Darrick Hamilton Hood v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: January 28, 2004
• Docket: 2419022
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Humphreys and McClanahan Argued at Richmond, Virginia

DARRICK HAMILTON HOOD MEMORANDUM OPINION* BY v. Record No. 2419-02-2 JUDGE ROSEMARIE ANNUNZIATA JANUARY 28, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY William R. Shelton, Judge Designate

John F. McGarvey for appellant.

Paul C. Galanides, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Darrick Hamilton Hood appeals his conviction by a jury of aggravated malicious

wounding, illegal use of a firearm, and his conviction in a bench trial of possession of a firearm

by a felon in violation of Code §§ 18.2-51.2, 18.2-53.1, and 18.2-308.2, respectively. As

grounds, Hood contends the court erred in denying his proffered instructions on unlawful

wounding, on malice, and on his “without fault” self-defense instruction. He also contends that

the evidence was not sufficient to support his conviction for aggravated malicious wounding and

for possession of a firearm by a convicted felon. Finding no error, we affirm.

I. Background

The record discloses that Hood moved in with Pam Mosby (Pam), the wife of David

Mosby (Mosby), at Pam’s residence in Chesterfield County in the spring of 2001. Mosby was

upset to learn that Hood had moved into Pam’s house and called his former residence a number

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. of times while in jail to express his feelings, often couched as threats to Hood. Hood testified

that Mosby stated he had the keys to the house and that he would kill Hood if he did not leave.

Hood also said that Mosby told him he was going to find a person Hood had confronted years

earlier and “make sure the [the individual] came up there and killed [Hood].” Mosby also told

Hood that he knew of the visitation arrangements Hood had with his son. Hood became

concerned about the threats and purchased a gun from someone “off the street,” “just for [his]

protection.” He purchased the gun in August 2001. On September 4, 2001, Mosby telephoned

Pam and made further threats against Hood. He told Pam that he would physically harm Hood,

saying he would “Rambo” him, “[f]*** him up,” “[d]o something to him,” and “lullaby” him.

The conversation was tape recorded on a machine that Hood had purchased.

On September 5, 2001, Mosby went to Pam’s house at approximately 5:30 p.m. to

retrieve some polyurethane paint that he had stored there with her permission. He did not notify

Pam that he would be coming to the house, and she was not there when he arrived. Dr. Douglas

Peoples, a friend of Mosby’s who accompanied him to Pam’s house, remained in the car and fell

asleep while Mosby looked for the polyurethane. After searching for the paint for a few minutes

in the back of a truck parked in Pam’s backyard, Mosby returned to his car. At that time, Pam

arrived and Mosby asked her to help him look for the polyurethane. She entered the house to

look for the paint and told Hood that Mosby was outside. When she could not locate the paint,

she returned to the door and told Mosby it was not there. Mosby told her he intended to look for

the paint outside in a plastic storage can located on the back deck. Pam followed him to the

deck. Hood testified that he retrieved his gun as Mosby and Pam walked to the back deck. He

said he suspected Mosby was trying to open the sliding back door when he heard a sound. When

he saw Dr. Peoples “ducked down” in Mosby’s car, he became frightened.

-2- Mosby stepped onto the deck and started to pull trash out of the storage can. Hood came

out of the house and asked him “What the f*** [he] was doing around there?” Hood and Mosby

began to argue about Mosby’s right to be there. After Hood told Mosby that he could not come

to the house and “do what you want to do,” Mosby stepped off the deck and began grabbing his

clothing near the waistband of his pants. Mosby testified that, because his pants were baggy and

he had no belt, he was merely trying to raise his pants above his waist. Hood testified he thought

Mosby was reaching for something, perhaps a weapon. Mosby assumed a defensive posture,

stating that he raised his fists, in which he was carrying a small cell phone.

Pam attempted to physically pull Hood back inside the house and nearly brought him

inside when he pushed her away and walked toward Mosby who had returned to the storage can.

Mosby began to retreat, moving around the side of the house to return to the driveway. Hood

watched as Mosby moved toward the driveway and testified that he observed the butt of a gun

under Mosby’s shirt. Thinking that Mosby was going to shoot him, Hood drew a pistol from his

waist area and fired it one time at Mosby. He said he only intended to fire a warning shot in

Mosby’s general direction and that he did not intend to hit him. Hood said he “was not even

looking” when he fired the gun. Notwithstanding the claim that he saw the butt of a gun in

Mosby’s possession, Hood admitted that Mosby never actually drew a weapon before Hood shot.

