COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Agee and Senior Judge Hodges Argued at Chesapeake, Virginia
TONY KNOX MEMORANDUM OPINION * BY v. Record No. 0533-00-1 JUDGE G. STEVEN AGEE MAY 1, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH A. Bonwill Shockley, Judge
Theresa B. Berry (Berry, Ermlich, Lomax & Meixel, on brief), for appellant.
Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Tony Knox ("defendant" or "Knox") was indicted on four
counts of attempted malicious wounding, four counts of use of a
firearm in the commission of a felony, four counts grand
larceny, one count robbery, one count attempted robbery, three
counts conspiracy and one count possession of burglary tools.
He pled guilty in the Circuit Court of the City of Virginia
Beach to one count each of robbery, use of a firearm, and
attempted robbery, and to four counts of grand larceny. He was
tried and convicted by the trial court sitting without a jury,
of three counts of attempted malicious wounding and three counts
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. of use of a firearm. The remaining charges were nolle
prosequied.
Prior to the sentencing hearing, the defendant moved the
court to allow him to withdraw his guilty pleas and to
reconsider the findings of guilty as to the offenses for which
he was convicted at trial. The court denied his motions and
sentenced the defendant to serve a total of 22 years in prison.
The defendant now appeals his convictions averring that the
evidence was insufficient to support the convictions for
attempted malicious wounding and the related use of a firearm in
the commission of a felony. In addition, he appeals the circuit
court's denial of his motion to withdraw his guilty pleas. For
the reasons set forth below, we affirm the convictions and hold
the trial court did not err in denying the motion to withdraw
the guilty pleas.
I.
BACKGROUND
In August and September 1997, Tony Knox, age 17, and a
younger cousin, Maurice Lewis, age 13, stole four vehicles in
and around Virginia Beach which they later abandoned. Knox
found a handgun in one of the vehicles which he kept and
practiced shooting it in some woods. He used this handgun to
perpetuate all the robberies and to fire at the intended
victims.
- 2 - When Knox and Lewis stole the last vehicle on or about
September 27, 1997, they used it to stalk and rob at gunpoint
Matthew Swingle, a pizza delivery driver. On September 28,
1997, William Love, another pizza delivery driver, noticed a
black truck following him while he was driving to a delivery.
When he reached his customer's address, Love went to the front
door of the house as he heard tire noises. The black truck had
stopped between forty and fifty feet away from the front door
where Love was standing while he rang the doorbell. Love then
asked Knox, the driver of the truck, what he wanted. The
defendant responded, "You know what the F we want."
The customer, Albert Riley, opened the door and Love said
he suspected he was about to be robbed. He then heard a sound
"like a loud firecracker" and the truck sped off. The delivery
driver and the customer then observed a bullet hole in an
interior wall of the house at about chest height "not even
twelve inches" from where Love and the customer had been
standing. The bullet hole had not been present in the home
earlier.
At the same time, Michael Duffy was walking down the street
from Riley's house when he heard a gunshot and noticed Knox's
vehicle traveling at a high rate of speed. The vehicle
initially passed Duffy but then returned towards Duffy; the
front passenger window was down and the truck slowed to nearly a
stop. When the vehicle was about ten feet away from him, Duffy
- 3 - saw a muzzle flash and felt an "explosion of noise" that
literally knocked him off his feet.
Knox also saw Anthony Morris delivering a pizza on
September 28, 1997. Knox testified he removed the clip from his
gun when he approached Morris as he sat in his truck, then stuck
the unloaded gun through the open window and demanded money.
Morris grabbed the defendant's hand, pinning it against the
vehicle and began to drive off. Knox freed his hand from
Morris' grasp, reloaded the gun and fired at Morris hitting the
driver's side doorframe, just above the level of the driver's
head. The shot was fired from such short range the shell casing
landed in the back of Morris' truck.
