Michael Reese Painter v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 10, 2001
• Docket: 1953002
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Bumgardner and Senior Judge Hodges Argued at Chesapeake, Virginia

MICHAEL REESE PAINTER MEMORANDUM OPINION * BY v. Record No. 1953-00-2 JUDGE RICHARD S. BRAY APRIL 10, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG James F. D'Alton, Jr., Judge

Mary Katherine Martin, Senior Assistant Public Defender, for appellant.

Virginia B. Theisen, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

A jury convicted Michael Reese Painter (defendant) of

voluntary manslaughter, "as a principal in the second degree," and

possession of a firearm by a convicted felon, violations of Code

§§ 18.2-32 and -308.2, respectively. On appeal, defendant

challenges the sufficiency of the evidence to support the

voluntary manslaughter conviction. Finding no error, we affirm

the trial court.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I.

Reviewing the sufficiency of the evidence, we consider the

record "in the light most favorable to the Commonwealth, giving

it all reasonable inferences fairly deducible therefrom."

Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859,

866 (1998) (citation omitted). "[T]he fact finder is not

required to accept entirely either the Commonwealth's or the

defendant's account of the facts [but] . . . may reject that

which it finds implausible, [and] accept other parts which it

finds believable." Pugilese v. Commonwealth, 16 Va. App. 82, 92,

428 S.E.2d 16, 24 (1993) (citation omitted). Thus, the

credibility of the witnesses, the weight accorded testimony, and

the inferences drawn from proven facts are matters to be

determined by the fact finder. Long v. Commonwealth, 8 Va. App.

194, 199, 379 S.E.2d 473, 476 (1989). The judgment of the trial

court will not be disturbed unless plainly wrong or unsupported by

the evidence. See Code § 8.01-680.

Viewed accordingly, the instant record discloses that, on

October 27, 1998, Bruce Smith, his mother, Marzella Smith, and

Michael Lassiter traveled to defendant's residence in Bruce

Smith's "dump truck," following defendant's unannounced departure

from a "job," undertaken with Bruce Smith, in Wilmington, North

Carolina. Smith and Lassiter approached the house, knocked at the

door and were admitted by defendant's son, Lacy Painter. Upon

encountering defendant, Smith inquired into his conduct, asked,

- 2 - "don't you want to goddam work," and demanded defendant return

fifty dollars advanced to him by Smith. When an argument ensued

between the two men, Lassiter returned to the truck.

Shortly thereafter, Lassiter observed Smith "rushing out of

the door in a hurry, defendant behind him with a rifle." Lassiter

described defendant as "hysterical," "screaming at the top of his

voice," threatening to "kill all of us if we didn't get out of

there." While pursuing Smith, defendant "aimed" the rifle at

Lassiter and Marzella Smith, then seated in the truck, and fired

"three to four shots," several striking the vehicle. Fearful,

Lassiter and Marzella Smith exited the truck, pleading with

defendant not to shoot Smith and to permit everyone to leave

unharmed.

Suddenly, Lacy Painter appeared and came "across the yard

with a pit bull on a chain." 1 Defendant "hand[ed] Lacy the rifle,

and Lacy handed [defendant] the pit bull." Once armed with the

weapon, Lacy Painter began "running around the yard" to the side

of Smith, while defendant remained "in front" with the dog. As

Lassiter attempted to "turn [the truck] around to leave," Smith

and his mother stepped away from the vehicle and raised their

hands in submission. Nevertheless, Lacy Painter, then "standing

behind a tree," shot and mortally wounded Smith with the rifle

1 Lassiter recalled numerous pit bull dogs were "lined up on each side of the yard," barking, "just hysterical." Defendant was aware the dog would "tear up" Smith if given the opportunity.

- 3 - provided by defendant. Following the killing, defendant secreted

the murder weapon but, after "some discussion" with police, led

investigators to its location. The instant prosecution,

conviction and appeal followed.

II.

"Code § 18.2-18 provides that in the case of every felony, a

principal in the second degree shall be indicted, tried,

convicted, and punished in all respects as if a principal in the

first degree." Kearney v. Commonwealth, 32 Va. App. 790, 794, 531

S.E.2d 23, 25 (2000).

"To show an accused guilty of a crime as a principal in the second degree, the Commonwealth must show that the accused was present, aiding and abetting, and intended his or her words, gestures, signals, or actions to in some way encourage, advise, urge, or in some way help the person committing the crime to commit it."

Bass v. Commonwealth, 31 Va. App. 373, 389, 523 S.E.2d 534, 542

(2000) (citation omitted).

"Voluntary manslaughter is defined as an intentional killing

committed while in the sudden heat of passion upon reasonable

provocation." Turner v. Commonwealth, 23 Va. App. 270, 274, 476

S.E.2d 504, 506 (1996).

In challenging the sufficiency of the evidence, defendant

advances two arguments. First, he contends that acquittal on a

companion indictment, which alleged he fired a weapon at an

occupied vehicle, constituted a factual finding that he did not

- 4 - intend for Smith to be shot. However, "[w]here a jury renders

inconsistent verdicts, 'a search of the trial record in an attempt

to reconcile such inconsistency is neither appropriate nor

required.'" Akers v. Commonwealth, 31 Va. App. 521, 529, 525

S.E.2d 13, 17 (2000) (citation omitted). "As long as the evidence

supports both verdicts, they 'will be upheld, despite the apparent

inconsistency.'" Id. (citation omitted).

Secondly, defendant maintains that, as a matter of law, it is

not "possible" for a person to be guilty of voluntary manslaughter

as a principal in the second degree. However, "the authorities

generally fully support the proposition that there may be aiders

and abettors in manslaughter." Campbell v. Commonwealth, 130 Va.

741, 745, 107 S.E. 812, 813 (1921). Moreover, Code § 18.2-18 does

not exclude manslaughter from those felonies embraced by the

statute.

Reviewing the substantive evidence in support of the

conviction, the record established that defendant, enraged, chased

Smith from his house, pursued him with a loaded rifle and fired

several rounds into his truck, then occupied by Smith's mother and

Lassiter, all while loudly threatening to kill him. In the midst

of defendant's violent assault, his son, Lacy Painter, clearly

aware of the emotionally charged and dangerous circumstances then

prevailing, appeared on the scene, tethering a vicious dog.

Defendant and his son immediately exchanged the dog for the weapon

and, while defendant continued to confront and distract Smith,

- 5 - Lacy Painter moved to an area at Smith's side, eventually

positioning himself behind a tree before firing the fatal shot.

Following the homicide, defendant regained possession of the

weapon and secreted it behind his home.

Such evidence establishes beyond a reasonable doubt that

defendant, cognizant of Lacy Painter's mindset, encouraged and

assisted him in killing Smith, by assuming responsibility for the

dog, providing the murder weapon, and continuing to engage Smith,

thereby permitting Lacy Painter to stalk and kill his victim.

Such conduct clearly proved beyond a reasonable doubt that

defendant aided and abetted his son in the voluntary manslaughter

of Smith. Accordingly, we affirm the trial court.

Affirmed.

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