Jerome Antonio Doss v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Coleman and Elder
Argued at Salem, Virginia
JEROME ANTONIO DOSS OPINION BY
v. 	Record No. 2209-95-3 	JUDGE SAM W. COLEMAN III
DECEMBER 31, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Robert P. Doherty, Jr., Judge
Jonathan M. Apgar (Damico & Apgar, on brief),
for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
The defendant was convicted in a bench trial of malicious
wounding and use of a firearm in the commission of malicious
wounding. 	On appeal, he contends that (1) the evidence was
insufficient to prove malicious wounding, and (2) the trial judge
violated his Fourteenth Amendment due process and Fifth Amendment
self-incrimination protections by conditioning the suspension of
the penitentiary sentence upon his surrendering the handgun he
used to commit the offenses, which he had testified he did not
possess. 	We find no error and affirm the convictions and
sentences.
SUFFICIENCY OF EVIDENCE
On May 16, 1995, Ralph Fuller visited his two infant
children and their mother, Michelle Price, at Price's apartment
in Roanoke. 	During the visit, Fuller intervened in an argument

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between Price and Ingrid Doss, the defendant's sister. 	After the
argument, Doss left the apartment but returned a short time later
with the defendant.
The defendant demanded to know "why [Fuller] was
disrespecting [his] sister" and he began to argue with Fuller.
Fuller testified that during the argument, he told the defendant
to leave and pushed the defendant out the door. 	The defendant
left, but returned later and, according to Fuller, entered the
apartment holding what appeared to be an automatic handgun.
Fuller confronted the defendant and they began to fight, pushing
and hitting each other. 	The defendant's blows caused Fuller to
bend forward at the waist. 	While bent forward, Fuller heard a
gunshot and realized that he had been shot.
Fuller testified that he saw the gun the defendant had been
holding pointed at him when he was shot. 	Fuller acknowledged
that he did not "know what [the defendant] was doing at the time
[he] was bent over." 	On redirect examination, Fuller was
questioned and testified as follows:
Q: 	When you were in a crouched
position, you said you were bent
over when you were shot or
immediately before you got shot,
was that a result of being struck?
Bent over because you were struck?
A: 	No, I . . . was . . . was . . .
already bent over. 	And I don't
know if on the way down maybe I
might have discharged it, my body
might have discharged it or what.
All I know is I remember getting
hit.

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Q: 	You mean when you went over, you
may have hit his hand?
A: 	I . . . I might have hit it and
caused it. 	I just remember getting
hit.
After being shot, Fuller retrieved a .38 caliber revolver from
near the couch and fired a shot at the defendant as he fled.
Fuller testified that after shooting at the defendant he dropped
the .38 revolver outside the apartment and had not seen the gun
since that night.
Officer F. L. Pledge responded to the scene. 	He found
Fuller with a bullet wound in his upper left chest. 	Officer
Pledge testified that Fuller stated "that some guys came up --
rushed him -- came to his house and rushed him and shot him."
Officer Pledge searched the apartment and found one shell casing
that was identified as a .38 caliber casing.
Ingrid Doss testified on behalf of the defendant. 	She
stated that the defendant did not have a gun when he went to
Price's apartment to confront Fuller. 	Michelle Price also
testified that the defendant was unarmed when he came to the
apartment but that Fuller had a .38 caliber handgun. 	According
to Price, Fuller's gun discharged while Fuller was struggling
with the defendant. 	Price testified that Fuller was holding the
gun when it fired.
Price was impeached by evidence that she had made prior
inconsistent statements in her initial report to the police in
which she gave an account of events that contradicted her trial

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testimony. 	When the police arrived after the shooting, Price
told Officer Pledge that the defendant was armed when he came to
the apartment, that he was accompanied by a man named Chris
Graves, and that the defendant shot Fuller. 	She reported that
the defendant kicked in the door to her apartment and rushed in
with a gun in his hand, that Fuller attempted to take the gun
from the defendant, and that the defendant struck Fuller with the
gun. 	She said the defendant then "stepped back [from Fuller],
cocked the handle back, [and] fired [one] shot towards [Fuller]."
At trial, Price testified that she had lied when she gave
her statement to the police. 	She explained that she was afraid
she would be evicted from her apartment if her landlord
discovered she had allowed Fuller to keep a gun in the home.
Price conceded that she did not know what Fuller had told the
police when she gave her initial statements. 	Although Price's
prior statement could only be used to impeach her testimony, and
not for its truth, the inconsistency in her statements was one of
the reasons the trial judge disbelieved her testimony and the
other witnesses' accounts of how the shooting occurred.
Testifying on his own behalf, the defendant denied that he
had a gun when he went to Price's apartment. 	He testified that
Fuller produced a gun, and "[t]he gun went off" while he was
wrestling with Fuller.
The trial judge found that the testimony of the defense
witnesses was incredible and contrary to the physical evidence.

