Commonwealth v. Holman

899 S.E.2d 420

COMMONWEALTH of Virginia

v.Marcus Cleophus HOLMAN

Record No. 230343

Supreme Court of Virginia.

April 4, 2024

FROM THE COURT OF APPEALS OF VIRGINIA

Stephen J. Sovinsky, Assistant Attorney General (Jason S. Miyares, Attorney General of Virginia, on briefs), for appellant.

Charles E. Haden, on brief, for appellee.

PRESENT: All the Justices

OPINION BY JUSTICE STEPHEN R. McCULLOUGH

The Commonwealth appeals from a decision of the Court of Appeals of Virginia reversing Marcus Cleophus Holman’s conviction for use of a firearm in the commission, of a felony. The Court of Appeals held that although Holman had not preserved his challenge to this conviction, the "ends of justice" exception to Rule 5A:18 applied, and, additionally, the approbate and reprobate doctrine did not apply. At trial, Holman consistently staked out the position that he was not challenging the charge of use of a firearm in the commission of a felony. Counsel stated that Holman was changing his plea to a guilty plea regarding the offense of unlawful wounding, and expressly agreed with the circuit court’s statement that Holman had "stipulated to" the other charges he was facing, including discharging a firearm in a public place and possession of a firearm after having been convicted of a felony. The statements of Holman’s attorney were part of a deliberate and well-crafted trial strategy designed to forestall a conviction for the charge of aggravated malicious wounding. Based on these statements, the circuit court afforded the defendant the relief he desired, by granting his motion to strike the aggravated malicious wounding charge he had been facing and accepting his plea of guilty to use of a firearm in the commission of a felony. Having approbated to the charge of use of a firearm in the commission of a felony, Holman now seeks to reprobate by challenging the sufficiency of the evidence for that charge. The approbate and reprobate doctrine forecloses precisely this kind of conduct. Moreover, under settled law, the approbate and reprobate doctrine precludes resort to the ends of justice exception. Therefore, we reverse the judgment of the Court of Appeals.

BACKGROUND

I. Following an argument, Holman shoots his longtime girlfriend in the face with a shotgun.

The defendant, Marcus Holman, and the victim, Selena Spurlock, were romantically involved "off and on" for about 16 years, and they had a child together. At the time of the relevant event, they lived together at a house in King William County.

On the morning of November 14, 2020, Holman told Spurlock he was going hunting. The two communicated by telephone throughout the day. According to Spurlock, when she asked him at what time he was coming home, Holman erupted angrily and began yelling and screaming. Spurlock, perceiving that Holman was intoxicated, decided to go find Holman at his mother’s house to retrieve her license plates. She explained that the plates did not belong on the vehicle that Holman was driving, and she was worried about him driving while, intoxicated with plates that belonged to her. Holman testified that he did not have a driven’s license, and, therefore, could not obtain license plates.

When Spurlock arrived that evening, she told Holman that she was going to retrieve the license plates as well as a phone that belonged to her. According to Spurlock, Holman became angry, yelled at her and struck her in the face with a license plate. She responded by walking up to him and hitting him in the back of the head hard enough to knock him to the ground. She retrieved one of the license plates and returned to her home, around 9:00 p.m.

Several hours later, Holman returned to the couple’s home. Spurlock, believing that Holman was drunk, had locked both door locks. This had the effect of locking Holman out of the house because he only had a key for one of the locks. Spurlock contacted Holman’s sister, asking her to pick him up. Spurlock told Holman that she was not going to let him in the house. Holman’s sister arrived approximately 20 minutes after Spurlock contacted her.

Holman and his sister, along with his sister’s boyfriend, argued loudly for a time. Spurlock went to a bathroom on the second floor of the home and partially opened a window to see and hear what was happening, Spurlock yelled from inside the house that she was not letting Holman in and that she was going to call the police. Holman had previously been convicted of a felony and, consequently, he was prohibited from possessing a firearm. According to Spurlock, Holman told her to "come outside. You wanna hide behind the window, come outside." He then "pointed" his shotgun "at the window" where she stood, and "[h]is sister tried to take it away from him." Spurlock called down from the bathroom window, "I know you didn’t just point that gun at me."

