William Andrew King, Jr. v. Commonwealth of VA ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Bray, Annunziata, Bumgardner, Frank, Humphreys,
Clements and Agee
Argued at Richmond, Virginia
WILLIAM ANDREW KING, JR.
MEMORANDUM OPINION * BY
v. Record No. 2834-98-2 JUDGE JAMES W. BENTON, JR.
MARCH 20, 2001
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge
Mary Katherine Martin, Senior Assistant
Public Defender, for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The trial judge convicted William Andrew King, Jr. of
attempted murder, use of a firearm during the commission of
attempted murder, and failure to appear in court. King contends
the evidence was insufficient to sustain the convictions of
attempted murder and use of a firearm in an attempt to commit
murder. In an unpublished opinion, a divided panel of this
Court affirmed the convictions; see King v. Commonwealth, 00 Va.
UNP 2834982, No. 2834-98-2 (Va. Ct. App. July 25, 2000);
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
however, we stayed the mandate of that decision and granted
rehearing en banc. Upon rehearing en banc, we reverse the
convictions for attempted murder and use of a firearm in an
attempt to commit murder.
I.
The evidence proved that Hamidullah Muhammad was walking
home after 9:00 p.m. when a car occupied by three men stopped
near him. One of the men shouted a racial epithet at Muhammad
and said, "come here." Muhammad "knew it wasn't safe" and kept
walking. As Muhammad reached the parking lot of his apartment
complex, he saw King walking behind him with a gun. Muhammad
testified that the gun was "straight down" by King's side and
"wasn't . . . pointing at [Muhammad]."
Muhammad turned and ran to his apartment. King chased him.
As Muhammad opened his apartment door and jumped in, he heard a
shot and quickly closed his door. He did not see King shoot the
gun and did not see King after he closed his door. A police
officer who responded to Muhammad's complaint testified that he
examined the outside of Muhammad's apartment and saw no
indication that a bullet hit the building or any of its
fixtures.
Later that evening, police officers stopped a car, which
was occupied by King and two other men. After the officers
removed King from the back seat, they discovered on that seat a
revolver, which had been recently fired and which contained one
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spent shell casing. The officers also recovered another
revolver on the floorboard on the front passenger side.
At the conclusion of the evidence, the trial judge
convicted King of all charges, including attempted murder and
use of a firearm in an attempt to commit murder. This appeal
followed.
II.
"To sustain a conviction for attempted murder, the evidence
must establish both a specific intent to kill the victim and an
overt but ineffectual act committed in furtherance of the
criminal purpose." Wynn v. Commonwealth, 5 Va. App. 283, 292,
362 S.E.2d 193, 198 (1987). "In most cases, of course, the
[Commonwealth] must satisfy its burden of proving specific
intent by circumstantial evidence." Dickerson v. City of
Richmond, 2 Va. App. 473, 477, 346 S.E.2d 333, 335 (1986).
Under familiar principles, however, proof by circumstantial
evidence is insufficient if it creates merely a suspicion of
guilt. Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29
(1963). The evidence must be consistent with guilt and exclude
every reasonable hypothesis that the accused had another intent.
See id. Thus, as in every criminal prosecution, "[t]he
Commonwealth must prove each element of a charged offense beyond
a reasonable doubt." Blaylock v. Commonwealth, 26 Va. App. 579,
589, 496 S.E.2d 97, 102 (1998); Jackson v. Virginia, 443 U.S.
307, 315-16 (1979).
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In denying King's motion to strike, the trial judge
expressed the uncertain state of the evidence when he remarked
that if King was "not intending to kill [Muhammad] or rob him,
what's the purpose" in chasing him. No evidence proved,
however, that King threatened to kill Muhammad or said anything
indicating his intent. Muhammad testified that he saw King
holding a gun at his side pointing downward. Although he heard
a shot, he never saw the gun pointed at him. Significantly, no
evidence proved that the bullet went near Muhammad, hit the
apartment or any part of the building's structure, or traveled
at any direction toward him. Muhammad did not testify that he
heard the bullet passing through the air near his body. No
bullet was located.
The evidence proved only that while King chased Muhammad,
Muhammad heard a gunshot. From this evidence, it is just as
likely that King fired a shot into the air or stumbled and
accidentally discharged the gun. Proof that King had a gun
which discharged is not enough, standing alone, to prove his
intent to murder Muhammad. "The Commonwealth 'must prove beyond
a reasonable doubt both the act and [the] mental state.
Sufficient proof of one element, but not the other, will result
in reversal.'" Harrell v. Commonwealth, 11 Va. App. 1, 7, 396
S.E.2d 680, 682 (1990) (citation omitted) (emphasis added).
Thus, we must decide not whether King's acts might have resulted
in the death of Muhammad, but whether the evidence showed that
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when King chased Muhammad, he had "formed the specific intent"
to kill Muhammad. See Haywood v. Commonwealth, 20 Va. App. 562,
566, 458 S.E.2d 606, 608 (1995) (holding that "'while a person
may be guilty of murder though there was no actual intent to
kill, he cannot be guilty of an attempt to commit murder unless
he has a specific intent to kill'").
The trial judge erred when he invoked the following
presumption:
So the State has produced a situation where
a man with a gun chases another man down the
street. The gun is fired. That presumption
is he's trying to kill him.
"The necessary intent [the Commonwealth must prove] . . . is the
intent in fact, as distinguished from an intent in law."
