COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Hodges Argued at Richmond, Virginia
MARVIN GEORGE MAY MEMORANDUM OPINION * BY v. Record No. 0140-01-2 JUDGE WILLIAM H. HODGES JULY 23, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Thomas N. Nance, Judge
John B. Boatwright, III (Boatwright & Linka, on briefs), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.
Marvin George May, appellant, appeals two aggravated
malicious wounding convictions, one malicious wounding conviction,
and three convictions for use of a firearm in the commission of
those felonies. Appellant presents three issues on appeal: (1)
whether the trial court erred by refusing to instruct the jury on
the lesser-included offense of unlawful wounding with regard to
the two aggravated malicious wounding offenses;1 (2) whether the
trial court erred by failing to inform the jury that any sentence
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 The trial court gave an instruction with the lesser-included offense of unlawful wounding for the malicious wounding count. the jury imposed was presumed to run consecutively; and (3)
whether the trial court erred by denying his motion for a new
trial based on after-discovered evidence and perjured testimony of
a Commonwealth's witness. Finding the trial court committed no
error, we affirm the judgment of conviction.
BACKGROUND
In the early morning hours of April 16, 2000, a close friend
of appellant's, Luther Tyler, was shot and later died. Appellant
was grieving the loss of his friend and was angry. Appellant
called another friend, Lamonte Pollard. Pollard understood that
some people from the Highland Park area of Richmond were
responsible for Tyler's death. Appellant asked Pollard to
accompany him to shoot up that neighborhood. Pollard declined to
join appellant.
Later the same day, appellant arrived at a car rental
business with Dwayne Hill and Walter Green. The three rented a
white Thunderbird, under appellant's name. As they were leaving,
appellant said, "Let's go. Let's go do it." Appellant was seen
that day riding in the Thunderbird.
That afternoon, fourteen-year-old Antonio Young left a store
in Highland Park. He heard gunshots and began to run. He
attempted to go over some bushes but a bullet struck him in the
back. Young suffered permanent paralysis as a result of the
gunshot wound. Young did not know Tyler or anything about Tyler's
murder. - 2 - Twenty-one-year-old Dante Wallace was leaving the same store
when he heard gunshots. A bullet struck Wallace in the back, and
he too suffered permanent paralysis. Wallace identified the white
Thunderbird as the car with the shooters, but could not identify
who shot him. Latoya Cherry was with Wallace. She heard the
gunshots, saw more than one shooter in the white Thunderbird and
identified Hill from a photographic lineup as one of the shooters.
Like Young, Wallace had no connection to Tyler or Tyler's murder.
Stanley Davis was parked on the street when he heard
gunshots. Bullets hit his windshield, and he attempted to exit
the car. He then heard a shotgun, and he was hit twice in the
leg. Davis identified appellant as one of the shooters, though he
could not identify who shot him.
Richmond Police Detective Ray Williams testified he recovered
several 9mm empty shell casings and five 12-gauge shotgun shells
from the street and sidewalk in the surrounding area. Williams
later recovered a Tech 9 semi-automatic firearm and a Remington
12-gauge pump shotgun. John Wilmer, a firearms expert, testified
the spent shells and casings had been fired from those weapons.
Donald Nutall testified Hill and two other men, one of whom Nutall
was "relatively sure" was appellant, asked him to help clean and
strip several weapons. Among those weapons were the Tech 9 and
the shotgun.
Several witnesses testified to various statements appellant
made concerning the shootings. Appellant accused a friend of - 3 - Tyler's named Alvin of being a "fake thug" and "paper thug"
because Alvin would not do anything to avenge Tyler's murder.
Tonelle Hicks expressed her disapproval for the Highland Park
shootings, to which appellant responded that it didn't matter if a
three-year-old child had been shot, "their family needed to feel
like his family felt." Appellant also got upset when he learned
that Green was bragging about the incident and made a telephone
call telling Green he was going to get them all "locked up."
Pollard testified appellant admitted he shot a young kid who was
trying to go over a fence.
At trial, appellant denied any involvement with the shootings
and presented evidence of an alibi. Several witnesses testified
to appellant's whereabouts throughout the majority of the day.
Appellant's mother asked appellant about a dirty shirt he was
wearing, and appellant indicated it was dirty from wiping tears
from his face.
In rebuttal, the Commonwealth recalled Detective Williams,
who testified, based on his thirty years of experience as a police
officer, that whenever someone fires a weapon, a residue of black
soot gets on his or her hands, regardless of the type of weapon
involved. The more the weapon is fired, the more black soot will
be left behind.
