Diandre Wesley Moss v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: December 10, 2024
• Docket: 0018241
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Chief Judge Decker, Judges Malveaux and Raphael

DIANDRE WESLEY MOSS MEMORANDUM OPINION* v. Record No. 0018-24-1 PER CURIAM DECEMBER 10, 2024 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Jerrauld C. Jones, Judge

(Edward A. Fiorella, Jr.; Fraim & Fiorella, P.C., on briefs), for appellant.

(Jason S. Miyares, Attorney General; Matthew J. Beyrau, Assistant Attorney General, on brief), for appellee.

Appealing his conviction for second-degree murder and using a firearm in the

commission of a felony, Diandre Wesley Moss argues that the trial court erred by excluding

evidence that he says would have supported his self-defense claim. Moss also contends that the

trial court should have sua sponte instructed the jury on voluntary manslaughter as a

lesser-included offense. Finding such alleged error harmless, we affirm the trial court’s

judgment. We dispense with oral argument because “the appeal is wholly without merit.” Code

§ 17.1-403(ii)(a); Rule 5A:27(a).

BACKGROUND1

The victim in this case, Eric Brant, was a long-time friend of Yvonne Mack and was

staying with her on the day that Moss shot and killed him. A witness to the shooting, William

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 We recite the facts in the light most favorable to the Commonwealth, the party that prevailed at trial. Camann v. Commonwealth, 79 Va. App. 427, 431 (2024) (en banc). “Doing Morgan, drove his daughter and her boyfriend to Mack’s home. When Morgan arrived, his

daughter and her boyfriend exited the vehicle. Minutes later, Brant left Mack’s house and

jumped into Morgan’s passenger seat. Brant was carrying a bag with clothes and told Morgan he

wanted to leave with him. Brant was not carrying a gun and did not have a gun in his bag.

Mack’s husband walked out of Mack’s house, came to Morgan’s window, and spoke with him

briefly.

Moss, who lived across the street from Mack, left his house, crossed the street, and

approached the passenger side of Morgan’s car. Moss tapped on the window, Brant opened the

door, and Moss asked Brant to get out of the car to speak with him. Brant asked Moss if they

could speak later, but Moss insisted, “I need to talk to you now.” Brant exited the vehicle, and

the two walked across the street to Moss’s porch. Brant left his bag in the car.

A camera captured Moss and Brant talking with each other for a little over one minute.

Eventually, Brant sat on Moss’s porch. Moss then entered his house, leaving Brant outside.

Moments later, Moss came back outside and continued speaking with Brant. After a short

conversation, Moss threw a punch at Brant. Moss threw several more punches as Brant tried to

defend himself. Moss then drew a gun and fired a single shot into Brant’s torso.

Morgan, from his vehicle, saw Moss shoot Brant, which sent Brant stumbling toward the

road. Morgan heard Brant say “he shot me” before Brant collapsed. Moss stood still for a

moment before tucking his gun into a pocket or his waistband and fleeing the scene on foot.

Bystanders loaded Brant into a van and drove away to seek help, eventually finding an

so requires that we ‘discard’ the defendant’s evidence when it conflicts with the Commonwealth’s evidence, ‘regard as true all the credible evidence favorable to the Commonwealth,’ and read ‘all fair inferences’ in the Commonwealth’s favor.” Id. (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). -2- ambulance that had been called to the scene. Despite efforts to save him, Brant died from the

gunshot wound.

Shanice Lawrence, mother to two of Moss’s children, testified for the defense that Moss

asked Brant two or three times to “get off” his porch. When Lawrence testified that Brant yelled

back that Moss had “a bounty on [his] head,” the trial court sustained the Commonwealth’s

objection and instructed the jury to disregard it. Lawrence testified that Moss’s striking and

shooting of Brant came after Brant “said what he said.” Lawrence denied that Moss ran from the

scene, saying “[i]t was maybe a fast walk.” Moss could not run, she said, because he had

suffered a broken vertebrae from being “jumped and pistol-whipped in front of [his] house.” In

response to the Commonwealth’s objection to that testimony, the court allowed evidence on

Moss’s back injury but not its cause.

Moss attempted to elicit details from Lawrence about an earlier incident at Moss’s house,

but the court excluded that testimony after an off-the-record discussion. Moss proffered that he

expected Lawrence to testify that Moss’s “house had been shot up” days before Brant’s death.

Moss clarified that there was no evidence that Brant was the shooter in that incident, but Moss

proffered that the earlier shooting helped explain Moss’s mental state when he shot Brant. The

court sustained the Commonwealth’s relevance objection, finding that the probative value of that

evidence was “far outweighed” by its possible prejudicial effect.

