COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey 

Argued at Richmond, Virginia 

TIMOTHY JAMES TRATZINSKI 

 MEMORANDUM OPINION* BY 

v. Record No. 0419-02-2 JUDGE JAMES W. BENTON, JR. 

 MARCH 25, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Learned D. Barry, Judge 

 John A. March, Jr., Assistant Public Defender 

(Craig W. Stallard, Assistant Public 

Defender, on briefs), for appellant. 

 Paul C. Galanides, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 A trial judge convicted Timothy James Tratzinski of second 

degree murder. Tratzinski contends the evidence was insufficient 

to support the conviction because malice was not proved and 

because he proved self-defense. We affirm the conviction. 

 I. 

 The evidence proved that Timothy James Tratzinski and Julius 

Smith were co-tenants in a house. Smith testified that he was in 

his bedroom on the main floor of the house at 11:30 p.m. watching 

television when he heard a "crashing" sound. He opened his 

bedroom door and listened. Hearing nothing more, he closed his 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
door and continued watching television. Ten minutes later, he 

heard several "thumping" sounds and went to the bathroom. While 

there, he heard the front door open. When he left the bathroom, 

he noticed the front door was ajar, he closed it, and he went to 

bed. The next morning, Smith saw drops of blood in the bathroom 

and reported this discovery to his lessor. Smith testified he had 

never been in the basement where Tratzinski's bedroom is located. 

 The City of Richmond Police went to the house in response to 

a call from the lessor. They discovered blood in Tratzinski's 

basement bedroom, blood on the patio carpet and couch outside 

Tratzinski's bedroom, and blood in other areas. A trained dog led 

the police from the patio, through woods behind the house, and to 

an automobile repair shop. Behind the shop, police discovered the 

nude body of Jermaray Johnson in a trash can. 

 Later that morning, a police officer saw Tratzinski at a 

convenience store across from the house. Tratzinski had blood on 

his pants, shoes, and hands. After Tratzinski accompanied the 

officer to the house, Tratzinski told the officer he met Johnson 

in the convenience store the previous night. He did not know 

Johnson before this meeting. He said he "beat [Johnson] in the 

head with something" after Johnson attacked him with a hammer. 

Tratzinski said he did not know what he used to hit Johnson. 

 The pathologist who performed an autopsy identified five 

skull fractures on the back of Johnson's head, nine blunt 

lacerations on the right side of his head, and eight blunt 

- 2 -
lacerations on the left side of his head. Numerous superficial 

contusions and abrasions were on Johnson's face. The front of 

Johnson's neck had been torn apart. The pathologist testified 

that he saw no defensive injuries on Johnson's body. 

 The testimony and exhibits proved the blood on Tratzinski's 

clothing was Johnson's. A mixture of Tratzinski's blood and 

Johnson's blood was found outside the house. DNA analysis 

established that the blood of two distinct large stain patterns on 

the patio carpet came from Johnson. An analyst testified that one 

large stain was produced when Johnson's blood had drained and 

pooled; the other stain reflected a pooling of blood and also a 

splattering of blood that radiated from Johnson's body as a result 

of force. Smaller blood stains on the carpet inside the basement 

door contained both Johnson's and Tratzinski's blood. Johnson's 

blood also was on a couch where a bag of cocaine was found. Some 

neatly folded clothing was next to Tratzinski's bed. 

 Tratzinski's blood was found on the stairs leading to the 

first floor, on the front entrance porch, and at various places on 

the first floor. In one of the attic bedrooms, the police found 

under a mattress a cocaine pipe wrapped in a towel. Tratzinski's 

blood was on the towel and in various locations in the attic. 

None of the blood on the first floor level or bedrooms came from 

Johnson. 

 At the conclusion of the Commonwealth's evidence, Tratzinski 

testified he had been "drinking a lot" of alcohol the day he met 

- 3 -
Johnson in a chance encounter. He and Johnson established through 

their conversation that they were interested in a sexual encounter 

with each other and walked to Tratzinski's house. In Tratzinski's 

bedroom, Johnson removed his clothes. Tratzinski fondled Johnson, 

kissed his body, and then informed Johnson he needed a condom 

because he was HIV positive. Tratzinski testified that Johnson 

became upset and loudly accused Tratzinski of wanting to infect 

him. He testified Johnson obtained a hammer that was among other 

tools in the basement, swung at him, and threatened to kill him. 

 According to Tratzinski, he tried to escape through the patio 

door after Johnson struck him on his hand and shoulder with the 

hammer. Because he was slow and too intoxicated to go farther, he 

began "tussling" with Johnson. During the struggle, Tratzinski 

seized the hammer from Johnson and began swinging the hammer. 

