Ferdinand v. Commonwealth

1

FERRARI ARAMIS FERDINAND v. COMMONWEALTH OF VIRGINIA

No. 0570-22-1

Court of Appeals of Virginia

August 1, 2023

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK John R. Doyle, III Judge.

Harry Dennis Harmon, Jr., for appellant.

Lauren C. Campbell, Assistant Attorney General (Jason S. Miyares Attorney General, on brief), for appellee.

Present: Beales, Huff and Chaney, Judges Argued at Norfolk Virginia.

MEMORANDUM OPINION ^[*]

RANDOLPH A. BEALES, JUDGE.

After a jury trial, the trial court convicted Ferrari Aramis Ferdinand of second-degree murder and use of a firearm in the commission of a felony. On appeal, Ferdinand argues, that "[t]he trial court erred in denying the appellant's motions to strike the charges of second-degree murder and use of a firearm in the commission of second-degree murder or attempted commission of a second-degree murder because the Commonwealth's evidence was insufficient to prove the appellant acted with malice." Ferdinand also argues that he "acted in self-defense when he shot and killed the victim."

I. Background

"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, [as] the prevailing party at trial." Scott v. Commonwealth, 292 Va. 380, 381 (2016). As the Supreme Court has stated, "[t]his principle requires us to 'discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.'" Kelley v. Commonwealth, 289 Va. 463, 467-68 (2015) (quoting Parks v. Commonwealth, 221 Va. 492, 498 (1980)).

On the night of May 29, 2019, Norfolk Police Officers Stephen West and Jordan Marksbury heard approximately "three to five" gunshots as they arrived at a bus station on a routine patrol. Officer West found Quontrell Snowden on his back, and observed that Snowden had been struck by at least one gunshot. Officer West began to treat Snowden's wound, but Snowden remained unresponsive. Norfolk Fire-Rescue Captain Priscilla Parker also arrived at the bus station and began to treat Snowden. Captain Parker identified gunshot wounds on Snowden's "right rear buttocks and on both flank areas in the rear." Despite their efforts, Captain Parker and other officials were unable to resuscitate Snowden.

At the time of the gunshots, U.S. Postal Service Special Agent Steven Scully was located at a fire station beside the bus station and was installing equipment in a Postal Service vehicle. Special Agent Scully heard "four to five gunshots" from the bus station and called 911. During the call, Special Agent Scully saw two men walking "very slow[ly] and casual[ly]" from the area where he believed the shots had been fired, which he found to be unusual. One of the men, later identified as Ferdinand, had on a white "tank top" and green-blue shorts and was carrying what Special Agent Scully believed to be a handgun. Scully saw Ferdinand put that object into a backpack and then take hold of a bicycle. Ferdinand "seemed to be sort of in a daze"-with a "glazed-over look." Special Agent Scully testified that the two men then "went out of my sight."

Within three minutes of the gunshots, Officer Marksbury encountered Ferdinand, whom she described as "wearing a white tank top and blue shorts," and "had a bike and a backpack with him."

Ferdinand did not appear to be trying to flee, and was cooperative. Ferdinand informed Officer Marksbury that he had a firearm with him, and he later gave the firearm to the police.

At trial, the Commonwealth presented a video from a surveillance camera at the bus station. Detective Jemal Davis, the Norfolk police detective who had investigated Snowden's death, testified that the video depicted Snowden and Ferdinand facing each other, with Snowden then moving away and removing his shirt and Ferdinand moving toward him. The video also depicted both men "in each other's face," "jostling back and forth" but not punching each other. Detective Davis testified that it was "hard to tell" who started the "chest bumping." Detective Davis further stated that he "can't tell from the video where any pocket is being grabbed." About a minute after the physical confrontation began, Snowden "beg[a]n to take steps backwards," "backing away from Mr. Ferdinand." Ferdinand then fully extended his arm, advanced toward Snowden, and fired shots. As Detective Davis testified, Ferdinand was "further than arm's reach" away by about "a foot or a foot and a half" when he fired those shots. The video next depicted Snowden falling then trying to get up. Detective Davis testified that "you can tell from the reaction of Mr. Snowden" when Ferdinand fired the shots.

