*1 Virginia Commonwealth Paul Michael Jr.
Record No. 990764 14, 2000 January Hassell, Koontz, Kinser, JJ., Carrico, C.J., Present: Compton, Lacy, Justice Senior Stephenson, *2 Smith, L. (Mark Earley, General Attorney B. Assistant Richard General, briefs), on for appellant. Attorney Millner, H. Victor Jr. for appellee. delivered the JUSTICE STEPHENSON opinion
SENIOR Court. is whether Court issue in this dispositive appeal refusing grant court erred in erred in trial holding
Appeals *3 accessory-after-the-fact jury I Dalton, Jr., a the Circuit Court tried in by jury Paul Michael was the murder of an indictment Pittsylvania charging County upon first-degree found Dalton Clark Adkins. The jury Aubrey The trial fixed his at years’ imprisonment. murder and punishment .20 with the verdict. entered in accordance judgment court trial, had not been with although charged At Dalton murder, to he accessory-after- after the fact instruction, was that instruction asserting supported the-fact instruction, to con- The trial court refused grant the evidence. by a was not after fact cluding of the crime of murder. lesser-included offense and reversed Dalton’s conviction A of the Court of Appeals panel Commonwealth, 27 Va. a new trial. Dalton v. case for remanded 381, the Court granted Subsequently, 499 S.E.2d App. banc. rehearing rehearing, for en Upon Commonwealth’s petition and remanded reversed the again judgment the Court of Appeals Commonwealth, 29 Va. Dalton v. App. case for further proceedings. that a defen- 316, (en banc). The Court held (1999) 512 S.E.2d dant, the crime of has not been who to an accessory-after- the fact to a has right if the-fact instruction it is Id. at 327- by evidence. supported We 147. awarded the Commonwealth this appeal.
II 17, 1995, On December Adkins’ found Aubrey in body in shallow a wooded area grave two-tenths of mile approximately from nearest State road. had Adkins been killed aby gunshot wound to his right chest. He also had been upper shot in his left side above the belt” after “just his heart had stopped beating.
Ronald Cassady, Matthew and Cassady, Cook testified Jimmy that Dalton confessed to killed having Adkins the week during December 1995. Ronald testified that told him Cassady Dalton that, road, “when come down the in laying [Adkins] [he] road and when jumped shot up stopped [Adkins] [he] [Adkins].”
Matthew Cassady testified that Dalton told him “he . . . met on his grandma’s road” and that “somehow he got [Adkins] car or and he something shot Matthew also testified that [Adkins].” Dalton said he killed Adkins “because his sister.” raped [Adkins] that, Cook testified after Dalton
Jimmy drafted a note confessing murder, to the Dalton his reasons for the explained note. According Cook, to Dalton “said he wanted to write a note . . . because he said himself, he it all by done and he didn’t want to his sister or get [his sister’s . . . boyfriend] blamed for do.” something they didn’t
A note written and signed Dalton was into introduced evi- note, dence. In the he stated that “did fact kill [Adkins] . . . and did not boyfriend] inthing have [his sister] [her [sic] do with it.” trial,
At Dalton denied shooting Adkins. Dalton testified on December he and his sister’s were boyfriend sitting watching woods his sister from Adkins. attempt buy marijuana car, after his sister exited Adkins’ According saw his sister’s boyfriend Adkins and approach shoot him twice. Dalton *4 stated that boyfriend “shot one time through passen- [Adkins] door, reloaded, . side . . . . ger . walked around and . . . opened door[,] driver’s side and shot again.” [Adkins] that, Dalton further testified he shooting, boy- helped friend Adkins’ in the trunk of Adkins’ car and place body accompa- nied the as he Adkins’ boyfriend drove car to remote location in Dalton woods. stated at some his sister’s point, boyfriend took it money some from Adkins’ and divided marijuana body himself, Dalton, later,” and Dalton’s sister. “A among days couple
253 from the trunk body Adkins’ carry boyfriend helped buried it. the boyfriend woods where the car a location because he “didn’t want wrote his note Dalton said he confession to go jail.” [his sister] of the United Due Process Clauses of the Constitution accused be mandate Virginia States and the Constitution of Const, U.S. him. charges against notification of
given proper Const, XIV; 1, art. 19.2-220 provides, per Va. 8. Code § amend. be “a and definite that an indictment shall concise plain, tinent part, accused, statement, (2) the offense (1) describing written naming or town in which the (3) county, city identifying charged, (4) that the accused reciting accused committed the indictment, to on or a certain date.” An committed the offense about sufficient, be must of the nature and character accused notice give can make his Satcher the Commonwealth, offense so the accused defense. charged 220, 231, 821, (1992), v. Va. 421 244 S.E.2d 828 denied, (1993). 507 cert. U.S. 933 established, therefore,
It that an cannot be firmly is accused a crime that not been unless the crime is a charged, convicted of has Thus, of the crime neither Com charged. lesser-included offense nor an accused entitled to a instruction on monwealth is unless the offense is a lesser-included offense of charged, offense charged offense.
