*1 TURNER, Edwin Cecil Jr. Virginia. COMMONWEALTH Record No. 0986-94-3. Appeals Virginia,
Court of Salem.
1,Oct. 1996. Benton, J., opinion. dissented and filed *3 (Damico briefs), Roanoke, on Apgar Apgar, Jonathan M. & appellant. for (James Attorney Assistant General
Eugene Murphy, S. Gilmore, III, General, brief), appellee. on for Attorney BENTON, ANNUNZIATA,
Present: ELDER and JJ. ANNUNZIATA, Judge. City trial in the Court of the
Following Circuit Turner, Jr., Roanoke, was convicted of appellant, Edwin Cecil and the use of a firearm the commis- first murder recommendation, jury’s to the sion of murder. Pursuant years. imprisonment plus was sentenced to life two appellant contends the trial court erred appeal, appellant On voluntary manslaughter. agree, on We to instruct harmless; accordingly, affirm. find the error to be we but
I. Dale shot and killed William April appellant On shooting, days preceding Hartman. For at least four on-going in an conflict. engaged and Hartman were appellant of his property. Hartman had stolen some Appellant believed Hartman, fought. Appel- the two appellant When confronted Hartman admitted eventually Hartman, lant restrained and, thereafter, having property. escaped Hartman as to dispute kill The evidence is appellant. threatened to at that time. whether Hartman brandished a firearm warrants for each other. The two men then swore out arrest accused accused Hartman of Hartman Appellant burglary; learning After of Hartman’s appellant battery. of assault and Hartman had girl assault on a retarded and of the warrant him, stated to the that “he against appellant police sworn out a lot of everybody would kill the bastard and save [Hartman] “anyone advantage time and trouble” and that that would take girl ought of a son-of-a-bitch that to die.” retarded low Hartman vowed to kill him he did According appellant, drop charges. Appellant then swore out a warrant against intimidating Hartman for a witness. events, course of mental state
During appellant’s these Hartman in Appellant deteriorated. claimed he could “smell” home; his he took measures to barricade his windows and door, for Hartman in his home. Appellant front and searched Ferris, handgun, and his which girlfriend, Regina purchased grew increasingly in Ferris’ they placed Appellant vehicle. when he learned that Hartman had been released upset out. appellant to the warrants had sworn respect bond with left his mother’s house evening April appellant On the way, his pick up pizza. appellant in Ferris’ vehicle to On *4 around. apartment his to see Hartman was past drove pulled alongside in his car and Appellant sitting saw Hartman hand, his and According appellant, him. Hartman raised stated that he gun. Appellant believed he held a appellant Hartman in sped away pursuit. with Forensic Eventually, stopped the two at an intersection. shot at Hartman’s vehicle appellant evidence revealed adjacent The then into an proceeded the intersection. two followed him appellant, lot. Hartman parking According parking pulled alongside appellant’s into the lot and vehicle. An eyewitness appellant pursued Ap- testified that Hartman. raising stated that Hartman his hand toward him pellant kept weapon. but that he was not sure he ever saw Hartman fire a they As continued to shoot at Hartman. proceeded, appellant van, Hartman’s vehicle collided a and eventually parked with gunshot Hartman five appellant away. drove received wounds, two of which were lethal. No or shell weapons found in Hartman’s vehicle. casings were they appellant The court instructed the could find (1) (2) murder; degree guilty of first or second (3) murder; degree guilty.1 appel or- The court refused voluntary instruction on The proffered manslaughter. lant’s appellant guilty degree appeal, of first murder. On appellant supported contends that the evidence court erred in manslaughter conviction and that the affirm convictions for the proffered instruction. We reasons that follow.