When the defendant was interviewed about these events by
police he stated that he had followed a pizza driver (Love)
through a neighborhood and was "pissed off" at the driver
because the driver was trying to "lose him." He further stated,
"the guy on the porch looked like he was trying to be a
smart-ass," so Knox had his cousin lean back in the seat so he
could fire the gun at Love.
The defendant then admitted to Detective J.G. Mentus that
after he shot at the pizza driver on the porch, he drove down
the street and saw a family walking. After seeing the man point
at him, he slowed down, stopped in front of the guy, pointed the
gun at him and fired one shot before driving off.
- 4 - Knox also admitted to approaching a second pizza delivery
driver sitting in his vehicle, pointing a gun at him and
demanding money. He stated the driver grabbed the weapon and
they wrestled for control of the gun. The defendant then
admitted to shooting at the driver "because he grabbed my hand."
At trial on August 5, 1998, the Commonwealth submitted to
the court stipulated evidence, offered in connection with the
defendant's guilty pleas, establishing that the defendant and
Maurice Lewis had committed grand larceny of four automobiles
during a period in August and September 1997 and that they
robbed the first pizza delivery driver, Matthew Swingle. In
addition, a portion of Maurice Lewis' statement was read into
evidence that established that the defendant was present and
fired the gun in all three incidents for which he was being
tried.
The defendant testified that he ran out of money to buy
marijuana and alcohol and "decided . . . to get fast money . . .
I would rob people." He admitted that he was planning to rob
Love, but denied that he was angry because Love was trying to
lose him. He did not approach Love on the porch because Love
would have been able to see his face. He admitted to firing the
gun at Duffy because he thought Duffy was trying to get the
license plate number of the truck. He also admitted to shooting
at Morris.
- 5 - The defendant was convicted at trial of three counts
attempted malicious wounding for trying to shoot Love, Duffy and
Morris and three counts use of a firearm in the commission of a
felony. Prior to his sentencing hearing on December 2, 1998,
the defendant moved the court to set aside the findings of
guilty and to permit withdrawal of his pleas of guilty on the
other charges. The defendant alleged that his pleas were
entered on a mistake of fact, which was that he had been unaware
of a defense of not guilty by reason of insanity, and that the
court should enter a finding of insanity at the time of the
offenses. The court heard evidence on the defendant's motion.
The evidence presented indicated that the defendant freely
underwent multiple psychiatric and psychological tests before
and after his arrest, primarily by Dr. Earle Williams, a
licensed clinical psychologist. In an October 8, 1997
evaluation, nearly a year before his trial, the defendant was
diagnosed as "possibly bipolar and psychotic" by Dr. Williams.
This evaluation was sought and obtained by the Knox family.
Shortly thereafter, Dr. Williams was asked by the court to
determine the defendant's competency to stand trial and to
perform an evaluation of the defendant's mental state at the
time of the offenses. The evaluation was performed December 6,
1997, and the defendant was specifically found to be competent
to stand trial. The evaluation of the mental state at the time
of the offenses, however, was never entered into evidence, but
- 6 - defense counsel had received a copy. Dr. Williams noted in his
report to the court that Knox had been treated by Dr. Sacks.
Upon an evaluation dated November 12, 1998, months after
the trial, Dr. Williams opined in a report sought by Knox that
the defendant suffered from a severe and undiagnosed "bipolar
disorder." The condition manifests itself in mood swings
ranging from a depression stage to a manic phase causing the
sufferer to be subject to irresistible impulses. In addition,
Dr. Williams diagnosed the defendant as suffering from
"intermittent explosive disorder."
Dr. Williams testified at the December 2, 1998 hearing that
he believed the defendant "was in a psychotic state at the time
of the offense." The basis for this diagnosis included
representations by Knox's family that the behavior was different
than his usual behavior and on reports of Dr. Sacks and a
Dr. Pal, which Dr. Williams said he did not have when he did the
earlier reports. Nonetheless, Dr. Williams testified "that all
during the course of Tony's rampage, he knew right from wrong,"
but that "my professional opinion is such that he was suffering
from an irresistible impulse, was on a roll and just didn't have
the wherewithal to stop himself once he was going."