Hargrave v. Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598
(1974).
[W]here a statute makes an offense consist
of an act combined with a particular intent,
such intent is as necessary to be proved as
the act itself, and it is necessary for the
intent to be established as a matter of fact
before a conviction can be had. Surmise and
speculation as to the existence of the
intent are not sufficient, and "no intent in
law or mere legal presumption, differing
from the intent in fact, can be allowed to
supply the place of the latter."
Dixon v. Commonwealth, 197 Va. 380, 382, 89 S.E.2d 344, 345
(1955) (emphasis added).
When explaining his ruling, the trial judge, in effect,
confirmed that the evidence left unresolved which of at least
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three possibilities explained King's intentions. He noted that
the evidence left unexplained whether King was "trying to kill
him" or "trying to rob him" or "trying to shoot him so he can
rob him." Where the facts are equally susceptible to multiple
interpretations, at least one of which is consistent with the
innocence of the accused, the trier of fact cannot arbitrarily
adopt that interpretation which incriminates the accused. See
Haywood, 20 Va. App. at 567, 458 S.E.2d at 609. Indeed, proof
that leaves indifferent what King intended is insufficient to
satisfy the Commonwealth's burden of proving the element of
intent beyond a reasonable doubt. See Smith v. Commonwealth, 16
Va. App. 626, 627-28, 432 S.E.2d 1, 2 (1993).
Proof by circumstantial evidence "is not
sufficient . . . if it engenders only a
suspicion or even a probability of guilt.
Conviction cannot rest upon conjecture."
"'[A]ll necessary circumstances proved must
be consistent with guilt and inconsistent
with innocence and exclude every reasonable
hypothesis of innocence.'" "When, from the
circumstantial evidence, 'it is just as
likely, if not more likely,' that a
'reasonable hypothesis of innocence'
explains the accused's conduct, the evidence
cannot be said to rise to the level of proof
beyond a reasonable doubt." The
Commonwealth need not "exclude every
possible theory or surmise," but it must
exclude those hypotheses "which flow from
the evidence itself."
Betancourt v. Commonwealth, 26 Va. App. 363, 373-74, 494 S.E.2d
873, 878 (1998) (citations omitted). The physical evidence did
not prove where the bullet landed. It did not prove whether
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King purposefully or accidentally discharged the gun. Thus, the
evidence was insufficient to establish beyond a reasonable doubt
that King intended to kill.
In summary, Muhammad testified that King had a weapon, that
King chased him, and that he heard a single shot fired. The
totality of circumstances did not prove an attempt to murder
with any more certainty than it proved that King purposefully
discharged a firearm to frighten Muhammad, that the firearm
accidentally discharged, or that King was only trying to rob
Muhammad. No evidence proved the weapon was ever aimed at
Muhammad, and no evidence proved King threatened to kill
Muhammad. "Suspicion, no matter how strong, is not enough.
Convictions cannot rest upon speculation and conjecture."
Littlejohn v. Commonwealth, 24 Va. App. 401, 415, 482 S.E.2d
853, 860 (1997). "[E]ven a probability of guilt . . . is
insufficient to support a criminal conviction." Bishop v.
Commonwealth, 227 Va. 164, 170, 313 S.E.2d 390, 393 (1984).
Accordingly, we reverse the conviction for attempted murder and
the corresponding conviction for use of a firearm in an attempt
to commit murder.
Reversed.
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Humphreys, J., with whom Bumgardner, J., joins, dissenting.
I dissent from the majority's holding that the evidence was
insufficient as a matter of law to sustain King's convictions of
attempted murder and use of a firearm in an attempt to commit
murder. The majority reviewed the evidence and determined that
it was insufficient to establish that King possessed the
specific intent to kill the victim. I disagree with the
majority's holding.
Whether the required intent exists is generally a question
for the trier of fact. See Haywood v. Commonwealth, 20 Va. App.
562, 566, 458 S.E.2d 606, 608 (1995). As such, this
determination is binding unless plainly wrong. See Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
The evidence established that one of three men in a car
that drove by the victim as he was walking home, shouted a
racial epithet at him and demanded that he approach the vehicle.
The victim "knew it wasn't safe," and kept walking. King, who
was a stranger to the victim, then got out of the car, with a
loaded gun in his hand. At that point, King was twenty-five
feet behind the victim. He began to chase the victim, and the
victim ran. No demand was made of the victim to turn over
personal property, nor did King brandish the gun at the victim
or call for him to halt. The victim heard the gunshot just as
he was about to enter the safety of his apartment building.
Based on this evidence, I would find that it was not
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unreasonable for the court, as the trier of fact, to conclude
that this was the last opportunity for King to shoot the victim.
The specific intent to commit [a crime] may
be inferred from the conduct of the accused
if such intent flows naturally from the
conduct proven. Where the conduct of the
accused under the circumstances involved
points with reasonable certainty to a
specific intent to commit [the crime], the
intent element is established.
Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 674
(1995) (citations omitted).
Furthermore, as the majority recognizes, "[t]he
Commonwealth need only exclude reasonable hypotheses of
innocence that flow from the evidence, not those that spring
from the imagination of the defendant." Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
Here, taking the evidence in the light most favorable to the
Commonwealth, as we must, I would hold that the trial court's
determination was not "plainly wrong." Therefore, I dissent
from the majority's holding and would affirm King's convictions.
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