COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Bray
Argued at Norfolk, Virginia
MATTHEW DOUGLAS HARLEY
MEMORANDUM OPINION * BY
v. Record No. 0843-95-1 JUDGE RICHARD S. BRAY
JULY 9, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dennis F. McMurran, Judge
Alberto Z. Herrero (Dianne G. Ringer,
Assistant Public Defender, on brief), for
appellant.
Brian Wainger, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Matthew Douglas Harley (defendant) was convicted in a bench
trial on two counts of malicious wounding and the related uses of
a firearm. Defendant complains on appeal that the evidence was
insufficient to establish the requisite malice, proving instead
self-defense, or alternatively, heat of passion. We disagree and
affirm the convictions.
The parties are fully conversant with the record in this
case, and we recite only those facts necessary to a disposition
of this appeal.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The judgment of a trial court, sitting
without a jury, is entitled to the same weight as a jury verdict
and will be disturbed only if plainly wrong or without evidence
to support it. Id.
On the evening of May 30, 1993, Kenneth Peele and Michael
Whitfield, both unarmed, entered a convenience store. Defendant
was already inside, visiting the store clerk, and Peele 1 declared
to defendant that he wasn't "going to make it out of here
tonight," and "asked [him] to step outside." During the
encounter, defendant had secretly secured a gun from the stock
room and hidden it beneath his shirt. When Peele observed
defendant reaching into his pants, he struck defendant in the
face with his fist, causing him to fall to the floor. Defendant
immediately "got up," removed the weapon from his pants, and
began firing. The first bullet struck Whitfield, who had taken
no part in the hostile exchanges and was then twelve to fifteen
feet away. Defendant continued "shooting [the gun] in the air"
and pursued Peele as he fled, wounding him in the shoulder.
"'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, 475 (1989) (citation omitted). Malice may be
1
Approximately two weeks previously, Peele had challenged
defendant to a fight and, on another occasion, defendant had shot
at Peele.
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inferred from the use of a deadly weapon. Gills v. Commonwealth,
141 Va. 445, 449, 126 S.E. 51, 53 (1925). The presence of malice
is a "'question of fact to be determined by [the trier of
fact].'" Long, 8 Va. App. at 198, 379 S.E.2d at 475-76 (citation
omitted). Malice and heat of passion cannot co-exist. Miller v.
Commonwealth, 5 Va. App. 22, 25, 359 S.E.2d 841, 842 (1987).
Like malice, "whether the accused acted in the heat of passion is
a question of fact . . . ." Id. at 25, 359 S.E.2d at 843. "In
order to determine whether the accused acted in the heat of
passion, it is necessary to consider the nature and degree of
provocation as well as the manner in which it was resisted." Id.
at 25, 359 S.E.2d at 842.
It is well established that "a person who reasonably
apprehends bodily harm by another is privileged to exercise
reasonable force to repel the assault . . . . The privilege to
use such force is limited by the equally well recognized rule
that a person 'shall not, except in extreme cases, endanger human
life or do great bodily harm.'" Diffendal v. Commonwealth, 8 Va.
App. 417, 421, 382 S.E.2d 24, 25-26 (1989) (citations omitted).
"Whether an accused proves circumstances sufficient to create a
reasonable doubt that he acted in self-defense is a question of
fact." Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d
414, 416 (1993).
Here, in response to Peele's threats, defendant armed
himself with a gun and advanced toward Peele and Whitfield, both
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unarmed. When Peele struck defendant with his fist, defendant
began discharging the weapon and pursuing Peele, seriously
wounding both Peele and his uninvolved companion, Whitfield. Such
evidence supports the finding that defendant acted maliciously,
not in self-defense or heat of passion. Accordingly, we affirm
the convictions.
Affirmed.
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