Canipe v. Commonwealth

COURT OF APPEALS OF VIRGINIA

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

MICHAEL JOHN CANIPE
OPINION BY
v. Record No. 1669-96-2 JUDGE LARRY G. ELDER
OCTOBER 14, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge

Francis McQ. Lawrence (Charles Y. Sipe;
St. John, Bowling & Lawrence, on briefs), for
appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Margaret Ann B. Walker, Assistant Attorney
General, on brief), for appellee.

Michael John Canipe (appellant) appeals his conviction of

second degree murder. He contends (1) that the trial court erred

when it prohibited him from offering testimony and making

arguments regarding the crime of "hit and run"; (2) that the

trial court erred when it excluded the testimony of a potential

witness regarding the victim's character for aggression; and

(3) that the evidence was insufficient to prove that he was

guilty of murder. For the reasons that follow, we affirm.

I.

FACTS

Around 7:30 p.m. on February 14, 1995, both appellant and

the victim were driving on the "250 bypass" near Charlottesville

to a local shopping mall. Appellant was driving with his wife

and child, and the victim was driving to meet his wife at the
mall.

The cars were near each other as they approached the exit

for Park Street, which was the road that eventually led to the

mall. The victim was in the right lane preparing to exit onto

Park Street. Appellant was in the left lane next to the victim,

traveling "fast" and talking with his wife. Appellant suddenly

realized he was passing the Park Street exit and, from the left

lane, "made a quick right-hand turn to get over to the ramp." In

doing so, appellant "cut off" the victim and forced the victim to

sharply apply his brakes. Both cars proceeded up the exit ramp

and turned right onto Park Street.
The portion of Park Street on which appellant and the victim

initially traveled is a two-lane road with a painted, "double

yellow" line separating the two lanes. Shortly after turning

onto Park Street, the victim sped past appellant by moving his

car across the double yellow line and into the lane designated

for oncoming traffic. The victim then pulled his car in front of

appellant's and slowed down to a speed of between 15 and 20 miles

per hour. The speed limit for Park Street is at least 35 miles

per hour. Appellant proceeded to drive close to the victim's

rear bumper, and at one point, the victim sharply applied his

brakes, causing appellant to sharply apply his.

When appellant and the victim reached the point where Park

Street becomes a four-lane road with two lanes designated for

traffic in each direction, appellant passed the victim in the

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left lane, pulled in front of him, and slowed his car down.

Appellant and the victim then engaged in a "cat and mouse game."

The victim would move his car over to the left lane in an

attempt to pass appellant, and appellant would move over to the

left lane and block the victim's path. The victim responded by

driving close to appellant's rear bumper. Appellant and the

victim continued driving in this fashion until they reached the

left hand turning lane at the intersection that led to the

parking lot of the shopping mall. A driver who passed appellant

and the victim during this time testified that "you could tell

they were mad." Appellant later testified that he was upset

because the victim had passed him by crossing a double yellow

line.
When appellant and the victim reached the stoplight adjacent

to the shopping mall, appellant pulled into the left-hand turning

lane and stopped his car several feet short of the intersection.

The victim pulled in behind him. Appellant exited his car and

walked back to the victim's car. He yelled at the victim, kicked

his driver's side door, and told him to get out of his car. The

victim remained in his car and motioned to the mall parking lot.

Appellant later testified that he was "pretty mad" and "angry"

at the victim and "might have been ready to fight" him.

Appellant returned to his car and turned left into the

parking lot of the shopping mall, which was "basically empty."

Appellant's wife started yelling at him about the incident.

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Appellant drove his car by the mall, turned into an area of the

parking lot, "circled back around," and stopped his car. He

remained in his car with the motor running. Less than a minute

later, the victim pulled up in his car. The victim "jumped" out

without turning off his headlights, "threw down" his jacket, and

started walking toward appellant's car. The victim did not

display a weapon and was unarmed. Appellant became scared when

he noticed that the victim was much larger than him and that the

victim's face looked angry.
The victim continued to walk toward appellant's car, and

appellant decided to abandon the confrontation and drive away

from the parking lot. Although appellant could have left the

scene by backing away from the victim or by driving to the left

or right of him, appellant drove toward the victim, accelerated

his car to a speed of 15 miles per hour, and hit him. Appellant

did not apply the brakes or attempt to turn before striking the

victim. The impact of the victim's right shoulder on the

windshield made a large indention of shattered glass in the shape

of a half moon. The victim rolled off of appellant's hood and

landed on the pavement. He died of a "closed head" injury three

days later. Appellant sped from the parking lot without stopping

to check on the victim's condition.