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The judge found that Fuller's testimony as to how the shooting
occurred was consistent with the physical evidence.
Specifically, the trial judge found that the location of Fuller's
wound and the fact that a shell casing was recovered were
consistent with Fuller's account that the defendant used an
automatic pistol that ejected spent shells, rather than the
defendant's account that Fuller was shot by his own revolver, a
gun that does not eject spent shells.
Even though the trial judge accepted the victim's version of
how the shooting occurred, the defendant contends that the
evidence tended to prove the shooting was accidental rather than
intentional and, therefore, the evidence was insufficient to
prove beyond a reasonable doubt that the shooting was malicious.
On appeal we view the evidence in the light most favorable to
the prevailing party and grant to it all reasonable inferences
fairly deducible therefrom. 	Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975). 	The fact finder is not
required to believe testimony that is inconsistent with the
facts, may reject testimony that has been impeached, and may rely
solely upon circumstantial evidence to prove an offense, provided
the circumstances point unerringly to prove the necessary
elements of the offense. 	Cook v. Commonwealth, 226 Va. 427, 433,
309 S.E.2d 325, 329 (1983); Kirby v. Commonwealth, 19 Va. App.
332, 336, 451 S.E.2d 53, 56 (1994).
The trial judge expressly found that the defense witnesses

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were not credible. 	Based upon the prior inconsistent accounts
that the witnesses gave to the police the night of the shooting,
which accounts were contrary to the trial testimony and the
circumstances surrounding the shooting, the judge's credibility
determination was clearly supported by the evidence. 	Likewise,
the trial judge was justified in disbelieving and disregarding
the defendant's account that he was unarmed, that the victim was
armed, and that the victim's gun discharged while they were
scuffling.
Whether an appellant acted with malice is a question of fact
to be determined by the fact finder. 	Branch v. Commonwealth, 14
Va. App. 836, 841, 419 S.E.2d 422, 426 (1992). 	"Malice inheres
in the doing of a wrongful act intentionally, or without just
cause or excuse, or as a result of ill will. 	It may be directly
evidenced by words, or inferred from acts and conduct which
necessarily result in injury." 	Hernandez v. Commonwealth, 15 Va.
App. 626, 631, 426 S.E.2d 137, 140 (1993) (quoting Christian v.
Commonwealth, 221 Va. 1078, 1081, 277 S.E.2d 205, 207 (1981));
Bell v. Commonwealth, 11 Va. App. 530, 533, 399 S.E.2d 450, 452
(1991) (quoting Long v. Commonwealth, 8 Va. App. 194, 198, 379
S.E.2d 473, 475-76 (1989)). 	"Malice is implied from any willful,
deliberate and cruel act against another." 	Williams v.
Commonwealth, 13 Va. App. 393, 398, 412 S.E.2d 202, 205 (1991).
"Implied malice exists when any purposeful, cruel act is
committed by one individual against another without any, or

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without great provocation . . . ." 	Pugh v. Commonwealth, 223 Va.
663, 668, 292 S.E.2d 339, 341 (1982). 	Malice may be inferred
"from the deliberate use of a deadly weapon." 	Perricllia v.
Commonwealth, 229 Va. 85, 91, 326 S.E.2d 679, 683 (1985).
When viewed in the light most favorable to the Commonwealth,
the evidence proved that the defendant, after engaging in an
argument with the victim, left the home where the victim was
staying, armed himself, returned with a companion, broke through
the door, "rushed [the victim] . . . and shot him." 	According to
the victim's testimony, the defendant struck him and while he was
bending over, the defendant shot him. 	The circumstances support
the trial judge's finding that the defendant deliberately and
willfully discharged the firearm and shot Fuller. 	In weighing
Fuller's redirect examination, in which he acknowledged that he
was not looking directly at the appellant when the gun was
discharged and he testified, "I might have hit it and caused it,"
the judge was justified in finding that the appellant had
intentionally armed himself, had forcibly entered the residence
where the victim was, had intentionally assaulted the victim, and
had intentionally aimed the gun at the victim at the time it was
discharged. 	Based on the circumstances leading up to and
following the shooting, the trial judge, as fact finder, was
justified in finding that the defendant deliberately and
maliciously shot the victim.
SENTENCING
SELF-INCRIMINATION AND DUE PROCESS

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At the sentencing phase of the trial, the judge sentenced
the defendant to twenty years on the malicious wounding charge
and three years on the firearm charge. 	However, the judge
continued the sentencing hearing to a later date to consider
whether to suspend a portion of the malicious wounding sentence.
The judge informed the defendant that "[a]t that time, [he]
would be anxious to learn whether or not [the defendant was]
willing to turn in [the] weapon" used in the shooting. 	The
defendant objected to the "condition" that he claims the judge
imposed -- production of the handgun -- as prerequisite to
suspending sentence. 	The appellant maintained at trial and the
sentencing hearing that he had never possessed a gun. 	At the
continuation of the sentencing hearing, the defendant did not
produce a handgun. 	Nevertheless, the judge suspended eight years
of the twenty-year sentence for malicious wounding.
The defendant claims that requiring him to produce a firearm
in order to receive a suspended sentence was tantamount to
requiring him to admit that he perjured himself at trial or
suffer the penalty of lengthy imprisonment. 	The defendant argues
that the procedure violated his right not to give evidence that
would incriminate him because it placed him in the untenable
position of making a Hobson's choice between perjuring himself by
relinquishing a gun that he had testified did not exist, or not
receiving a suspended sentence. 	We reject the defendant's claim
that the judge's "condition" for suspending sentence violated his