During deliberations on sentencing, the jury asked whether
any sentences given to appellant would run concurrently or
consecutively. The trial court answered that the jury was to fix - 4 - punishment as to each charge as it felt just under the
circumstances and that it was not to concern itself with what
happens to the sentences later.
Appellant filed a motion for a new trial based on
after-discovered evidence and perjured testimony at trial. The
trial court held a hearing on the motion after trial and before
sentencing. At the hearing, Cleon Mauer and Wilmer testified that
Williams' testimony was incorrect in that a visible residue from
firing a weapon does not come back onto the shooter's firing hand
and clothing. However, the experts both testified that residue
does remain on the muzzle, and Wilmer confirmed that at least one
type of residue would be gray or black in color and visible when
transferred to a fiber or fabric.
Attorney Lee Kilduff also testified at the motion hearing.
She stated she spoke to Davis during an unrelated criminal
proceeding in which Davis was a victim testifying against her
client. Kilduff asked Davis what had occurred at appellant's
preliminary hearing. Davis responded he did not testify at the
preliminary hearing because he did not see anything due to his
back being turned. Davis testified at the motion hearing and
explained he meant that he did not see who shot him because his
back was turned when he got shot.
Harvey Churchwell testified in a separate trial against
appellant's codefendant, Green. At Green's trial, Churchwell
recounted that appellant drove Hill and Churchwell to Highland - 5 - Park. Churchwell saw Hill shooting but did not see appellant
firing because Churchwell crouched down in the car. Churchwell's
account of the events differed in detail from Davis' testimony at
appellant's trial.
Finally, Hicks wrote a letter to appellant in which she
indicated she had to testify against appellant because of recorded
conversations between herself and appellant and the authorities'
knowledge that she had information about the shootings. She wrote
that she feared being prosecuted if she withheld information or
perjured herself at trial. Her letter did not state she testified
falsely, and she testified at the hearing that she testified
truthfully at the trial and no one influenced her testimony.
ANALYSIS
Unlawful Wounding Instruction
There are "well-established legal principles that jury
instructions are proper only if supported by the evidence, and
that more than a scintilla of evidence is necessary to support a
lesser-included offense instruction requested by the defendant."
Commonwealth v. Donkor, 256 Va. 443, 445, 507 S.E.2d 75, 76
(1998). Appellant sought an instruction on unlawful wounding
based on the possibility that the jury could reject the
presumption of malice from the use of a deadly weapon. To support
a finding of unlawful wounding, the jury would have to conclude
that appellant acted in the heat of passion or in the absence of
malice. - 6 - Malice inheres in the intentional doing of a wrongful act without legal justification or excuse. Malice is not confined to ill will, but includes any action flowing from a wicked or corrupt motive, done with an evil mind or wrongful intention, where the act has been attended with such circumstances as to carry in it the plain indication of a heart deliberately bent on mischief.
Williams v. Commonwealth, 13 Va. App. 393, 398, 412 S.E.2d 202,
205 (1991). "'Malice and heat of passion are mutually
exclusive; malice excludes passion, and passion presupposes the
absence of malice.' . . . 'Heat of passion is determined by the
nature and degree of the provocation and may be founded upon
rage, fear, or a combination of both.'" Canipe v. Commonwealth,
25 Va. App. 629, 643, 491 S.E.2d 747, 753 (1997) (citations
omitted).
Appellant presented an alibi defense. Thus, his theory of
the case did not support the lesser-included offense instruction
of unlawful wounding. Further, the Commonwealth's evidence
proved that appellant planned and enlisted the assistance of
others to go into the Highland Park neighborhood to shoot
innocent people to avenge the death of his friend Tyler. No
evidence suggested Young or Wallace had any connection to
appellant, Tyler or Tyler's murder. No evidence suggested
Wallace or Young provoked the attack in any way. The
Commonwealth's evidence negated any notion that appellant acted
in the heat of passion or without malice. Therefore, there was
- 7 - not even a scintilla of evidence to support the unlawful
wounding instruction.
Further, that the jury could reject evidence does not
qualify as evidentiary support for a defendant's lesser-included
offense instruction. Donkor, 256 Va. at 446-47, 507 S.E.2d at
76 (citing LeVasseur v. Commonwealth, 225 Va. 564, 304 S.E.2d
644 (1983)). The court must look to the evidence in the case to
find support for the offered instruction. Accordingly, the
trial court did not err by refusing to instruct the jury on
unlawful wounding as a lesser-included offense of aggravated
malicious wounding.