Appellant drove straight to his home and parked his car in

his driveway. He became aware of media coverage of the incident

involving him and the victim, and the next day he parked his car

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in his garage and closed the garage door. A few days after the

incident, appellant called a local glass shop to purchase a

windshield to replace the one damaged by the impact of the

victim's body. He later testified that he planned to install the

windshield himself "so [he] could correct the damage before

anybody found it." Appellant enlisted the help of a friend to

complete this project. He told his friend that the windshield

had been damaged "during a fight out at the mall" when his

opponent had confronted him with a crowbar and struck his

windshield with the tool.
Appellant and his friend purchased a replacement windshield

from the glass shop on February 17. Unknown to appellant, an

array of police officers in plain clothes and unmarked cars were

surveilling the glass shop when he made the purchase. After

appellant and his friend left the glass shop, several officers

followed them as they drove to appellant's house. Appellant was

arrested at his home later in the day on February 17 and taken to

the police station. Later that evening, appellant falsely told a

police officer that the victim was carrying a tire iron when he

approached appellant in the parking lot.

Appellant was charged with murdering the victim. At his

trial, appellant's lawyer made several references to the crime of

"hit and run." During his voir dire of the jury, appellant's

counsel asked:
The evidence will show that [appellant] was
guilty of a serious crime, and that's the
crime of hit and run, leaving the scene of a

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 personal injury. Would any of you have
difficulty acquitting [appellant] of any
crime, that is finding him not guilty, even
though you believe he committed a serious
crime, but it's not a crime he's charged
with?

Appellant's counsel referred to this question during his opening

statement. Then, during his motion to strike following the

conclusion of the Commonwealth's evidence, appellant's counsel

argued:
[W]e think even in the light most favorable
to the Commonwealth that the Commonwealth
fails to present a prima facie case. We have
ample evidence in this case, Your Honor, as I
suggested at voir dire, of a . . . serious
charge of hit and run.

The trial court responded by saying:
Hit and run is not before this Court. I
don't think you should argue some other crime
when we're addressing only a charge of
murder.

The Commonwealth subsequently made a motion in limine to

prohibit appellant's counsel from eliciting testimony or making

arguments regarding the crime of "hit and run." Appellant

conceded that he should not offer any evidence or testimony

regarding "hit and run" but argued that prohibiting him from

referring to this crime unduly restricted the scope of his

closing argument. The trial court ruled that appellant's counsel

could not use the term "hit and run" in his closing argument but

that he could "argue that [appellant] did something else wrong."

Appellant's counsel objected to this ruling. The Commonwealth's

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attorney then moved the court to order appellant's witnesses to

refrain from referring to "hit and run," and the trial court

responded:
Well, [appellant's counsel has] already
agreed to that and I so ruled that his
witnesses won't address an offense of hit and
run or use the words hit and run.

Appellant's counsel did not disagree with the trial court's

characterization of his position.

Near the end of his case, appellant's counsel informed the

trial court that he had recently learned of a witness who would

testify regarding the victim's character for aggression. He

proffered her testimony for the record. He stated that the

witness would testify that twice within the six months prior to

the victim's death, the victim had followed the witness home in

his automobile and confronted her about her driving in excess of

the speed limit. The witness would also testify that the

victim's demeanor was "angry and abrupt" and "confrontive and

abusive" and that she was "frightened by what he did." Appellant

argued that even though "[t]his is not a self-defense case,"

evidence of the victim's character for aggression is admissible

because the issue of who was the aggressor in the mall parking

lot -- appellant or the victim -- was a material issue for the

jury. The trial court denied appellant's request to offer this

evidence of the victim's character because appellant had not

established a foundation of self-defense.
At the conclusion of the Commonwealth's case-in-chief and

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again after his evidence, appellant made a motion to strike. The

trial court denied both motions. A jury convicted appellant of

second degree murder and sentenced him to a prison term of ten

years.

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 II.

TESTIMONY AND ARGUMENT REGARDING THE CRIME OF "HIT AND RUN"

Appellant contends that the trial court abused its

discretion when it prohibited him from offering testimony and

making arguments regarding the crime of "hit and run." We

disagree.

