Keller v. Commonwealth

MICHAEL WAYNE KELLER v. COMMONWEALTH OF VIRGINIA

Record No. 0740-20-1

COURT OF APPEALS OF VIRGINIA

MAY 18, 2021

UNPUBLISHED

Present: Chief Judge Decker, Judges Humphreys and AtLee

Argued by videoconference

MEMORANDUM OPINION^* BY JUDGE RICHARD Y. ATLEE, JR.

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS

Gary A. Mills, Judge

Taite A. Westendorf (Westendorf & Khalaf, PLLC, on briefs), for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Michael Wayne Keller appeals his convictions for aggravated malicious wounding in violation of Code § 18.2-51.2(A) and use of a firearm in the commission of a felony in violation of Code § 18.2-53.1. He assigns two errors on appeal. First, he argues that the trial court erred by granting Jury Instruction 14 because it was confusing and misleading. Second, he argues that the evidence was insufficient as a matter of law to prove that he acted with malice rather than in the heat of passion. We disagree and affirm Keller's convictions.

I. BACKGROUND

On appeal, we view the evidence in the light most favorable to the Commonwealth, the prevailing party below, and afford to it all reasonable inferences from that evidence. Yerling v. Commonwealth, 71 Va. App. 527, 530 (2020).

On May 15, 2019, Keller spent the afternoon drinking at the Sands Bar in Newport News. Megan Hodges, his on-off girlfriend and the mother of his child, met him there. Around 10:00 p.m., they, along with Tony Robinson, drove to Hoss's Deli. They arrived around 10:30 p.m.

Inside Hoss's Deli, they ordered some drinks and took pictures together using Hodges' phone. Keller happened to look at the phone and see some recent messages from other men. He became angry and confronted Hodges about them, and an argument ensued. When Hodges left the bar and walked to her car, which was parked in the overflow parking lot, Keller followed her. He got into her car, and they continued arguing. The argument escalated, becoming very loud and heated. Robinson came out to try and take Keller back into the bar. As Keller was walking back to the bar, Hodges said something, and Keller walked back and kicked the fender of her car. Hodges got out of the car, and they continued arguing.

Steven Barton and his friend Brandon Hannaman were standing outside in the parking lot. They witnessed the argument and saw Keller kick Hodges' car. Barton did not know either Hodges or Keller, but he was concerned for Hodges' safety when he saw Keller go back towards her car. Barton called out to Keller. He told him not to talk to Hodges in that manner and to leave her alone. Amy Howard, who was sitting in her car at the time, testified that Barton was trying to defuse the situation and that his demeanor was not threatening or aggressive at all. Hannaman testified that Barton was raising his voice, but he was not aggressive.

Hannaman heard Keller respond to Barton saying he would "blow his fucking head off" before he pulled out a gun and fired. Hannaman saw Keller shoot once at Barton and then shoot into the air several times. Other witnesses heard several gunshots. One shot struck Barton in the head, and he fell to the ground.

Keller ran from the parking lot. The bouncer from Hoss's Deli chased him for a short time before losing sight of him. Taylor Hall, who witnessed the incident, called the police and tried to stop Barton's head from bleeding. Barton was transported to the hospital and put in a medically induced coma. Though he woke up and the bullet was eventually removed, he suffered permanent injuries because of the shooting. Keller was arrested the following day, and he was charged with aggravated malicious wounding and use of a firearm in the commission of a felony.

After the Commonwealth presented its case-in-chief during trial, Keller moved to strike the Commonwealth's evidence, arguing that the Commonwealth had not proved that he acted with malice. Therefore, it had not proved the aggravated malicious wounding charge, because the evidence showed he acted in the heat of passion. The Commonwealth argued that the evidence proved malice. Additionally, the Commonwealth, citing Williams v. Commonwealth, 64 Va. App. 240 (2015), argued that it must be the victim, in this case Barton, who provoked the defendant's heat of passion to support a finding of heat of passion. The trial court denied the motion to strike.

Keller then testified on his own behalf. He explained that he had been drinking all day and was emotional from fighting with his girlfriend. He claimed that he did not intend to shoot Barton; he only intended to fire warning shots in the air because he was nervous that two men he did not know, Barton and Hannaman, were approaching him in a dark parking lot, he did not know their intentions, and Barton was using "salty" language. He denied saying that he was going to "blow his fucking head off" to Barton, but admitted it was possible he had threatened to blow his own head off.

