COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Callins and Frucci UNPUBLISHED
Argued at Lexington, Virginia
RICHARD DWAYNE BRUNK MEMORANDUM OPINION* BY v. Record No. 0781-24-3 JUDGE RANDOLPH A. BEALES SEPTEMBER 9, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY Bruce D. Albertson, Judge
H. Eugene Oliver, III (Evans Oliver, PLC, on brief), for appellant.
David A. Stock, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Following a jury trial, the Circuit Court of Rockingham County convicted Richard
Dwayne Brunk of second-degree murder, in violation of Code § 18.2-32, and use of a firearm in
the commission of murder, in violation of Code § 18.2-53.1. On appeal, Brunk challenges the
trial court’s denial of his motion to suppress the statements that he made during a police
interview. He also challenges the trial court’s denial of his motion for a competency evaluation.
In addition, Brunk challenges the sufficiency of the evidence to sustain his convictions. For the
reasons that follow, we affirm the trial court’s judgment.
I. BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, [as] the prevailing party at trial.” Gerald v.
Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381
* This opinion is not designated for publication. See Code § 17.1-413(A). (2016)). “This principle requires us to ‘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 to be drawn therefrom.’” Kelley v. Commonwealth, 289
Va. 463, 467-68 (2015) (quoting Parks v. Commonwealth, 221 Va. 492, 498 (1980)).
A. The Evidence Presented at Trial
Lauren Jefferson testified at trial that on June 15, 2022, her husband, Ronald Brunk, left
their home for work that morning. She exchanged several text messages with her husband
throughout the day. She recalled that she was supposed to accompany her husband and her
husband’s sister, Renee Branner,1 to look at an assisted-living facility for her mother-in-law.
However, Jefferson “didn’t feel well enough” at the time, so she “texted him [Ronald Brunk] and
asked him if he could meet Renee there and look at the facility with her.” Jefferson noted that
her husband also had a recreational baseball game scheduled for 7:30 p.m. that evening. Later
that day, however, Jefferson “texted him at 5:30 and received no response.” She then learned
“[a]round 7:00, 7:40” p.m. from her husband’s business partner that her husband was dead.
Stanley Michael testified at trial that in June 2022, he was employed by Mast & Brunk, a
“plumbing and HVAC mechanical” company that was owned by Ronald Brunk and located in
Rockingham County. Michael recounted that on June 15, 2022, he left work “about 5:05” p.m.
because he “had an appointment in Staunton at 5:30” p.m. He recalled that Ronald Brunk “was
still in [his] office” and that “[h]is truck was still there” at that time. After his appointment in
Staunton, Michael stopped by his workplace again “right at 7:00” p.m. because he “was coming
down [Interstate] 81” and “wanted to use the restroom.” Michael then recounted, “I pulled in
and noticed the front door, the glass was shattered on the front door.” He noted that “there’s a
1 Renee Branner testified at trial that in November 2020, a warrant had been issued for the arrest of her other brother, Richard Brunk (the appellant), after he allegedly had assaulted their father, Gerald Brunk. -2- wooden door behind” the glass door in “a vestibule like area” and that the wooden door is
“normally shut when the business is closed.” He took a picture of the broken glass door (which
showed that the inner wooden door was open) and then texted that picture to his supervisor.
Michael did not approach the building “in case someone was in the building,” and he then called
911. He stayed in his truck until the police and his supervisor (Wesley Nolt) arrived. When they
approached the broken glass door, they “noticed the body was laying inside the vestibule there”
and that there were “feet sticking out through the wooden door.” At that time, Michael did not
yet know the identity of the body because he “stayed outside the building the whole time.”
Wesley Nolt testified at trial that in June 2022, he was also employed by Mast & Brunk
and had worked with Ronald Brunk “for about twenty-nine years.” Nolt, who recalled seeing
Ronald Brunk at work on June 15, 2022, left the office “around 4:00” p.m. that day. He later
received a phone call from Michael and then returned to the workplace “about 7:15” p.m., where
he saw the broken glass door. He also recalled that Ronald Brunk’s “truck was parked there in
the usual spot.” Nolt then “started looking around” the building, and he recounted that when he
“looked in the front door I saw there was somebody laying in there on the floor.” However, he
could only see “the lower torso” of the body, and he noted that the broken glass door “was
locked.” After a police officer who had arrived at the building “broke out more glass” to unlock
the door, Nolt “followed the deputy” into the building and realized that the body lying on the
floor was Ronald Brunk, who Nolt then was able to identify because he “could see his face.”
Deputy Dakota Foster of the Rockingham County Sheriff’s Office testified at trial that on
June 15, 2022, he responded to a dispatch call at “approximately 7:20” p.m. about a breaking and
entering. He recounted, “So once I got on location there w[ere] two employees of the facility
outside waiting for me who initially called in the complaint. They walked up to me as I pulled in
stating that there was a male laying inside the door, laying inside the building.” Deputy Foster
-3- recalled, “[T]he exterior glass door that was in that front area it appeared it was broken. I cleared
out more of the glass so that I could make entry into the” building. When Deputy Foster entered
the building, he encountered “[a] male subject” (later identified as Ronald Brunk) who
“appear[ed] to be unconscious laying on the ground.” Deputy Foster attempted to resuscitate
Ronald Brunk, but he had no pulse and “[i]t did appear as he was deceased.” Deputy Foster
noted, “Initially I did not realize Mr. [Ronald] Brunk had been shot. I didn’t see any blood or
any obvious wounds. I did not understand what exactly had happened to him at that time so I did
not think to look for shell casings.”2 He also walked around the building to secure the premises,
and he recalled seeing a warrant “on the floor in the office to the left of the doorway.”3 Deputy
Foster stated that the warrant was charged against Richard Brunk and named Gerald Brunk (the
father of Richard Brunk and Ronald Brunk) as the victim of an alleged assault and battery.