First, we agree with the Commonwealth that appellant failed

to preserve for appeal his argument that the trial court

erroneously prohibited the introduction of testimony regarding

the crime of "hit and run." Appellant did not object to the

trial court's ruling excluding such testimony. See Rule 5A:18.

During his argument on the Commonwealth's motion in limine,

appellant's counsel conceded that witnesses should not testify

about the crime of "hit and run" "because that's not the charge."

When the trial court stated that appellant agreed with its

ruling prohibiting testimony about "hit and run," appellant's

counsel did not object.

We also hold that the trial court's decision to prohibit

appellant's counsel from referring to the specific crime of "hit

and run" during his closing argument was not an abuse of

discretion.
The purpose of closing argument is to
summarize the evidence for the jury, to
persuade the jury to view the evidence in the
light most favorable to the client, and to
apply that evidence to the law in a manner
which will result in a verdict favorable to
the client.

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Charles E. Friend, The Law of Evidence in Virginia § 21-1(b)(1)

(4th ed. 1993). The decision regarding the appropriateness of a

closing argument is committed to the discretion of the trial

court. See Griffin v. Commonwealth, 22 Va. App. 622, 624, 472

S.E.2d 285, 287 (1996); see also O'Dell v. Commonwealth, 234 Va.

672, 703, 364 S.E.2d 491, 509 (1988) (citing Jordan v. Taylor,

209 Va. 43, 51, 161 S.E.2d 790, 795 (1968)) (stating that a trial

court has broad discretion in the supervision of closing

arguments).
This [C]ourt will not interfere with the
exercise of this broad discretion unless it
affirmatively appears that such discretion
has been abused and that the rights of the
complaining litigant have been prejudiced.

Cohen v. Power, 183 Va. 258, 262, 32 S.E.2d 64, 65 (1944).

We cannot say that the trial court abused its discretion

when it prohibited appellant's counsel from making arguments

regarding the crime of "hit and run" during his closing argument.

Such arguments were not relevant to the charge for which

appellant was on trial and would have confused the issues before

the jury. Consistent with the purpose of closing argument,

appellant's counsel was entitled to make the full range of

arguments relevant to persuading the jury that appellant was not

guilty of the crime of which he was charged. However, appellant

was not charged with "hit and run" and that crime is not a lesser

included offense of murder. The argument that appellant was

guilty of "hit and run" had no bearing on whether the

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Commonwealth had proven beyond a reasonable doubt that appellant

was guilty of murder. In addition, the trial court's provision

in its ruling that appellant's counsel could argue that

"[appellant] did something else wrong" furnished appellant's

counsel with sufficient latitude to advocate fully for his client

in his closing argument.

III.
EXCLUSION OF TESTIMONY

REGARDING THE VICTIM'S CHARACTER FOR AGGRESSION
Appellant contends that the trial court erred when it

refused to admit testimony about the victim's prior aggressive

conduct toward another driver. We disagree.

A criminal defendant may offer evidence regarding the

victim's character for violence, turbulence, or aggression for

two purposes: (1) to show "who was the aggressor" or (2) to show

"the reasonable apprehensions of the defendant for his life and

safety." Randolph v. Commonwealth, 190 Va. 256, 265, 56 S.E.2d

226, 230 (1949); see also 1A, 2 John H. Wigmore, Evidence § 63,

63.1, 246 (Tillers rev. 1983). However, it is well established

that such evidence of the victim's character is admissible only
when the defendant "adduces evidence that he acted in

self-defense." Jordan v. Commonwealth, 219 Va. 852, 855, 252

S.E.2d 323, 325 (1979); see also Burford v. Commonwealth, 179 Va.

752, 767, 20 S.E.2d 509, 515 (1942) (stating that evidence of a

victim's character for violence "is admissible only when the

defendant has interposed a plea of self-defense . . . , and when

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a proper foundation is laid by proof of some overt act justifying

such defense"); Mealy v. Commonwealth, 135 Va. 585, 596, 115 S.E.

528, 531 (1923) (stating that evidence of the victim's

"quarrelsome, dangerous, and ferocious" character was not

admissible "because there was no foundation in the case for the

theory of self-defense"); Harrison v. Commonwealth, 79 Va.

