Rivers v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Annunziata
Argued at Richmond, Virginia

JONATHON LEE RIVERS, S/K/A
JONATHAN RIVERS
OPINION BY
v. Record No. 0786-94-2 JUDGE LARRY G. ELDER
DECEMBER 19, 1995
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Felipita Athanas for appellant.

Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Jonathon Lee Rivers (appellant) appeals his convictions for

(1) attempted murder in violation of Code §§ 18.2-32 and 18.2-26,

and (2) second degree murder in violation of Code § 18.2-32.

Appellant contends the evidence was insufficient to support the

convictions. We hold the evidence was sufficient to support the

conviction for the attempted murder of Anthony Fraierson and

therefore affirm that conviction; we hold the evidence was

insufficient to support the conviction for the second degree

murder of Felicia Williams and therefore reverse that conviction.

I.

FACTS

On August 31, 1993, appellant and Anthony Fraierson were

involved in an argument and a fistfight in front of Fraierson's

house on Edwards Avenue in Richmond. During the fight, Anthony

Fraierson's brother struck appellant on the back of the head,
which resulted in a bloody wound. After the fight, appellant

immediately returned to his house, which was located on the same

city block, and obtained a .45 caliber handgun. After leaving

his house, appellant saw the Fraiersons outside of their house

and approached Anthony Fraierson with his gun. Fraierson also

had a gun. The distance between the parties was 256 feet. One

eyewitness testified that appellant was the first to fire shots

at Anthony Fraierson, while appellant and others testified that

he returned gunfire only after he was first fired upon. Felicia

Williams, a bystander who lived in a house between Fraierson and

appellant, sustained a fatal gunshot wound in the head caused by

a bullet from Anthony Fraierson's gun.
In a bench trial on March 15, 1994, appellant was convicted

of the second degree murder of Felicia Williams, the attempted

murder of Anthony Fraierson, and two firearms charges. 1

II.

EVIDENCE TO SUPPORT ATTEMPTED MURDER CONVICTION

Because there was sufficient evidence to support it, we

affirm appellant's attempted murder conviction. We are guided by

familiar standards of review:

On appeal, we review the evidence in the light
most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom. The
judgment of a trial court sitting without a jury is
entitled to the same weight as a jury verdict and will
1
In a separate trial, Anthony Fraierson was convicted of
manslaughter in the death of Felicia Williams, the innocent
bystander.

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 not be set aside unless it appears from the evidence
that the judgment is plainly wrong or without evidence
to support it.

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987)(citations omitted).

"Intent is the purpose formed in a person's mind which may,

and often must, be inferred from the facts and circumstances in a

particular case." Sandoval v. Commonwealth, 20 Va. App. 133,

137, 455 S.E.2d 730, 732 (1995). "The state of mind of an

accused may be shown by his acts and conduct." Id. "The fact

finder may infer that a person intends the immediate, direct, and

necessary consequences of his voluntary acts." Bell v.

Commonwealth, 11 Va. App. 530, 533, 399 S.E.2d 450, 452 (1991).

Viewed in the light most favorable to the Commonwealth, the

record shows appellant was injured in a fight with Fraierson and

Fraierson's cohorts; appellant returned home after the fight and

secured a high caliber gun; appellant fired bullets from the gun

at Fraierson several times; and appellant fired first. Despite

appellant's contentions, the Commonwealth was not required to

prove that appellant directly threatened Fraierson. Based on the

evidence before us, we cannot say that it was error for the trial

court to have concluded beyond a reasonable doubt appellant

attempted to murder Fraierson.

III.

EVIDENCE TO SUPPORT MURDER CONVICTION

Second, we hold appellant was not guilty of second degree

3
murder, as no existing common law theory supports his conviction.

4
 Appellant correctly asserts that our analysis is not

governed by the theories of concert of action, transferred

intent, or felony-murder. The concert of action theory states

that where two or more people act in concert in the commission of

a felony, "and one felon shoots a person, that felon's intent is

transferred and shared with the other felon as a principal in the

second degree." Berkeley v. Commonwealth, 19 Va. App. 279, 293,

451 S.E.2d 41, 48 (1994)(citing Riddick v. Commonwealth, 226 Va.

244, 248, 308 S.E.2d 117, 119 (1983)). In this case, appellant

and Fraierson were not co-felons who acted in concert; instead

they acted in opposition to each other and did not share the same

criminal goal.
Similarly, the transferred intent theory is inapplicable

here. This theory states that "if an accused shoots at another

intending to kill him, and a third person is killed because of

the act, that same intent follows the bullet and is transferred

to the killing of the third person, even if such death is

accidental or unintentional." Riddick, 226 Va. at 248, 308

S.E.2d at 119. In this case, the innocent bystander was not

killed by a bullet from appellant's gun.

