Michael Kevin McReynolds v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 7, 2023
• Docket: 0623222
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Raphael, White and Senior Judge Petty

MICHAEL KEVIN MCREYNOLDS MEMORANDUM OPINION* v. Record No. 0623-22-2 PER CURIAM MARCH 7, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Clarence N. Jenkins, Jr., Judge

(Matthew L. Engle; Donovan & Engle, PLLC, on brief), for appellant. Appellant submitting on brief.

(Jason S. Miyares, Attorney General; Leanna C. Minix, Assistant Attorney General, on brief), for appellee.

The trial court convicted Michael Kevin McReynolds of second-degree murder.

McReynolds argues that the trial court abused its discretion by “admitting a double hearsay

affidavit” at the sentencing hearing. After examining the briefs and record in this case, the panel

unanimously holds that oral argument is unnecessary because “the appeal is wholly without merit.”

Code § 17.1-403(ii)(a); Rule 5A:27(a). Because McReynolds did not comply with Rule 5A:8 and a

transcript or written statement of facts is indispensable to resolving his appeal, we affirm the trial

court’s decision.

BACKGROUND

“In accordance with familiar principles of appellate review, the facts will be stated in the

light most favorable to the Commonwealth, the prevailing party at trial.” Poole v. Commonwealth,

73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. doing so, we discard any of appellant’s conflicting evidence, and regard as true all credible evidence

favorable to the Commonwealth and all inferences that may reasonably be drawn from that

evidence. Gerald, 295 Va. at 473.

On April 28, 2018, Tricia Murphy saw McReynolds scream and curse at Johnny Battle, her

80-year-old, wheelchair-bound neighbor, on Battle’s back porch. McReynolds then repeatedly

struck Battle. Other neighbors, Morris Everett and Monique Bennett, also saw McReynolds punch

and kick Battle. When Murphy yelled at McReynolds, he threatened to harm her. Murphy retreated

inside and called 911. Meanwhile, Everett and Bennett ran to Battle’s aid and McReynolds

threatened them while spewing racial epithets. McReynolds accused Battle of having taken his

“damn car” and unsuccessfully tried to start one of Battle’s vehicles. Bennett, a certified nurse’s

assistant, testified that Battle was unconscious and bleeding from his forehead when she reached

him. The Commonwealth introduced a video recording depicting part of the violent attack.

When the police arrived, McReynolds initially claimed that he was attempting to help

Battle, but Murphy and Everett identified him as the assailant. Richmond Police Officer Wade

testified that McReynolds appeared visibly agitated and paced the alley while stating that he “owns

the block” and that he “paid taxes, that that was his.” When McReynolds refused to cooperate, the

police tased him and arrested him.

Medical technicians transported Battle to the hospital, where he died from his injuries.

Battle suffered abrasions on his face, arms, back, and legs. He had fractures in his neck and ribs

which caused internal bleeding and deprived his brain of oxygen. The medical examiner reviewed

the video of the beating and concluded that McReynolds inflicted the injuries while Battle was alive

and that Battle’s injuries were consistent with being kicked and punched as recorded in the video.

Battle died after he suffered a heart attack caused by the blunt force trauma.

-2- The trial court found, based on the video and testimonial evidence, that the beating was

“brutal” and “one of the more horrific things the [c]ourt has seen.” The trial court held that there

was “a clear showing of malice” and that McReynolds’s actions were based on “hatred.” The trial

court convicted McReynolds of second-degree murder.

On appeal, McReynolds alleges that at sentencing the Commonwealth introduced

documents related to his 2003 conviction in Vermont for a hate crime. The trial court sentenced

McReynolds to 40 years of incarceration with 12 years suspended. The trial court explained that it

departed upward from the guidelines1 “[b]ecause of the very violent nature of the attack, stomping

an 80 year old victim in a wheelchair for no reason.” McReynolds appeals.

ANALYSIS

McReynolds argues that the documents introduced at sentencing “contained many

allegations that were not corroborated” and contained “double hearsay.”

Rule 5A:8 requires an appellant to file a timely transcript or written statement of facts in lieu

of a transcript. See Rule 5A:8(a) and (c) (stating that a transcript or written statements of facts is

only part of the record when it is timely filed). “When the appellant fails to ensure that the record

contains transcripts or a written statement of facts necessary to permit resolution of appellate issues,

any assignments of error affected by such omission will not be considered.” Rule 5A:8(b)(4)(ii).

“If . . . the transcript [or statement of facts] is indispensable to the determination of the case, then the

requirements for making the transcript [or statement of facts] a part of the record on appeal must be

strictly adhered to.” Bay v. Commonwealth, 60 Va. App. 520, 528 (2012) (alterations in original)

(quoting Turner v. Commonwealth, 2 Va. App. 96, 99 (1986)). “This Court has no authority to

1 The sentencing guidelines provided a range of 15 years and 9 months to 26 years and 4 months. -3- make exceptions to the filing requirements set out in the Rules.” Shiembob v. Shiembob, 55

Va. App. 234, 246 (2009) (quoting Turner, 2 Va. App. at 99); see also Bay, 60 Va. App. at 528-29.

The trial court entered the final order on August 14, 2019. On March 24, 2022, the Supreme

Court of Virginia held that McReynolds “was denied his right to appeal” to this Court, granted him

“leave to file a notice of appeal,” and “ordered that all computations of time as required . . . shall

commence on the date of entry of [the] order,” or from the date of entry of a circuit court order

appointing counsel, “whichever date shall be later.” The trial court did not appoint counsel,2 thus,

under Rule 5A:8, the transcripts were due within 60 days of the entry of the Supreme Court order,

or May 23, 2022. See Rule 5A:8. McReynolds filed all but one transcript late. Notably, the

transcript for his sentencing hearing was not filed until June 21, 2022, and thus was not timely.

Further, McReynolds did not move for an extension of time to file his transcripts or a statement of

facts in lieu of a transcript. See Rule 5A:3(c).

Because the record does not include a timely filed transcript or a written statement of facts

in lieu of a transcript pertaining to the sentencing hearing, we must consider whether one is

indispensable to a determination of the assignment of error on appeal. See Bay, 60 Va. App. at

528-29; Anderson v. Commonwealth, 13 Va. App. 506, 508 (1992). “Whether the record is

sufficiently complete to permit our review on appeal is a question of law subject to our de novo

review.” Bay, 60 Va. App. at 529. Here, without a transcript or a written statement of facts, we

cannot determine that McReynolds preserved the issue for appeal, nor can we assess the merit of his

contention that the court improperly admitted the documents at his sentencing hearing. Thus, we

conclude that a transcript or a written statement of facts in lieu of a transcript is indispensable to

permit this Court to resolve the issue raised. See Smith v. Commonwealth, 32 Va. App. 766, 772

(2000). As McReynolds failed to provide a timely filed transcript or a written statement of facts in

2 Appellate counsel was privately retained. -4- lieu of a transcript necessary to resolve his assignment of error, we will not consider it. Rule

5A:8(b)(4)(ii).

CONCLUSION

For these reasons, the trial court’s decision is affirmed.

Affirmed.

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