Special Agent Wanda Beard of the Virginia State Police testified at trial that she assisted
the Rockingham County Sheriff’s Office with collecting and documenting evidence at the crime
scene. She recalled seeing a chair that appeared to have been pushed back or knocked down “in
the same room with the warrant.” She also recalled seeing evidence of metal pellets that may
have caused Ronald Brunk’s fatal injuries. She noted that “at the top of the doorway there was a
piece of glass embedded in the wall, along the wall, but no pellets in it, not that I saw.”
2 Frank Jackson (a volunteer firefighter) testified at trial that he “saw a male laying on the floor who appeared to be deceased.” While doing chest compressions on Ronald Brunk’s body, Jackson realized that “the injury was a lot more severe than it looked at first and there was major bleeding from those compressions.” In addition, Tristan Naftel (a paramedic who was also there at the crime scene) testified at trial that he “initially didn’t think there was any foul play or anything,” but that “through further exposure” he “did find injury that made me believe that there was possibly foul play.” In particular, Naftel observed “a penetrating injury” in “the high chest left” part of Ronald Brunk’s body. After attempting to provide medical attention, Naftel “did not see any signs of life,” and he declared Ronald Brunk’s death around 7:51 p.m. 3 Deputy Trey Carter, a former officer with the Rockingham County Sheriff’s Office, testified at trial that he also saw a warrant on the ground in the building and that he picked up the warrant. In a back office within the building, he recalled seeing signs of a physical struggle. -4- Addressing the condition of Ronald Brunk’s body, Special Agent Beard stated, “There are--well,
you’ve got the metal debris, on the face there are some penetrating wounds that were evidenced.
When he was moved there w[ere] small round metal pellets consistent with shotgun pellets.”
She also saw injuries to the side of Ronald Brunk’s face. Special Agent Beard collected several
“[p]lastic, what appeared to be shell wad pieces” from the crime scene.
Investigator Daniel Conley of the Rockingham County Sheriff’s Office testified at trial
that he assisted with the execution of a search warrant at Richard Brunk’s residence “in Weyers
Cave, Augusta County” on June 15, 2022. He noted that there was a large red truck parked
outside Brunk’s house, and he saw “[a] camouflage pump action .12 gauge shotgun” on the floor
of the truck. He also saw that “[t]here were multiple different locations with a red staining inside
and outside of the truck”—including a paper towel covered in blood that was found in the truck,
as well as blood on the driver’s side “[a]rmrest door panel.” Investigator Conley found one used
shell casing in the truck. He also photographed a bloody gray shirt inside Brunk’s residence, as
well as two boxes of shotgun shells.
Investigator Kyle Dolph of the Rockingham County Sheriff’s Office testified at trial that
he was the lead investigator in this case. He explained that the police “had developed Mr.
[Richard] Brunk as a person who possibl[y] could have been involved in this investigation and
we received information that he was at his residence.” On June 15, 2022, after having first gone
to the crime scene, Investigator Dolph then went to Richard Brunk’s residence, where he
encountered Brunk “on the front porch” and “had a conversation with” him. He noted that
Brunk “was able to respon[d] and answer . . . any questions we had.” The investigating officers
then transported Brunk from his home to the Rockingham County Sheriff’s Office because they
“wanted to speak to him regarding an incident between he and his brother and we asked if he
would be willing to come back and speak to us.” Investigator Dolph stated that Brunk agreed to
-5- speak with the officers. At the police station, the officers read Brunk his rights pursuant to
Miranda v. Arizona, 384 U.S. 436 (1966), and Brunk then signed a Miranda warning form.4
Brunk told the officers that he had gone to his brother’s workplace “to have a
conversation with him about that warrant”—which had been issued against him in 2020 by their
father for “assault and battery” but had only “recently been served on” him. Brunk explained to
the officers that he had parked his truck perpendicular against his brother’s truck in order to
prevent his brother from being able to leave his workplace because Brunk “wanted to force that
conversation with his brother.” Brunk went on to tell the officers that after he and his brother
had been involved in a “physical altercation,” he “was told to leave the business of Mast &
Brunk by his brother” and then “walked out of the business.”5 Brunk claimed that he went back
outside to his truck because he “believe[d] that Ronald was coming after him.” “[I]n a matter of
very few seconds,” Brunk then fired his shotgun through the “locked front door” of the building,
striking his brother from the front. Investigator Dolph recalled that Brunk “said a couple times
4 When asked why the Miranda warning form referenced the crime of “felony assault,” Investigator Dolph explained, “At that point and time we were investigating a death, did not know the circumstances that led up to that death, so we were investigating any and all crimes that could have been associated with that death.” 5 Investigator Dolph noted that he did not see any injuries on Richard Brunk’s hands that would have been indicative of a physical altercation between Brunk and his brother, Ronald Brunk, although there were contusions on Ronald Brunk’s right knuckles. -6- that he had no regrets as far as what had happened.”6 He also noted that Brunk offered his
explanations spontaneously without being prompted by questions during the interview.7
Brunk was arrested on charges of first-degree murder and use of a firearm in the
commission of murder. Investigator Dolph testified that he collected evidence at Brunk’s
residence, including “a gray Nike t-shirt that had some brown stains that was in the washing
machine.” Investigator Dolph also found “a .12 gauge pump shotgun” that “was located in the
rear passenger floorboard of that red Chevy Silverado” parked outside Brunk’s residence, two
boxes of ammunition “sitting next to the shotgun on the floorboard” of Brunk’s truck, and “a
spent shotgun shell” that “was located under the rear passenger seat” of Brunk’s truck.