Testifying on his own behalf, Moss explained that he had approached Brant to ask if he

had taken cigarettes from Moss’s mailbox. When Moss was asked if Brant made threatening

statements, the Commonwealth lodged a hearsay objection. The court excluded the testimony on

a different ground that the court itself raised—that testimony about what Brant said would

-3- violate the “dead man’s statute.”2 Moss did not disagree and proffered no other details about

Brant’s alleged threats.

Moss testified that he feared Brant and that Brant had a gun in his lap when sitting in

Morgan’s car. Moss said that, after he repeatedly asked Brant to leave, Moss went inside his

house, grabbed a gun, and came back outside. Moss claimed that he intended to retrieve his

children from the yard, return inside his house, and call the police. But Moss said that Brant

“came at [him]” and threatened him again. Moss said that he pointed his gun at Brant and shot

him only because Moss “was in fear for [his] life.”

At the charging conference, the court accepted the Commonwealth’s instruction that

defined first-degree murder and that listed second-degree murder as a lesser-included offense.

The instruction did not address voluntary manslaughter. Moss did not object to that instruction

and did not request a voluntary-manslaughter instruction. Over the Commonwealth’s objection,

the court agreed to give an instruction on justifiable self-defense, telling the jury that “[i]f you

believe that the defendant was without fault in provoking or bringing on the fight or difficulty

. . . you shall find the defendant not guilty.”

The jury found Moss guilty of second-degree murder and use of a firearm in the

commission of a felony. After obtaining new counsel, Moss moved to set aside the verdict.

In support of that motion, Moss argued that the trial court erred by excluding Brant’s

threatening statements and the evidence of the prior shooting at Moss’s house. For the first time,

Moss proffered the complete contents of Brant’s alleged threats, explaining that Brant “knew that

the Bloods had placed a bounty on Moss’s head” and that Brant had “referenced [the bounty]

2 Code § 8.01-397, sometimes called the “dead man’s statute,” limits the use of statements made by individuals who are incapable of testifying when those statements are uncorroborated. The statute, by its own terms, does not apply to criminal cases “in which the ‘person incapable of testifying’ is not a party.” Bowman v. Commonwealth, 28 Va. App. 204, 210 (1998). -4- immediately before he was shot.” Brant also allegedly told Moss that he would “cash that

check,” referring to the bounty. Moss argued that the earlier shooting and the beating that caused

Moss’s injury were relevant because they were connected to the alleged bounty. Moss also

argued for the first time that his trial counsel should have requested a voluntary-manslaughter

instruction.

The court denied Moss’s motion to set aside the verdict at the sentencing hearing, but the

transcript of that hearing is not part of the record on appeal.3 The court sentenced Moss to 28

years’ incarceration with 7 years suspended. Moss noted a timely appeal.

ANALYSIS

I. Evidentiary Rulings (Assignments of Error 1 and 2)

“It is well-settled that ‘[d]ecisions regarding the admissibility of evidence “lie within the

trial court’s sound discretion and will not be disturbed on appeal absent an abuse of

discretion.”’” Nottingham v. Commonwealth, 73 Va. App. 221, 231 (2021) (alteration in

original) (quoting Blankenship v. Commonwealth, 69 Va. App. 692, 697 (2019)). “Only when

reasonable jurists could not differ can we say an abuse of discretion has occurred.” Id. (quoting

Grattan v. Commonwealth, 278 Va. 602, 620 (2009)).

Moss argues that the trial court erred in excluding evidence of both Brant’s threats as

well as the earlier shooting incident at Moss’s house. Moss contends that this error affected both

the court’s decision to overrule Moss’s motion to set aside the verdict and Moss’s rights at trial.4

3 Although Moss belatedly filed the transcript, he did so nearly two months after the 60-day deadline specified in Rule 5A:8(a), and he did not seek an extension of time for the late filing. Accordingly, the sentencing transcript is not “part of the record” on appeal. Rule 5A:8(a). 4 The Commonwealth argues that Moss has not preserved any arguments relating to the motion to set aside the verdict because the record does not contain a ruling on that motion. We assume without deciding that Moss’s non-constitutional arguments for setting aside the verdict are preserved. We agree with the Commonwealth, however, that Moss did not preserve his -5- We need not decide whether the trial court abused its discretion by excluding that evidence

because any such error was harmless. See Code § 8.01-678.

An appellate court “will not reverse a trial court for evidentiary errors that were harmless

to the ultimate result.” Carter v. Commonwealth, 293 Va. 537, 544 (2017) (quoting Shifflett v.

