Williams v. Commonwealth

64 Va.App. 240

767 S.E.2d 252

James Edward WILLIAMS

v.COMMONWEALTH of Virginia.

Record No. 0700–14–2.

Court of Appeals of Virginia, Richmond.

Jan. 20, 2015.

Steven P. Hanna for appellant.

Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: PETTY, BEALES and ALSTON, JJ.

Opinion

PETTY, Judge.

James Edward Williams was convicted of malicious wounding in violation of Code § 18.2–51. On appeal, Williams argues that the trial court erred in denying jury instructions for the lesser-included offense of unlawful wounding. We disagree and affirm Williams's conviction.

I. Background

“When reviewing a trial court's refusal to give a proffered jury instruction, we view the evidence in the light most favorable to the proponent of the instruction.” Commonwealth v. Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221 (2002). So viewed, the facts are as follows.

Williams testified that on September 25, 2012, he went to a 7–11 convenience store with his companion, Delvon Brown. Initially, Brown entered the store and Williams waited outside. When Williams entered the store to “ask [Brown] what was taking so long,” he saw Brown arguing with a female. With the female were the victim and another male. Williams and Brown then left the store; about one minute later, the victim left the store. Williams saw Brown “com[e] up to [the victim]” and “hit him” on the back of the head. After Brown hit the victim, Williams “walked around [the car] and went and got [a gun],” which was loaded, from under the seat of the car. Williams admitted that the victim had done nothing to him or to Brown and that Williams was the only one who pulled out a gun during the incident. Williams testified that he fired shots “to scare” the victim “because [the victim], after [Brown] hit him, he was ready to fight back”—the victim “got upright like[,] like he was ready to defend hi [m]self.” The first shot Williams fired hit the victim in his front lower torso, above the hip. Williams fired six additional shots as the victim was fleeing, none of which hit the victim.

Williams testified that he fired the shots because he heard that a friend of his “just got murdered leaving a gas station. And was—was followed and gunned down.” The friend's death had occurred in Atlanta, while Williams was in California, sometime between September 16, 2012 and September 23, 2012.¹ Williams testified as to his state of mind at the time of the shooting:

The only thing I—the only thing I was thinking about was my friend. That's—that's it. I wasn't thinking about doing anything or hurting anybody.

I was just thinking about [my friend] and the situation. I had just left his mom's house, not even a couple hours ago.... That was in my mind the whole time. When this whole thing was going down. That's what everything that was going on in my mind.

Williams testified that when he shot the gun he was “trying to scare [the victim and his friends] out of the situation.”

Williams was charged with malicious wounding in violation of Code § 18.2–51 and tried by jury. When the defense rested, Williams renewed his motion to strike the evidence. He conceded there was “ample sufficient evidence, quite frankly, for an unlawful wounding” charge, but “no sufficient evidence for any malicious wounding charge.” The court denied the motion to strike, finding that it “d[id]n't see any evidence to support [unlawful wounding] as a lesser offense,” but finding that “[c]ertainly there [was] ample evidence to support [malicious wounding] as the offense as charged.” The court noted three facts: Williams testified his companion struck the victim first, Williams shot at the victim because Williams was afraid the victim would defend himself, and the first shot hit the victim in the middle of his body. Based on the same facts, the court subsequently denied three jury instructions on the lesser-included offense of unlawful wounding.

Williams timely appealed the court's denial of the jury instructions for unlawful wounding.

II. Analysis

Williams argues that the trial court erred in denying a jury instruction for the lesser-included offense of unlawful wounding. Williams concedes that there is no doubt that he committed a crime against the victim, but argues it was for the jury to determine if the crime was malicious or merely unlawful. Williams argues that evidence presented regarding Williams's state of mind, specifically related to his grief and fear over the death of his friend, indicated a lack of malice, thereby entitling him to jury instructions on the lesser-included offense of unlawful wounding. We disagree.

A. Rules of Law

On appeal, we review the trial court's “broad discretion in giving or denying instructions requested” for an abuse of discretion. Gaines v. Commonwealth, 39 Va.App. 562, 568, 574 S.E.2d 775, 778 (2003) (en banc).

1. Jury Instructions Must Be Supported by the Evidence

“ ‘A reviewing court's responsibility in reviewing jury instructions is to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.’ ” Rhodes v. Commonwealth, 41 Va.App. 195, 200, 583 S.E.2d 773, 775 (2003) (quoting Darnell v. Commonwealth, 6 Va.App. 485, 488, 370 S.E.2d 717, 719 (1988) ). Although a defendant “is entitled to an instruction upon his theory of the case,” this rule can be invoked “[o]nly when such instruction is supported by some appreciable evidence. ” Harris v. Commonwealth, 134 Va. 688, 695, 114 S.E. 597, 600 (1922) (emphasis added); see Eaton v. Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 397 (1990) (“A defendant is entitled to have the jury instructed only on those theories of the case that are supported by evidence.”).

