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Present: Judges Frank, McClanahan and Senior Judge Coleman

Argued at Richmond, Virginia

Record No. 0555-02-2






NOVEMBER 4, 2003


William L. Wellons, Judge

Sandra M. Saseen, Senior Assistant Public Defender, for

Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore,

Attorney General, on brief), for appellee.

James Edward Knight, II (appellant), was convicted by a jury of
capital murder, in

violation of Code ? 18.2-31(12).[1]
On appeal, he contends the evidence was insufficient as a

matter of law to prove premeditation. For the reasons stated, we
affirm his conviction.


On July 31, 2000, when Cheyenne Knight was born to appellant and
Alana Jackson, she

suffered from gastrochisis, a condition where "the
intestinal content are [sic] outside the

abdomen." Surgery corrected the condition. On September 7,
2000, at her first visit to the

doctor’s office after leaving the hospital, Cheyenne weighed
six pounds and two ounces and was


On September 10, 2000, at approximately 4:04 a.m., paramedics
responded to an

emergency call at appellant’s mother’s house. Cheyenne was
"basically flaccid and lifeless."

Thomas Hoover, a paramedic, noticed "a deformity to the
child’s head," which "appeared to be

swollen." Hoover asked whether she had fallen. Appellant
responded, "[T]he child was in the

bed." Cheyenne was transported to Southside Community
Hospital, accompanied by appellant

and the paramedics. Several witnesses testified appellant was
crying, "very upset, very

panicked" on the morning the paramedics arrived.

A triage nurse at Southside asked appellant, "Did the baby
suffer any kind of fall or

anything like that?" Appellant responded in the negative.
The nurse confirmed the baby’s head

was "[v]ery misshapen on the right side."

An emergency room physician, Janette Mamuric, interviewed
appellant at the hospital,

asking whether the child suffered any trauma. Again, appellant
replied in the negative. A CAT

scan revealed skull fractures. Dr. Mamuric testified that, had
she been told the child suffered a

traumatic injury, a proper diagnosis and treatment would have
been expedited.

Cheyenne ultimately was transported to MCV hospital in Richmond.
Dr. Samuel T.

Bartle examined Cheyenne and opined that she had "some type
of blunt force" injury to the skull.

He described her condition as a "very significant close
head injury," involving several skull

fractures and bleeding in or around the brain. He noted,
"Injuries like this you would see in a

child who has been in a car, in a car [c]rash, that was ejected
and was thrown so many feet after

traveling 55 miles per hour." Dr. Bartle further explained
that such trauma injuries have a

"golden hour," referring to the need to have the
victim transported immediately following the

injury to a trauma center. After this "golden hour,"
"the percentage of survival drops off." He

also explained that, since an infant’s skull is "much
more plastic," "more force is required to

fracture an infant’s skull than it does [sic] to [fracture] an
adult skull."

Dr. William T. Gromley, a forensic pathologist, performed the
autopsy. He testified the

injuries to the child’s head were "primarily in this
frontal portion of the head and on the right

side." The cause of death was "blunt force injuries to
the brain." The pathologist could not

opine whether more than one blow caused the injuries.

On the evening of September 10, 2000, appellant and his mother
arrived at the Lunenburg

County Sheriff’s Office. Jeff Paul, a deputy sheriff who knew
nothing about the death of

Cheyenne, interviewed appellant. Paul read appellant his rights
under Miranda v. Arizona, 384

U.S. 436 (1966). Appellant then explained that he was taking
care of Cheyenne and that she

began to cry. He went into her room and decided to stay with his
daughter and watch television.

As he reached over Cheyenne to get some VHS tapes, the tapes
dropped, and one tape hit her on

the head. When appellant picked her up, he noticed "the
side of her head was swollen," and her

breathing was difficult. He took the child to his mother’s
bedroom, and she called the rescue


Appellant told Deputy Paul that, when the medical personnel at
the hospital asked what

had happened, he replied he did not know rather than telling
them about the tapes. He explained,

"I did not want anyone thinking bad of me," adding,
"the last thing I needed was someone

coming in and making me seem like a bad father."

Deputy Paul and Sheriff Wesley D. Adams later interviewed
appellant at his mother’s

home. The interview was videotaped in the room where the
incident occurred. Appellant

repeated his story that Cheyenne was injured when some
videotapes accidentally fell on her.

After they turned off the video recorder, Sheriff Adams told
appellant he did not believe falling

videotapes "could have killed that child." The sheriff
asked appellant if he wanted to "tell us

what really happened." Appellant said he would. Everyone
returned to the same room in the

house and continued video recording the interview.