On cross-examination, Dr. Williams admitted he had never
seen Knox in any psychotic episode and that he was not
psychotic. Further, Dr. Williams testified that planning of the
- 7 - type done by Knox to facilitate the robberies would "belie any
sort of irresistible impulse."
After hearing Dr. Williams' testimony, the trial court
denied the motion to withdraw the guilty pleas and set aside the
findings of guilty.
II.
SUFFICIENCY OF THE EVIDENCE
The defendant contends the evidence was insufficient to
prove that he attempted to maliciously wound Love, Duffy and
Morris. He argues that the evidence does not support the trial
court's conclusion that he intended to wound his victims. We
disagree.
When the sufficiency of the evidence is challenged, we
consider all the evidence, and any reasonable inferences fairly
deducible therefrom, in the light most favorable to the party
that prevailed at trial, which is the Commonwealth in this case.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). Witness credibility, the weight accorded the
testimony and the inferences to be drawn from proven facts are
matters to be determined by the fact finder. See Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
A trial court's judgment will not be disturbed on appeal unless
it is plainly wrong or without evidence to support it. See Code
§ 8.01-680.
- 8 - To convict the defendant of attempted malicious wounding,
the Commonwealth was required to prove two elements. First,
that Knox intended to "maliciously shoot, stab, cut or wound any
person or by any means cause bodily injury with the intent to
maim, disfigure, disable or kill." See Code § 18.2-51. Such
intent of the accused may be inferred from the facts and
circumstances of the particular case. For instance, intent may
be proven by the accused's acts and statements and be shown by
circumstantial evidence. David v. Commonwealth, 2 Va. App. 1,
3, 340 S.E.2d 576, 577 (1986). The Commonwealth must also prove
the second element, that the accused committed a direct but
ineffectual act toward that purpose. Moody v. Commonwealth, 28
Va. App. 702, 706, 508 S.E.2d 354, 356 (1998).
Presented to the trial court was a description of a crime
spree of almost two months that involved the stealing of cars
and a gun and then the use of a stolen car and the gun in a
planned scheme to follow and rob pizza delivery drivers. The
trial court heard evidence that the defendant admitted to
approaching a pizza delivery driver, demanding money and, upon
the hesitation of the driver, placing a gun in front of the
victim's face and then firing the weapon shattering the
passenger window of the victim's car.
The trial court also heard that the defendant confronted
two other pizza delivery drivers, one by following him through a
neighborhood and then yelling out of the vehicle's window, and
- 9 - the other by directly approaching and pointing a gun at him.
Both drivers managed to avoid being robbed, but the defendant,
angered at the complications, fired a gun at both, and barely
missed. It was also presented to the court that after fleeing
the scene of the Love incident, the defendant feared Mr. Duffy
had his license plate number. Knox then drove past Duffy a
second time, slowed, and fired at Duffy, just missing him.
From these acts and the defendant's statements to police,
the trial court could reasonably infer that the defendant
intended to maim, disfigure, or disable each of the three
victims. The evidence supports the trial court's finding that
the defendant's deliberate acts of stalking the victims and then
aiming and firing the gun directly at them justified an
inference that he intended to maim, disable, disfigure, or kill
them. Further, these intentional acts were malicious. "Malice
inheres in the doing of a wrongful act intentionally, or without
just cause or excuse, or as a result of ill will." Long v.
Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989).
Therefore, we find there was sufficient evidence on each count
for the trial court to find the defendant guilty of attempted
malicious wounding.
As the evidence supports the finding of attempted malicious
wounding, and each attempt was committed with a firearm, the
trial court did not err in denying the defendant's motion to
strike the evidence in regards to the firearm charges.
- 10 - III.