Jury Question on Consecutive/Concurrent Sentences
"The choice of sentencing procedures is a matter for
legislative determination." Duncan v. Commonwealth, 2 Va. App.
342, 344, 343 S.E.2d 392, 393 (1986) (citation omitted). In a
jury trial, the jury ascertains "within the limits prescribed by
law, the term of confinement in the penitentiary or in jail and
the amount of fine . . . ." Code § 19.2-295.
"[T]he punishment fixed by the jury is not final or absolute, since its finding on the proper punishment is subject to suspension by the trial judge, in whole or in part, on the basis of any mitigating facts that the convicted defendant can marshal. The verdict of the jury is the fixing of maximum punishment which may be served. Under such practice, the convicted defendant is entitled to 'two decisions' on the sentence, one by the jury and the other by the trial judge in the exercise of his statutory right to suspend . . . . This procedure makes the - 8 - jury's finding little more than an advisory opinion or first-step decision."
Duncan, 2 Va. App. at 345, 343 S.E.2d at 394 (quoting Vines v.
Muncy, 553 F.2d 342, 349 (4th Cir. 1977)). After the jury fixes
the maximum sentence, the legislature provides the trial judge
with the discretionary authority to suspend or modify that
sentence. See id. "When any person is convicted of two or more
offenses, and sentenced to confinement, such sentences shall not
run concurrently, unless expressly ordered by the court." Code
§ 19.2-308. The trial court exercises this authority at its
discretion. Moore v. Commonwealth, 27 Va. App. 192, 200, 497
S.E.2d 908, 911 (1998).
When the jury asked whether the sentences it fixed would
run concurrently or consecutively, the jury had no evidence
before it as to how or whether the trial judge would modify the
sentences. Further, the jury had not yet communicated to the
trial judge what sentences it intended to impose. Therefore, it
is reasonable to conclude that the trial judge did not know
whether he would modify the recommended sentences by running the
sentences concurrently or otherwise suspending the sentences.
To advise the jury that the court had the discretion to modify
the sentences would cause the jury to speculate as to what
action the trial court might take. Such speculation would
deprive appellant and the Commonwealth of a fair trial. See
- 9 - Fishback v. Commonwealth, 260 Va. 104, 113, 532 S.E.2d 629, 633
(2000).
In Fishback, the Virginia Supreme Court discussed the
underlying principles that previously guided trial courts not to
instruct a non-capital jury about parole eligibility. The Court
noted that
"the assessment of punishment is a function of the judicial branch of government, while the administration of such punishment is a responsibility of the executive department. The aim of the rule in Virginia is to preserve, as effectively as possible, the separation of those functions during the process when the jury is fixing the penalty, in full recognition of the fact that the average juror is aware that some type of further consideration will usually be given to the sentence imposed."
Id. at 112, 532 S.E.2d at 632 (citation omitted). The Court
determined that, because parole had been abolished and geriatric
release was determined upon a mathematical calculation, and thus
the jury could determine a sentence without speculation, a
defendant is entitled to an instruction on those specific
matters affecting early release. However, "'at the time a jury
assesses punishment it does not, and cannot, have a factual
basis upon which to factor the provisions for good behavior
credit into its determination of an appropriate sentence in a
given case. Rather, such an effort would be an exercise in pure
speculation." Id. at 116, 532 S.E.2d at 634. Therefore, the
Court directed that the jury should not be instructed on the
- 10 - possibility of early release based on earned good behavior
credits. Id.
Appellant's case does not involve the different roles of
the judicial and executive branches with regard to sentencing.
However, the same principles apply. To instruct the jury that
the trial judge could run the sentences concurrently would cause
the jury to speculate what action the trial judge would take.
With no evidence as to what action the trial judge would take in
modifying the jury's sentences, to instruct on the possibility
of running the sentences concurrently would taint the jury
process of fixing punishment. Therefore, the trial court did
not err by refusing to instruct the jury on Code § 19.2-308 and
the trial court's ability to modify the jury's sentences.
Motion for new trial
"Motions for new trials based on after-discovered evidence are addressed to the sound discretion of the trial judge, are not looked upon with favor, are considered with special care and caution, and are awarded with great reluctance . . . . The applicant bears the burden to establish that the evidence (1) appears to have been discovered subsequent to trial; (2) could not have been secured for use at the trial in the exercise of reasonable diligence by the movant; (3) is not merely cumulative, corroborative or collateral; and (4) is material, and such as should produce opposite results on the merits at another trial."
