COURT OF APPEALS OF VIRGINIA

Present: Judges Elde r, Kelsey and McClanahan Argued by teleconference

CYNTHIA LYNN WELCH MEMORANDUM OPINION * BY v. Record No. 3152-03-4 JUDGE D. ARTHUR KE LSEY OCTOBER 18, 2005 COMMONWEALTH OF VIRGINIA

UPON REHEARING

FROM THE CIRCUIT COUR T OF STAFFORD COUNTY James W. Haley, Jr., Judge Timothy W. Barbrow (Law Offices of Timothy Barbrow, on brief), for appellant. Kathleen B. Martin, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

We issued a memorandum opinion in this ca se on July 12, 2005, affirming in part and reversing in part the first- degree murder conviction of Cynthia Lynn Welch. Welch v.

Commonwealth , No. 3152-03-4, slip op. at 15 (July 12, 2005). In that opinion, we held that the trial court did not err in denying We lch’s request for an expert. Id. We also concluded the evidence proved malice sufficient for second-degr ee murder, but not premeditation sufficient for first-degree murder. Id. Pursuant to Rule 5A:33(A), Welch requested that we reconsider our holding that the evidence proved malice. The Commonwealth al so requested a rehear ing, asking that we reconsider our holding that the evidence did not prove premeditation. This holding, the

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - Commonwealth argued, mistakenly assumed th at premeditation was required under Code § 18.2-32. In response, we stayed our mandate, ordered rebriefing, and re heard oral arguments. 1 Having reconsidered all asp ects of our earlier decision, we now reaffirm our holding that the trial court did not err in denyi ng Welch’s request for an expert for the reasons set forth in our earlier opinion. Welch , supra , slip op. at 2-4 (discussed in § I(A)). We likewise reaffirm our holding that the evidence proved malice and adopt the rationale of our earlier opinion on this ground as well. Id. , slip op. at 6-13 (discussed in § I(B)(1 )). On the issue of premeditation, however, we agree with the Commonwealth th at Code § 18.2-32 does not require proof of premeditation for first-degree murder by starvation. We thus vacate that portion of our earlier opinion. Id. , slip op. at 13-15 (§ I(B)(2)). All murders require malice, but not all firs t-degree murders require premeditation. Code § 18.2-32 provides that murder by poison, lying in wait, imprison ment, starving, or by any willful, deliberate, and premeditated kill ing, or in the commission of, or attempt to commit, arson, rape, forcible sodomy, inanimate or animate object sexual penetrati on, robbery, burglar y or abduction, except as provided in § 18.2-31, is murder of the first degree, punishable as a Class 2 felony. Using disjunctive clauses, the l iteral text of Code § 18.2-32 separa tes first-degree murder into three vastly dissimilar groupings of types of murder: those usually called ‘enumerated’ crimes (mur der by poison, by lying in wait, imprisonment or starvation); those committed as a result of willful, deliberate premeditation; and those murders committed in the commission of or attempt to commit specified felonies of violence.

1 We did not, however, withdraw our prior op inion or order that it be vacated. Our practice upon panel recons ideration of a memorandum opinion is to leave the original opinion in place and to address on rehearing onl y those aspects of the opinion that we later conclude were in error. See , e.g. , Carter v. Commonwealth , 31 Va. App. 393, 523 S.E.2d 544 (2000); Wellmore Coal Co. v. Williamson , No. 1175-97-3, 1998 Va. App. L EXIS 10 (Jan. 13, 1998), reinstated in part following reconsideration , Petition for Rehearing Orde r (May 19, 1998); Watts v. Watts , No. 2426-93-2, 1995 Va. App. L EXIS 957 (March 8, 1995) (adopting in part and vacating in part prior memorandum opinion).- 3 - John L. Costello, Virginia Criminal Law & Procedure § 3.4, at 46 (3d e d. 2002). It is a prerogative of the legislature to “define categories and ranges of appropriate punishment”

⎯ just as it did “when it made deaths resulting from enumerated dangerous acts such as imprisonment and starvation first degree murder in Va. Code § 18.2-32.” Id. § 3.4-1, at 49-50. These separate classes within the first-degr ee murder statute appeared in the earliest versions of the statute. Interpreting the predecessor statute to Code § 18.2-32, Howell v.

Commonwealth , 67 Va. (26 Gratt.) 995, 997 (1875), explaine d that a malicious killing using any of the enumerated methods (“poison, lying in wait, imprisonment or starving”) would be murder in the first degree, whethe r there was any actual intent to kill or not. In other words, although the presence of an actual intention to kill would often exis t in such a case, it would not necessarily constitute an ingredient of the offence, as it would be no part of its definition.

