Brown v. Com.

• Decision Date: 18 June 1982
• Docket Number: No. 810647,810647
• Parties: Alvin Edward Douglas BROWN v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 319

292 S.E.2d 319

223 Va. 601

Alvin Edward Douglas BROWN v. COMMONWEALTH of Virginia.

Record No. 810647.

Supreme Court of Virginia.

June 18, 1982.

Robert E. Evans, Lynchburg (Kizer, Phillips & Petty, Lynchburg, on brief), for appellant.

Jerry P. Slonaker, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Before CARRICO, C. J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.

COCHRAN, Justice.

In four counts under one indictment, Alvin Edward Douglas Brown was charged with committing, on August 22, 1980, the malicious wounding of his estranged wife, Norma H. Brown, the murder of her grandmother, Anna E. Hubbard, and the use of a firearm in the commission of each offense. The trial court granted Brown's motion for a separate trial of the charges relative to the murder of Hubbard. In a jury trial on the other charges, Norma testified against him and Brown was convicted and sentenced to confinement in the penitentiary in accordance with the jury verdict.

Over Brown's objection, the trial court granted the Commonwealth leave to amend the indictment against Brown charging him with commission of the offenses against Hubbard. The amended indictment returned by the grand jury read as follows:

The Grand Jury charges that:

On or about August 22, 1980, in the County of Campbell, ALVIN EDWARD DOUGLAS BROWN, during the felonious and malicious shooting of Norma H. Brown with intent to maim, disfigure, disable or kill her, unlawfully and feloniously did kill and murder Anna E. Hubbard, in violation of Section 18.1-30 of the Code of Virginia as punishable by Section 18.2-32 of the Code of Virginia, against the peace and dignity of the Commonwealth.

SECOND COUNT

The Grand Jury charges that:

On or about August 22, 1980, in the County of Campbell, ALVIN EDWARD DOUGLAS BROWN, during the felonious and malicious shooting of Norma H. Brown with intent to maim, disfigure, disable or kill her, unlawfully and feloniously did use a firearm while committing a felony of murder in violation of Section 18.2-53.1 of the Code of Virginia, against the peace and dignity of the Commonwealth.

The Commonwealth filed a motion to allow Brown's wife to testify against him on the ground that Brown had killed Hubbard by mistake while attempting to wound or kill Norma, and that under Code § 19.2-271.2 ¹ Norma could testify against him as for an offense committed against her. Over Brown's objection, the trial court granted the motion, and in the jury trial Norma testified as the principal witness for the Commonwealth. Convicted of second-degree murder for the slaying of Hubbard, Brown was sentenced to confinement in the penitentiary for ten years. ² We granted him an appeal limited to the question whether the trial court erred in ruling that his wife could testify against him.

After Brown and his wife separated about July 8, 1980, she and Nikki, their three-year-old daughter, resided in Hubbard's home in Brookneal. The Browns were not divorced.

The Commonwealth's evidence showed that on August 22, 1980, shortly after 9:00 p. m., Brown, accompanied by a female companion, parked his station wagon in front of the Hubbard residence. Leaving his friend in the car, Brown entered the house and played with Nikki in the basement in the presence of Hubbard. There was evidence that Brown enjoyed a good relationship with Hubbard.

Norma testified that upon her return from a neighbor's house, she joined Nikki, Hubbard, and Brown, and conversed briefly with Brown about bills; she noticed that he had been drinking, but he was not intoxicated and there was no argument. When Brown left the house some ten minutes later, Norma went upstairs to get something from her bedroom. On the way, observing that the storm door at the entrance was not closed, she walked over to close it and saw Brown running back to the house with "something long in his hand." Anticipating trouble, she ran into her bedroom and shut the door, but Brown pulled it open and she saw that he was carrying a "long" gun. Norma "hollered loud," Hubbard came upstairs with Nikki and remonstrated with Brown, Norma attempted to flee, and Brown, who was standing near her grandfather's cot, ³ began to shoot. Wounded in her arm by the first shot, Norma fell to the floor. She heard five or six more shots fired in rapid succession; one grazed her head. Her grandmother fell on her. ⁴ Brown left the premises immediately after the shooting.

Norma asserted that Brown twice had threatened to kill her; the first time he threatened her, she moved with Nikki to Hubbard's house. Another witness testified that she had heard Brown threaten to kill Norma about two weeks before the shooting.

Investigating officers arrested Brown the evening of the shooting. They found a rifle containing one unfired .22-caliber cartridge in Brown's car, two expended .22-caliber cartridge cases at the scene of the shooting, and a box of 50 unfired .22-caliber cartridges on Brown's person. Forensic evidence established that the two expended cartridges had been fired in Brown's rifle. It could not be conclusively determined that the mutilated .22-caliber bullet removed from Hubbard's body had been fired from the same rifle.

We need not review Brown's evidence, consisting of his testimony and that of his female companion, in support of his contention that he acted in self-defense. This evidence was rejected by the jury. Although he testified that Norma had threatened him, Brown conceded that he got along well with Hubbard.

Brown, relying on Jenkins v. Commonwealth, 219 Va. 764, 250 S.E.2d 763 (1979), argues that his wife could not properly testify against him at his trial under an indictment charging him with the murder of a third party, even though the offense arose out of the same transaction in which he committed an offense against his wife. He says that the evidence does not show a transferred intent, ⁵ and that the language in the amended indictment relating the killing of Hubbard to the malicious wounding of Norma was mere surplusage which did not change the nature of the prosecution. He maintains that he could only be convicted under the amended indictment of an offense against Hubbard.

In Jenkins, the defendant fired a shotgun at his estranged wife as she was riding as a passenger in a car. The shot, however, struck and killed her male companion, the driver of the vehicle. Jenkins was first charged with the attempted murder of his wife, but the Commonwealth elected not to prosecute that charge and it was dismissed. Thereafter, Jenkins was tried under the theory of transferred intent for the murder of the victim under an indictment that did not allege or refer to any offense against his wife. We held that the trial court erred in permitting his wife to testify as a witness against Jenkins in his trial under that indictment and under the indictment charging him with use of a firearm in the commission of that offense. Although we reaffirm the conclusion reached in Jenkins, we believe that our ruling therein should be limited to the peculiar circumstances and procedural posture of that case.

There was evidence in the present case from which the jury reasonably could find that Brown murdered Hubbard inadvertently while attempting to kill Norma. The trial court instructed the jury on transferred intent and the Commonwealth's Attorney argued this theory to the jury.

Code § 19.2-271.2 should be given a reasonable construction. It is not a penal statute that must be construed strictly against the Commonwealth. Code § 19.2-271.1 provides that husbands and wives are competent witnesses to testify for or against each other in criminal cases except as otherwise provided. The exceptions are included in § 19.2-271.2. Therefore, competency is the general rule and disqualification is the exception. We agree with the rationale of the Supreme Court that "[t]estimonial exclusionary rules and privileges," which impair the right of the public to have all relevant evidence introduced in the fact-finding process, should be strictly construed. Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 912, 63 L.Ed.2d 186 (1980). In that case, the Supreme Court in its rule-making function curtailed the spousal privilege in federal criminal trials by holding that henceforth only the witness-spouse may invoke the privilege of declining to testify against the defendant-spouse.

In Meade v. Commonwealth, 186 Va. 775, 43 S.E.2d 858 (1947), we held that under the predecessor statute to § 19.2-271.2 a...