An offense is not a lesser-included offense of
all
offense unless
its elements are included in the offense charged.
if it
Stated
a lesser-included offense
differently,
offense
contains an element that
offense does
contain. Jones
660,
Commonwealth,
757, 759,
658,
v.
Va.
240
cert.
218
S.E.2d
denied,
(1978).
There are three elements Second, First, after the fact to must be felony. complete. Third, must the accused the accused know that felon guilty. receive, relieve, comfort, It or assist felon. is essential must felon, notice, accused, has time assists or comforts the v. Manley that the felon committed the crime. direct implied, Commonwealth, (1981); 222 Va. Wren (26 Gratt.) Va. While accused of convicting that the assistance to person fact accused requires proof provided *5 the of a knowledge guilty no person completed felony, Thus, such to convict an accused of proof required murder. crime of an the fact accessory after contains an being element that murder, case, the crime of offense charged does not present Therefore, contain. an the crime of being accessory after fact is not a lesser-included offense crime of murder.
The Court of
and the
Appeals acknowledged,
agree, that
parties
an
after the
being
accessory
fact is not
lesser-included
offense murder.
29 Va.
Code 19.2-286 provides § following: anOn indictment for felony the find jury may the accused but commit guilty felony of an guilty attempt thereto; such or of an felony, being accessory and a general indictment, verdict of not such be bar guilty, shall upon for subsequent prosecution an to commit attempt felony, such or of thereto.
Code 19.2-286 was Code formerly 19.1-254. Former Code § § 19.1-254, it as existed to its prior repeal § provided for indictment felony find accused not may “[o]n of the but guilty guilty commit such attempt felony, or added.) In (Emphasis fact.” after 19.1, when Title 19.2 of the Code Title replaced statute was changed by the term substituting thereto” for the term “accessory “accessory the fact.” modifier, fact,”
In “after the deleting General Assembly indicated its intention to eliminate accessories after fact from the of Code By 19.2-286. the statute’s application limiting application fact, to accessories before the conflict any between the statute and the notification of due requirements avoided. process 3A:17(c)
Rule reads as follows: The accused may be found offense guilty but of or of an to commit guilty any attempt offense, that is necessarily included substantially charged When the charge against accused. offense thereof, guilty but be the accused found
felony, may fact to that felony. being an accessory if 17(c) to even 3A: mean last sentence of Rule We interpret be found guilty of a felony, may the accused is acquitted fact. crime of misdemeanor separate, *6 an the crime of being that reiterates merely proposition The rule does felony an element that the after the fact contains accessory Therefore, an and acquit- it not a contain. lesser-included a trial on the misdemeanor. does tal preclude of IV Therefore, a defendant can be tried we hold before fact, he be charged must of being accessory convicted made, neither charge that such a is specifically with offense. Unless to accessory-after- an accused is entitled the Commonwealth nor the-fact case, an acces- with
In the Dalton was present Therefore, the court correctly fact murder. trial to sory instruction, and the Court to grant accessory-after-the-fact refused trial court’s Accordingly, of erred in reversing judgment. Appeals Court and remand we reverse the judgment Appeals will it case directions for to remand the to the Court case Appeals of its to trial court for reinstatement judgment. remanded.