Several individuals who had been incarcerated at the Rockingham County Jail with
Brunk testified at trial. Michael Eshbaugh, who had been Brunk’s cellmate, testified that Brunk
admitted to shooting his brother. Eshbaugh recounted that Brunk
said that he stopped by his brother’s work sometime in the evening, that his brother was still at work and that was the time that he usually wasn’t there so he stopped in there. He said he was pissed off from the night before, he got arrested the night before for a domestic violence charge against his father and his brother was the one that took him down to get the warrant for him. And he said he sat out there in the parking lot. He had blocked his
6 Investigator Dolph noted that Brunk had sworn out a criminal complaint against his brother the same evening after his brother’s death. The criminal complaint stated:
I base my belief on the following facts. Upon entering my brother’s business we had a verbal exchange followed by him attacking me, hitting me in my left eye, my nose and leaving me bloodied and bruised. After getting up off the floor he chased me out the front door of his business. Afterwards I left and went home where I had to put an ice pack on my eye and clean all the blood off my face. 7 Lieutenant Wesley Burgoyne of the Rockingham County Sheriff’s Office testified at trial that during the interview, Brunk “was coherent, spoke clearly, answered questions clearly, [and] wasn’t confused.” He stated that Brunk voluntarily consented to the interview, and he confirmed that Brunk read and signed the Miranda warning form. He acknowledged that Brunk “had a black eye on his left eye” and that Brunk had “mentioned his side hurt.” -7- brother’s truck off so he couldn’t drive out, for a little while and his brother never came out.
Eshbaugh recalled that Brunk also told him that
he grabbed his warrant that he had gotten from the night before and went into his brother’s business and he didn’t see anybody in the front lobby so he went to the back office to the left I guess is where his brother’s office was. He could see him in there so he went back there and showed his brother the warrant and asked him if he was responsible for that and his brother said yes, I am. He said just maybe a second or two later he jumped up and the fight was on and they got into a big fight. He said after the fight he left the building, went out to his truck and got a shotgun, went back to the building, I guess his brother was coming out of the building and saw the firearm. And I guess he just scared him so much that he fell down, picked himself up and run back into the building and locked the door. He said he seen him go back in the building and lock the door. He said he had the gun in the firing position and he just shot him.
John Leber, who had been housed in the same pod as Brunk, testified at trial that he and
Brunk had discussed “both our cases” while in jail together. Brunk told Leber that he had been
“waiting for his brother” because “he wanted to talk to him” about their father. Brunk then told
Leber about how he and his brother “got to fighting,” and Leber noted that Brunk “said his
brother beat him up.” Brunk then “went back to the truck and got the gun that was already
loaded and went back to the building and shot his brother.” Leber clarified that Brunk “had told
me that his brother had already come out the door and run back in and locked it.” When asked
whether Brunk had expressed any remorse for shooting his brother, Leber stated, “No. He
actually told me that ‘I wanted to blow his fucking head off.’ Excuse my French.”
Jerry Buracker, who “was housed at Rockingham County Jail in the same block” as
Brunk, testified at trial that Brunk had told him that
he had had problems with his brother over a car title. He talked about his brother and his sister about having problems with both, but he had spoken highly about a car title that his--his father had promised him a car is the way he put it, but then he said his brother
-8- had convinced his father to give it to him and that’s what started the commotion between him and his brother.
Buracker testified that Brunk explained to him that Brunk had gone to his brother’s workplace
“to confront his brother” and “to put an end to his brother taking things from him.” Brunk told
Buracker that “he parked in a way to block his brother in”—and Brunk also “picked out a .12
gauge pump shotgun and special turkey shot shells he was going to use. He said he was going to
end it, end his brother taking things from him.” When Brunk went to his brother’s office, Brunk
“slammed the car title down on his brother’s desk and when his brother went to get up he struck
his brother and a fight broke out.” According to Buracker, Brunk went on to tell him
that after he got up and seen that his brother had beat him up he went out to the truck and he got that .12 gauge shotgun and it was loaded with turkey shots and he said when he come back to the door he seen his brother coming through the door so he raised the gun up and he said there was a sight on the end of it that he knew his target was in sight so he shot through the door.
After the Commonwealth presented its case, counsel for Brunk moved to strike, arguing
that “there’s insufficient evidence to support malice for the murder charge.” The trial court
denied the motion, stating, “I do find that there is sufficient evidence for the case to go forward
on all matters and that the Commonwealth has met its burden at this stage of the case.” The
defense did not present any evidence, and counsel for Brunk renewed his motion to strike
without offering any additional argument. The trial court denied the renewed motion to strike,
stating, “I find that this is still a jury question.”
B. The Motion to Suppress
Before trial, Brunk’s counsel moved the trial court to suppress the statements Brunk
made to the officers during the police interview. Counsel for Brunk argued that Brunk’s “waiver
of his right to remain silent was not made knowingly and intelligently due to [his] injuries” and
that “therefore the waiver was invalid.” Brunk’s counsel maintained that Brunk “showed
-9- multiple signs of physical trauma to his head preceding his custodial interrogation at the
Rockingham County Sheriff’s Office”—and that Brunk “was not offered any medical attention
during the entire hours-long encounter with law enforcement, nor was his cognitive functioning
assessed in any way.” In addition, Brunk’s counsel argued that Brunk’s “waiver of his right to
remain silent was obtained by fraud by law enforcement.” Counsel for Brunk contended that
Brunk “was vaguely informed about the subject matter of the interrogation—the words ‘felony
assault’ on the waiver form—but was not given any further clarification from investigators
whatsoever.” Brunk’s counsel also contended that Brunk was coercively encouraged to waive
his Miranda rights “because he was allowed to believe he was speaking from the position of a
victim in the case, or alternatively as the suspect of just an assault, but not as a murder suspect.”8
At the hearing on the motion to suppress, Investigator Kyle Dolph testified that on June
15, 2022, he responded to a dispatch call and discovered the deceased body of Ronald Brunk.