The shot struck Mosby in the face and knocked him to the ground. When he rose, he saw

that Hood and Pam had gone inside the house. Mosby fled to his car, drove to Pam’s parents’

house, and waited for the police and an ambulance. Pam testified that when both she and Hood

were in the house after the shooting, she heard Hood threaten to return outside “to finish

[Mosby] off.” After Hood saw Mosby leave, he took the gun he used to shoot Mosby and threw

it in the James River.

-3- Pam testified that Mosby was “walking like towards the car . . . walking off” just before

Hood shot him. Pam said that she never heard Mosby threaten Hood’s life as they argued, and,

although she saw Mosby pull on his shorts, she never saw Mosby with a weapon, or saw him

make any gesture indicating that he had a weapon. Dr. Peoples also testified that he did not see

Mosby with a weapon.

When Chesterfield County Police Officer J.T. Williams arrived at the residence of

Mosby’s in-laws, he found Mosby in the kitchen bleeding from his mouth and nose. Williams

did not see Mosby with a weapon while he waited with him for an ambulance to arrive, and he

found no weapon in Mosby’s car.

Dr. Bradley Gregory, a specialist in maxillofacial surgery, described the injuries that

Mosby had suffered. Mosby’s injuries included the loss of three teeth and damage to his face

that would require surgery to re-align facial structures as he healed.

Hood submitted an instruction on unlawful wounding on the theory that Hood acted in

the “heat of passion” rather than with malice. Hood also submitted an instruction that

distinguished malice from heat of passion. Both were denied. While the court read the

instructions to the jury, Hood objected to the “with fault” self-defense instruction and offered a

“without fault” self-defense instruction. The court overruled the objection, finding that the “with

fault” instruction was supported by the evidence. During jury deliberations, Hood asserted the

applicability of the common-law defense of necessity to the charge of possession of a handgun

by a convicted felon. The trial court found the claimed defense unsupported by the evidence,

noting that Hood possessed the handgun “long before the encounter [with Mosby].”

The jury convicted Hood of aggravated malicious wounding and illegal use of a firearm.

The trial court imposed the sentence set by the jury and ordered Hood to serve twenty-seven

years for aggravated malicious wounding, three years for use of a firearm in the commission of

-4- an aggravated malicious wounding, and two years for possession of a firearm by a felon. The

court ordered the sentences to be served consecutively. This appeal followed.

I. Hood’s Proffered Jury Instructions

A. Standard of Review

When reviewing a trial judge’s decision refusing a proffered jury instruction, “‘the

appropriate standard of review requires that we view the evidence with respect to the refused

instruction in the light most favorable to [the proponent of the instruction].’” Hartigan v.

Commonwealth, 31 Va. App. 243, 257, 522 S.E.2d 406, 412 (1999) (quoting Boone v.

Commonwealth, 14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992)). “[M]ore than a scintilla of

evidence is necessary to support a lesser-included offense instruction requested by the

defendant.” Commonwealth v. Donkor, 256 Va. 443, 445, 507 S.E.2d 75, 76 (1998).

B. The Trial Court Did Not Err by Denying Hood’s Instruction on Unlawful Wounding

Hood argues that the evidence supported an instruction addressing acts performed in the

heat of passion rather than with malice. The trial court erred, he argues, in denying his

instruction on the lesser-included offense of unlawful wounding. We disagree because not a

scintilla of evidence in this case supports Hood’s contention that he acted in the heat of passion.

Hood testified that he fired “a warning shot” and that he unintentionally struck Mosby.

Hood’s claim that he shot Mosby accidentally is inconsistent with a claim of heat of passion.

See McGhee v. Commonwealth, 219 Va. 560, 564, 248 S.E.2d 808, 811 (1978) (noting that

“heat of passion” negates the element of malice and that “accident” negates the element of

intent); see also Commonwealth v. Vaughn, 263 Va. 31, 36, 557 S.E.2d 220, 223 (2002) (holding

that, where defendant testified he did not intend to shoot his victim, the jury could not conclude

that the defendant intended to shoot his victim and merely cause bodily harm).

