Jamal Rashad Toliver v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 7, 2000
• Docket: 2880992
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Humphreys and Clements Argued at Richmond, Virginia

JAMAL RASHAD TOLIVER, S/K/A JAMAAL RASHAD TOLIVER MEMORANDUM OPINION * BY v. Record No. 2880-99-2 JUDGE RUDOLPH BUMGARDNER, III NOVEMBER 7, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Walter W. Stout, III, Judge

Maureen L. White for appellant.

Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

On October 22, 1998, Jamal Rashad Toliver was charged with

two counts of capital murder, two counts of use of a firearm in

the commission of a felony, and one count of possession of a

firearm by a convicted felon. After a bench trial, the trial

court convicted him of possession of a firearm by a convicted

felon and granted a motion to strike all other charges. On

appeal, the defendant contends the circuit court lacked

jurisdiction to hear the charge. Finding no error, we affirm.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. The original juvenile petition charged the defendant with

possessing a specific pistol. 1 The indictment returned by the

grand jury did not specify any particular firearm. 2 The trial

court stated that it found the defendant guilty of possessing a

shotgun though there was sufficient evidence that he also

possessed a pistol. The defendant contends the trial court

lacked jurisdiction to convict him of possession of any weapon

other than the pistol described in the juvenile petition.

Two persons were shot and killed, one by a pistol and the

other by a shotgun. The defendant was charged with both murders

and using the weapons to commit the murders. The defendant's

palm print was found on a shotgun, which the police recovered

from his girlfriend's residence. She had seen him with the

shotgun. They also recovered from her home the pistol used to

murder Robert Lee and a rifle she had seen the defendant hide

behind the couch. The defendant kept weapons at her home.

The description of the firearm in the juvenile petition was

excess language because the precise type of firearm is not an

1 The juvenile petition charged the defendant with possession of "a handgun, to wit: a certain .38 cal. semi-automatic pistol, mfg. by Star, after having been convicted of a felony . . . in violation of section 18.2-308.2 . . . ." 2 The indictment returned against the defendant provided the defendant "did feloniously and unlawfully, knowingly and intentionally possess or transport or carry about his person, hidden from observation, a firearm, having been previously convicted of a felony. Va. Code Section § 18.2-308.2."

- 2 - element of the offense. Code § 18.2-308.2. The indictment gave

the defendant adequate notice of the offense charged though it

did not specify the firearm. Cantwell v. Commonwealth, 2 Va.

App. 606, 608, 347 S.E.2d 523, 524 (1986) (the purpose of the

indictment is to provide defendant "notice of the nature and

character of the offense charged"). The defendant filed a bill

of particulars on the other charges. In responding to those

requests, the Commonwealth advised that it expected to prove

that the defendant possessed both the shotgun and the pistol.

The defendant raised no objection to the indictment at

trial, so the indictment cured any defect caused by the wording

of the juvenile petition. Code § 16.1-269.1(E) provides that an

indictment in the circuit court cures any error or defect in the

juvenile court proceedings, except with respect to the

defendant's age. Moore v. Commonwealth, 259 Va. 405, 410, 527

S.E.2d 415, 418 (2000). Accordingly, we affirm the conviction.

Affirmed.

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