The police then identified Ronald Brunk’s brother, Richard Brunk, as a suspect. Investigator
Dolph first encountered Richard Brunk “[a]t his residence” later that same evening, and he
recalled that Brunk “had a black eye and some bruising on his other eye, and also some
abrasions.” He stated, however, that Brunk did not appear confused, that he was responsive to
questions, that he answered questions clearly, and that he made no indication that he was
experiencing headaches or any other pains. Investigator Dolph learned that Brunk had traveled
to his brother’s workplace earlier that day and then had driven himself back home. Brunk then
“advised that he had driven to the Rockingham County magistrate’s office and swore out the
warrant against his brother, Ronald Brunk, for assault and battery.” Investigator Dolph noted
8 At the hearing on the motion to suppress, however, counsel for Brunk conceded, “I agree that there’s no coercion,” but he “wouldn’t agree that there’s no trickery.” - 10 - that when he transported Brunk to the Rockingham County Sheriff’s Office, Brunk “appeared
normal” and “did not appear to be having kind of any disorientation or abnormalities.”
Investigator Dolph further testified that he and Lieutenant Wesley Burgoyne read Brunk
his Miranda rights before conducting the interview. Brunk also read the Miranda warning form
before he initialed and signed the form. The Miranda warning form provided, “You have an
absolute right to remain silent,” “Any statement you make with or without counsel can be used
as evidence against you,” and, “You have a right to the presence of an attorney during this or any
further interview that Sheriff’s Office might have with you. The attorney may be one of your
own choosing which you retain, or if you are without funds to employ counsel, the court will
appoint an attorney for you.” The Miranda warning form further provided, “You are being
interviewed in connection with the alleged commission of the crime of felony assault.”9 The
officers then again reminded Brunk of the Miranda warning. Investigator Dolph noted that
Brunk “did acknowledge that he understood it” and at no point did the officers question whether
Brunk understood his Miranda rights. Investigator Dolph testified that during the interview,
Brunk was able to recall past events and “was able to recall all of his personal information.” He
9 Investigator Dolph acknowledged that the officers told Brunk “toward the conclusion of the interview” that his brother was deceased—and Investigator Dolph noted, “It just seemed like it was new information to him.” However, Investigator Dolph maintained, “There was no intention to mislead” Brunk, stating:
We didn’t know what happened. We were investigating a death. We did not know it was a murder or not at that point. And did, to further state, I would say that we didn’t know what had caused that death, and in order to not taint or prejudice any statements that he was going to make, I didn’t want to put any bias into his head to think that, you know, somebody was dead. I wanted to get his side of the story, fresh and clean.
Investigator Dolph explained that he does not tell suspects what he perceives the facts of a crime scene to be, that he does not interpret what forensic evidence might be present at a crime scene, and that he does not tell suspects what he knows or what other witnesses may have said. - 11 - also noted that Brunk appeared oriented to time and place, he was responsive to questions, and
he did not appear to have any head injury at the time. According to Investigator Dolph, Brunk
also “believed that his brother should be sitting in the chair where he is sitting currently.”
Before ruling on the motion to suppress, the trial court viewed a video recording of
Brunk’s interview with the officers. During an exchange with Brunk’s counsel, the trial court
noted, “I don’t even recall a question being asked. Your client [Brunk] just starts on a tear.” The
trial court also noted that “the officers don’t even ask him [Brunk] hardly a question” before
Brunk “is just offering up” his statements to the officers. After having “considered the totality of
the evidence,” the trial court denied the motion to suppress, stating:
So, this is a case where there was an investigation. I don’t hear any evidence to show that this was in fact an inducement form. All of the evidence that I have seen shows the demeanor of a person that wants to talk and is not being induced by that statement. I am finding that it’s a free and voluntary statement . . . that he’s making, and he’s in my view, clearly choosing to do so. There was not a single response in there to a question that I heard. He decided to start talking and was very detailed about it. So from the evidence that I have, again, I deny the motion to suppress.
The trial court memorialized its ruling in an order entered on May 4, 2023.
C. The Motion for a Competency Evaluation
Before trial, Brunk’s counsel also moved the trial court to order that Brunk’s competency
to stand trial be evaluated pursuant to Code § 19.2-169.1. In support of the motion, counsel for
Brunk contended, “Based upon a review of materials received from the Commonwealth in
discovery on October 20, 2023 and new indictments alleging the Defendant’s solicitation of the
[Commonwealth’s Attorney] Ms. Garst’s murder, Counsel believes that the Defendant may have
a latent mental-health issue that would affect his competency to stand trial.”
At a hearing on the motion, Brunk’s counsel represented that after speaking with Brunk,
“I have concerns about what he’s processing and how he’s reacting. I don’t know if it’s an
- 12 - emotional issue that actually manifests itself in his ability to function, but I would not be
comfortable trying the case without having a letter from a doctor saying he’s indeed
comfortable.” In response to that representation, the trial court stated that Brunk “seems to
understand, from what I’ve seen from him, things like speedy trial. You know, he showed his,
his frustration with that at one point. He seemed to understand continuances, understands your
role, clearly understands [the Commonwealth’s Attorney] Ms. Garst’s role. I would think he
understands mine.” Counsel for Brunk “agree[d] with the Court,” but he reiterated that “it
doesn’t appear to me that he’s processing what’s going on correctly.” Brunk’s counsel
represented that Brunk “may have a latent issue that doesn’t manifest itself when you talk to him
for five minutes, fifteen minutes, even for an hour and a half meeting,” but that “when you come
back and talk to him again and you see what his, it’s irrational; and it’s, it’s very troubling to
me.” Brunk’s counsel did not present any evidence beyond his representations to the trial court,
and he did not call his client to testify on the issue of competency to stand trial.