II. accom- degree killing First murder is defined as malicious willful, deliberate, and act. plished by premeditated (1993 Virginia Jury Model Instructions—Criminal 34.200 does not Second murder repl. Supp.). ed. with act; willful, deliberate, it is de- require premeditated and Id. at 34.320. Voluntary simply killing. fined as a malicious committed killing defined as an intentional manslaughter passion upon provoca- in the sudden heat of reasonable while Gratt.) (22 34.500; Read v. Id. tion. 924, 937-38 as been committed speak having
“To of a homicide reason aforethought passion, upon sudden with malice solecism.” Belton Common- legal is a provocation able jury on self-defense and irresistible The court also instructed the 1. guilty verdict if the impulse, would have resulted in a not which accordingly. had found
275 (1958). wealth, 4 Malice and 200 Va. 104 S.E.2d 10, 104 at 5. passion E.g., cannot co-exist. id. at S.E.2d Likewise, a pursuance
if an unlawful homicide be committed the offence be no matter preconceived purpose, will great may immediately pre- how sudden provocation brought act. The have been provocation may ceded the or or he have availed sought by perpetrator; may about act, justification himself of it to color of or excuse to his purpose. done execution of his deliberate (22 Gratt.) Read, 63 Va. at 938.
The determination of is committed killing whether pursuit continuing upon provoca animus or reasonable tion accomplished maliciously or whether it was or in the heat 939; of passion jury question. is a See id. at Moxley (1953). Commonwealth, 151, 160, 394 S.E.2d Accordingly, a trial court must instruct the on the lesser- voluntary manslaughter included offense of the evidence of passion heat of amounts to “more provocation reasonable See, Commonwealth, than a scintilla.” Buchanan v. e.g., 389, 409, denied, Va. 384 S.E.2d cert. (1990).
1063, 110 880, 107 S.Ct. L.Ed.2d 963 trial, we Although prevailed Commonwealth must view the evidence with to the refused instruction respect light in the most Boone v. E.g., favorable the defendant. Commonwealth, 130, 131, 14 Va.App. 415 S.E.2d so, find that the evidence in this case Doing we supported voluntary manslaughter instruction and that the failure to instruct the on that offense was trial court’s error. It remains to determine whether that error was “ ‘if reviewing
harmless. An error is harmless court can conclude, function, finding without fact usurping jury’s that, occurred, had the error not the verdict would have been ” 350, 353, Va.App. the same.’ Davies v. (1992) Lavinder v. Common (quoting (1991) (en
wealth, 407 S.E.2d Va.App. banc)).
Thus,
to determine
reviewing
where the
court is able
*6
failing
to instruct
court’s error
verdict,
affected
that error is harmless. Morse v.
not have
Commonwealth,
145,
627, 638, 440 S.E.2d
152
Va.App.
17
it is
a
can be made where
evident
Such
determination
rejected
necessarily
the verdict
would
from
that the
have
on which it was not instructed.
the lesser-included offense
Commonwealth,
3,
564,
v.
592 n.
304
225 Va.
See LeVasseur
1063,
644,
denied,
cert.
104
659 n. 3
S.E.2d
(1984)
744,
capital
of
(jury’s
79
202
conviction
S.Ct.
L.Ed.2d
degree
to the
of first
murder was necessari
murder
exclusion
Bunnell,
murder);
degree
of
State v.
340
ly rejection
a
second
(1995)
of
(jury’s
conviction
first
N.C.
S.E.2d
of
murder
degree
murder to the exclusion
second
was
degree
rejection
voluntary manslaughter);
of
State v.
necessarily
Mendez,
(App.Div.
570-72
N.J.Super.
A.2d
1991)
murder
(jury’s
purposeful
knowing
conviction of
or
manslaughter
necessarily
the exclusion
aggravated
Arizona,
v.
manslaughter);
Schad
rejection
reckless
cf.
645-48,
2491, 2504-06,
By
where
rejected
necessarily
would have
the verdict whether
instructed, error in
not
on which was
lesser-included offense
not harmless.
that offense is
See
refusing to instruct on
(conviction
132-33,
As
and the dissent
is immaterial
appellant
“[i]t
jury might
rejected
the lesser-included offense”
supported by
where a lesser-included offense instruction
Barrett,
at 193
evidence is refused.
In convicting appellant
degree
of first
jury rejected the
degree
lesser-included offense of second
doing,
murder.
In so
jury
beyond a reasonable
appellant
only
doubt
that
acted not
maliciously, but also
willfully, deliberately,
premeditatedly.
and
Homicide commit
pursuant
preconceived plan
ted
to a
is not
man
voluntary
slaughter; premeditation
provocation
and reasonable
cannot
Read,
(22 Gratt.)