Finally, the Commonwealth concedes that based on the Supreme

Court's holding in Wooden v. Commonwealth, 222 Va. 758, 762, 284

S.E.2d 811, 814 (1981), the felony-murder doctrine is

inapplicable in this case. In Wooden, the defendant participated

in the armed robbery of an apartment. Before the robbery, the

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defendant and her co-felons waited in the apartment for their

victim's arrival. When the victim arrived, the victim shot and

killed one of the defendant's co-felons, and the defendant was

convicted of her co-felon's murder. The Supreme Court held under

common law principles that a felon may not be convicted of the

murder of a co-felon killed by the victim of the initial felony,

there being no evidence of malice 2 imputable to the defendant

when a co-felon is killed by the victim. Furthermore, the Court

adopted the agency theory of felony murder, which provides that

liability lies only where the act of killing is either actually

or constructively committed by a felon or by someone acting in

concert with him or in furtherance of a common design or purpose.
Id. at 763-65, 284 S.E.2d at 814-16.

In Wooden, the Supreme Court traced a line of Pennsylvania

cases implicating the felony-murder and vicarious liability
2
Malice is the element distinguishing murder from
manslaughter, Moxley v. Commonwealth, 195 Va. 151, 157, 77 S.E.2d
389, 393 (1953), and is the element which the Commonwealth was
required to prove beyond a reasonable doubt. Whether an accused
acted with malice is generally a question to be decided by the
fact finder. Pugh v. Commonwealth, 223 Va. 663, 667, 292 S.E.2d
339, 341 (1982). Malice may be either express or implied by
conduct. Coleman v. Commonwealth, 184 Va. 197, 201, 35 S.E.2d
96, 97 (1945). "Generally, implied malice is equivalent to
'constructive malice;' that is, 'malice as such does not exist
but the law regards the circumstances of the act as so harmful
that the law punishes the act as though malice did in fact
exist.'" Pugh, 223 Va. at 668, 292 S.E.2d at 341 (quoting 1
Wharton's Criminal Law and Procedure § 245, at 529 (1957)).
Implied malice requires a showing that the wrongful act was done
"wilfully or purposefully," Essex v. Commonwealth, 228 Va. 273,
280, 322 S.E.2d 216, 220 (1984), and that this wilful or
purposeful act was volitional. Id.

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doctrines. The Court cited with approval Commonwealth v.

Redline, 391 Pa. 486, 137 A.2d 472 (1958), and Commonwealth ex

rel. Smith v. Myers, 438 Pa. 218, 261 A.2d 550 (1970), which

overruled Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595

(1949), cert. denied, 340 U.S. 867 (1950). In Almeida, the

Pennsylvania Supreme Court had adopted the proximate cause theory

of liability for felony-murder, affirming "the conviction of the

defendant for the felony-murder of an innocent third party killed

by the return fire of police officers." Wooden, 222 Va. at 763,

284 S.E.2d at 814. In Myers, the court stated unequivocally that

"'the decision in the Almeida case was a radical departure from

common law criminal jurisprudence.'" Wooden, 222 Va. at 764, 284

S.E.2d at 815 (quoting Myers, 438 Pa. at 224, 261 A.2d at 553).

Adopting Myers' language in Wooden, the Virginia Supreme Court

rejected any theory which would hold a defendant answerable for

the death of his co-felon on a foreseeability-proximate cause

concept of homicide responsibility. Id; see also King v.
Commonwealth, 6 Va. App. 351, 356, 368 S.E.2d 704, 707

(1988)(stating that for the felony-murder doctrine to be used to

convict for murder, "'the killing must have been done by the

defendant or an accomplice or confederate or by one acting in

furtherance of the felonious undertaking'").

We find that Riddick v. Commonwealth, 226 Va. 244, 308

S.E.2d 117 (1983), a case cited by the Commonwealth, does not

control this case. In Riddick, two co-participants initiated a

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gun battle in which an innocent bystander was shot by a bullet

from one of the co-participants' guns. The Supreme Court

employed both the transferred intent and concert of action

theories in affirming the defendant's second degree murder

conviction. The Court held that the transferred intent theory

could apply if the defendant fired the fatal shot because his

intent to kill the intended victim was transferred to the

innocent bystander's death. The Court also held that the concert

of action theory could apply if the co-participant fired the
fatal shot because the co-participant's intent to kill the

intended victim was transferred to the innocent bystander's

death, and having acted in concert with the co-participant, the

defendant was deemed to share his intent.

The Commonwealth argues, however, the Supreme Court

broadened these two concepts when it approved an instruction

given by the trial court, which stated:

If you believe from the evidence that two or more
men were shooting guns in mutual combat with the intent
to kill and as a result of these shootings the
deceased, an innocent bystander, was killed, then each
is responsible for the death the same as if he had
killed the person he intended to kill, unless he was
acting in self defense.

Id. at 249, 308 S.E.2d at 119 (emphasis added). Despite the

Commonwealth's contention, we believe the Riddick Court clearly

limited its approval of this instruction to the facts of the case

and did not intend to broaden the concert of action and

transferred intent theories. The Court specifically stated

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"[w]ithout necessarily giving blanket approval to this

instruction for use in every case of this type, we conclude the

trial court properly rejected defendant's . . . objection to the

instruction, under the facts of this case. Id. at 249, 308

S.E.2d at 120 (emphases added). Furthermore, in Riddick, unlike

the instant case, the fatal bullet originated with one of the two

co-participants, not a party in opposition to the defendant.

