Shun O'Neal Patterson v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: February 5, 2002
• Docket: 0342011
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Bumgardner and Frank Argued at Chesapeake, Virginia

SHUN O'NEAL PATTERSON MEMORANDUM OPINION * BY v. Record No. 0342-01-1 JUDGE RUDOLPH BUMGARDNER, III FEBRUARY 5, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Verbena M. Askew, Judge

Edward I. Sarfan (Sarfan & Nachman, L.L.C., on brief), for appellant.

Eugene Murphy, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

A jury convicted Shun O'Neal Patterson of first degree

murder, use of a firearm in the commission of a felony, and

robbery. On appeal, he contends the trial court erred (1) in

finding the evidence sufficient to prove murder, (2) in refusing

his voluntary manslaughter instruction, (3) in giving

contradictory jury instructions, and (4) in giving a

self-defense instruction after telling counsel it would not.

Finding no error, we affirm.

On appeal, we review the evidence and all reasonable

inferences fairly deducible therefrom in the light most

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. favorable to the Commonwealth. Archer v. Commonwealth, 26 Va.

App. 1, 11, 492 S.E.2d 826, 831 (1997). Where there is credible

evidence supporting the verdict, "'this Court should not

overrule it and substitute its own judgment, even if its opinion

might differ from that of the jury.'" George v. Commonwealth,

242 Va. 264, 278, 411 S.E.2d 12, 20 (1991) (quoting Snyder v.

Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d 452, 457 (1961)).

Geraldine Perkins saw the victim riding his bicycle through

an apartment complex. The defendant appeared and "snatched him

off his bike." The two men were "tussling . . . [and] about a

minute later the gun went off." The victim fell to the ground

and the gun dropped. The victim said, "Don't shoot me, don't

shoot me." The defendant reached over to get the gun and said,

"I'm going to kill you goddamn it, I'm going to kill you." The

defendant shot the victim, "[t]hen turned around and shot him

again." As Perkins called 911, she saw the defendant running

away with the gun in his right hand.

Keara Littlejohn heard a gunshot and went outside her

apartment. She saw the victim lying on the ground and the

defendant "standing over" him near his head. The defendant told

the victim to give him his money and then shot the victim twice.

The defendant took something from the victim's back pocket and

ran.

The victim suffered two gunshot wounds. One came from a

gun pressed tightly against his skin but was not fatal. The

- 2 - other entered above the collarbone, severed the artery and vein

beneath that bone, injured the lung and liver, and lodged in the

victim's flank. It was fatal.

The defendant maintained the victim robbed him at gunpoint

shortly before the shooting. The victim then pursued the

defendant and again threatened to shoot him. The two men

struggled, the gun went off, and the victim fell to the ground.

The defendant picked up the money the victim had stolen from him

earlier and ran. At first the defendant did not remember having

the gun in his hand as he ran, but later he admitted taking the

gun and giving it away.

"The credibility of the witnesses and the weight accorded

the evidence are matters solely for the fact finder who has the

opportunity to see and hear that evidence as it is presented."

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,

732 (1995) (citations omitted). The fact finder is not required

to believe all aspects of a witness' testimony; it may accept

some parts as believable and reject other parts as implausible.

Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24

(1993).

The jury accepted the testimony of the Commonwealth's

witnesses and did not accept the defendant's testimony. The

Commonwealth's witnesses were competent and not inherently

incredible. From their testimony, the jury could conclude

- 3 - beyond a reasonable doubt that the defendant committed the

offenses charged.

The defendant contends the trial court erred in refusing to

instruct on voluntary manslaughter. The court instructed the

jury on first and second degree murder, malice, and heat of

passion. The court did not instruct on voluntary manslaughter

reasoning that no evidence showed the defendant acted in the

heat of passion.

In Turner v. Commonwealth, 23 Va. App. 270, 276, 476 S.E.2d

504, 507 (1996), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997), the

trial court instructed on first and second degree murder but

refused to instruct on voluntary manslaughter. Turner was

convicted of first degree murder. "[B]y rejecting the

lesser-included offense of second degree murder, [the jury]

necessarily rejected the factual basis upon which it might have

rendered a verdict on the lesser-included offense of voluntary

manslaughter." Id. at 278, 476 S.E.2d at 508 (footnote

omitted).

As in Turner, this jury convicted the defendant of first

degree murder. In doing so, it found the defendant acted with

malice and premeditation. Voluntary manslaughter requires heat

of passion upon reasonable provocation. Heat of passion cannot

coexist with malice. Barrett v. Commonwealth, 231 Va. 102, 106,

341 S.E.2d 190, 192 (1986). Reasonable provocation cannot

coexist with premeditation. Turner, 23 Va. App. at 277, 476

- 4 - S.E.2d at 508. The jury would have convicted of second degree

murder if it did not find premeditation; it would have acquitted

if it did not find malice. Any error would have been harmless

beyond a reasonable doubt because the jury necessarily rejected

the factual basis of voluntary manslaughter.

The defendant contends the trial court erred in granting

Instruction 6, which defined malice but included a definition of

heat of passion. The defendant argues the instruction was

confusing and misleading because the trial court did not

instruct on voluntary manslaughter. We do not address this

contention because the defendant did not object to Instruction 6

as given. Rule 5A:18; Barnabei v. Commonwealth, 252 Va. 161,

170, 477 S.E.2d 270, 275 (1996), cert. denied, 530 U.S. 1300

(2000).

The defendant also contends the trial court erred in giving

a self-defense instruction after indicating it would refuse the

instruction. The trial court could change its initial ruling to

refuse the instruction. The defendant never objected to

receiving the instruction at trial and did not request

additional time to prepare his closing argument. We will not

consider this issue for the first time on appeal. Rule 5A:18.

The record does not reflect any reason to invoke the exceptions

to the rule. The defendant requested the self-defense

instruction; he got the instruction he requested.

- 5 - We conclude the trial court properly instructed the jury

and the evidence proved first degree murder beyond a reasonable

doubt. Accordingly, we affirm the convictions.

Affirmed.

- 6 -