At a subsequent hearing, the trial court denied the motion for a competency evaluation.
In so ruling, the trial court noted that the court had not observed any signs of irrational conduct
by Brunk and that “at this stage all I have is some expressed doubts at this point by defense
counsel with nothing more.” The trial court emphasized, “Every step of the way Mr. Brunk has
been a person that appears to understand the situation, understands the roles of counsel,
understands the role of the Judge, seems to understand the type of charges that he’s facing, all of
the issues regarding competency.” The trial court then concluded that “those doubts that he
[counsel for Brunk] expressed in the Court’s view are not sufficient probable cause” to warrant
ordering a competency evaluation. By order entered on December 6, 2023, the trial court
memorialized its ruling, noting that
the Court did not find probable cause to support that the Defendant lacked substantial capacity to understand the proceedings against - 13 - him or to assist his attorney in his own defense. Defense Counsel was given leave to return the matter to the docket to renew the motion should any evidence of a lack of competency arise.
D. The Jury’s Verdict and Recommended Sentence
After hearing the evidence and arguments at trial, the jury found Brunk guilty of second-
degree murder and use of a firearm in the commission of murder. By final sentencing order
entered on May 9, 2024, and in accordance with the jury’s verdict and recommended sentence,
the trial court sentenced Brunk to 43 years of incarceration. Brunk now appeals to this Court.
II. ANALYSIS
A. The Motion to Suppress
On appeal, Brunk argues, “The trial court erred in denying appellant’s motion in limine to
suppress statements made by appellant to law enforcement.” Brunk contends:
The evidence presented at the suppression hearing and at trial in this matter was consistent with Appellant’s position that the Miranda waiver was not knowingly or intelligently made and that it was a result of his will being overborne due to both his physical and mental state and the coercive trick played by law enforcement in this matter by actively misleading him as to the subject of the interview and inquiry.
The Supreme Court has often stated, “The defendant has the burden to show that, when
viewing the evidence in the light most favorable to the Commonwealth, the trial court’s denial of
the motion to suppress was reversible error.” Sidney v. Commonwealth, 280 Va. 517, 522 (2010);
Harris v. Commonwealth, 276 Va. 689, 695 (2008); Jackson v. Commonwealth, 267 Va. 666,
673 (2004). “We review de novo the trial court’s application of the law to the particular facts of
the case.” Branham v. Commonwealth, 283 Va. 273, 279 (2012); Glenn v. Commonwealth, 275
Va. 123, 130 (2008). However, we are “bound by the trial court’s findings of historical fact
unless ‘plainly wrong’ or without evidence to support them and we give due weight to the
- 14 - inferences drawn from those facts by resident judges and local law enforcement officers.”
McGee v. Commonwealth, 25 Va. App. 193, 198 (1997) (en banc).
It is well-established that “coercive police activity is a necessary predicate to the finding
that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the
Fourteenth Amendment.” Colorado v. Connelly, 479 U.S. 157, 167 (1986). “Absent police
conduct causally related to the confession, there is simply no basis for concluding that any state
actor has deprived a criminal defendant of due process of law.” Id. at 164 & n.2 (“Even where
there is causal connection between police misconduct and a defendant’s confession, it does not
automatically follow that there has been a violation of the Due Process Clause.”). See also
Illinois v. Perkins, 496 U.S. 292, 297 (1990) (“Ploys to mislead a suspect or lull him into a false
sense of security that do not rise to the level of compulsion or coercion to speak are not within
Miranda’s concerns.”). “The amount of coercion necessary to trigger the due process clause
may be lower if the defendant’s ability to withstand the coercion is reduced by intoxication,
drugs, or pain, but some level of coercive police activity must occur before a statement or
confession can be said to be involuntary.” Commonwealth v. Peterson, 15 Va. App. 486, 488
(1992).
“The test for voluntariness is whether the statement is the ‘product of an essentially free
and unconstrained choice by its maker,’ or whether the maker’s will ‘has been overborne and his
capacity for self-determination critically impaired.’” Jenkins v. Commonwealth, 244 Va. 445,
453-54 (1992) (quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961)). “When determining
whether a defendant’s will has been overborne, the totality of the circumstances must be
examined, including the defendant’s experience and background as well as the conduct of the
police.” Id. at 454. Although “[v]oluntariness is a question of law, subject to independent
appellate review,” the Supreme Court has stated, “Subsidiary factual questions, however, are
- 15 - entitled to a presumption of correctness.” Secret v. Commonwealth, 296 Va. 204, 225 (2018)
(quoting Avent v. Commonwealth, 279 Va. 175, 195 (2010)); Tirado v. Commonwealth, 296 Va.
15, 28 (2018). A trial court’s finding that an accused’s “will was not overborne is a factual
finding, entitled on appeal to the same weight as a finding by a jury, and will not be disturbed
unless plainly wrong.” Bailey v. Commonwealth, 259 Va. 723, 746 (2000).
In this case, Investigator Dolph testified at the hearing on the motion to suppress that
when he first encountered Brunk at Brunk’s residence, Brunk did not appear to be confused, he
was responsive to questions, he answered questions clearly, and he made no indication that he
was experiencing headaches or any other pains. Although Brunk “had a black eye and some
bruising on his other eye, and also some abrasions,” Investigator Dolph stated that Brunk
“appeared normal” and that he “did not appear to be having kind of any disorientation or
abnormalities.” During the police interview, Investigator Dolph and Lieutenant Burgoyne read
Brunk his Miranda rights before conducting the interview, and they also allowed Brunk to read
the Miranda warning form before he initialed and signed the form. Investigator Dolph noted that
Brunk “did acknowledge that he understood” the Miranda warning form. Furthermore, Brunk
was able to recall past events, he “was able to recall all of his personal information,” and he
appeared to be oriented to time and place. Brunk even indicated to the officers that he “believed
that his brother should be sitting in the chair where he is sitting currently.”