See also Souther v. Commonwealth , 48 Va. (7 Gratt.) 673, 680-81 (1851). Another early Virginia case explained it this way: In all these enumerated cases, the legislature has declared the law, that the perpetrator shall be held guilty of murder in the first degree, without further proof that the death was the ultimate result, which the will, deliberation and premeditation of the party accused sought. Commonwealth v. Jones , 28 Va. (1 Leigh) 598, 611 (1829); see Whiteford v. Commonwealth , 27 Va. (6 Rand.) 721, 723 (1828); see generally Gilreath v. Robinson , 544 F. Supp. 569, 575 (E.D. Va. 1982), aff’d on other grounds , 705 F.2d 109 (4th Cir. 1983); Roger D. Groot, Criminal Offenses & Defenses in Virginia 432-34 (2005). 2

2 For examples of analogous first-degree murd er statutes, similarly interpreted, see State v. Evangelista , 353 S.E.2d 375, 380 (N.C. 1987) (observing that “murder perpetrated by means of starvation” is “specifically declared to be first degree murder” and thus it is unnecessary “that the State prove a specific inte nt to kill”); State v. Harper , 365 S.E.2d 69, 72 (W. Va. 1987) (confirming that the statutory language “‘murd er by poison, lying in wait, imprisonment, starving,’ does not require that premeditation or a specific intent to kill has to be shown”); see also United States v. Shaw , 701 F.2d 367, 393 n.20 (5th Cir. 1987) (interpreting a conviction for- 4 - Under Virginia law, therefore, a murder by one of the methods enumerated in Code § 18.2-32 constitutes murder in the first degree. Th at so, the act of “starving” someone to death makes one “guilty of murder in the first degree, without further proof that the death was the ultimate result, which the will, deliberation a nd premeditation of the party accused sought.” James M. Matthews, Virginia Criminal Laws 155-56 n.2 (2d ed. 1878) (emphasis in original) (paraphrasing Jones , 28 Va. (1 Leigh) at 611). Because the evidence in this case proved a murder by starvation, we affirm Welch’s

conviction for murder in the first degree under Code § 18.2-32.

Affirmed.

first-degree murder under 18 U.S.C. § 1111 to require proof of a killing with “malice aforethought” and the “additional pr oof of premeditation, poisoning, or lying in wait” (emphasis added)); People v. Merkouris , 297 P.2d 999, 1012 (Cal. 1956) (not ing that “if the killing was committed by lying in wait, it was murder of the first degree by force of the statute and the question of premeditation wa s not further involved”).- 5 - Elder, J., concurring, in pa rt, and dissentin g, in part. I concur in the majority’s conclusion that the trial court’s denial of appellant’s request for appointment of a second medical expert was not error. However, I would hold the evidence, viewed in the light most favorable to the Commonwealth, failed to support a finding that appellant acted with malice rather than merely wi th criminal negligence. Thus, I would reverse the conviction for first-degree murder and rema nd for retrial for an offense no greater than involuntary manslaughter without re aching the issue of premeditation. Any element of a crime may be proved by circumstantial evidence, e.g. , Servis v.

Commonwealth , 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988), provided the evidence as a whole “is sufficiently convincing to exclude ev ery reasonable hypothesis except that of guilt,”

Coleman v. Commonwealth , 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). Code § 18.2-32 provides that “[m]urder . . . by . . . starving, or by a ny willful, deliberate, and premeditated killing . . . is murder of the firs t degree . . . .” Malice, an essential element of all grades of murder, “is the touchstone by which murder and manslaughter cases are distinguished.” Essex v. Commonwealth , 228 Va. 273, 280, 322 S.E.2d 216, 219-20 (1984). Malice may be either express or im plied by conduct. Pugh v. Commonwealth , 223 Va. 663, 668, 292 S.E.2d 339, 341 (1982). “Express malice is evidenced when ‘one person kills another with a sedate, deliberate mind, and form ed design.’ Implied malice exists when any purposeful, cruel act is committe d by one individual against another without any, or without great provocation . . . .” Id. (quoting M’Whirt’s Case , 44 Va. (3 Gratt.) 594, 604 (1846)). Implied malice may be inferred from “conduct li kely to cause death or great bodily harm, wilfully or purposefully undertaken.” Essex , 228 Va. at 281, 322 S.E.2d at 220. “[W]hether a defendant acted with malice is generally a question to be decided by the trier of fact.” Pugh , 223 Va. at 667, 292 S.E.2d at 341. “In making the determination whether- 6 - malice exists, the fact-finder must be guided by the quality of the defendant’s conduct, its likelihood of causing death or gr eat bodily harm, and whether it was volitional or inadvertent

. . . .” Essex , 228 Va. at 282, 322 S.E.2d at 221. If a killing results from negligence , however gross or culpable, and the killing is contrary to the defendant’s intention, ma lice cannot be implied. In order to elevat e the crime to . . . murder, the defendant must be shown to have wilfully or pur posefully, rather than negligently, embarked upon a course of wrongful conduct likely to cause death or great bodily harm.