Riddick is therefore inapposite.
The Commonwealth asks that we embrace the reasoning inherent

in a line of cases originating in California, which has adopted a

proximate cause theory to hold defendants guilty of second degree

murder under circumstances similar to this case. The California

line of cases, however, represents a distinct minority viewpoint.

See 40 Am. Jur. 2d Homicide § 39 (1968 & Supp. 1995)

("Responsibility for homicide by one not a participant"). In

People v. Gilbert, 408 P.2d 365, 373-74 (1965), rev'd on other

grounds, 388 U.S. 263 (1967), the Supreme Court of California

held that "[w]hen the defendant . . . with a conscious disregard

for life, intentionally commits an act that is likely to cause

death, and his victim or a police officer kills in reasonable

response to such act, the defendant is guilty of murder."

California courts call this doctrine of criminal liability the

"provocative act murder" theory. In a provocative act murder:

neither the defendant nor his accomplices intend to
kill the victim. Nor indeed do any of them pull the
trigger. Instead it is a third person who actually
fires the fatal bullet and it is one of the defendant's

9
 accomplices or occasionally an innocent bystander who
ends up as the dead victim. To satisfy the "actus
reus" element of this crime the defendant or one of his
confederates must commit an act which provokes a third
party into firing the fatal shot. To satisfy the "mens
rea" element, the defendant or his confederate must
know this act has a "high probability" not merely a
"foreseeable probability" of eliciting a life-
threatening response from the third party.

In re Aurelio R., 212 Cal. Rptr. 868, 870-71 (Cal. Ct. App.

1985); see also Alston v. State, 662 A.2d 247 (Md. 1995)

(affirming defendant's second degree murder conviction under

analysis similar to that employed by California courts). 3
Under similar facts, comparable statutes, and case law to

that of Virginia, the appellate courts of only two states--

California and Maryland--have upheld murder convictions. 4 Other

jurisdictions that have upheld such convictions have done so with

the aid of statutes specifically addressing these facts 5 or under
3
Compare Gallimore v. Commonwealth, 246 Va. 441, 436 S.E.2d
421 (1993), where the defendant was convicted of involuntary
manslaughter. In Gallimore, the defendant purposefully lied to a
friend's husband, telling him that his wife, the defendant's
friend, had been kidnapped by a third party. With the defendant
present, the husband armed himself, and then located and
accidentally killed the third party during a struggle. The
Supreme Court affirmed the conviction, holding the defendant's
"'conduct was a concurring, proximate cause of [the third party's
death]' and that [the defendant] knew or should have known that
the circumstances presented a 'dangerous risk of someone being
shot or injured when [the husband] left the house to confront
[the third party].'" Id. at 448, 436 S.E.2d 426 (citation
omitted).

4
See also People v. Daniels, 431 N.W.2d 846 (Mich. Ct. App.
1988), in which the intermediate appellate court affirmed a
voluntary manslaughter conviction using the proximate cause
theory.
5
See, e.g., Blansett v. State, 556 S.W.2d 322 (Tex. Crim.

10
the proximate cause theory of the felony-murder rule--the

minority view--which the Virginia Supreme Court rejected in

Wooden.

We conclude the California and Maryland approaches are not

anchored in any existing theory of common law murder in this

state. Under Virginia case law, we adhere to a rule of causation

in homicide cases that requires a direct causal connection for

criminal liability to attach. Furthermore, Virginia statutory

law provides no basis for broadening our common law rule of
6
causal connection. We are bound by the proximate cause analysis

App. 1977).
6
For example, in Commonwealth v. Gaynor, 648 A.2d 295, 297
(Pa. 1994), the Supreme Court of Pennsylvania used a recently
added statutory provision to affirm the defendant's murder
conviction under facts similar to this case. The applicable
statute stated:

(b) Divergence between result designed or
contemplated and actual result.--
When intentionally or knowingly causing a
particular result is an element of an offense, the
element is not established if the actual result is
not within the intent or the contemplation of the
actor unless:

(1) the actual result differs from that
designed or contemplated as the case may
be, only in the respect that a different
person or different property is injured
or affected or that the injury or harm
designed or contemplated would have been
more serious or more extensive than that
caused; or

(2) the actual result involves the same kind
of injury or harm as that designed or
contemplated and is not too remote or
accidental or on the gravity of his
offense.

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employed by the Supreme Court in Wooden in cases of second degree

murder. As one Court expressly said in rejecting California's

unique provocative act murder approach, "[a] rose, the felon[y]

murder rule, is still a rose by any other name, vicarious

liability." Sheriff, Clark County v. Hicks, 506 P.2d 766, 768

n.7 (Nev. 1973). The legislature, not this Court, is the

appropriate forum in which to amend the felony-murder concept to

provide for criminal liability under the facts of this case.
Accordingly, we affirm appellant's attempted murder

conviction and the accompanying firearm conviction. However, we

reverse and remand appellant's second degree murder conviction

for further proceedings if the Commonwealth be so advised and

reverse and dismiss the accompanying firearm conviction.
Affirmed in part,
reversed and remanded in part and
reversed and dismissed in part.

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