Opinion
Record No. 1014-92-3
February 1, 1994
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG MOSBY G. PERROW, III, JUDGE.
James J. Angel (James H. Massie, III; Massie Singleton, on brief), for appellant.
Leah A. Darron, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Coleman and Willis.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Appellant Lyle Bernard Moneymaker appeals his capital murder conviction. Moneymaker argues that the trial court erred in refusing to allow either a voluntary intoxication instruction or a second degree murder instruction. We disagree and affirm his conviction.
Jeffrey Lee Davidson arrived at the home of Debra Powell at approximately 7:30 p.m. on June 15, 1991. He brought his .38 caliber Colt revolver and a liter bottle of whiskey, which he shared with the others present at Powell's house. He met Moneymaker for the first time that evening at Powell's home.
Between 2:00 and 3:00 a.m. on June 16, 1991, Davidson agreed to give Moneymaker a ride home. Before leaving Powell's house, Davidson placed his gun on the seat so that it would be visible as required by law.
Because Davidson did not know where Moneymaker lived, he followed directions supplied by Moneymaker to Sixth Street. There, Moneymaker asked Davidson to pull over so that he could talk to "a friend" who was standing on the sidewalk. Davidson pulled over, and Moneymaker leaned out the passenger window and asked if "anybody could do 200." Wayne Farmer responded, "Yes, I can do it, Money." Davidson heard a couple of the men on the street warn Farmer not to leave the area in the truck, but Farmer "jumped in" and shut the door. Moneymaker then instructed Davidson to drive down the street, turn right, and pull over to the curb.
Davidson had driven his manual transmission truck only a few feet when Moneymaker, "not fast or slow," but "steadily picked up [Davidson's] gun" from the seat with his left hand, switched it to his right hand and held it to the back of Farmer's head. He cocked the gun and told Farmer to "give up the shit." Farmer responded that he had thrown it out. Moneymaker then called Farmer a "dumb nigger" and pulled the trigger. He then turned the gun on Davidson and said, "Just keep driving the truck, mully [sic] fucker, and don't stop." Moneymaker turned around toward Farmer and shot him a few times in the back, laughed, then pulled Farmer backward in the seat and shot him again.
Moneymaker, while continuing to direct Davidson where to drive, held the gun in his right hand and searched Farmer's "shirt and socks and breeches and all through his body" with his left hand. At one point Davidson saw Moneymaker pull something from Farmer's left pants pocket and put it in Moneymaker's own pocket. He looked at Davidson and said, "The dumb nigger didn't have much money, but he had a few rocks on him." Moneymaker also bent down to search the floorboard where Farmer had dropped his cocaine.
Davidson drove to Lodge Street, where Moneymaker ordered him to stop. Moneymaker opened the door of the truck and pushed Farmer's body out. He then directed Davidson back to Powell's house, where Moneymaker ordered Davidson to get out of the truck and go inside. Powell and Davidson then drove Moneymaker to Don Richeson's house where Moneymaker offered to sell Richeson a gun for fifty dollars. Richeson refused and Moneymaker was driven back to Powell's house.
Moneymaker then telephoned Jack Robertson and asked him for a ride home. After he picked him up, Robertson observed that Moneymaker had a revolver in his back pocket. Moneymaker told Robertson that the gun belonged to him. As Robertson drove Moneymaker home from Powell's house, Moneymaker played with the gun and told Robertson that he had "robbed a nigger of some crack and money." Moneymaker said that after shooting Farmer, he "pulled crack and money out of [Farmer's] pockets as fast as he could" and then "kicked his sorry black ass out . . . of the truck."
Later that morning, Eric Tanner and Jerome Canada saw Moneymaker at a gas station. Moneymaker offered to sell the gun to either one of them. Jerome Canada purchased the gun used to kill Farmer from Moneymaker. Canada later turned the gun over to the police after reading in the newspaper about Moneymaker's arrest for Farmer's murder.
At trial, an expert on firearm and tool mark identification testified that the bullets recovered during his autopsy of Farmer were fired from a .38 caliber revolver. His examination of the shirt worn by Farmer revealed no gunshot residue surrounding the holes in the shirt caused by the bullets, which indicated that the gun was in contact with the fabric of the shirt at the time it was fired.
Moneymaker was convicted of capital murder and use of a firearm in the commission of capital murder, robbery and use of a firearm in the commission of robbery, and possession of a firearm in the commission of a felony.
I. Voluntary Intoxication Instruction
Moneymaker first contends that because the jury could have found that he was so intoxicated and drugged that he was incapable of deliberating or premeditating, the trial court erred when it refused to give a voluntary intoxication instruction. We disagree and hold that the trial judge properly denied the instruction.
"A defendant is entitled to have the jury instructed only on those theories of the case that are supported by the evidence."Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280 (1986). More than a scintilla of evidence must be present to support an instruction. Id. A court need not instruct on a lesser-included offense where a reasonable view of the evidence would not permit conviction for that offense. Cortner v. Commonwealth, 222 Va. 557, 562, 281 S.E.2d 908, 910-11 (1981).
"In Virginia, mere intoxication from drugs or alcohol is not sufficient to negate premeditation." Duncan v. Commonwealth, 2 Va. App. 717, 731, 347 S.E.2d 539, 547 (1986). "[W]hile a person who [voluntarily] has become so intoxicated as to be unable to deliberate and premeditate cannot commit any class of murder that is defined as a willful, deliberate, and premeditated killing, mere intoxication from drugs or alcohol will not suffice to negate premeditation." Jenkins v. Commonwealth, 244 Va. 445, 458, 423 S.E.2d 360, 368, cert. denied, 113 S.Ct. 1862 (1993).