According to Spurlock, Holman pointed the gun at the window and said that he and his shotgun were "going down tonight." Holman also said that if the sheriff’s deputies arrived, there would be "a lot of brown suits laid out." Holman refused his sister’s entreaties to leave and told her he was "not going anywhere." Holman’s sister and her boyfriend gave up, returned to her car, and left. An illuminated porch light provided the only light at the house.

Spurlock, who was "standing directly in front of the window," called the police nonemergency number, hoping to prod Holman to leave. Although no lights were turned on in the bathroom where Spurlock was standing, her phone screen lit up as she spoke with the police operator. Spurlock had placed her phone on speaker, so Holman could hear her talk to the police. Spurlock told the police operator that her boyfriend was refusing to leave and she did not want him there.

As Spurlock was talking to the police, Holman fired the shotgun, hitting her in the face. She wrapped a towel on her face and was later transported by ambulance to a hospital. She was eventually taken by medevac to a different hospital. Spurlock spent two weeks in the hospital, including one week in the intensive care unit. She suffered a "broken nose, shattered sinuses, pellets in the fingers," and she permanently lost vision in both eyes." Holman left the scene without checking on her.

Holman presented evidence that contested certain aspects of Spurlock’s account. For example, he denied that he struck Spurlock in the face with the license plate, denied that he was drunk or angry at her, and he denied stating that he would kill police officers. Holman repeatedly and adamantly denied that he deliberately shot Spurlock. He admitted that he shot the gun in the air twice, but testified that in doing so he was not aiming at the house. He claimed that he had fired the gun in the air out of frustration and humiliation.

II. Holman is convicted of the lesser included offense of unlawful wounding in a bench trial, along with associated firearm charges.

Holman was charged with aggravated malicious wounding under Code § 18.2-51.2, use of a firearm in the commission of a felony under Code § 18.2-53.1, discharging a firearm in a public place resulting in bodily injury under Code § 18.2-280, and possession of a firearm by a person convicted of a felony in violation of Code § 18.2-308.2.

Faced with an aggravated malicious wounding charge that carries a possible life sentence, see Code § 18.2-51.2 (designating aggravated malicious wounding as a Class 2 felony), Code § 18.240(b) (Class 2 felonies can carry a punishment of up to life in prison), along with a devastating injury to the victim, defense counsel pursued a mitigation strategy. Counsel acknowledged in opening statements that he was not challenging Holman’s possession of a firearm as a person convicted of a felony, or the fact that he discharged the firearm. The only evidence he would contest, counsel clarified, was "whether or not the necessary malice was present in order for him to be convicted of aggravated malicious wounding." Counsel argued that Holman did not act maliciously, that "[i]t was an accident, plain and simple," and that Holman regretted his actions. Counsel stated that Holman "does not want to walk away free of charge. He doesn’t. He understands he has to be punished. He expects the Court to punish him appropriately."

At the close of the Commonwealth’s case, counsel for Holman made a motion to strike, arguing that the Commonwealth had failed to prove malice. "At best," counsel argued, the Commonwealth’s evidence had "establish[ed] an unlawful wounding." Counsel again stated that he was not challenging the fact that Holman had discharged the firearm, or that Spurlock had suffered permanent injuries from that act. Counsel stated that he was "not arguing about the fact that [Holman] had a firearm. I’m not arguing about the use of a firearm. I’m not arguing about any other thing, but the specific intent of the malicious wounding." The circuit court denied the motion.

After presenting evidence for the defense, defense counsel renewed his motion to strike. Counsel explained that the defense had "stipulated to the vast majority of the evidence," but not to the existence of malice, The circuit court stated that it would grant the motion to strike the aggravated malicious wounding charge, but that it would proceed on the unlawful wounding charge. Defense counsel then immediately stated that the defendant was changing his plea to guilty on the unlawful wounding charge. The circuit court stated that the defendant had "stipulated to the other charges" even though he had entered a plea of not guilty. Defense counsel responded "[y]es, sir." The circuit court, without conducting a plea colloquy, then found Holman guilty of unlawful wounding, use of a firearm in the commission of a felony, discharging a firearm in a public place, and possession of a firearm after having been convicted of a felony.

[1] The statute setting forth the crime of use of a firearm in the commission of a felony specifically delineates the...