Bailey v. Commonwealth

329 S.E.2d 37 (1985)


D and Murdock lived about two miles apart in the Roanoke area. They had an extended and vituperative conversation over their citizens' band radios. D had consumed a 'twelve-pack' of beer and a 'fifth of liquor' since mid-afternoon; a test of Murdock's blood made during an autopsy showed alcoholic content of '.271% . . . by weight.' Murdock was also 'legally blind,' with vision of only 3/200 in the right eye and 2/200 in the left. D knew that Murdock had 'a problem with vision' and that he was intoxicated on the night in question. D also knew that Murdock owned a handgun and had boasted 'about how he would use it and shoot it and scare people off with it.' D knew further that Murdock was easily agitated and that he became especially angry if anyone disparaged his war hero, General George S. Patton. D implied that General Patton and Murdock himself were homosexuals. D persistently demanded that Murdock arm himself with his handgun and wait on his front porch for D to come and injure or kill him. Murdock responded by saying he would be waiting on his front porch, and he told D to 'kiss [his] mother or [his] wife and children goodbye because [he would] never go back home.' D then made two anonymous telephone calls to the Roanoke City Police Department. D reported 'a man . . . out on the porch [at Murdock's address] waving a gun around.' A police car was dispatched to the address, but the officers reported they did not 'see anything.' D then called Murdock back on the radio and chided him for not 'going out on the porch.' D told Murdock he was 'going to come up there in a blue and white car' and demanded that Murdock 'step out there on the . . . porch' with his gun 'in [his] hands' because he would 'be there in just a minute.' D telephoned the police again. D identified Murdock by name and told the dispatcher that Murdock had 'a gun on the porch,' had 'threatened to shoot up the neighborhood,' and was 'talking about shooting anything that moves.' D refused to identify himself, explaining that he was 'right next to [Murdock] out here' and feared revealing his identity. D insisted the police respond. Three uniformed officers arrived. None knew that Murdock was intoxicated or that he was in an agitated state of mind. One knew that Murdock's eyesight was bad, and he did not know 'exactly how bad it was.' After several minutes had elapsed, the officers observed Murdock come out of his house with 'something shiny in his hand.' Murdock sat down on the top step of the porch and placed the shiny object beside him. An officer approached and told him to leave the gun and walk down the stairs. When the order was repeated, Murdock cursed and then reached for the gun, stood up, advanced in the Officer's direction, and opened fire. He retreated and was not struck. All three officers returned fire, and Murdock was struck. Lying wounded on the porch, he said several times, 'I didn't know you was the police.' He died from 'a gunshot wound of the left side of the chest.' The trial court told the jury it should convict D if it found that his negligence or reckless conduct was so gross and culpable as to indicate a callous disregard for human life and that his actions were the proximate cause or a concurring cause of Murdock's death. D concedes that the evidence at trial, viewed in the light most favorable to the Commonwealth, would support a finding that his actions constituted negligence so gross and culpable as to indicate a callous disregard for human life. D was convicted of involuntary manslaughter. D appealed in that he did not kill Murdock.