-5- Hood also presented evidence that he fired the “warning shot” in a deliberate attempt to

“buy enough time to get away.” Hood’s testimony reveals that, at the time of the shooting, he

was acting in a deliberate, thoughtful manner, designing a plan of escape. An act reflecting

deliberation is inconsistent with an act performed in the heat of passion. “‘Malice aforethought’”

implies a mind under the sway of reason, whereas ‘passion’ whilst it does not imply a

dethronement of reason, yet is the furor brevis which renders a man deaf to the voice of reason

. . . .” Hannah v. Commonwealth, 153 Va. 863, 870, 149 S.E. 419, 421 (1929) (citation omitted);

see also Graham v. Commonwealth, 31 Va. App. 662, 671, 525 S.E.2d 567, 571 (2000) (“Heat of

passion excludes malice when provocation reasonably produces fear that causes one to act on

impulse without conscious reflection.” (emphasis added)).

Finally, we note the absence of any evidence from which the jury could find that Mosby’s

actions reasonably provoked Hood to act in the heat of passion, such as out of anger or fear.

Peeples v. Commonwealth, 30 Va. App. 626, 636, 519 S.E.2d 382, 387 (1999) (stating that

provocation must be objectively reasonable). Here, Hood’s testimony established that he and

Mosby had a profanity-laced verbal argument over Mosby’s “right” to be at Pam’s home.1

However, “‘[w]ords alone, [though] insulting or contemptuous, are never a sufficient

provocation.’” Canipe v. Commonwealth, 25 Va. App. 629, 643, 491 S.E.2d 747, 754 (1997)

(quoting Read v. Commonwealth, 63 Va. (22 Gratt) 924, 938 (1872)). Hood’s testimony also

established that, although he claimed the shooting was in self-defense, Mosby was walking away

from him before the shooting. Hood admitted that Mosby had not drawn a weapon at the time

Hood shot him. At best, Hood stated that he saw the “butt” of a gun under Mosby’s shirt. We

1 To the extent Hood relies on verbal threats Mosby may have made in the period before the date of the incident at issue here, they are irrelevant. See Graham, 31 Va. App at 671-72, 525 S.E.2d at 571 (holding that a heat of passion instruction was not warranted when victim threatened defendant two days earlier). -6- therefore conclude that not a scintilla of evidence supports Hood’s proffered instruction based on

acts performed in a heat of passion upon provocation and that the trial court did not erroneously

reject it.

C. The Trial Court Did Not Err By Denying Hood’s Malice Instruction

Hood argues that the trial court erred in denying his instruction on malice because it

“precluded [the jury] from considering the heat of passion scenario.” Hood’s instruction, which

is not part of the trial record, distinguished heat of passion from malice. Because we conclude

that no evidence supports a heat of passion instruction, there was no need for one that

distinguished heat of passion from malice. We therefore find no error.

D. The Trial Court Did Not Err By Denying Hood’s Without-Fault Self-Defense Instruction

Hood objected to the jury instruction defining self-defense where the evidence shows

“the defendant was to some degree at fault in provoking or bringing on the difficulty.” He

contended no evidence supported fault on his part and that the trial court erred in rejecting his

“no-fault” instruction. We disagree.

“Any form of conduct by the accused from which the fact finder may reasonably infer

that the accused contributed to the affray constitutes ‘fault.’” Smith v. Commonwealth, 17

Va. App. 68, 71, 435 S.E.2d 414, 416 (1993) (emphasis added). Hood’s fault in the fray was

established when he armed himself and aggressively confronted Mosby. He ignored Pam’s pleas

and refused to desist his aggressive conduct, even when Mosby had turned and walked away.

Mosby was unarmed and was leaving the scene when Hood shot him. The evidence fails to

show that Hood did not contribute to the fray and that he was without fault. The trial court did

not err, therefore, by denying his proffered no-fault self-defense instruction. See Connell v.

Commonwealth, 34 Va. App. 429, 436, 542 S.E.2d 49, 52 (2001) (“A defendant is entitled to

have the jury instructed only on those theories of the case that are supported by the evidence.”).

-7- In sum, even viewing the evidence in a light most favorable to Hood, we conclude that

not a scintilla of evidence supports his proffered jury instructions. As a result, we find that the

trial court properly rejected them.

II. Sufficiency of the Evidence

Hood contends that the evidence does not support a finding that he acted with malice, a

required element of aggravated malicious wounding. We disagree.

When the sufficiency of the evidence is challenged on appeal, this Court “must view the

evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to

the Commonwealth.” Garcia v. Commonwealth, 40 Va. App. 184, 189, 578 S.E.2d 97, 99

(2003). The Court must therefore “discard the evidence of the accused in conflict with that of

the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth

and all fair inferences that may be drawn therefrom.” Holsapple v. Commonwealth, 39 Va. App.