Hopkins v. Commonwealth, 20 Va. App. 242, 249, 456 S.E.2d 147,
150 (1995) (en banc) (citation omitted).
- 11 - Appellant first contends the trial court erred by failing
to grant a new trial based on Williams' alleged perjured
testimony concerning gunshot residue. Mauer and Wilmer did not
testify that Williams lied, but that he was incorrect. Both
experts indicated that a dark residue does not come back on the
hands of the person firing the weapon. They indicated that
gunshot residue shoots out the barrel in the same direction as
the bullet. However, Wilmer testified that a dark residue would
be left on the weapon that could be transferred from the muzzle
to a tissue and presumably an article of clothing. Thus, the
record does not support the conclusion that Williams offered
perjured testimony.
Additionally, appellant's shirt was not analyzed for any
gunshot residue and no evidence indicated that residue was on
appellant's shirt. Appellant's mother testified she saw
appellant's shirt was dirty before the shootings took place.
Further, appellant failed to attempt to rebut Williams'
testimony though Wilmer was still available to testify after
Williams testified. Therefore, appellant did not exercise due
diligence in presenting the evidence and the record does not
show that the evidence was material such that it would affect
the outcome of the trial.
Next, appellant maintains he was entitled to a new trial
based on attorney Kilduff's testimony about Davis' statement to
her. However, there was no inconsistency in Davis' statement to - 12 - Kilduff and his testimony at trial. Davis testified at trial
that while he saw appellant with a firearm at the scene, his
back was turned when he was shot and so he did not know who shot
him. At the hearing, Davis explained that his statement to
Kilduff merely referred to the fact that he did not testify at
the preliminary hearing because he did not see who shot him.
Kilduff's testimony, therefore, would not have changed the
outcome of appellant's case and, as such, was not material.
Appellant also argues he was entitled to a new trial based
on Churchwell's testimony at Green's trial. Churchwell
testified at Green's trial that he rode to the crime scene with
appellant and Hill. Churchwell stated he initially saw Hill
firing a shotgun but Churchwell did not continue to watch the
events because he ducked down in the car. According to the
transcript excerpt, Churchwell did not see appellant exit the
car or fire a weapon. Nevertheless, Churchwell's testimony
placed appellant at the scene of the crime and implicated
appellant as an active participant in the offenses. Though
Churchwell's testimony varied from Davis' in the details of how
the events unfolded, nothing in Churchwell's testimony suggested
the new evidence would have impeached Davis or affected the
outcome of the trial. Further, appellant was in the car with
Churchwell and, thus, appellant knew Churchwell was a potential
witness. Therefore, appellant could have secured Churchwell's
presence at trial with the exercise of due diligence and the - 13 - testimony was not material such that it would have altered the
outcome of the trial.
Finally, appellant argues he should have been granted a new
trial based on Hicks' letter. In the letter, Hicks claimed she
testified against appellant because the prosecution was aware
she had information about the case and she feared being
prosecuted herself. Nothing in the letter, or her testimony at
the hearing, indicates she testified falsely at trial or that
she was unduly pressured to testify falsely. The content of her
letter was collateral and not likely to produce a different
result at trial. Therefore, the trial court did not err by
denying appellant's motion for a new trial based on any of the
grounds stated in support of the motion.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
- 14 - Benton, J., concurring.
I substantially concur in the opinion and in the judgment
affirming the convictions. I write separately because I
disagree with several of the majority's conclusions.
I.
During the penalty phase of the trial, the jury asked
"[t]he question . . . would sentences be served concurrent."
Over the objection of May's defense attorney, the trial judge
responded as follows:
Very intelligent question. However, my instruction to you is that on each of these charges within the limits given to you by the Court, you are to set a sentence that you feel is just under the circumstances. You're not to concern yourselves with what might happen later.
I believe May correctly contends that the judge's response was
unsuited to the inquiry.
"The General Assembly, in carrying out its appropriate
legislative function, has established a system for the
ascertainment of punishment for those who have been convicted of
crimes." Duncan v. Commonwealth, 2 Va. App. 342, 344, 343
S.E.2d 392, 393 (1989).