938;
co-exist.
63
see also
v.
Va.
Jenkins
445, 457-58,
360,
244
423 S.E.2d
368
Va.
denied,
(1992),
1036, 113
1862, 123
507
L.Ed.2d
cert.
U.S.
S.Ct.
(1993) (voluntary manslaughter
properly
483
instruction
re
clearly
killing premeditated).
fused where evidence
showed
by
jury
compels
The
reached
here
the conclusion
verdict
manslaughter
voluntary
it would never have reached a
Shoemaker,
Bunnell,
426;
v.
334
verdict.
455 S.E.2d
State
Freeman,
252,
(1993);
N.C.
second the factual basis which it have rendered a on the lesser- upon might verdict offense of manslaughter.3 included harmless, Accordingly, appellant’s court’s error was and convictions are affirmed.
Affirmed.
Covil,
375,
(1977); (3)
(2) Commonwealth
474 Pa.
841
State
v.
378 A.2d
Benavidez,
706,
(4)
(1980);
People
94
616 P.2d
and
v.
N.M.
419
Hansma,
138,
Mich.App.
84
279 BENTON, Judge, dissenting. trial refused an reviewing judge properly
When whether the accused, must view the evi by instruction the we proffered Martin v. in the most favorable to the accused. light dence Commonwealth, S.E.2d Va.App.
(1992). If more than a scintilla of evidence the record contains offense, instruction on a lesser included support proffered “failure to the instruction is reversible judge’s Commonwealth, 130, 132, error.” Boone v. Va.App. (1992). agree majority I with the that S.E.2d trial in judge refusing voluntary manslaughter erred struction. I that disagree majority’s finding with the error was harmless. my reasonably
In this Court cannot conclude opinion, upon verdict. See jury’s this record that the error did not affect the Commonwealth, v. Lavinder 1003, 1005, 12 Va.App. (1991) (en banc). rule, general S.E.2d “As a whether evidence, provocation, shown to engen credible sufficient juror brevis der the necessary presumption rebut malice arising from a homicide is a of fact.” question McClung Turner, light Viewed most favorable to
evidence provided support giving sufficient basis to and, thus, instructed, instruction so finding by jury, he was manslaughter.
The maliciously disputed. issue whether Turner acted police provided sup- Turner’s statement to the evidence that ported the hypothesis passion Turner acted out and not with intent. proved malicious The evidence that Turner Thus, the victim was a firearm at thought “pointing [him].” had more than sufficient from which evidence found, instructed, properly killing. a non-malicious the error in instruction deprived Because of the to find facts and those facts to opportunity apply law, this case is not one which “the other evidence of guilt insignificant by was so and the error so overwhelming comparison that the error could not have affected the verdict.” *9 Commonwealth, 454, 2, 418
Hooker v. 457 n. Va.App. (1992). facts, 343, jury n. 2 not find S.E.2d We do to instruction judge’s failing does. The trial error we that the merely is not rendered harmless because believe had it sufficient to its verdict. jury support before evidence fact, alone, standing does not disputed Other evidence of is error establish that an error harmless..... harmless [A] analysis sufficiency ... of the evidence simply [is not] analysis. 458, 418
Id. S.E.2d 345. Moreover, not a analysis error because harmless is immaterial that sufficiency analysis, of the evidence “[i]t it contrary [that could have reached conclusions [the] Commonwealth, McClung Va. reached].” (1975). trial, on the evidence at Based manslaugh- of voluntary could have found Turner ter. toto, either required accept,
The
is not
to
They
of an
or that
accused.
theory of the Commonwealth
by
reject
have
of the evidence believed
right
part
to be
accept
untrue and to
that found
them
them be
they
applying
discretion
doing,
true.
In so
have broad
any,
degree
guilt,
and in
of
fixing
the law to the facts
person
of a
with a crime.
charged
104 S.E.2d
Belton v.
Commonwealth, 225 Va.
The
in LeVasseur v.
decision
denied,
(1983),
cert.