This time, appellant explained to the officers that he had been
asleep and awoke to hear

the infant’s crying. He tried to feed her, but she would not
eat. She kept crying. He explained,

"I was not angry with her, but before I knew it, I had
struck her in the back of the head with my

right fist." Appellant weighed approximately 200 pounds at
the time.

After he was taken to the magistrate and charged, appellant gave
a signed, written

statement to the officers confirming the videotaped statement.

After gathering some information from the medical examiner,
Deputy Paul interviewed

appellant again, this time while appellant was in jail.
Appellant "seemed to be in good spirits

and was happy to see" the deputy. During this interview,
appellant was calm and did not cry.

In his statement at the jail, appellant said he had fed
Cheyenne, but afterwards she started

crying. He tried to feed her again, "but she wouldn’t take
the bottle." He then "squeezed her

stomach and she passed gas." He began feeding the child
again, but she stopped drinking and

started to cry. He then "choked her until her face started
turning blue, and [he] then stopped

choking her and laid her on the bed." When the child
continued to cry, he "struck her on the side

of her head," hitting her "hard enough to push her
into the wall." Because the child then started

to get quiet, he placed her on her stomach and put a pillow on
top of her.

Appellant then left the room and fell asleep while watching
television. However, he was

awakened by Cheyenne’s crying and returned to the infant’s
bedroom. At that point:

She was still crying, so I walked over to the bed and hit her

through the pillow. I hit her harder this time and there was a


Appellant again explained why he did not tell the medical
personnel or the police what

occurred. "I didn’t tell anyone what happened because I
didn’t want social services to take my

daughter from me." Appellant told Deputy Paul,
"[D]uring the process of harming his daughter,

he was never angry."

At trial, appellant gave yet another version of the incident. He
claimed Cheyenne was

crying around 3:20 a.m. and woke him. He entered her room
without turning on the lights, and

he tripped over a baby bottle. While falling, he grabbed a shelf
that acted as a headboard above

the bed. He testified, "My weight yanked off the headboard
and — and it caused the headboard

to fall onto the bed, hitting Cheyenne on the head."
Appellant claimed he "panicked" when he

saw the shelf on the bed after they called the rescue squad. He
then re-nailed the shelf to the

wall. He claimed his mother never had a chance to see the shelf
off the wall.

Appellant admitted he did not tell anyone about the shelf. He
explained his statements to

the officers "got worse" because he "did not
care" after the death of his daughter. He claimed he

told Deputy Paul that he hit Cheyenne with such force that he
heard a "pop" because that story

was what the deputy wanted to hear.

At the conclusion of all the evidence, appellant moved to strike
the evidence, arguing the

evidence was insufficient to prove premeditation. The trial
court denied that motion.


On appeal, appellant contends, as a matter of law, the evidence
did not support a finding

of premeditation. We disagree.

When reviewing sufficiency arguments on appeal, we review the
evidence and the

inferences fairly deducible from that evidence in the light most
favorable to the Commonwealth.

Snow v. Commonwealth, 33 Va. App. 766, 774, 537 S.E.2d 6, 10
(2000). We will not disturb the

fact finder’s verdict unless that decision was plainly wrong or
without evidence to support it.

Ashby v. Commonwealth, 33 Va. App. 540, 548, 535 S.E.2d 182,
186-87 (2000). In determining

whether the verdict was plainly wrong or not supported by the
evidence, we examine both the

direct and circumstantial evidence in the record. Rhodes v.
Commonwealth, 238 Va. 480, 486,

384 S.E.2d 95, 98 (1989); see also Hagy v. Commonwealth, 35 Va.
App. 152, 159, 543 S.E.2d

614, 617 (2001) (finding circumstantial evidence is sufficient
to support a verdict if it excludes

every reasonable hypothesis of innocence that flows from the

An essential element of a first-degree murder conviction is
premeditation, i.e., the

development in the mind of the murderer of the specific intent
to kill prior to the act itself. Code

? 18.2-32 (defining first-degree murder); Betancourt v.
Commonwealth, 26 Va. App. 363,

372-73, 494 S.E.2d 873, 877 (1998) (defining premeditation).
This specific intent "may be

formed only a moment before the fatal act is committed provided
the accused had time to think

and did intend to kill." Giarratano v. Commonwealth, 220
Va. 1064, 1074, 266 S.E.2d 94, 100


Appellant contends Rhodes v. Commonwealth, 238 Va. 480, 384
S.E.2d 95 (1989),

requires that we reverse his conviction. We disagree.

Rhodes was tried for the premeditated murder of her infant
daughter, who had a healing

fracture of the left leg, new and old bruises, and skull
fractures. Id. at 482, 384 S.E.2d at 96.