After hearing the evidence and observing a video recording of Brunk’s interview with the
officers, the trial court stated, “I don’t even recall a question being asked. Your client [Brunk]
just starts on a tear.” The trial court also stated that “the officers don’t even ask him [Brunk]
hardly a question” before Brunk “is just offering up” his statements to the officers. See Watts v.
Commonwealth, 38 Va. App. 206, 218 (2002) (“Where a suspect in custody makes spontaneous
admissions, which are not a product of interrogation, the statements are admissible and their
- 16 - admission does not violate the suspect’s right against self-incrimination.”); Bradshaw v.
Commonwealth, 228 Va. 484, 490 (1984). In addition, the trial court found that the evidence
“shows the demeanor of a person that wants to talk and is not being induced by that statement,”
that “it’s a free and voluntary statement . . . that he’s making” and “clearly choosing to do so,”
and that Brunk simply “decided to start talking and was very detailed about it.” The trial court
then found that there was no “evidence to show that this was in fact an inducement form.”
In short, considering the totality of the circumstances, the record before this Court on
appeal establishes that there was no evidence of police coercion during the interview with Brunk.
Indeed, during argument before the trial court on the motion to suppress, counsel for Brunk
expressly conceded, “I agree that there’s no coercion.” Furthermore, the trial court was not
plainly wrong in finding that Brunk’s demeanor was that “of a person that wants to talk”—and
that Brunk simply “decided to start talking” without having been induced to do so by the
officers. Consequently, the trial court did not err in denying Brunk’s motion to suppress.
B. The Motion for a Competency Evaluation
Brunk next argues, “The trial court erred in denying appellant’s motion for a competency
evaluation of appellant.” He contends, “There was probable cause to believe that a competency
evaluation was appropriate under § 19.2-169.1 of the Code of Virginia to determine whether
Appellant lacked the substantial capacity to understand the proceedings against him or to assist
his attorney in his own defense.”
Code § 19.2-169.1(A) provides:
If, at any time after the attorney for the defendant has been retained or appointed and before the end of trial, the court finds, upon hearing evidence or representations of counsel for the defendant or the attorney for the Commonwealth, that there is probable cause to believe that the defendant, whether a juvenile transferred pursuant to § 16.1-269.1 or adult, lacks substantial capacity to understand the proceedings against him or to assist his attorney in his own defense, the court shall order that a competency evaluation be - 17 - performed by at least one psychiatrist or clinical psychologist who (i) has performed forensic evaluations; (ii) has successfully completed forensic evaluation training recognized by the Commissioner of Behavioral Health and Developmental Services; (iii) has demonstrated to the Commissioner competence to perform forensic evaluations; and (iv) is included on a list of approved evaluators maintained by the Commissioner.
The standard for competency is “whether the defendant has ‘sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding’ and has ‘a rational as well as
factual understanding of the proceedings against him.’” Godinez v. Moran, 509 U.S. 389, 396
(1993) (quoting Dusky v. United States, 362 U.S. 402 (1960)). “The defendant has the burden of
showing a ‘bona fide doubt’ concerning his competency.” Johnson v. Commonwealth, 53
Va. App. 79, 92 (2008) (quoting Beck v. Angelone, 261 F.3d 377, 387 (4th Cir. 2001)).
Determining whether there is probable cause to believe that the defendant lacks
substantial capacity to understand the proceedings against him or to assist his attorney in his own
defense “involves the exercise of discretion by the circuit court in weighing the facts presented
on the question of competency.” Dang v. Commonwealth, 287 Va. 132, 146 (2014), cert. denied,
574 U.S. 853 (2014). See also Johnson, 53 Va. App. at 95 (“The court remains on a duty to
watch a defendant’s behavior for signs of irrational conduct.”). “The requirement of probable
cause ‘relates to probabilities that are based upon the factual and practical considerations of
everyday life as perceived by reasonable and prudent persons. The presence or absence of
probable cause is not to be examined from the perspective of a legal technician.’” Id. at 93.
Thus, an appellate court “review[s] a circuit court’s decision not to order a competency
evaluation only for abuse of discretion.” Dang, 287 Va. at 146 (quoting Johnson, 53 Va. App. at
93); Orndorff v. Commonwealth, 271 Va. 486, 500 (2006).
In reviewing a trial court’s decision not to order a competency evaluation, this Court
considers “the diligence of defense counsel in seeking an evaluation” and “the history of defense
- 18 - counsel’s satisfaction with the client’s mental health.” Johnson, 53 Va. App. at 93-94. This
Court should also “strongly consider representations by defense counsel.” Id. at 94. However,
“such statements, standing alone, do not typically provide probable cause for an evaluation.” Id.
Rather, defense counsel may “present expert testimony or layperson observations,” or “even
detailed evidence from counsel.” Id. at 95. Furthermore, although “a defendant’s behavior
during court may under some circumstances provide the requisite evidence,” a defendant’s
disruptiveness “does not entitle him to a competency exam where he can understand the
proceedings and participate in his defense.” Id. at 95-96. A defendant “must exhibit more than
bizarre, paranoid behavior, strange words, or a preexisting psychiatric condition that has little
bearing on the question of whether the defendant can assist his defense counsel.” Id. at 96
(citation omitted). See also Dang, 287 Va. at 148 (recognizing that “neither low intelligence,
mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental
incompetence to stand trial” (quoting Walton v. Angelone, 321 F.3d 442, 460 (4th Cir. 2003))).