Although supported finding the evidence could have homicide, non-malicious the trial instructed the judge A jury jury’s of homicide that involved malice. degrees decision to select from one of the malicious homi- culpability beyond cides on which it was instructed does not manifest jury reasonable doubt that the would not have found non- LeVasseur malicious the killing properly instructed. As observed, jury’s rejection theory Court of one of the case necessarily rejected does not indicate that it would have theory another of the case that supported by was evidence. Id. at 592 n. v. 3, 3. See also Potter 304 at n. S.E.2d 659 448, (1981); 283 451 292-93; Martin, McClung, 657, Va. S.E.2d at 528, Va.App. S.E.2d at 403-04.
In failing to instruct
that it
convict
of
could
Turner
grade
homicide
a lesser
than first or second
misdirected the
judge
jury by limiting
jury’s options to a
of a malicious
or a not
finding
killing
verdict.
“The central point
jury might
is that
have
decided to convict
of murder because the State
[Turner]
proved
intentionally
that
another
a reason
[he]
killed
without
defense—despite
proof
able belief that
acted in self
clear
[he]
provoked
that
was
to murderous
passion by
[Turner]
Lane,
(7th Cir.1990).
victim.” Falconer v.
1129, 1136
905 F.2d
Jersey
Cases from North
and
are
Carolina
New
no more
persuasive regarding
Virginia
the law in
than cases from other
jurisdictions
in
holding
the error
a similar
See,
e.g., United States ex rel.
struction was not harmless.
Cir.1974)
Johnson,
(3d
(en
v.
339,
Matthews
503 F.2d
denied,
cert.
banc),
It basic that a defendant entitled to have his proper case to the under instructions submitted it. cannot conclude that supports where the evidence We which is was harmless error not an instruction evidence____ Here, evi- supported by assuming there was choice of given was not provocation, dence voluntary manslaugh- that the defendant committed finding by defendant argue finding ter. To that a any possibility that precludes deliberate intention acted with they begs ques- sufficient provocation not given the choice. do simply tion. The We be where the non-prejudicial this to harmless consider jury. support evidence would such choice *11 omitted). (citations Benavidez, P.2d at two, why In it considers majority explains footnote the are jurisdictions the from other that unpersuasive decisions majority’s I find the majority’s to the contrary holding. majority’s The nub of the equally unpersuasive. discussion Third upon reliance the analysis misplaced with its begins Arizona, 624, 111 U.S. Circuit’s discussion of Schad majority to note 2491, 115 The fails S.Ct. L.Ed.2d Schad, only tried in where defendant was indicted and the rejected Court Supreme the degree capital for first trial and held that the argument the due process defendant’s jury on the offense err in to instruct the judge failing did not Schad, 647, 111 at 2505. Unlike of 501 U.S. at S.Ct. robbery. The did in Turner’s case. judge all that the trial err agree we error upon whether the in Turner’s case centers disagreement was harmless. re-
Moreover, to address the nothing purports in Schad on included homicide an a lesser quirement instruction an instruction offense, supports evidence sufficient when only and distinction between included offense the the lesser conflicting jury’s resolution the homicides involves In the defendant. the mens rea of to determine evidence Schad, for the offenses granted instructions judge trial murder and refused instruc- first-degree second-degree of theft and and distinct offenses separate tions on the Therefore, at at 2495-96. robbery. S.Ct. instructing process required Schad involved whether due offense, which on an was entirely different substantive case, in in the Unlike Turner’s which charged not indictment. homicide, degrees was not instructed on different Schad, on all of homicide degrees in was instructed at by at 2495-96. proved the evidence. 501 U.S. Indeed, that the issue raised suggests the Court Schad was not lesser robbery the defendant was not viable because Compare of the of murder. U.S. charge included offense 647-48, 661-62, 111 at with 501 U.S. at S.Ct. 2505-06 Thus, (White, J., dissenting). Court S.Ct. 2512-13 rejected contention of error the defendant’s not included of- robbery instruction because it was a lesser charge. fense of the homicide (3d Cir.1992), Ryan,
In Geschwendt v. 967 F.2d which Schad, guilty of first- discussed defendant However, of Geschwendt similarity murder. Finding Turner’s ends that “when instruc- appeal there. whole, are as a the trial court did instruct tions viewed by reason of [the defendant] could find not 883, the Third found that insanity,” id. at Circuit Schad, Thus, no like the Third Cir- judge committed error. to conduct harmless required cuit Geschwendt analysis. error *12 grant