Reversed and KOONTZ, dissenting. LACY joins, with whom JUSTICE JUSTICE in court erred dissent. The whether trial I issue respectfully this jury to after-the-fact instruction accessory refusing grant circum- context of the undisputed in the analyzed case properly trial Paul Michael arose at murder stances in which issue here, by majority the conclusion reached Contrary Jr. view, by reached dictate the conclusion those circumstances my court erred. the Court of that trial Appeals him with an indictment charging tried aby jury Dalton was upon trial, Dalton During Clark Adkins. Aubrey the murder he that if established by jury evidence which believed presented but, rather, of the murder that was not guilty the fact to the murder. 256 after-the-fact instruction and trial court it,
refused to grant the crime of reasoning after-the-fact is not a lesser-included offense the crime of murder. the trial did Significantly, court not determine that the requested instruction was credible evidence. Under those cir- unsupported cumstances, Dalton denied a instruction on his theory case, which was credible “It supported by evidence. is immaterial could have reached conclusions. If contrary proffered evidence, instruction finds any credible its refusal is support Commonwealth, 654, 657, reversible error.” McClung v. 215 Va. (1975); S.E.2d Frye see also 231 Va. 370, 388,
Nevertheless, the a different to reach majority employs analysis First, the legal conclusion that the instruction was refused. properly based well established of constitutional upon principles and statutory law, indictment, “[ajn sufficient, notes that be majority must an accused give notice of the nature and character of the offense charged” that “an cannot be accused convicted of a crime that has not been charged, unless the crime is a lesser-included offense of rationale, the crime charged.” this then concludes Upon majority that “neither the Commonwealth nor accused is entitled a jury *7 instruction on an offense not unless offense is a lesser- charged, included offense of the offense.” I that agree the Common- may wealth not effectively ambush accused with an instruction that would an for effectively convict accused a permit jury However, crime not in the indictment. separate here Dalton thus, and, the instruction his due were not requested process rights Rather, instruction, without the implicated. was requested to run a virtual in gauntlet which the would not required weigh jury the evidence that of his an after the supported guilt being accessory fact in with evidence that mur- conjunction his of supported guilt in der Dalton’s criminal fixing Under such circum- responsibility. stances, the search for the truth was jury’s materially hampered that inconsistent with to fair Dalton’s trial. right
Next, the concludes that “the crime of an majority being acces- after the fact is not a lesser-included offense of the crime of sory murder” and that 17(c) neither Code 19.2-286 nor Rule 3A: pro- § vides for the that authority agree instruction. While I requested after the fact is a crime and not a accessory lesser-included separate murder, agree offense of crime of I do not with the majority’s 17(c). of Code 19.2-286 and Rule 3A: I dis- analysis Specifically, § analysis majority the legislative history employed agree indicated its intention Assembly that to conclude General “[t]he of from Code the fact the application accessories after eliminate sentence of conclusion that the last and the majority’s 19.2-286” § an the crime being that reiterates “merely proposition rule does felony after the fact an element that contains accessory contain.” that: in language provides
Code 19.2-286 plain § an indictment find accused felony jury may On for to commit but an guilty felony guilty attempt thereto; and a accessory general or of an felony, such being indictment, be a bar to of not such shall guilty, verdict upon such fel- for to commit prosecution subsequent attempt or of thereto. ony, added.) (Emphasis view, accused,
In Code entitles my statutorily 19.2-286 § on to have the instructed the ele- unlike of the offense of crime of ments separate And, murder where credible that instruction. as supports evidence stated, case such the circumstance in Dalton’s when previously such notes, as the Code Admittedly, formerly 19.2-286 majority § statute Code to a 1975 revision the former prior pro- 19.1-254 § that find the accused may vided indictment for “[o]n to commit such fel- felony but guilty attempt added). The ony, (Emphasis fact.” wording “accessory states that from change majority deter- “accessory represented legislative fact” to thereto” to eliminate from The mination accessories fact 19.2-286. however, legislative does not history change, support occurred as recodifica- change language conclusion. part Title tion. Title 19.1 was recodified as 19.2. A long-standing prin- noted, there statutory construction unless ciple specifically *8 in substantive is a a recodification does not result presumption Va. in the law. See 255 changes Waldrop (1998). accompanied by 825 This recodification was the General the Code and Commission Governor Report of of Title 19.1 the Code of Assembly Virginia, Virginia, Revision of of (1975). No. That included House Document 20 document special comments for those which sections effected substantive changes no such comments the reenacted The 19.2-286. accompanied § Report cross-referenced former 19.2-254 as the source of the recod- § 19.2-286,
ified which included § fact. thereto” contained the recodification phrase “accessory not, terms, its limited before by the fact. The only conclusion which this language, inclusive legislative history section, that recodifications do not make principle sub- stantive unless noted is that changes 19.1-286 includes supports § accessories before and the fact.
This is further interpretation by and his- supported language tory 17(c). of Rule 3A: rule This when specifically stating charged offense is the accused be found felony, may “guilty of accessory after the fact to that felony” has remained virtu- ally since unchanged 1971. Of course in language Rule, 3A:24, at that time Rule and the of former language 19.1-254 § 1980s, were entirely consistent. In early Judicial Council undertook a major review and revision Rules of Court. The revision was undertaken “ascertain conflicts between existing Rules and sections of the Code of Virginia.” Report Judicial Council to the General Assembly and Supreme Virginia, Court at While the recommended Report many areas or change deletion in the Rules by legislative required changes, only change here regarding issue was provision relevant redesignating rule from Rule 3A:24 17(c). to its current 3A: designation Rule A fair inference from this is that if the history recodification former 19.1-254 contained substantive change § suggested by here, the Rules majority revision committee would have suggested alteration of rule language which was in direct conflict with statute as interpreted No today. such majority suggestion made, in my because there no opinion, intent to change the substance of change 19.1-254 when it was recodified as 19.2- § 286. reasons,
For these I would affirm the of the Court judgment that the trial court erred in Appeals finding Dalton’s granting