The doctor also found "’retinal hemorrhages . . .
diagnostic of severe shaking and trauma to the

head.’" Id. The cause of death was "brain damage
resulting from skull injuries," inflicted by

"’blunt impact.’" Id. at 483, 384 S.E.2d at 97.

Rhodes never made any inculpatory statements. Id. Instead, she
said she found the child

choking and attempted mouth-to-mouth resuscitation. Id. at 484,
384 S.E.2d at 97. When that

failed, she claimed she slapped the child on the leg and then
shook her. Id. Rhodes then called

the rescue squad. Id. She told a social worker a different
version: that she went to prepare a

bottle, heard a "’thump,’" and returned to find the
baby lying on the floor. Id. A doctor testified a

fall from the couch was not consistent with the baby’s
injuries. Id. at 484-85, 384 S.E.2d at


In analyzing premeditation, the Rhodes Court cited Epperly v.
Commonwealth, 224 Va.

214, 294 S.E.2d 882 (1982):

In Epperly, [id. at 232, 294 S.E.2d at 892-93,] the jury heard

evidence to show the nature and extent of the injuries inflicted

upon the deceased; the physical disparity between the accused

his victim; the defendant’s concealment of the fruit of his

and other efforts to avoid detection; the defendant’s lack of

remorse; and the defendant’s motive to silence the only

who might convict him of the sexual crime he had committed. We

held that this combination of factors was sufficient "to
support the

jury’s finding that the killing . . . was not only malicious,
but also

willful, deliberate, and premeditated." Id.

In its opinion affirming the judgment of the trial court, the
Court of

Appeals invoked the rule applied in Epperly. We think the Court

of Appeals erred; Epperly is clearly distinguishable. True, the

accused in this case was an adult and the victim an infant, and

deceased suffered grievous injuries caused by a number of blows

struck on several occasions. With respect to all other

circumstantial factors detailed in Epperly, however, this case

significantly different. Unlike the defendant in Epperly, Mrs.

Rhodes was guilty of no effort to conceal evidence or avoid the

risk of detection and blame; to the contrary, she initiated a
call for

medical help for a child who had suffered respiratory problems

from birth. Nor was Mrs. Rhodes guilty of a lack of remorse;

rather, all who saw her — the paramedics and the doctors at

hospitals — described her as "crying,"
"distraught," "hysterical,"

and "fainting." And in Epperly, there was evidence
pointing to

motive, a factor which we said "is relevant and often most

persuasive upon the question of . . . intent." Id. at 232,
294 S.E.2d

at 892-93. We find no evidence of motive here.

We do not mean to suggest that each and every factor mentioned

Epperly is essential to the application of the rule applied
there. As

our decision in that case illustrates we will affirm a
conviction of

premeditated murder, even though based upon wholly

circumstantial evidence, whenever we can say that the reasonable

import of such evidence, considered as a whole, is sufficient to

show beyond a reasonable doubt that the accused was the criminal

agent and that he acted with a premeditated intent to kill.

238 Va. at 486-87, 384 S.E.2d at 98-99. Thus, we apply the
Epperly factors in analyzing the

sufficiency of the evidence to prove premeditation.

One factor applied in Epperly was the brutality of the assault.
Epperly, 224 Va. at 232,

294 S.E.2d at 892. Here, the jury heard considerable evidence as
to Cheyenne’s skull fractures,

caused by "blunt force trauma." The infant’s head was
"very misshapen on the right side." The

MCV pediatrician compared the severity of her injury to one
suffered by someone "thrown so

many feet after travelling 55 miles per hour." The infant’s
skull, more pliable than an adult’s,

required significant force to fracture. Knight admitted he
struck Cheyenne several times that

morning, at different intervals, eventually hitting her with
enough force that he heard her skull

"pop." The jury had sufficient evidence to find the
killing was brutal.

Another Epperly factor is "the physical disparity between
the accused and his victim."

Rhodes, 238 Va. at 486, 384 S.E.2d at 98. Appellant was an
adult, weighing over 200 pounds.

The victim was a helpless six-week-old child, weighing six
pounds, two ounces.

Epperly also considered attempts to conceal the crime as
relevant to determinations of

premeditation. Id. at 487, 384 S.E.2d at 99. In this case, while
appellant did not conceal the

infant’s body,[2]
he clearly concealed the cause of the child’s injuries, not only from the
police, but

also from emergency and medical personnel.[3]
Further, appellant gave no less than five different

accounts of how the baby was injured. Clearly, appellant
attempted to conceal his role in

Cheyenne’s death.

