Brandau v. Com.

• Decision Date: 25 May 1993
• Docket Number: No. 1204-91-3,1204-91-3
• Citation: 430 S.E.2d 563,16 Va.App. 408
• Parties: Jerry Ray BRANDAU v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 563

430 S.E.2d 563

16 Va.App. 408

Jerry Ray BRANDAU v. COMMONWEALTH of Virginia.

Record No. 1204-91-3.

Court of Appeals of Virginia.

May 25, 1993.

Dale Profitt, Floyd (Gino W. Williams, on brief), for appellant.

Margaret Ann B. Walker, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: MOON ^*, C.J., and KOONTZ and BRAY, JJ.

KOONTZ, Judge.

Jerry Ray Brandau (Brandau), appellant, was indicted for attempted capital murder of a police officer and use of a firearm in the commission of a felony. In a jury trial, Brandau was convicted of attempted first degree murder and use of a firearm in the commission of a felony. He contends on appeal that the trial court erred in refusing to instruct the jury on the lesser included offense of assault and battery. Finding that the evidence did not support the proffered instruction, we hold that the trial court did not err in refusing the instruction. Accordingly, we affirm.

On June 26, 1990, Brandau and his wife were served an eviction notice for property that Brandau had unsuccessfully attempted to buy. The property was owned by Donald Tolley (Tolley), Brandau's former step-father, who was divorced from Brandau's mother. On the night Brandau received the eviction notice, a witness heard Brandau through the window threaten to shoot a "deputy" and to "throw the body in the river."

On July 6, 1990, at 10:00 a.m., two deputy sheriffs, Tolley, and two of Tolley's friends went to Brandau's residence to evict him and his wife. The deputies were in uniform and drove marked police cars. Tolley and the two deputies first went to the sliding glass door at the back of the house. A note left on the sliding glass door read: "I am pissed off, don't mess with me." For ten minutes, Deputy Fleet "banged" on the door, called Brandau's name, and announced that they were from the Sheriff's Department. However, Deputy Fleet heard no response.

Deputy Fleet then went to the front door of the residence. He banged on the front door, called Brandau's name, and announced they were from the Sheriff's Department. Hearing no response, Deputy Fleet kicked the front door open. The door opened only six to eight inches because something inside was blocking the entrance. Deputy Fleet yelled through the open door to Brandau that he was from the Sheriff's Department. When Deputy Fleet repeated his effort to push the door open, Brandau began shooting at the door with a semi-automatic rifle. Two bullets hit Deputy Fleet.

There were five bullet holes in the front door and three in the wall next to the door. None of the bullet holes exceeded a five foot range in height. In order to continuously shoot the gun, Brandau had to pull the trigger after each shot.

At the time of the shooting, Brandau and his wife were using the front room of the house as a bedroom; the front door of the residence opened into this room. At trial, Brandau testified that he was sleeping in the front room with his wife the morning of the incident. He testified that he did not hear the police announce themselves because he was asleep and a stereo and fan were running in the room. The evidence showed that Brandau was taking prescribed medication for epileptic seizures that made him groggy and difficult to awaken. Brandau maintained that he did not know who was outside because the windows were covered with cardboard. He testified that his wife awakened him and told him that someone was breaking in, but she did not say who it was. After his wife ran out of the room, Brandau grabbed his rifle and began shooting. Brandau denied threatening Tolley or the police, and further claimed that he did not know he was shooting at a police officer.

On the afternoon of the shooting, the police interviewed Brandau. At that time, Brandau admitted that after he started shooting he heard Deputy Fleet say, "he had been hit." Brandau also admitted that he knew Tolley was outside with the Sheriff's Department before he retrieved his gun, that he heard the police announce themselves, and that he knew Deputy Fleet was outside the door. A recording and transcript of this interview were admitted into evidence without objection.

The trial court instructed the jury on attempted capital murder, attempted first degree murder, and attempted second degree murder. However, the trial court refused Brandau's tendered instruction on assault and battery. That instruction provides: "An assault and battery is any bodily hurt, however slight, done to another in an angry, rude or vengeful manner." ¹

Brandau contends that the trial court's refusal to instruct the jury on the lesser included offense of assault and battery was erroneous because evidence supported the instruction. Brandau alleges that if the jury believed his testimony, it could have found him guilty of assault and battery on the theory that he shot at the officer with the intent to scare him, but not with the intent to kill him. See Martin v. Commonwealth, 13 Va.App. 524, 527, 414 S.E.2d 401, 402 (1992) (en banc) (an intent to kill is a necessary element of attempted capital murder). The Commonwealth, however, contends that the evidence did not support an instruction on assault and battery.

The principles governing our review of a trial court's decision refusing a jury instruction are well-settled. "If any credible evidence in the record supports a proffered instruction on a lesser included offense, failure to give the instruction is reversible error." Boone v. Commonwealth, 14 Va.App. 130, 132, 415 S.E.2d 250, 251 (1992). See also Delacruz v. Commonwealth, 11 Va.App. 335, 338, 398 S.E.2d 103, 105 (1990) (refusal to grant an instruction is reversible error where there is evidence in the record supporting defendant's theory of defense). "Such an instruction, however, must be supported by more than a mere scintilla of evidence." Boone, 14 Va.App. at 132, 415 S.E.2d at 251. "[T]he appropriate standard of review requires that we view the evidence with respect to the refused instruction in the light most favorable to [Brandau]." Id. at 131, 415 S.E.2d at 251.

The sole issue on appeal is whether more than a scintilla of evidence established that Brandau intended to scare Deputy Fleet, so as to support an instruction on assault and battery. The Virginia appellate courts have not defined the term "scintilla." Although this term has a generally accepted meaning of "a spark" or "the least particle," see, e.g., Black's Law Dictionary 1345 (6th ed. 1990), the precise limitations of this term must necessarily be determined in the factual context of a particular case. The determination whether the minimum quantum of credible evidence supports a particular proposition is largely a factor of determining the weight of that evidence in comparison to the weight of the other credible evidence that negates the proposition in question. Therefore, an attempt to establish a comprehensive definition of the term scintilla or to draw a brightline limitation of the term is neither practical nor helpful. 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. Here, on the facts of this case, we find that the evidence supporting an instruction on assault and battery amounted to no more than a mere scintilla of evidence and, therefore, the refusal of the instruction was proper.

To resolve the issue whether there was more than a mere scintilla of evidence tending to establish that Brandau intended only to scare Deputy Fleet so as to support an instruction on assault and battery, we focus upon Brandau's account of the events in question and view it in the light most favorable to his assertions. In his confession, admitted at trial without objection, Brandau admitted that he heard the police announce themselves and knew that Deputy Fleet was outside the door before he retrieved his gun and began shooting at the door. At trial, Brandau denied giving this statement and gave a different account. He maintained that he did not hear the officers announce their arrival and...