522, 528, 574 S.E.2d 756, 758-59 (2003) (en banc) (citations omitted). This Court may not

disturb the fact finder’s verdict unless it is plainly wrong or without evidence to support it. Id.

B. The Evidence Was Sufficient To Support Hood’s Conviction for Aggravated Malicious Wounding

Malice may be implied when “any purposeful, cruel act is committed by one individual

against another without any, or without great provocation.” Pugh v. Commonwealth, 223 Va.

663, 668, 292 S.E.2d 339, 341 (1982). Malice “may be directly evidenced by words, or inferred

from acts and conduct which necessarily result in injury.” Hernandez v. Commonwealth, 15

Va. App. 626, 631, 426 S.E.2d 137, 140 (1993). The trier of fact may also infer malice “from

conduct likely to cause death or great bodily harm, willfully or purposefully undertaken,”

Canipe, 25 Va. App. at 642, 491 S.E.2d at 753, and “from the deliberate use of a deadly

weapon.” Doss v. Commonwealth, 23 Va. App. 679, 686, 479 S.E.2d 92, 96 (1996). In fact, -8- [o]ne of the canons of the criminal law is “that a mortal wound given with a deadly weapon, in the previous possession of the slayer, without any or upon very slight provocation, is prima facie wilful, deliberate, and premeditated killing, and throws upon the accused the necessity of proving extenuating circumstances.”

Scott v. Commonwealth, 143 Va. 510, 518, 129 S.E. 360, 363 (1925) (source of internal

quotation unknown).

The evidence in this case shows that Mosby went to his wife’s house to find some

materials he had stored there. Hood armed himself with a handgun and confronted Mosby. He

verbally assaulted Mosby, saying “F*** you. You can’t just come up here and do what you want

to do.” When Mosby attempted to leave the property, Hood followed him. He then shot Mosby

and fled the scene. Furthermore, the jury was entitled to reject Hood’s testimony that the

shooting was an accident. See Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16,

24 (1993). We find that this evidence, viewed in a light most favorable to the Commonwealth,

sufficiently supports the jury’s determination that Hood acted with malice.

C. The Evidence Was Sufficient To Support The Conviction For Possession Of A Firearm By A Convicted Felon

Hood interposed the common law defense of necessity at trial as a bar to his conviction

for possession of a firearm by a convicted felon. The trial court rejected the proffered defense on

the ground that Hood “went out and purchased a weapon off the street long before the encounter

ever occurred between he and Mr. Mosby.”2 We find the trial court did not err in rejecting this

defense, and, consequently, that the evidence was sufficient to sustain Hood’s conviction on this

charge.

2 Hood’s claim that the trial court’s reasoning was improper because the indictment charged him with possession of the firearm on September 5, 2001 and not on previous days was not raised before the trial court and is barred on appeal by Rule 5A:18. -9- “‘The essential elements’” of the common law defense of necessity “‘include: (1) a

reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack

of other adequate means to avoid the threatened harm; and (3) a direct causal relationship that

may be reasonably anticipated between the action taken and the avoidance of the harm.’” Long

v. Commonwealth, 23 Va. App. 537, 542, 478 S.E.2d 324, 326 (1996) (quoting Buckley v. City

of Falls Church, 7 Va. App. 32, 33, 371 S.E.2d 827, 827-28 (1988)).

Here, the trial court’s determination that Hood possessed the weapon “long before” his

encounter with Mosby is supported by Hood’s testimony. During his testimony, Hood revealed

that he purchased the weapon in August 2001. The encounter with Mosby did not occur until

September 5, 2001. Thus, the trial judge could reasonably conclude that the purchase of the gun

was not necessary to avoid an imminent harm. Also, no evidence adduced at trial supports a

conclusion that Hood lacked “other adequate means to avoid the threatened harm.” To the

contrary, the evidence establishes, viewed in a light most favorable to the Commonwealth, that

Hood did not attempt to end the encounter peacefully and that he shot Mosby unprovoked. No

threat presented itself to Hood by an unarmed man who was walking away when he was shot.

We therefore find that there is sufficient evidence to sustain the trial court’s conviction of Hood

on the charge of possession of a firearm by a convicted felon.

For the reasons stated, we affirm Hood’s convictions.

Affirmed.

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