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Maddox v. Commonwealth8/1/2000
Argued at Alexandria, Virginia
MEMORANDUM OPINION
FROM THE CIRCUIT COURT OF CLARKE COUNTY John R. Prosser, Judge
On appeal from his conviction of second degree murder, in violation of Code § 18.2-32, Michael Jennings Maddox contends (1) that the evidence was insufficient to support his conviction of murder, (2) that the trial court erred in admitting evidence concerning his relationship with the victim, Evelyn Jane Tumblin, and (3) that the trial court erred in admitting evidence that he refused to take an alkasensor test. We reverse the judgment of the trial court and remand the case for further proceedings, if the Commonwealth be so advised.
I. Sufficiency of the Evidence
Maddox contends that because the Commonwealth did not prove that he killed Tumblin maliciously, the evidence failed to support his conviction of murder. See Code § 18.2-32. "Where the sufficiency of the evidence is challenged after conviction, it is our duty to consider it in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom." Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
"Second degree murder does not require a willful, deliberate, and premeditated act; it is defined simply as a malicious killing." Turner v. Commonwealth, 23 Va. App. 270, 274, 476 S.E.2d 504, 506 (1996). "Whether or not an accused acted with malice is generally a question of fact . . . ." Canipe v. Commonwealth, 25 Va. App. 629, 642, 491 S.E.2d 747, 753 (1997).
Tumblin and Maddox lived together in a long term relationship. On the afternoon of February 5, 1998, they went for a ride in Maddox's four-wheel drive Ford Bronco. The Shenandoah River had flooded its banks, covering nearby roadways with water. With Maddox driving, the couple "drove through the water playing around." They then went to Leesburg to run various errands. Maddox had been drinking all day and was intoxicated. A little before dark they returned to the river and stopped under a bridge abutment, where they engaged in sexual intercourse. For a short while thereafter, Maddox let Tumblin drive but then resumed driving. Ignoring signs and barricades warning that the road was closed due to flooding, he drove down the flooded portion of Route 606. The Bronco began sliding on the submerged roadway and Maddox lost control. The Bronco became stuck on an embankment, about two hundred yards down the road and about twenty yards from the closest shore. Frigid water flooded the passenger compartment.
Rescue personnel were dispatched to the scene. Upon arrival, Terrell Davis saw Maddox sitting in the driver's seat of the Bronco smoking a cigarette and saw him toss a beer bottle out of the window. When asked, Maddox initially replied that he was alone. About fifteen minutes after the rescue workers arrived, Maddox told them that Tumblin was with him and that she had drowned. He lifted her body from behind the front seats of the Bronco. Rescue workers testified that he said, "She is dead. I killed her. She is dead." A state trooper testified that Maddox, when asked what had happened, "stated that he had been in the water horsing around with his truck and he had killed his girlfriend." At the same time, however, Maddox asked whether she was alright.
Maddox told witnesses that Tumblin was afraid of the water and that she "freaked out" when the Bronco slid off the road and became stuck. He admitted hitting Tumblin, because, he explained, she was hysterical and he was attempting to calm her. Melody Houff, Tumblin's sister, testified that Maddox told her Tumblin never spoke after he struck her, but that her eyes remained ope
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