In this case, although counsel for Brunk represented to the trial court that Brunk “may
have a latent issue” and expressed “concerns about what he’s processing and how he’s reacting,”
Brunk’s counsel did not present any evidence or testimony to the trial court beyond his own
general representations. See Johnson, 53 Va. App. at 97 (holding that the “vague,
unsubstantiated representations of counsel did not provide probable cause to doubt [the
defendant’s] mental capacity”). Brunk’s counsel even “agree[d] with the Court” when the trial
court observed that Brunk “seems to understand, from what I’ve seen from him, things like
speedy trial. You know, he showed his, his frustration with that at one point. He seemed to
understand continuances, understands your role, clearly understands [the Commonwealth’s
Attorney] Ms. Garst’s role. I would think he understands mine.” The trial court went on to
observe, “Every step of the way Mr. Brunk has been a person that appears to understand the
- 19 - situation, understands the roles of counsel, understands the role of the Judge, seems to
understand the type of charges that he’s facing, all of the issues regarding competency.”
In short, the general representations made by Brunk’s counsel, without more, simply
were not enough to establish probable cause to order a competency evaluation. Because there
was not probable cause to believe that Brunk lacked substantial capacity to understand the
proceedings against him or to assist his attorney in his own defense, the trial court here did not
abuse its discretion in denying Brunk’s motion for a competency evaluation.
C. The Sufficiency of the Evidence
Brunk also argues:
The trial court erred in convicting appellant of both charges as the evidence was insufficient as a matter of law because the evidence presented failed to prove necessary elements of second-degree murder. Accordingly, since the evidence was insufficient as a matter of law to convict appellant of second-degree murder, it likewise was insufficient as a matter of law to convict appellant of use of a firearm in the commission of a felony.
He contends that “the Commonwealth failed to show malice, which is a necessary element of the
charge of second-degree murder (and first-degree murder, which is how this matter was
originally charged).” He further contends that “a reasonable trier of fact would only come to the
outcome that Appellant acted in the heat of passion and therefore, as a matter of law, could not
have acted in malice or be guilty of second-degree murder.”
The Supreme Court has stated, “When an appellate court reviews the sufficiency of the
evidence underlying a criminal conviction, its role is a limited one.” Commonwealth v. Garrick,
303 Va. 176, 182 (2024). “The judgment of the trial court is presumed correct and will not be
disturbed unless it is ‘plainly wrong or without evidence to support it.’” Pijor v. Commonwealth,
294 Va. 502, 512 (2017) (quoting Code § 8.01-680). “In such cases, ‘[t]he Court does not ask
itself whether it believes that the evidence at the trial established guilt beyond a reasonable
- 20 - doubt.’” Secret, 296 Va. at 228 (alteration in original) (quoting Pijor, 294 Va. at 512). “Rather,
the relevant question is whether ‘any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016)
(quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidence to support
the convictions, the reviewing court is not permitted to substitute its own judgment, even if its
opinion might differ from the conclusions reached by the finder of fact at the trial.” Clark v.
Commonwealth, 279 Va. 636, 641 (2010) (quoting Commonwealth v. Jenkins, 255 Va. 516, 520
(1998)).
“‘Murder’ is the unlawful killing of another with malice.” Canipe v. Commonwealth, 25
Va. App. 629, 642 (1997). The Supreme Court “has long defined malice as ‘the doing of a
wrongful act intentionally, or without just cause or excuse, or as a result of ill will.’” Watson-
Scott v. Commonwealth, 298 Va. 251, 255-56 (2019) (quoting Dawkins v. Commonwealth, 186
Va. 55, 61 (1947)). See also Essex v. Commonwealth, 228 Va. 273, 280 (1984) (“The authorities
are replete with definitions of malice, but a common theme running through them is a
requirement that a wrongful act be done ‘wilfully or purposefully.’” (quoting Williamson v.
Commonwealth, 180 Va. 277, 280 (1942))). In Virginia, all murder other than aggravated
murder and first-degree murder is second-degree murder. Code § 18.2-32; Pugh v.
Commonwealth, 223 Va. 663, 667 (1982). “Although ‘[m]alicious intent is an element of both
first degree murder and second degree murder,’ for purposes of second degree murder, proof of
specific intent to kill is not required.” Rhodes v. Commonwealth, 238 Va. 480, 486 (1989)
(quoting Baker v. Commonwealth, 218 Va. 193, 195 (1977)).
It is well-settled that “malice may be either express or implied by conduct.” Watson-
Scott, 298 Va. at 256 (quoting Essex, 228 Va. at 280). “Express malice is evidenced when ‘one
person kills another with a sedate, deliberate mind, and formed design.’” Id. (quoting Pugh, 223
- 21 - Va. at 668). “In contrast, malice implied by conduct, i.e., implied malice, exists where a
defendant lacks the deliberate intent to kill, but the circumstances of the defendant’s actions are
‘so harmful that the law punishes the act as though malice did in fact exist.’” Id. (quoting Pugh,
223 Va. at 668). Indeed, “implied malice does not require that a defendant have a deliberate
intent to kill. Rather, it is the fact that the defendant ‘willfully or purposefully, rather than
negligently, embarked upon a course of wrongful conduct likely to cause death or great bodily
harm.’” Id. at 256-57 (quoting Essex, 228 Va. at 280-81). Furthermore, “malice may be implied
from the deliberate use of a deadly weapon.” Id. at 256 (quoting Smith v. Commonwealth, 239
Va. 243, 264 (1990)). See also Morris v. Commonwealth, 17 Va. App. 575, 578 (1994) (“Taking
the steps necessary to locate and obtain a weapon further bolsters the inference of malice.”).