Following his testimony, Keller renewed his motion to strike the evidence. He again argued that the evidence showed heat of passion rather than malice, and, consequently, theaggravated malicious wounding charge should be struck and an unlawful wounding charge sent to the jury. He argued that the trial court had to focus on his state of mind and his perception of Barton as a threat, rather than whether Barton actually posed a threat. The trial court denied the renewed motion to strike.

The trial court then asked the parties to submit jury instructions. The parties agreed on all instructions, except for one proposed by the Commonwealth. Keller had proposed an instruction on heat of passion, and the Commonwealth did not object. The Commonwealth did ask, however, that if the instruction was granted, the trial court also grant Instruction 14. Instruction 14 provided: "Where it is not the victim of the crime who provoked the defendant's heat of passion, the evidence will not support a finding of heat of passion."

Before addressing Instruction 14, the trial court expressed doubt about whether the heat of passion instruction proposed by Keller was appropriate to the facts of the case. It asked both Keller and the Commonwealth why the heat of passion instruction should be granted. In support of the instruction, Keller pointed out that he was already in an argument with Hodges, when he was confronted by a strange man in a dark parking lot, with words that "had a tendency to provoke." When the trial court pointed out that it had to be the victim doing the provoking, Keller explained that his argument was that he was in an emotional state because of his fight with Hodges and that Barton approaching him in a dark parking lot, using curse words, heightened his heat of passion. The Commonwealth chose not to object to the heat of passion instruction.

The parties then turned to Instruction 14. The Commonwealth pointed out that the language was pulled directly from Williams, 64 Va. App. at 249, where this Court held that the reasonable provocation to support a heat of passion defense must come from the victim. The Commonwealth argued that Keller should have to argue that it was Barton and his actions, andnot Hodges, that provoked the heat of passion. Keller objected, arguing that the Commonwealth was "cherry-picking" a line from a case out of context. He argued that the instruction was misleading because it essentially required "Barton . . . to be the initial trigger for Mr. Keller's heat of passion," and it does not allow for heat of passion to be triggered by one person initially and then increased or triggered again by another person while still in the heat of passion. The trial court granted the instruction over Barton's objection.

The parties then gave closing arguments, and the case was submitted to the jury. The jury found Keller guilty of both charges, and it recommended a total sentence of twenty-three years. The trial court imposed the recommended sentence. Keller now appeals to this Court.

II. ANALYSIS

A. The Trial Court did not Err in Granting Jury Instruction 14

Keller contends that the trial court erred by granting Instruction 14 because it was confusing and misleading. We disagree.

"As a general rule, the matter of granting and denying instructions does rest in the sound discretion of the trial court." Woods v. Commonwealth, 66 Va. App. 123, 130 (2016) (quoting Cooper v. Commonwealth, 277 Va. 377, 381 (2009)). "However, whether a proffered jury instruction accurately states the law is reviewed de novo." Bryant v. Commonwealth, 67 Va. App. 569, 582 (2017), aff'd, 295 Va. 302 (2018). Our responsibility on appeal "is to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises." Williams, 64 Va. App. at 246 (quoting Rhodes v. Commonwealth, 41 Va. App. 195, 200 (2003)). In addition, "[n]o instruction should be given . . . 'which would be confusing or misleading to the jury.'" Graves v. Commonwealth, 65 Va. App. 702, 708 (2016) (alterations in original) (quoting Mouberry v. Commonwealth, 39 Va. App. 576, 582 (2003)).

The challenged instruction, which is not a model jury instruction,¹ reads: "Where it is not the victim of the crime who provoked the defendant's heat of passion, the evidence will not support a finding of heat of passion." The language, as Keller concedes, was lifted verbatim from Williams, 64 Va. App. at 249.

Despite this, Keller argues that without the context of Williams, where the defendant conceded that he attacked the victim without provocation, Instruction 14 is not an accurate statement of law. He further argues that Williams does not stand for the proposition that "a heat of passion arising from an interaction with a non-victim precludes a heat of passion arising from a subsequent interaction with a victim." According to Keller, Instruction 14 was confusing because it "could have caused the jury to erroneously conclude that they were...