(4 Hans.) 374, 379 (1884) (stating that evidence of the victim's

"brutal and ferocious" character is inadmissible "where no case

of self-defence has been made out"). If the defendant has

established prima facie evidence of self-defense, then the
evidence of the victim's character must also satisfy additional

tests of relevance. See Randolph, 190 Va. at 265, 56 S.E.2d at

230 (stating that the test of relevance depends upon the purpose

for which the evidence of the victim's character is offered); see

also Barnes v. Commonwealth, 214 Va. 24, 26, 197 S.E.2d 189, 190

(1973).

We hold that the trial court did not err when it excluded

the testimony regarding the victim's prior aggressive conduct.

The record indicates that appellant did not establish the

foundation of self-defense that is required before evidence of

the victim's character for aggression is admissible. At trial,

appellant conceded that "[t]his is not a self-defense case."

Because a review of the evidence discloses no overt act on the

part of the victim that would justify a plea of self-defense by

appellant, the exclusion of appellant's evidence regarding the

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victim's character for aggression was not erroneous. See Jordan,

219 Va. at 855-56, 252 S.E.2d at 325-26.

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 IV.

SUFFICIENCY OF THE EVIDENCE

It is undisputed that appellant caused the victim's death by

hitting the victim with his car on February 14, 1995 between 7:30

p.m. and 8:00 p.m. in the parking lot of the shopping mall. On

appeal, appellant contends that the evidence was insufficient to

prove that he acted with malice when he drove into the victim.

He argues that this Court should reverse his conviction and

remand for a new trial on a charge no greater than voluntary

manslaughter. We disagree.
In Virginia, criminal homicide is divided into two

categories: murder and manslaughter. See Moxley v.

Commonwealth, 195 Va. 151, 157, 77 S.E.2d 389, 393 (1953).

"Murder" is the unlawful killing of another with malice. See

Thomas v. Commonwealth, 186 Va. 131, 139, 41 S.E.2d 476, 480

(1947) (citing Scott v. Commonwealth, 143 Va. 510, 519, 129 S.E.

360, 363 (1925)). "Manslaughter, on the other hand, is the

unlawful killing of another without malice." Barrett v.

Commonwealth, 231 Va. 102, 105, 341 S.E.2d 190, 192 (1986)

(citation omitted).

Malice is an essential element of murder and is what

distinguishes it from the crime of manslaughter. See Rhodes v.

Commonwealth, 238 Va. 480, 485, 384 S.E.2d 95, 98 (1989) (citing

Moxley, 195 Va. at 157, 77 S.E.2d at 393). The element of malice

requires the Commonwealth to prove that the accused committed the

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homicide "wilfully or purposefully." See Essex v. Commonwealth,

228 Va. 273, 280, 322 S.E.2d 216, 220 (1984) (citing Williamson

v. Commonwealth, 180 Va. 277, 280, 23 S.E.2d 240, 241 (1942)).

Malice may be either express or implied

. . . . "Express malice is evidenced when

'one person kills another with a sedate,

deliberate mind, and formed design.' . . .

Implied malice exists when any purposeful,
cruel act is committed by one individual

against another without any, or without great

provocation; . . . ."

Id. (citation omitted). Implied malice may be inferred from

"conduct likely to cause death or great bodily harm, wilfully or

purposefully undertaken." Id. at 281, 322 S.E.2d at 220.

Whether or not an accused acted with malice is generally a

question of fact and may be proved by circumstantial evidence.

See Pugh v. Commonwealth, 223 Va. 663, 667, 292 S.E.2d 339, 341

(1982); Painter v. Commonwealth, 210 Va. 360, 364-65, 171 S.E.2d
166, 170 (1969) (citing Bradshaw v. Commonwealth, 174 Va. 391,

401, 4 S.E.2d 752, 756 (1939)).
In making the determination whether malice
exists, 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 . . . .

Essex, 228 Va. at 282, 322 S.E.2d at 221.

"To reduce a homicide from murder to voluntary manslaughter,

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the killing must have been done in the heat of passion and upon

reasonable provocation." Barrett, 231 Va. at 105-06, 341 S.E.2d

at 192 (citing Martin v. Commonwealth, 184 Va. 1009, 1016-17, 37

S.E.2d 43, 46 (1946)). "Malice and heat of passion are mutually

exclusive; malice excludes passion, and passion presupposes the

absence of malice." Id. at 106, 341 S.E.2d at 192 (citations

omitted).