Tratzinski testified that the struggle lasted five or six minutes 

and that he could not remember anything after the struggle. He 

said he awoke the next morning in the woods and did not know why 

he was there or why he was bruised and covered with blood. 

Tratzinski testified he did not know how Johnson's body got into 

the trash can and did not know what he did with the hammer. 

 At the conclusion of all the evidence, the trial judge ruled 

that the evidence was insufficient to prove first degree murder 

and did not prove voluntary manslaughter. He convicted Tratzinski 

of second degree murder. 

- 4 -
 II. 

 Tratzinski contends the evidence was insufficient to prove 

malice because it did not negate heat of passion. The 

Commonwealth argues the evidence proved malice beyond a reasonable 

doubt. 

 "Second degree murder is defined as a 'malicious killing' of 

another person." Lynn v. Commonwealth, 27 Va. App. 336, 351, 499 

S.E.2d 1, 8 (1998) (citation omitted). 

Malice inheres in the intentional doing of a 

wrongful act without legal justification or 

excuse. Malice is not confined to ill will, 

but includes any action flowing from a 

wicked or corrupt motive, done with an evil 

mind or wrongful intention, where the act 

has been attended with such circumstances as 

to carry in it the plain indication of a 

heart deliberately bent on mischief. 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). 

 "Malice . . . is the element that distinguishes [murder] 

from manslaughter." Moxley v. Commonwealth, 195 Va. 151, 157, 

77 S.E.2d 389, 393 (1953). That distinction is explained as 

follows: 

 Every malicious homicide is murder. 

Manslaughter, on the other hand, is the 

unlawful killing of another without malice. 

To reduce a homicide from murder to 

voluntary manslaughter, the killing must 

have been done in the heat of passion and 

upon reasonable provocation. 

- 5 -
 Heat of passion is determined by the 

nature and degree of the provocation, and 

may be founded upon rage, fear, or a 

combination of both. Malice and heat of 

passion are mutually exclusive; malice 

excludes passion, and passion presupposes 

the absence of malice. 

 A plea of self-defense and a claim of 

provoked heat of passion do not conflict 

with each other. 

 Generally, whether a killing was done in 

the heat of passion upon reasonable 

provocation is a jury question. "Only when 

the trial court, giving the defendant the 

benefit of every reasonable inference from 

the evidence, can say that the minds of 

reasonable men could not differ does the 

question become [one] of law." 

Barrett v. Commonwealth, 231 Va. 102, 105-06, 341 S.E.2d 190, 

192-93 (1986) (citations omitted). 

 Viewed in the light most favorable to the Commonwealth, 

Harward v. Commonwealth, 5 Va. App. 468, 479, 364 S.E.2d 511, 

516 (1988), the evidence proved Tratzinski struck the back of 

Johnson's head five times with an object, causing "impressed 

skull fractures." He struck the sides of Johnson's head 

seventeen times and struck Johnson's neck so many times that the 

pathologist could not quantify the number of wounds. The blows 

to the neck damaged Johnson's arteries and transected his 

trachea, muscles, thyroid, and cartilage. The brutal and 

vicious nature of the killing is evidence from which the trial 

judge could have inferred malice. See Near v. Commonwealth, 202 

Va. 20, 32, 116 S.E.2d 85, 93 (1960) (holding that a killing 

- 6 -
caused by vicious blows that caused "a gouge" in the throat was 

unjustified by the claimed provocation and was not evidence of 

sudden killing in the heat of passion). 

 The evidence also proved Tratzinski used an instrument to 

kill Johnson. The instrument, which he said was a hammer, was 

last held by Tratzinski and never found. "'"A deadly weapon is 

one which is likely to produce death or great bodily injury from 

the manner in which it is used, and whether a weapon is to be 

regarded as deadly often depends more on the manner in which it 

has been used than on its intrinsic character. . . ."'" 

Quintana v. Commonwealth, 224 Va. 127, 140, 295 S.E.2d 643, 649 

(1982) (citations omitted). In view of the manner in which 

Tratzinski used the instrument to kill Johnson, the judge was 

entitled to find that it was a deadly weapon. See id. (holding 

that, in view of "the manner in which it was used, and the 

result of its use, . . . the hammer was a deadly weapon"). 

Indeed, the principle is well established that "[t]he trier of 

fact may infer malice from the deliberate use of a deadly weapon 

unless the evidence raises a reasonable doubt whether malice 

existed." Elliot v. Commonwealth, 30 Va. App. 430, 436, 517 

S.E.2d 271, 274 (1999). 

 We hold that the evidence was sufficient to establish a 

prima facie showing of malice. 