The trial court qualified Dr. Elizabeth Kinnison, who performed an autopsy on Snowden, as an expert witness in forensic pathology. Dr. Kinnison testified that Snowden had seven gunshot wounds, including two that were each potentially lethal, although she could not determine in which order the bullets struck Snowden. One bullet entered Snowden's "left back side," went "through the musculature of the back" and "exited the right lower back."

Ferdinand moved to strike the evidence at the conclusion of the Commonwealth's case in chief. He argued that Snowden provoked him after an initial "quarrel" had stopped and that the evidence did not prove that he acted with malice. The trial court denied the motion to strike.

Ferdinand then testified that, while he was waiting at the bus station, someone he did not know accused him of rape, and they began arguing. Ferdinand claimed that as he walked away, that same person said that he knew Ferdinand had a gun and "[w]e keep guns around too." According to Ferdinand, he had his gun in the right pocket of his basketball shorts and an observer would have been able to see the shape of his gun, his wallet, and his cell phone bulging through the fabric of his shorts. He also claimed that Snowden said that his "sister was raped" and he was "going to kill [Ferdinand's] ass." Ferdinand believed that Snowden was "drunk or high."

Ferdinand testified that Snowden then removed his own shirt, "grabbed" Ferdinand's shorts pockets, and demanded to know what was in them. Ferdinand argued that he was afraid when Snowden took off his shirt. He claimed that they "got into a tussle," during which Snowden "grabbed [Ferdinand's] wallet" from his pocket. Ferdinand testified that he "assum[ed]" Snowden was trying to grab his gun. Ferdinand claimed that he "broke free," "pried [Snowden] off," and then "fired two shots." He denied that Snowden backed away, insisting that he had to "push [Snowden] off." Ferdinand maintained that he "was in fear for [his] life" because of Snowden's verbal threat and grabbing for his shorts pocket where his gun was located. He conceded that Snowden was "six inches shorter than [him]" but contended that Snowden "was aggressive and looked menacing." Ferdinand testified that he "did not give [Snowden] a chance to retrieve a weapon of his own," but admitted that he never saw a weapon before shooting Snowden.

In addressing why Ferdinand only "recall[ed] firing two shots" despite multiple witnesses testifying to hearing more than two shots, Ferdinand testified, "I guess the -- I'm unaware of the pressure on the hair -- of the trigger. I mean, I recall firing two shots." Ferdinand also claimed that he called 911 to report that he had shot someone.

Ferdinand testified that he told Detective Davis that he had been attacked and that Snowden had taken his wallet, but he was able to get his wallet back. He also claimed to have told Detective Davis that Snowden threatened to kill him. Detective Davis testified in rebuttal about his interview with Ferdinand after the incident. During the interview, Detective Davis asked Ferdinand if Snowden had said anything before the physical confrontation. Ferdinand replied, "No. He just attacked . . . from the left." Ferdinand did not tell Detective Davis that Snowden said he would kill Ferdinand or that Snowden took Ferdinand's wallet. When Detective Davis asked Ferdinand how far away Snowden was, Ferdinand replied that "he pushed [Snowden] off of him, and he thought he was approximately an arm's length away" when he shot Snowden. Detective Davis also testified that there is no record of Ferdinand calling 911.^[1]

At the conclusion of all the evidence, Ferdinand renewed his motion to strike. He argued that he and Snowden initially engaged in "mutual contact." However, Ferdinand claimed that the contact was "broken off" and that he "stepped back" away from Snowden. Ferdinand further claimed that after that point, "the contact continued because Mr. Snowden was the aggressor and kept approaching" and "continue[d] on with the quarrel." Therefore, Ferdinand argued that the most he could be found guilty of was voluntary manslaughter because the killing resulted from an attack by Snowden. Ferdinand contended that the evidence did not prove that his "primary motive for shooting" Snowden was malicious. Ferdinand also argued that he acted in self-defense. The trial court denied the renewed motion to strike the evidence, finding that whether Ferdinand acted in response to adequate provocation or in self-defense were questions for the jury.

After argument by counsel, the jury found Ferdinand guilty of second-degree murder and of the use of a firearm in the commission of a felony. The trial court sentenced Ferdinand to a sentence of 23 years of incarceration with 6 years suspended. Ferdinand now appeals to this Court.

II. Analysis

When considering the sufficiency of the evidence on appeal "a reviewing court does not 'ask itself whether it believes that the evidence at the...