"Heat of passion" refers to "the furor brevis which renders

a man deaf to the voice of reason." Hannah v. Commonwealth, 153

Va. 863, 870, 149 S.E. 419, 421 (1929). 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." See Martin, 184 Va. at 1016, 37 S.E.2d at 46. "Heat

of passion is determined by the nature and degree of the

provocation and may be founded upon rage, fear, or a combination

of both." Barrett, 231 Va. at 106, 341 S.E.2d at 192 (citations

omitted).
A reasonable provocation is always necessary
to reduce a felonious homicide, committed
upon sudden provocation, from the degree of
murder . . . to that of manslaughter; . . . .
Words alone, however insulting or
contemptuous, are never a sufficient
provocation to have that effect . . . .

Read v. Commonwealth, 63 Va. (22 Gratt) 924, 938 (1872).

Generally, whether a killing was done in the heat of passion upon

reasonable provocation is a question of fact. See Barrett, 231

Va. at 106, 341 S.E.2d at 192.
Only when the trial court, giving the

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 defendant the benefit of every reasonable
inference from the evidence, can say that the
minds of reasonable men could not differ does
the question become a question of law.

McClung v. Commonwealth, 215 Va. 654, 656, 212 S.E.2d 290, 292

(1975) (citations omitted).

When considering the sufficiency of the evidence on appeal

to support a criminal conviction, this Court views the evidence

in the light most favorable to the Commonwealth. Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On

review, this Court does not substitute its judgment for that of

the trier of fact. Cable v. Commonwealth, 243 Va. 236, 239, 415

S.E.2d 218, 220 (1992). Instead, the jury's verdict will not be

set aside unless it appears that it is plainly wrong or without

supporting evidence. Code § 8.01-680; Traverso v. Commonwealth,

6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).

We hold that the evidence was sufficient to support the

jury's conclusion that appellant acted with malice when he struck

the victim with his car. The evidence regarding appellant's

conduct before, during, and after the incident established that

appellant willfully and deliberately engaged in a cruel act that

was likely to cause great bodily harm to the victim. Prior to

the incident in the mall parking lot, appellant and the victim

had angered each other while engaging in a "cat and mouse game"

of aggressive driving. When appellant confronted the victim at

the stoplight near the entrance to the mall, the victim motioned

toward the mall parking lot. Appellant then drove into the

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parking lot, parked his car, and remained in it with the motor

running. The victim pulled up in his car less than a minute

later, "jumped" out, and started walking toward appellant's car.

Appellant responded to the victim's approach by driving his car

straight toward the victim and striking him. Appellant neither

applied his brakes nor attempted to turn before hitting the

victim. The evidence established that the parking lot was

"basically empty" and that appellant could have avoided the

victim by backing up or by driving to the left or right of him.

Appellant's decision to drive toward the victim when he could

have exited the parking lot by driving in other directions and

the fact that he never applied his brakes support the conclusion

that he deliberately struck the victim with his car.
Appellant's actions after hitting the victim further support

the conclusion that he acted with malice. Rather than stopping

his car to check on the victim's condition, appellant sped from

the parking lot and drove home. He then attempted to conceal his

role in the incident by attempting to purchase and install a

windshield to replace the one damaged by the impact of the

victim's body. He also falsely told both his friend and a police

officer that the victim was carrying a crowbar as he approached

appellant in the parking lot.

In addition, the evidence supports the jury's conclusion

that appellant was not acting in the heat of passion when he

drove his car into the victim. The victim's approach toward

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appellant in the parking lot did not constitute the reasonable

provocation that establishes a heat-of-passion defense and

reduces a charge of murder to manslaughter. The evidence proved

that the victim merely walked toward appellant after exiting his

car. The victim did not display a weapon and, other than his

large size and infuriated expression, did not appear threatening

to appellant. In addition, appellant was sitting in the driver's

seat of a running automobile in a sparsely-occupied parking lot

at the time of the victim's approach. The record established

that appellant could have driven to the right or to the left of

the victim or backed the car away from him. Although appellant

and the victim had minutes earlier been enmeshed in a fit of

"road rage" spurred by each other's aggressive driving, such

conduct alone does not render a reasonable person "deaf to the

voice of reason." Hannah, 153 Va. at 863, 149 S.E. at 421.

Moreover, the evidence of the victim's nonviolent, nonthreatening

confrontation of appellant in the parking lot supports the jury's

conclusion that appellant was not reasonably provoked to drive

his car into the victim.

For the foregoing reasons, we affirm the conviction of

second degree murder.
Affirmed.

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