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Fourteenth Amendment due process rights and Fifth Amendment
self-incrimination protection.
The Fifth Amendment provides, in pertinent part, that no
person "shall be compelled in any criminal case to be a witness
against himself." 	This privilege extends, not only to the guilt
phase of a criminal trial, but also to the sentencing phase. 	See
Estelle v. Smith, 451 U.S. 454, 462-63 (1981). 	"The Fifth
Amendment does not insulate a defendant from all 'difficult
choices' that are presented during the course of criminal
proceedings, or even from all choices that burden the exercise or
encourage waiver of the Fifth Amendment's right against
self-incrimination." 	United States v. Frazier, 971 F.2d 1076,
1080 (4th Cir. 1992), cert. denied, 506 U.S. 1071 (1993). 	"[N]ot
every burden on the exercise of a constitutional right, and not
every pressure or encouragement to waive such a right, is
invalid." 	Corbitt v. New Jersey, 439 U.S. 212, 218 (1978).
On this record, it is apparent that either the defendant and
defense witnesses testified falsely or the victim testified
falsely. 	The trial judge made a credibility finding that the
defense witnesses, including the defendant, were not credible.
At the sentencing hearing at which the trial judge would consider
whether to suspend sentence, the defendant was confronted with a
choice which confronts every defendant under our system of
jurisprudence -- to testify truthfully or not testify at all.
Although the trial judge purportedly made the request as a

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condition of receiving a suspended sentence, the defendant was
not required to testify and he was not compelled to give
incriminating evidence. 	Placing the defendant in a position of
relinquishing the instrumentality of a crime to which he had been
found guilty, in order to receive a suspended sentence, is a
choice that did not impermissibly burden the defendant's
privilege against self-incrimination.
In United States v. Frazier, the Fourth Circuit held that
presenting a criminal defendant with a choice between giving
incriminating information at the sentencing phase in order to
receive a reduction in sentence or exercising the right to remain
silent and forego a sentence reduction does not violate the Fifth
Amendment. 	Frazier, 971 F.2d at 1082. 	In Frazier, the Fourth
Circuit held that offering leniency in sentencing in exchange for
potentially incriminating testimony is "constitutionally
indistinguishable" from the line of United States Supreme Court
cases which holds that a state may encourage guilty pleas by
offering either the possibility or certainty of a lesser penalty
than the sentence that would be recommended if the defendant went
to trial; that line of cases holds that the guilty plea procedure
does not violate the defendant's Fifth Amendment rights against
self-incrimination. 	See id. at 1084. 	We find this reasoning
to be persuasive in this case. 	A trial court may refuse to
suspend the sentence of a defendant who maintains his innocence
because the defendant fails to show remorse, refuses to admit

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his complicity, or refuses to relinquish the fruits or
instrumentation of a crime for which he has been convicted,
without violating the defendant's privilege against
self-incrimination.
Moreover, in this case the defendant had waived his
privilege against self-incrimination as to the matters pertaining
to the charged offense by testifying as to the relevant and
material issue about whether he possessed and used a gun. 	Nestle
v. Commonwealth, 22 Va. App. 336, 346, 470 S.E.2d 133, 138
(1996). 	When he testified at trial that he did not bring a gun
to the apartment, he waived his right to refuse to give evidence
concerning the existence and location of the gun. 	The prosecutor
and the judge as fact finder were entitled to, and did, examine
the defendant about the gun during the guilt and sentencing
phases of the trial. 	By testifying about the gun, the defendant
waived his right to refuse to give evidence upon the subject in
this criminal proceeding. 	He cannot revoke that waiver at the
sentencing hearing where the trial court is considering whether
to suspend sentence. 	Because the defendant could be required to
testify about the gun, he could be asked about the location and
asked to produce the gun. 	Therefore, the judge's procedure did
not violate the defendant's Fifth Amendment rights by requiring
the defendant to give evidence on an issue that was protected by
the privilege; the defendant had waived the privilege.
As to the defendant's claim that his due process rights were

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violated by being required to produce a firearm or not have his
prison sentence suspended, a trial judge has broad discretion in
determining whether to suspend all or any portion of a
penitentiary sentence. 	Bell v. Commonwealth, 18 Va. App. 146,
148, 442 S.E.2d 427, 428 (1994); Hudson v. Commonwealth, 10 Va.
App. 158, 160-61, 390 S.E.2d 509, 510 (1990); Duncan v.
Commonwealth, 2 Va. App. 342, 345, 343 S.E.2d 392, 394 (1986).
We will not disturb a trial court's decision not to suspend
sentence absent a clear abuse of discretion. 	Bassett v.
Commonwealth, 13 Va. App. 580, 583, 414 S.E.2d 419, 420 (1992).
Here, the defendant cannot be heard to complain that the trial
judge did not consider suspending sentence where the judge
suspended eight years of the twenty-year sentence.
For the foregoing reasons, we affirm the convictions.
Affirmed.