Within the limits prescribed by law, the term of confinement in the state correctional facility or in jail and the amount of fine, if any, of a person convicted of a criminal offense, shall be ascertained by the jury, or by the court in cases tried without a jury. Code § 19.2-295. Thus, by this statute, "when the court sits
without a jury, the trial judge tries the issue of guilt and
fixes the penalty; when the accused demands a jury, the jury
performs both functions." Huggins v. Commonwealth, 213 Va. 327,
328, 191 S.E.2d 734, 736 (1972).
The Supreme Court has "acknowledge[d] that . . . 'truth in
sentencing' is a goal to be desired in the judicial process."
Fishback v. Commonwealth, 260 Va. 104, 113, 532 S.E.2d 629, 632
(2000). To achieve this goal, judges must be attentive to the
jury's inquiries concerning its punishment function.
[T]o perform its responsibility a jury is required to consider a broad range of punishment in terms of years of confinement statutorily established by the legislature. . . . [W]ithin the permissible range of punishment a jury is required to determine a specific term of confinement that it considers to be an appropriate punishment under all the circumstances revealed by the evidence in the case. A jury should not be required to perform this critical and difficult responsibility without the benefit of all significant and appropriate information that would avoid the necessity that it speculate or act upon misconceptions concerning the effect of its decision. Surely a properly informed jury ensures a fair trial both to the defendant and the Commonwealth.
The question then becomes how a jury is to be instructed so that it is properly informed and can render a fair trial to both parties . . . .
Id.
- 16 - This jury's inquiry clearly indicated the jury understood
that sentences may be concurrent and obviously was considering
how to factor that circumstance in weighing the punishment to be
ascertained. The answer to the jury's inquiry is found in the
provisions of Code § 19.2-308 ("[w]hen any person is convicted
of two or more offenses, and sentenced to confinement, such
sentences shall not run concurrently, unless expressly ordered
by the court") and Code § 19.2-303 ("After conviction . . . with
. . . jury, the court may suspend imposition of sentence or
suspend the sentence in whole or part."). A brief response
grounded in those statutes would have been sufficient to explain
the applicable law and to fully address the inquiry.
"It is axiomatic that '[i]t belongs to the [trial] court to
instruct the jury as to the law, whenever they require
instruction, or either of the parties request it to be given.'"
Fishback, 260 Va. at 117, 532 S.E.2d at 635. Here, however, the
trial judge left the jury to speculate as the jury sought to
weigh the broad range of punishment available to it. A brief,
accurate response about the statutes would have addressed the
jury's concern and negated any "speculation by the jury [, which
the Supreme Court has deemed] inconsistent with a fair trial
both to the defendant and the Commonwealth." Id.
The record reflects, however, that the error was harmless.
"Under the harmless error doctrine, the judgment of the court
below will be affirmed whenever we can say that the error - 17 - complained of could not have affected the result." Rhoades v.
Painter, 234 Va. 20, 24, 360 S.E.2d 174, 176 (1987). The jury
returned verdicts ascertaining May's punishment to be the
maximum sentence on each offense, including two life sentences.
The verdicts reflect that the jury intended to eliminate the
possibility that May would be released from prison. I cannot
say that if the trial judge had given a response concerning the
applicable law, the jury would have reached a different verdict.
Furthermore, the trial judge had the discretion to suspend any
portions of the sentences and did not do so.
II.
Although I agree that the trial judge did not err in
refusing the motion for a new trial, I discern no basis to
conclude that the motion was deficient because of a lack of due
diligence by May's attorney. The record reflects that the trial
judge did not find that May's attorney was not diligent.
Indeed, his findings included the following:
This case was fairly tried. I think you did a good job in it. You were prepared and the Commonwealth was also. It was fairly heard by a jury and they made their decision.
Denying the motion for a new trial, the judge found that the
evidence "would not have made any difference" in the outcome of
the trial.
In order to prevail on a motion for a new trial based on
after-discovered evidence, the moving party must establish
- 18 - several necessary conditions, including "that [the
after-discovered evidence] is material, and such as would
produce opposite results at trial." Payne v. Commonwealth, 233
Va. 460, 472, 357 S.E.2d 500, 507 (1987). Of greatest concern
is the testimony of both forensic firearms examiners that the
police officer gave incorrect testimony on rebuttal about the
amount and visibility of residue that deposits on a person who
fires an automatic gun. I believe the trial judge correctly
found, however, that given the quantity and quality of the other
evidence, the fact finder's weighing of the after-discovered
evidence, as disclosed by the forensic experts, would not have
produced an opposite result at another trial.
For these reasons, I concur in affirming the convictions.
- 19 -