Appellant argues his remorse, as evidenced by his tears and
emotional behavior at the

hospital and during the videotaped statement, militates against
the premeditation factors in

Epperly. Various witnesses did, in fact, characterize
appellant’s demeanor at the emergency

room as "upset." A paramedic testified appellant was
"emotional" and teary. Appellant and his

mother both testified that he was distraught, crying,
"nervous and shaking" after the incident. At

times, he was emotional during the videotaped interview.

Yet, the sheriff’s personnel gave a different version of
appellant’s emotional state. When

Deputy Paul re-interviewed him at the regional jail the day
after his daughter died, appellant

"seemed to be in good spirits and was happy to see [the
officer]." His demeanor was

characterized as "calm." He did not cry. "He was
just a normal, everyday person . . . ."

The jury also had an opportunity to evaluate appellant’s
emotional state at the time of his

daughter’s death. They saw the videotaped statement taken in his
home after Cheyenne died.

While appellant exhibited some emotion during this interview, he
also appeared concerned about

how other people would view his actions. The jury could
determine from this evidence that his

emotions were the result of concern for his own predicament and
not regret over his actions. The

evidence supports a conclusion that appellant’s only concern was
for himself and not remorse for

killing his daughter.

Given his testimony, the fact finder could conclude appellant
was more concerned about

other people’s impression of him than he was about getting
appropriate treatment for his

daughter. In explaining his failure to tell the medical
personnel how the traumatic injury

occurred, appellant said, "I did not want anyone thinking
bad of me." "[T]he last thing I needed

was someone coming in and making me seem like a bad
father." Thus, at a time when specific

knowledge of the circumstances leading to the injury possibly
could have saved Cheyenne,

appellant chose not to advise the medical personnel of the true
nature of his child’s injury, but,

instead, chose to protect himself by refusing to explain how the
injury occurred.

The Supreme Court of Virginia noted in Epperly, "While
motive is not an essential

element of the crime, it is relevant and often most persuasive
upon the question of the actor’s

intent." 224 Va. at 232, 294 S.E.2d at 892-93. Motive was
not developed in the instant case.

The Supreme Court, however, noted in Rhodes that it did
"not mean to suggest that each and

every factor mentioned in Epperly is essential to the
application of the rule applied there." 238

Va. at 487, 384 S.E.2d 99.

Further, Rhodes is distinguishable on its facts from this case.
Rhodes gave no

inculpatory statements admitting that she deliberately inflicted
severe injury to her child,

although evidence of child abuse was included in the record.
Additionally, her remorse was


Here, appellant admitted inflicting a series of brutal assaults
upon the infant and also

indicated he was not angry with the child. He told the police
that he "choked her until her face

started turning blue" because she would not stop crying. He
then hit her on the side of the head

"hard enough to push her into the wall." Appellant
then left the room, fell asleep, and was

awakened by the child’s crying. When he returned to Cheyenne’s
room, he "hit her harder this

time and there was a loud pop."

Throughout these series of assaults, appellant said he was never
angry. Although he was

concerned people would consider him a bad father, he did not
express regret over the loss of his

daughter’s life when he made his statements to the police. He
admitted he did not put his

daughter’s interests first when the doctors needed information
from him. While some evidence

indicates he was emotional, at times, at the hospital and during
the videotaped interview, other

evidence suggests appellant was not remorseful about the injury
to his daughter. The jury, after

hearing appellant’s testimony, was entitled to discount his
explanation of his emotional state.

See Zook v. Commonwealth, 31 Va. App. 560, 571, 525 S.E.2d 32,
37 (2000) (noting juries can

reject testimony they determine is not credible).

The jury was properly instructed on premeditation. From the
evidence, they could

conclude appellant’s attack was premeditated, based on the
brutality of the attack, the disparity in

size, his efforts to conceal his guilt, including his
conflicting explanations of the incident, see

Dowden v. Commonwealth, 260 Va. 459, 469-70, 536 S.E.2d 437, 442
(2000) (finding a jury

can infer guilt when they believe a defendant has lied), the
period of time between the two

blows, his lack of remorse, and his admission that he inflicted
severe blows to the child’s head.


We find the evidence was sufficient to support the jury’s
finding of capital murder.




[1]While the jury
imposed the death penalty, the trial court sentenced appellant to life

imprisonment without parole, in accordance with Code ?


appellant did not call the ambulance, he did take the child to his mother for

her assistance.


failure to advise medical personnel of the cause of her condition delayed

any potentially effective treatment for Cheyenne. Her chances of
survival were significantly

compromised by appellant’s deception.