance of a criminal act. It also encompasses "all crimes
committed by [his brother] in furtherance of the criminal
enterprise, even though [Cooke] may never have intended that the
[crimes committed by his brother] would be committed." Jones v.
Commonwealth, 15 Va. App. 384, 387, 424 S.E.2d 563, 565 (1992).
After his arrest, Cooke told an officer that his brother had a
mask, gloves, and "a yellow towel that he used to wipe the gun
off." That evidence and Cooke's testimony proved Cooke was
aware that his brother had a gun and intended to use it.
Therefore, not only did Cooke's actions further the criminal
acts of his brother, but his brother's use of a gun during the
criminal acts was "a probable consequence of the execution of
the originally intended criminal design." Id. at 388, 424
S.E.2d at 565.
Additionally, the jury was not required to accept Cooke's
explanation that he panicked and that his running away from the
officer after the crash was not intended to aid or abet his
brother. Although Cooke's running "does not raise a presumption
of guilt[, it] . . . is . . . a circumstance to be considered by
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the jury." Jones v. Commonwealth, 208 Va. 370, 374, 157 S.E.2d
907, 910 (1967) (citation omitted). The jury chose to
disbelieve Cooke's explanation.
While mere presence at the scene of a crime
or knowledge that a crime is going to be
committed does not constitute aiding and
abetting, accompanying a person with full
knowledge that the person intends to commit
a crime and doing nothing to discourage it
bolsters the perpetrator's resolve, lends
countenance to the perpetrator's criminal
intentions, and thereby aids and abets the
actual perpetrator in the commission of the
crime.
Pugliese v. Commonwealth, 16 Va. App. 82, 94, 428 S.E.2d 16, 25
(1993). The jury could have found that Cooke's actions
supported his brother's attempt to escape and the decision to
use a gun to effect the escape. Thus, the evidence was
sufficient to support the jury's verdict on the attempted second
degree murder indictment.
We likewise find the evidence sufficient to convict Cooke
of using a firearm in the commission of a felony. The
Commonwealth correctly points out that an accused may be held
vicariously liable for the use of a firearm by another person if
the accused and the other person "'assemble[d] themselves
together with an intent to commit a wrongful act, the execution
whereof makes probable, in the nature of things, [the use of the
firearm.]'" Carter v. Commonwealth, 232 Va. 122, 126-27, 348
S.E.2d 265, 268 (1986) (citation omitted). It was foreseeable
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that, during their attempt to escape, Cooke's brother would fire
his gun at the officer. Cooke is therefore liable for his
brother's use of his gun during the escape.
For these reasons, we affirm the convictions of attempted
second degree murder and use of a firearm while committing a
felony.
Affirmed.
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