II. STATEMENT OF FACTS

On June 5th, 2010, the Petitioner met Larry Michael Worrell for the very first time at the pool in the apartment complex where the Petitioner and Worrell both resided. A short time later Worrell and the Petitioner left the pool and went to Worrell’s apartment and began drinking. Later, Worrell and the Petitioner drove to Hardee’s and picked up Velvie Proffitt, who was the Petitioner’s girlfriend at the time, whom also met Worrell for the first time that day.

It is noteworthy to point out that the facts are in dispute as to exactly what time the Petitioner and Worrell returned along with Proffitt to the pool that day. Nonetheless, both the Petitioner and Proffitt did in fact encounter Avery Kregger, Tammy Kregger, and Kristen Snow while at the pool. Again, there is a genuine dispute as to what exactly transpired during these encounters.

Throughout the day Worrell drank heavily and exhibited erratic behavior. His behavior culminated during a discussion when he became agitated and claimed that he suffered from Post Traumatic Stress Disorder from witnessing his buddies “being blown up in a helicopter crash.” Following that Worrell became so distraught that he placed the Petitioner in a “military-style” chokehold to the point that the Petitioner nearly lost consciousness, which occurred inside his apartment.

It was at this point that Proffitt intervened, enabling the Petitioner to escape from Worrell’s grasp where the Petitioner then fled to his kitchen. After being pursued by Worrell the Petitioner armed himself with a steak knife and stabbed him in the chest ONE TIME. However, after the fact the Petitioner did attempt to render first aid. The only eyewitness to these events was Proffitt, who eventually testified for the defense (Ex. 5 & 6).

Following that Proffitt instructed the Petitioner to leave the premises and go to the residence of Tony & Malissa Hartwell as Proffitt called 911. Proffitt in turn proceeded to take it upon herself to fabricate a story to the dispatcher that Worrell had attempted suicide. It was when the Petitioner was leaving that he inadvertently struck Brett Bowles’ vehicle in the parking lot of the apartment complex. Later that same evening the Petitioner was arrested at the Hartwell’s residence without incident. Further, both Mr. & Mrs. Hartwell were witnesses for the Commonwealth.

Initially the Petitioner was charged with malicious wounding under Virginia Code § 18.2-51. However, in October 2010 that charge was nolle prosequi in favor of aggravated malicious wounding, Virginia Code § 18.2-51.2, respectively, when Worrell’s condition worsened to the point that he suffered from irreversible physical impairment. Additionally, in December 2010 the Petitioner was also indicted for (2) two counts of assault & battery against Avery & Tammy Kregger, as well as for hit & run and reckless driving.

Unfortunately, 224 days after the stabbing Worrell passed away from complications from the initial wounding. As a result the Petitioner faced an additional indictment in April 2011 for second-degree murder along with the aggravated malicious wounding indictment. Further, the Petitioner was also indicted then for an additional assault & battery against Kristen Snow.

Ultimately the Petitioner was tried by a jury in Roanoke County Circuit Court in a single trial setting that included both the misdemeanor and felony indictments, and further stipulated that the offense conduct of all the indictments occurred on June 5th, 2010. The Petitioner had pled not guilty to the aggravated malicious wounding, second-degree murder, and (3) three assault & battery indictments, and guilty to the hit & run and reckless driving indictments.

Subsequently the jury found the Petitioner guilty on all the indictments that he pled not guilty to. As a result the judge imposed the sentence recommended by the jury of 25 years for the aggravated malicious wounding conviction, 15 years for the second-degree murder conviction, and (4) four months each for the assault & battery convictions. As a result the Petitioner submitted an appeal.

Additionally, the judge imposed a sentence of 30 days each for the hit & run and reckless driving convictions.

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David Bomber #1130793
Nottoway Correctional Center
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