“Whether or not an accused acted with malice is generally a question of fact and may be
proved by circumstantial evidence.” Palmer v. Commonwealth, 71 Va. App. 225, 237 (2019)
(quoting Canipe, 25 Va. App. at 642); Pugh, 223 Va. at 667 (stating that “whether a defendant
acted with malice is generally a question to be decided by the trier of fact”). In determining
whether a defendant acted with malice, “the fact-finder must be guided by the quality of the
defendant’s conduct, its likelihood of causing death or great bodily harm, and whether it was
volitional or inadvertent.” Canipe, 25 Va. App. at 642-43 (quoting Essex, 228 Va. at 282).
“To reduce a homicide from murder to voluntary manslaughter, the killing must have
been done in the heat of passion and upon reasonable provocation.” Id. at 643 (quoting Barrett
v. Commonwealth, 231 Va. 102, 105-06 (1986)). “Malice and heat of passion are mutually
exclusive; malice excludes passion, and passion presupposes the absence of malice.” Id.
(quoting Barrett, 231 Va. at 106). “In order to show that a killing occurred in the heat of
passion, the evidence must prove the simultaneous occurrence of both ‘reasonable provocation’
and ‘passion.’” Id. (quoting Martin v. Commonwealth, 184 Va. 1009, 1016 (1946)). “Heat of
- 22 - passion is determined by the nature and degree of the provocation and may be founded upon
rage, fear, or a combination of both.” Id. (quoting Barrett, 231 Va. at 106). “Generally, whether
a killing was done in the heat of passion upon reasonable provocation is a question of fact.” Id.
In this case, there was ample evidence to establish that Richard Brunk shot and killed his
brother, Ronald Brunk, at his brother’s workplace—and that he did so with malice. Investigator
Kyle Dolph, who interviewed Brunk the same evening after the shooting, testified at trial that
Brunk told the investigating officers that he had gone to his brother’s workplace that day “to
have a conversation with him about that warrant.” Brunk explained to the officers that he parked
his truck perpendicular against his brother’s truck in order to prevent his brother from being able
to leave his workplace and “to force that conversation with his brother.” He went on to tell the
officers that after confronting his brother in his brother’s office and then engaging in a “physical
altercation,” he went back outside to his truck. At that point, Brunk grabbed his shotgun from
his truck and then fired his shotgun through the “locked front door” of the building, striking his
brother (who was inside the building behind the exterior glass door).10 Investigator Dolph noted
that Brunk “said a couple times that he had no regrets as far as what had happened.”
Richard Brunk later admitted to three different individuals (Michael Eshbaugh, John
Leber, and Jerry Buracker) at the Rockingham Regional Jail that he had shot his brother.
Eshbaugh testified at trial that Brunk told him that after getting into a fight with his brother, he
“left the building, went out to his truck and got a shotgun, [and] went back to the building.”
Eshbaugh also testified that Brunk then told him that after he saw his brother “go back in the
10 Wesley Nolt (one of Ronald Brunk’s employees) and Deputy Dakota Foster (the first officer to respond to the crime scene) both confirmed that the building’s exterior glass door was locked when they arrived at the crime scene. In addition, the police found “small round metal pellets consistent with shotgun pellets” near Ronald Brunk’s deceased body. Investigators Daniel Conley and Kyle Dolph later found a shotgun, one used shotgun shell casing, and evidence of blood in Richard Brunk’s truck—as well as a bloody gray shirt and two boxes of shotgun shells in Brunk’s residence. - 23 - building and lock the door,” he “had the gun in the firing position and he just shot him.” Leber
similarly testified at trial that Brunk told him that after he and his brother “got to fighting,” he
then “went back to the truck and got the gun that was already loaded and went back to the
building and shot his brother.” When asked whether Brunk had expressed any remorse for
shooting his brother, Leber stated, “No. He actually told me that ‘I wanted to blow his fucking
head off.’ Excuse my French.” In addition, Buracker testified at trial that Brunk told him that he
had “picked out a .12 gauge pump shotgun and special turkey shot shells he was going to use.
He said he was going to end it, end his brother taking things from him.” Buracker also testified
that Brunk then told him that after retrieving his shotgun, he saw “his brother coming through the
door so he raised the gun up and he said there was a sight on the end of it that he knew his target
was in sight so he shot through the door.”
The trier of fact here could certainly infer malice from Brunk’s deliberate use of his
shotgun to shoot and kill his brother. See Watson-Scott, 298 Va. at 256 (stating that “malice may
be implied from the deliberate use of a deadly weapon” (quoting Smith, 239 Va. at 264)). The
trier of fact could also infer malice from Brunk’s going back outside to his truck to retrieve his
shotgun that he then used to shoot his brother through a locked glass door. See Morris, 17
Va. App. at 578 (“Taking the steps necessary to locate and obtain a weapon further bolsters the
inference of malice.”). In addition, Brunk’s statements to the investigating officers and to
several individuals in the Rockingham Regional Jail demonstrated a motive to kill his brother.
See Archie v. Commonwealth, 14 Va. App. 684, 690 (1992) (recognizing that “although motive
is not a necessary element . . ., ‘it is relevant and often most persuasive upon the question of the
actor’s intent’” (quoting Epperly v. Commonwealth, 224 Va. 214, 232 (1982))). Furthermore,
the trier of fact could consider the sworn testimony from the witnesses noted supra about
Brunk’s apparent lack of remorse.
- 24 - In short, the record before this Court on appeal supports a finding that Richard Brunk acted
with malice when he used his shotgun to shoot and kill his brother, Ronald Brunk. Therefore, we
certainly cannot say that the trial court erred in denying Brunk’s motions to strike—or that the
jury, as the trier of fact, was plainly wrong or without credible evidence in finding that Brunk
committed second-degree murder and that he used a firearm in the commission of that murder.
III. CONCLUSION
For all of the foregoing reasons, we affirm the trial court’s judgment, and we uphold both
of Brunk’s convictions.
Affirmed.
- 25 -