Id. at 280-81, 322 S.E.2d at 220. “[I]f death is the direct consequence of the malicious omission of the performance of a duty, such as of a mother to feed her child, th is is a case of murder; but if the omission is not willful, and arose out of neglect only, it is mans laughter.” Biddle v.

Commonwealth , 206 Va. 14, 20, 141 S.E.2d 710, 714 (1965).

In Biddle , relied upon by appellant, the Suprem e Court reversed a conviction for first-degree murder in a case involvi ng failure to feed an infant. Id. at 21, 141 S.E.2d at 715.

The defendant in Biddle , a twenty-five-year-old mother of si x, told police her husband frequently

claimed none of the children was his. Id. at 15-16, 141 S.E.2d at 711-12. She said that she did

not feed the infant when she and her husband we re not getting along and that “during the period of approximately a month prior to the baby’s deat h, several days elapsed between feedings.” Id. at 16, 141 S.E.2d at 712. She said that, because her husband claimed none of the children was his, “she ‘figured’ he wouldn’t care if the baby died,” thereby acknowledging an awareness that failure to feed the infant regularly co uld result in the infant’s death. Id. On the infant’s death at approximately three months of age, it weighed less than it had at birth, it was dehydrated, and its intestinal tract and stomach were entirely empty. Id. at 19, 141 S.E.2d at 714. The defendant admitted she knew the baby had lost weight and that she had not taken the baby to a doctor. Id.

The Court held that the evidence showed the de fendant “neglected the baby and was careless and indifferent in the performance of her duties not only to the baby, but to other members of her- 7 - family as well,” and that the evidence failed to “prove[] beyond a reas onable doubt that [the] defendant willfully or maliciously withhe ld food and liquids from the baby.” Id. at 21, 141 S.E.2d at 715. As a result, it reversed he r conviction for first-degree murder. Id.

Biddle establishes that a parent’s failure to feed an infant regularly, even with knowledge that this failure might cause death, may result from neglect rather than willfulness. Id. Further, the evidence in appellant’s case, viewed in th e light most favorable to the Commonwealth, fails to prove beyond a reasonable doubt anything mo re than the general knowledge and neglect apparent in Biddle . Although the evidence established that Terrance’s physician and babysitter expressed concern to appellant a bout Terrance’s health and the rate at which Terrance had been gaining weight, the evidence establ ished that when Terrance died at approximately three months of age, he weighed over one-and-one-half pounds more than the seven pounds ten ounces he weighed at birth. Th e infant in Biddle , by contrast, who was also three months old at the time of its death, actually weighed one pound less at the time of death than it had weighed at birth. Id. at 19, 141 S.E.2d at 714. Appellant admitted to he r cellmate that because she and Terrance’s father, Gibson, “were just always high” and “did n’t want to deal with [the baby],” Terrance would “sometimes” “go” “a couple of days” without being fed. This behavior, although legally neglectful and morally reprehensible, comes no closer to establishing malice than did Biddle’s admission that “during the period of a month prio r to [her] baby’s death, several days elapsed between feedings” and that she knew failing to feed her infant regularly could result in death. Although appellant admitted to her cellmate that she and Gibson planned to explain the absence of food in Terrance’s digestive tr act by saying it resulted from an inherited disorder related to Gibson’s, no evidence establis hed that appellant and Gibson had formulated this plan before

Terrance’s death.- 8 - I would conclude that, however neglectful appellant’s behavior, “the Commonwealth has not proved beyond a reasonable doubt that [appellant] willfully or maliciously withheld food and liquids from the baby.” Id. Thus, I would hold the evidence fails to establish that appellant acted with malice rather than with gross negl igence, and I would reverse her conviction for murder and remand for retrial on a charge no grea ter than involuntary manslaughter. Because I believe the holding in Biddle compels the conclusion that the evidence failed to prove malice, I

would not consider the Commonw ealth’s argument that, under Code § 18.2-32, a conviction for first-degree murder based on an act of murder by starvation does not requ ire separate proof of premeditation. For these reasons, I concur in the major ity’s holding that appellant’s request for appointment of a second medical expert was not e rror. However, because I believe the evidence was insufficient to prove appellant acted with ma lice, I dissent from the majority’s decision to affirm the conviction for first-degree murder.