Commonwealth, 289 Va. 10, 12 (2015)). “Under the harmless error doctrine, if there was ‘a fair

trial on the merits and substantial justice has been reached, no judgment shall be arrested or

reversed . . . for any . . . defect, imperfection, or omission in the record, or for any error

committed on the trial.’” Id. at 545 (alterations in original) (quoting Shifflett, 289 Va. at 12). In

analyzing non-constitutional harmless error, we ask whether “we can be sure that [the error] did

not ‘influence the jury’ or had only a ‘slight effect.’” Id. (quoting Shifflett, 289 Va. at 12).

Any error by the trial court in excluding Moss’s evidence was harmless because Moss’s

self-defense claim was unsustainable.5 Virginia recognizes two types of self-defense: justifiable

and excusable. Washington v. Commonwealth, 75 Va. App. 606, 617 (2022). Justifiable self-

defense, or self-defense without fault, “occurs when the accused is ‘without any fault on his part

in provoking or bringing on the difficulty.’” Id. (quoting Avent v. Commonwealth, 279 Va. 175,

199 (2010)). Excusable self-defense, or self-defense with fault, “occurs when the accused is at

‘some fault in the first instance in provoking or bringing on the difficulty’ but, when attacked, he

‘retreats.’” Id. at 617 (quoting Bell v. Commonwealth, 66 Va. App. 479, 487 (2016)). The trial

court here instructed the jury only on justifiable self-defense, not excusable self-defense. Since

argument that the trial court’s evidentiary rulings violated his Sixth Amendment right to a defense. Moss did not raise that argument below, either at trial or in his motion to set aside the verdict. 5 Moss’s evidence may have been relevant to a voluntary manslaughter theory, but Moss did not request one at the charging conference. And as explained below, Moss’s argument that the trial court should have raised that instruction on its own is meritless. Thus, we analyze harmless error only in the context of Moss’s self-defense claim. -6- no party objected to that instruction, it has become the law of the case, binding on appellate

review. See Smith v. Commonwealth, 68 Va. App. 399, 413 (2018). Thus, to validate Moss’s

self-defense claim, the jury would have needed to find that Moss was without any fault in

provoking the conflict with Brant.

Moss cannot make that showing because the evidence was overwhelming that he played

at least some role in provoking the conflict. Moss first approached Brant to ask him about the

missing cigarettes. Moss spoke with Brant for a while before walking inside his house. Moss

could have stayed inside and called police, as he testified was his intention. Instead, he ventured

back outside and threw the first punch. He then drew his gun and shot Brant. Even crediting

Moss’s explanation that he needed to step outside to call in his children, there was still no need

for him to use deadly force in the face of mere verbal threats. Indeed, even assuming that Moss

truly believed that Brant was armed, the evidence failed to show that Moss played no role “in

provoking or bringing on the difficulty.” Washington, 75 Va. App. at 617 (quoting Avent, 279

Va. at 199). In short, any error in excluding the evidence was harmless because the evidence

was overwhelming that Moss bore at least some fault in bringing about Brant’s death.

II. Lesser-Included Offense Instruction (Assignment of Error 3)

We also reject Moss’s claim that the trial court erred by failing sua sponte to grant a

voluntary-manslaughter instruction when Moss did not ask for one. “[A] circuit court ordinarily

does not have an affirmative duty to give a jury instruction on a particular legal principle when a

criminal defendant fails to request that the jury be instructed on that principle.” Commonwealth

v. Jerman, 263 Va. 88, 93 (2002). That rule also applies in the context of instructions on lesser-

included offenses. See Chittum v. Commonwealth, 211 Va. 12, 17 (1970) (affirming conviction

where defendant failed to request lesser-included offense instruction at trial and raised the issue

for the first time on appeal).

-7- By not requesting the instruction himself, Moss waived any argument that the court

should have given it. See Rule 5A:18. “[T]he contemporaneous-objection rule . . . ‘exists to

protect the trial court from appeals based upon undisclosed grounds, to prevent the setting of

traps on appeal, to enable the trial judge to rule intelligently, and to avoid unnecessary reversals

and mistrials.’” Bethea v. Commonwealth, 297 Va. 730, 743-44 (2019) (quoting Palmer v. Atl.

Coast Pipeline, LLC, 293 Va. 573, 579 (2017)). Moss cites no authority to excuse his failure to

object. The cases on which he relies—Dandridge v. Commonwealth, 72 Va. App. 669 (2021),

and Connell v. Commonwealth, 34 Va. App. 429 (2001)—involved the failure to grant an

instruction that the defendant had actually requested, not the failure to give an instruction sua

sponte that was never requested.

CONCLUSION

We find no basis to disturb the trial court’s judgment.

Affirmed.

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