[W]hen the Commonwealth makes a prima facie

showing that malice exists, it thereby 

establishes prima facie that heat of passion 

- 7 -
is absent. In a given situation, the 

accused, without producing evidence, may be 

entitled to an instruction on manslaughter, 

or even to a verdict on that lesser charge, 

if it can reasonably be inferred from the 

Commonwealth's evidence that he acted in the 

heat of passion. Where the Commonwealth's 

evidence does not permit such an inference, 

however, the burden of production shifts to 

the accused. [If] . . . he produces some 

credible evidence that he acted in the heat 

of passion, he is entitled to an instruction 

on manslaughter and also, if the evidence as 

a whole raises a reasonable doubt that he 

acted maliciously, to a verdict on the 

lesser charge of homicide. 

Hodge v. Commonwealth, 217 Va. 338, 345, 228 S.E.2d 692, 697 

(1976). 

 The salient evidence that Tratzinski relies upon to support 

his claim of heat of passion is his testimony that Johnson 

confronted him with a hammer and then initiated an attack by 

swinging the hammer at him. Tratzinski testified that he feared 

for his life, attempted to deflect the hammer, and fought 

Johnson for control of the hammer. After gaining control of the 

hammer, he killed Johnson in a struggle. 

 The evidence is not inconsistent with Tratzinski's 

testimony that Johnson came to his home voluntarily to engage in 

a sexual encounter with Tratzinski and that Johnson voluntarily 

disrobed. In his "role of judging witness credibility," 

however, the trial judge was "entitled to disbelieve the 

self-serving testimony" of Tratzinski about the events that 

followed. Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 

- 8 -
S.E.2d 233, 235 (1998). Tratzinski's version of events that led 

to the brutal killing is a matter that rested solely upon the 

credit the trial judge determined to give to his testimony. No 

other evidence in the record supports Tratzinski's testimony of 

a provocation that justified his brutal response. Although 

Tratzinski was injured in the course of the event, those 

injuries are not inconsistent with an unprovoked killing. 

 Moreover, the trial judge had to weigh Tratzinski's 

testimony that he remembered nothing after the struggle against 

the evidence that indicates Tratzinski attempted to conceal his 

participation in the killing by hiding Johnson's body in another 

location. In addition, proof that cocaine was found on the 

couch on the patio and inside a bloody towel in the attic was 

evidence from which the trial judge could conclude that other 

circumstances existed beyond Tratzinski's explanation. The 

weapon also was not evidenced to support Tratzinski's claim. In 

short, the trial judge had "the right to reject that part of the 

evidence believed . . . to be untrue and to accept that found 

. . . to be true." Belton v. Commonwealth, 200 Va. 5, 9, 104 

S.E.2d 1, 4 (1958). Because the trial judge was not required to 

accept Tratzinski's version of the killing, we hold that the 

evidence did not raise a reasonable doubt about the existence of 

malice. 

 "The authorities are replete with definitions of malice, 

but a common theme running through them is a requirement that a 

- 9 -
wrongful act be done 'wilfully or purposefully.'" Essex v. 

Commonwealth, 228 Va. 273, 280, 322 S.E.2d 216, 220 (1984) 

(citation omitted). Tratzinski admitted to the police that he 

beat Johnson. The evidence proved his assault on Johnson was 

vicious and brutal. Although he said Johnson attempted to 

assault him, no evidence beyond Tratzinski's testimony supports 

his version of the events. In view of all the circumstances, 

the trial judge could find beyond a reasonable doubt that the 

killing was malicious. "Malice excludes passion." Belton, 200 

Va. at 10, 104 S.E.2d at 5. Thus, the evidence was sufficient 

to sustain a finding beyond a reasonable doubt of second degree 

murder. 

 III. 

 Tratzinski contends the evidence proved he acted in 

self-defense. We agree with the Commonwealth that the record 

does not contain adequate evidence of self-defense to raise a 

reasonable doubt about his guilt. 

 "Self-defense is an affirmative defense which the accused 

must prove by introducing sufficient evidence to raise a 

reasonable doubt about his guilt. Whether an accused proves 

circumstances sufficient to create a reasonable doubt that he 

acted in self-defense is a question of fact." Smith v. 

Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993) 

(citations omitted). 

- 10 -
 Tratzinski's testimony alone supports his self-defense 

argument. The trial judge disbelieved his testimony and could 

conclude that other evidence did not suggest Johnson actually 

attacked him. Thus, absent any credible evidence that created a 

reasonable doubt, the evidence was sufficient to support the 

conviction of second degree murder. 

 Accordingly, we affirm the conviction. 

 Affirmed. 

- 11 -