Although judge the trial in Geschwendt refused guilty by found not instruction that he be defendant’s (1) granted judge the trial insanity, reason of 967 F.2d at allowing jury to convict the defendant an instruction from a murder if it that he suffered mental third-degree for him the intent first- rendering incapable forming defect (2) instructions on the granted other “detailed (3) defense,” an insanity instruction granted Geschwendt, Thus, in where manslaughter. Id. 880. charged homicide, indictment the trial judge instructed the degrees on all the of homicide. In an holding, alternative the Third Circuit reasoned that the jury insane, believed the defendant was it would have convicted him of third-degree murder first-degree instead of murder. Id. at 885-86. The court ruled that it could affirm the conviction on ground. this alternative In analyzing this alternative, the court discussed Schad because the defendant had raised a constitutional issue similar to the issue raised Schad, i.e., give whether the failure to the instruction violated process. However, due Id. the issue the defendant raised in Geschwendt, Schad, like did not involve a failure to an instruction on a lesser included offense. Id. at 885. Even though the instruction judge gave explaining third- degree murder and the instruction regarding he denied insanity defense of alternatively defined the defendant’s possi- state, obviously ble mental neither instruction was a lesser included offense of murder. Consequently, the alternative holding Geschwendt involves a different factual scenario than Turner’s case. however,
Most significantly, portions of the Geschwendt decision that discuss Schad and lesser in- included offense structions are dicta and are of dubious value because the Third Circuit lacked jurisdiction posed by over the issue defendant. The Third Circuit dispositively decided whether the trial erred in judge refusing the instruction was a matter that could not be reached under its corpus habeas jurisdiction “for, trial, if there was an error at all at his it was solely implicate one of state law” that did not either federal or constitutional law. Id. at 890. Third Simply put, the Circuit’s discussion of Schad is dicta because it ruled that it had no jurisdiction to decide the issue. Benavidez, rejecting majority
In also misreads States, import of Keeble v. United U.S.
Where one of elements doubt, offense, in of some plainly guilty but the defendant is in of conviction. likely is to resolve its doubts favor us, In intent to commit example, the case before for an bodily injury necessary serious is element of crime but not of the crime of petitioner charged, with which was simple petitioner’s nature of intent was assault. Since the trial, very rationally in at dispute much simple him of had been option convicted assault presented But with two presented. options: convicting the defendant assault with intent bodily commit or him great injury, acquitting outright. Keeble, 412 212-13, at 1997-98. U.S. reasoning
A careful of the Supreme review Court’s reveals fact, is, in directly point that Keeble because reversible as error in error Keeble was the same the reversible exactly trial of a choice deprived Turner’s case: court rea, sup- between different kinds of mens all of which were court committed ported by Specifically, the evidence. trial jury’s options finding malice by limiting reversible error Supreme the defendant. As the Court stated acquitting or Keeble, “it that the is entitled beyond dispute is now defendant if the on a included offense evidence to an instruction lesser to find him lesser permit jury rationally would him acquit greater.” offense of the U.S. at 1995.
S.Ct. majority that the court Hansma did Finally, the asserts analysis. Although a harmless error is true conduct included in the analysis expressly that no harmless error fact court opinion, of the that the portion relevant harmless, another error 269 N.W.2d at leads to the conclusion that the court found the prejudicial. relevant error *14 is, That the court was familiar with the and if it analysis had harmless, found this error to be it would have said so. Rath- er, it reversed because it did not find the error to be harmless. Therefore, Hansma does support the assertion that failure to instruct on voluntary manslaughter is reversible error. reasons,
For I these would hold that the error was not harmless, convictions, reverse the and remand for a new trial. Albert
William DODSON Virginia. COMMONWEALTH of Record No. 0981-95-2. Appeals Virginia,
Court of Richmond.
Oct. 1996.