Additionally, “[m]ore than a scintilla of evidence must be present to support an instruction.” Id.; see Buchanan v. Commonwealth, 238 Va. 389, 412, 384 S.E.2d 757, 771 (1989) (holding that the trial court did not err in denying a jury instruction for a lesser-included offense where the defendant “relie[d] on but a scintilla of evidence to support his motion for [the lesser-included] instruction”); Le Vasseur v. Commonwealth, 225 Va. 564, 590, 304 S.E.2d 644, 658 (1983) (“No instruction should be given unless it is supported by evidence, and such evidence must be more than a scintilla.”). “Thus, it is not error to refuse an instruction when there is no evidence to support it.” Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001).

This Court has avoided establishing a precise definition for the term “scintilla” because to do so would be “neither practical nor helpful.” Brandau v. Commonwealth, 16 Va.App. 408, 411, 430 S.E.2d 563, 564 (1993). “Rather, the weight of the credible evidence that will amount to more than a mere scintilla of evidence is a matter to be resolved on a case-by-case basis.” Id.

Furthermore, when the proposed jury instruction touches upon a lesser-included offense and there is any credible evidence in the record to support the instruction, “ ‘failure to give the instruction is reversible error.’ ” Id. at 412, 430 S.E.2d at 565 (quoting Boone v. Commonwealth, 14 Va.App. 130, 132, 415 S.E.2d 250, 251 (1992) ). Conversely, “[i]f the evidence is sufficient to support ‘a conviction of the crime charged, and there is no independent evidence warranting a conviction [of the lesser-included offense], an instruction on the lesser-included offense need not be given.’ ” Vaughn, 263 Va. at 36, 557 S.E.2d at 222–23 (second alteration in original) (emphasis added) (quoting Guss v. Commonwealth, 217 Va. 13, 14, 225 S.E.2d 196, 197 (1976) ). The evidence must “provide the necessary quantum of independent evidence” to support an instruction on the lesser-included offense. Commonwealth v. Leal, 265 Va. 142, 147, 574 S.E.2d 285, 288 (2003). Further, the jury's “ability to reject evidence does not supply the affirmative evidence necessary to support a jury instruction.” Vaughn, 263 Va. at 36, 557 S.E.2d at 223 (emphasis added); see Commonwealth v. Donkor, 256 Va. 443, 446–47, 507 S.E.2d 75, 77 (1998) ( “[T]he jury's ability to reject evidence [does not operate] as a substitute for the evidentiary support required to grant a defendant's request for an instruction on a lesser-included offense.”).

Thus, for Williams to be entitled to a jury instruction on a lesser-included offense, he must provide independent, affirmative evidence supporting the absence of the element that distinguishes the charged offense from the lesser-included offense.

2. Malice Distinguishes Malicious Wounding from Unlawful Wounding

The jury convicted Williams of malicious wounding in violation of Code § 18.2–51. A defendant violates Code § 18.2–51 when he wounds or injures a victim “with the intent to maim, disfigure, disable, or kill” him. If the defendant acts with malice, he is guilty of malicious wounding, a Class 3 felony. See Code § 18.2–51. If he acts without malice—but still commits a legally unjustified wounding with the intent to maim, disfigure, disable, or kill—he is guilty of the lesser-included offense of unlawful wounding, a Class 6 felony. Shifflett v. Commonwealth, 221 Va. 191, 193, 269 S.E.2d 353, 354 (1980). “The element in malicious wounding that distinguishes it from unlawful wounding is malice,” a state of mind that can be “expressed or implied” by the circumstances of the attack. Hernandez v. Commonwealth, 15 Va.App. 626, 631, 426 S.E.2d 137, 140 (1993).

To define malice, we may look to homicide law “[b]ecause the mental-state elements of unlawful wounding are the same as those of voluntary manslaughter.” Barrett v. Commonwealth, 231 Va. 102, 105, 341 S.E.2d 190, 192 (1986) (analyzing trial court's refusal of jury instruction for unlawful wounding). “ ‘Malice is evidenced either when the accused acted with a sedate, deliberate mind, and formed design, or committed a purposeful and cruel act without any or without great provocation.’ ” Robertson v. Commonwealth, 31 Va.App. 814, 823, 525...