WITHDRAWAL OF GUILTY PLEAS
The defendant's second contention on appeal is that the
trial court erred in denying his motion to withdraw his guilty
pleas. Code § 19.2-296 permits the withdrawal of a guilty plea
prior to sentencing; however, "'[w]hether or not an accused
should be allowed to withdraw a plea of guilty . . . is a matter
that rests within the sound discretion of the trial court and is
to be determined by the facts and circumstances of each case.'"
Hoverter v. Commonwealth, 23 Va. App. 454, 464, 477 S.E.2d 771,
775 (1996) (quoting Parris v. Commonwealth, 189 Va. 321, 324, 52
S.E.2d 872, 873 (1949)). The trial court's finding on the
motion will not be disturbed unless plainly wrong or without
evidence to support it. See id. at 465, 477 S.E.2d at 776.
A motion to withdraw a plea should be granted
"if it appears from the surrounding circumstances that the plea of guilty was submitted in good faith under an honest mistake of material fact or facts, or if it was induced by fraud, coercion or undue influence and would not otherwise have been made."
Id. at 464, 477 S.E.2d at 775 (quoting Parris, 189 Va. at 324,
52 S.E.2d at 873). Determining whether a court erred in
declining to allow a withdrawal of a guilty plea "requires an
examination of the circumstances confronting [the] accused
immediately prior to and at the time he pleaded to the charge."
Parris, 189 Va. at 322, 52 S.E.2d at 872.
- 11 - In this case, the defendant alleges he entered his pleas
under a material mistake of fact, i.e., he was unaware of a
possible psychiatric defense. He argues, therefore, that his
pleas of guilty were, at the very least, inadvised.
Collaterally, he argues he was unable to present a defense of
insanity by irresistible impulse at trial. Denial of his motion
would therefore be manifest injustice. We disagree.
The trial court heard evidence on the motion that indicated
that the defendant freely underwent multiple psychiatric and
psychological tests before and after his arrest. In one
evaluation, nearly a year before his trial, the defendant was
diagnosed as possibly bipolar and psychotic. The defendant or
his counsel were aware of these tests and evaluations, yet
either failed to explore and coordinate the reports and findings
in order to determine his true condition and the possibility of
an insanity defense or chose not to do so.
Moreover, the submitted diagnosis and basis of an insanity
defense was that the defendant was subject to and acted under an
irresistible impulse. Evidence that an accused planned his or
her criminal acts precludes, as a matter of law, any finding
that the accused acted under an irresistible impulse. See
Rollins v. Commonwealth, 207 Va. 575, 580, 151 S.E.2d 622, 625
(1966). Even Dr. Williams' testimony was that planning would
negate a claim of irresistible impulse.
- 12 - The stipulation of evidence accompanying the defendant's
guilty pleas established that (1) on four different dates
between August 2, 1997 and September 27, 1997 the defendant
stole four vehicles and (2) on or about September 28, 1997, the
defendant and an accomplice robbed one pizza delivery driver and
attempted to rob another. Further, the defendant testified that
when he ran out of money to buy drugs and alcohol he decided to
rob pizza delivery drivers.
As the evidence proved that the defendant planned his
crimes he would not have been entitled, as a matter of law, to a
jury instruction on irresistible impulse. Thus, the defendant
had no viable insanity defense if the trial court had allowed
him to withdraw his pleas. The trial court did not abuse its
discretion in denying the motion to withdraw the guilty pleas or
to set aside the findings of guilt.
Accordingly, the defendant's convictions are affirmed.
Affirmed.
- 13 - Benton, J., concurring.
I concur with the majority opinion's holding that the trial
judge did not err in refusing to allow Tony Knox to withdraw his
guilty pleas to the charges of robbery, use of a firearm,
attempted robbery, and four counts of grand larceny. I also
concur with the majority opinion's holding that the evidence at
trial was sufficient to prove beyond a reasonable doubt the
charges of attempted malicious wounding and the corresponding
charges of using a firearm in the attempts to wound. Although I
agree that the trial judge did not err in refusing to set aside
the convictions for the attempted malicious woundings and use of
a firearm in those woundings, I do so for slightly different
reasons than the majority.
