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.
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
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
murder, as no existing common law theory supports his conviction.
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
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 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
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
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
"[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
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).
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. Other
jurisdictions that have upheld such convictions have done so with
the aid of statutes specifically addressing these facts or
under 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
causal connection. We are bound by the proximate cause
analysis 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.