David Lewis Goode v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: October 6, 1998
• Docket: 1578972
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Bumgardner Argued at Richmond, Virginia

DAVID LEWIS GOODE, JR. MEMORANDUM OPINION * BY v. Record No. 1578-97-2 JUDGE RUDOLPH BUMGARDNER, III OCTOBER 6, 1998 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHARLOTTE COUNTY Charles L. McCormick, III, Judge Maureen L. White (Theodore N. I. Tondrowski, on brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

A jury convicted David Lewis Goode, Jr. of voluntary

manslaughter. The defendant appeals contending that the evidence

is insufficient to prove his guilt. Finding the evidence is

sufficient to sustain the verdict, we affirm.

On appeal, we view the evidence in the light most favorable

to the Commonwealth and grant to it all reasonable inferences

fairly deducible therefrom. See Higginbotham v. Commonwealth,

216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). Voluntary

manslaughter is the unlawful killing of another without malice,

while in the heat of passion upon reasonable provocation or

mutual combat. See Barrett v. Commonwealth, 231 Va. 102, 105-06,

341 S.E.2d 190, 192 (1986). "[W]hether a killing was done in the

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. heat of passion upon reasonable provocation is a question of

fact." Canipe v. Commonwealth, 25 Va. App. 629, 643, 491 S.E.2d

747, 754 (1997) (citation omitted).

The evidence shows that a group of people including the

victim, Daniel Clark, was drinking outside a store in Charlotte

County. The defendant drove up and parked. His passenger got

out, went over, and spoke to the victim. The victim then went to

the defendant's car and got in it. From the point that the

victim got in the defendant's car, the stories of the witnesses

vary. The witnesses differed over who was the aggressor and the

timing and sequence of events. One Commonwealth witness, Joanne Townsend, who was only

three feet from the car, stated that as soon as the victim sat in

the car, the defendant raised a gun. The victim knocked it down,

and the gun discharged as the two fought over it. After the gun

discharged, the witness accounts converged again. The victim got

out of the car complaining of a wound to the lower abdomen. He

bled to death from the single gunshot wound. The other injuries

inflicted were a small cut over the defendant's eye and seven

semicircular abrasions to the victim's face. Those abrasions

could not be caused by a fist.

Joanne Townsend's testimony alone would prove the elements

of the crime. The jury believed it, and it was not contrary to

human experience or inherently incredible. Great deference is

given to the fact finder who, having seen and heard the

- 2 - witnesses, assesses their credibility and weighs their testimony.

See Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735,

736-37 (1985); Daung Sam v. Commonwealth, 13 Va. App. 312, 318,

411 S.E.2d 832, 835 (1991). The fact finder's determination that

a witness is credible "may only be disturbed on appeal if this

Court finds that [the witness'] testimony was 'inherently

incredible, or so contrary to human experience as to render it

unworthy of belief.'" Robertson v. Commonwealth, 12 Va. App.

854, 858, 406 S.E.2d 417, 419 (1991) (quoting Fisher v. Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984)).

A trial court's judgment will not be disturbed unless it is

plainly wrong or without evidence to support it. See Code

§ 8.01-680; Traverso v. Commonwealth, 6 Va. App. 172, 176, 366

S.E.3d 719, 721 (1988).

The defendant argues that he is entitled to an acquittal

based on justifiable homicide because he retrieved the gun in

self-defense. See Bailey v. Commonwealth, 200 Va. 92, 96, 104

S.E.2d 28, 31 (1958). The defendant has the burden of going

forward with evidence of self-defense, and the jury is entitled

to accept or reject any testimony offered. See Bridgeman v.

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).

The defendant told the investigating officer that the victim

entered the passenger side of his car and had hit him with

something. The defendant originally claimed that the gunshot

came from outside the car. After the investigator told him the

- 3 - victim was dead and he had spoken to other witnesses, the

defendant changed his story. He said that to protect himself he

reached under his seat and got the gun to frighten the victim.

He claimed that the victim took the gun from him, they had

scuffled, the defendant got the gun back, and it fired.

The jury did not accept the defendant's version of the

evidence nor his claim of self-defense. Other evidence permitted

the jury to find that the defendant was the aggressor, see Lamb

v. Commonwealth, 141 Va. 481, 488, 126 S.E. 3, 5 (1925), and no

evidence suggested that he retreated after he provoked the fight.

See Dodson v. Commonwealth, 159 Va. 976, 979-80, 167 S.E. 260,

261 (1933) (citation omitted). We hold that the evidence is

sufficient to sustain the defendant's conviction of voluntary

manslaughter. Accordingly, we affirm the conviction.

Affirmed.

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