We must analyze this claim under different rules than those
used to decide whether the trial judge should have allowed Knox
to withdraw his guilty pleas. Upon Knox's plea of not guilty,
the trial judge heard the evidence and convicted him of the
charges of attempted malicious wounding and the corresponding
firearm charges. Prior to sentencing, Knox filed a motion to
set aside his guilty pleas and the findings of guilt on those
charges to which he pled not guilty. Knox argues on appeal that
"had this [additional psychological] information been available
- 14 - . . . prior to the trial, [he] would have tried all of the
charges on a plea of not guilty by reason of insanity." 1
Likening the psychologist's report "to after discovered
evidence, which can be presented any time within twenty-one (21)
days after sentencing," Knox asserts that "[w]hen new evidence
is obtained . . . between . . . a trial, and the sentencing
thereon, the defendant must be given the chance to present that
evidence to the appropriate finder of fact." In short, based
upon a claim of after-discovered evidence, Knox is seeking a new
trial on the malicious wounding and firearm charges to which he
pled not guilty. At that trial, Knox would raise the insanity
defense of irresistible impulse.
Motions for new trials based on after-discovered evidence are addressed to the sound discretion of the trial judge, are not looked upon with favor, are considered with special care and caution, and are awarded with great reluctance. The applicant bears the burden to establish that the evidence (1) appears to have been discovered subsequent to the trial; (2) could not have been secured for use at the trial in the exercise of reasonable diligence by the movant; (3) is not merely cumulative, corroborative or collateral; and (4) is material, and such as should produce opposite results on the merits at another trial.
1 "Neither [Code § 19.2-254] nor any other statute authorizes or requires an accused to enter a plea of 'not guilty by reason of insanity.'" Jones v. Commonwealth, 28 Va. App. 444, 447, 506 S.E.2d 27, 29 (1998). However, to preserve for trial the issue of an accused's sanity at the time the offense, the accused is required to give notice to the Commonwealth at least twenty-one days prior to trial of an intention to present such evidence. See Code § 19.2-168.
- 15 - Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149
(1983) (citation omitted).
I believe that Knox established the first and third
elements of this test. The Commonwealth does not challenge the
fact that he discovered this evidence after the trial. Clearly,
the evidence is not cumulative because Knox did not put his
insanity at issue at trial.
Furthermore, I believe that Knox has satisfied the fourth
element. Dr. Williams' testimony is material. The psychologist
testified that upon a post-trial forensic evaluation of Knox, he
concluded that Knox was suffering from an irresistible impulse
when he shot the gun during these criminal events. Although it
is within the province of the fact finder to decide whether Knox
planned his acts or acted upon an irresistible impulse,
Dr. Williams' testimony provides a reasonable basis upon which a
trier of fact could have found that Knox was suffering from an
irresistible impulse when he fired the gun in the attempted
malicious woundings.
Regarding the third element, however, the record does not
establish that this evidence could not have been secured for use
at trial in the exercise of reasonable diligence. When
Dr. Williams performed the pretrial insanity evaluation, Knox
could have requested an evaluation at that time for both levels
of insanity recognized in Virginia. See Bennett v.
Commonwealth, 29 Va. App. 261, 277, 511 S.E.2d 439, 447 (1999)
- 16 - (holding that "Virginia law recognizes two tests by which an
accused can establish criminal insanity, the M'Naghten Rule and
the irresistible impulse doctrine"). No evidence in the record
provides an explanation why this was not done. Accordingly, I
would hold that the record fails to establish "the evidence
could not have been obtained for use at trial in the exercise of
reasonable diligence." Odum, 225 Va. at 131, 301 S.E.2d at 149.
For these reasons, I concur in affirming the convictions.
- 17 -