"[S]o long as [a defendant] retains the faculty of willing, deliberating and premeditating, though drunk, he is capable of committing murder in the first degree; and if a drunk man is guilty of wilful, deliberate and premeditated killing, he is guilty of murder in the first degree." Duncan, 2 Va. App. at 731, 347 S.E.2d at 547. A voluntary intoxication instruction is properly refused if evidence is insufficient "to show [a defendant] was so intoxicated as to render him incapable of committing a willful, deliberate and premeditated act designed to kill the deceased." Hatcher v. Commonwealth, 218 Va. 811, 814, 241 S.E.2d 756, 758 (1978).
Moneymaker argues that because he had consumed a substantial quantity of alcohol and cocaine prior to the shooting, the voluntary intoxication instruction should have been given. However, nothing in the record shows that Moneymaker was so intoxicated as to render him incapable of committing a willful, deliberate, and premeditated act. In fact, Moneymaker admitted that just prior to the murder he determined that he was too intoxicated to give Davidson a tattoo. He was also able to direct Davidson to an area in which to buy drugs and subsequently ordered a specific quantity. These facts support the Commonwealth's position that Moneymaker was not so intoxicated that he was unable to deliberate and premeditate.
Furthermore, Davidson testified that Moneymaker methodically picked up the gun, deliberately cocked it, held it to Farmer's head and demanded cocaine. After the first shots had been fired, Moneymaker continued to shoot Farmer. After murdering Farmer, Moneymaker carefully searched Farmer's body and clothing for cocaine and money. Within a few hours of the shooting, Moneymaker sought and found a buyer for the gun. The evidence of Moneymaker's deliberation and premeditation, therefore, negates any possibility that he was so intoxicated as to entitle him to an instruction on voluntary intoxication. Because no more than a scintilla of evidence supported a voluntary intoxication instruction, the trial court's ruling is affirmed.
II. Second Degree Murder Instruction
Moneymaker next contends that a second degree murder instruction should have been given because the shots were fired simultaneously, without argument, discussion or evidence of motive. Therefore, the jury could have found that the Commonwealth failed to establish that Moneymaker premeditated and deliberated before deciding to shoot Farmer. We disagree and hold that the trial court did not err in rejecting Moneymaker's request for a second degree murder instruction.
In Buchanan v. Commonwealth, 238 Va. 389, 409, 384 S.E.2d 757, 757 (1989), cert. denied, 493 U.S. 1063 (1990), the Supreme Court of Virginia articulated the standard upon which a trial judge determines whether to grant a second degree murder instruction:
We have long recognized that evidence showing a murder "to have been deliberate, premeditated and willful [can] be so clear and uncontroverted that a trial court could properly refuse to instruct on the lesser-included offenses." It follows, therefore, that a criminal defendant "is not entitled to lesser degree instruction solely because the case is one of murder."
A second degree murder instruction is only appropriate where it is supported by evidence. Moreover, the evidence asserted in support of such an instruction "must amount to more than a scintilla."
Id. (citations omitted).
Although the intent to kill must have existed sometime before the killing, the intent need not have existed for any particular length of time. Smith v. Commonwealth, 220 Va. 696, 700, 261 S.E.2d 550, 553 (1980). Indeed, "[a] design to kill may be formed only a moment before the fatal act is committed provided the accused had time to think and did intend to kill."Giarrantano, 220 Va. 1064, 1074, 266 S.E.2d 89, 100 (1980). The brutality of an attack, whether more than one blow was struck, the disparity in size and strength between the accused and the victim, the concealment of the victim's body, and the defendant's efforts to avoid detection are questions to be considered in determining whether premeditation and deliberation exists.Epperly v. Commonwealth 224 Va. 214, 232, 294 S.E.2d 882, 891-93 (1982), cert. denied, 114 S.Ct. 611 (1993).
The Commonwealth's evidence established that robbery and racism were Moneymaker's motives for shooting Farmer. This brutal attack, in which six shots were fired point blank into Farmer's body, along with the fact that Moneymaker sought to avoid detection by selling the murder weapon, conclusively point to a deliberate and premeditated act. Indeed, evidence that the gun was held in contact or close to Farmer's head and body was sufficient evidence, standing alone, to show that Moneymaker shot Farmer deliberately and with premeditation. Townes v. Commonwealth, 234 Va. 307, 334-35, 362 S.E.2d 650, 665 (1987),cert. denied, 485 U.S. 971 (1988).
At trial, Moneymaker testified that after picking up Farmer, Davidson attempted to purchase cocaine from him. After driving a while, Davidson stopped the truck. Davidson and Farmer walked behind the truck for a moment and then returned to the front seat, at which point Davidson shot Farmer and said, "I'm tired of the mother fuckers trying to rip me off." Hence, even Moneymaker's account of the incident amounted to nothing less than first degree murder. The entire record is therefore, void of any evidence tending to show that the killing was one of second degree murder.
Because we find that no more than a scintilla of evidence supports Moneymaker's theory that the shooting was not deliberate and premeditated, the trial court correctly denied the second degree murder instruction.
Affirmed.