Brown v. Com., 800738
| Citation | 279 S.E.2d 142,222 Va. 111 |
| Decision Date | 12 June 1981 |
| Docket Number | No. 800738,800738 |
| Court | Supreme Court of Virginia |
| Parties | Tommy Gene BROWN v. COMMONWEALTH of Virginia. Record |
William P. Sheffield, Abingdon, for appellant.
Robert E. Bradenham, II, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.
Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.
The question here is whether Tommy Gene Brown may be convicted of assault and battery under an indictment charging attempted murder, and also be convicted of an unlawful wounding of the same victim under an indictment charging malicious wounding, when both prosecutions arose out of the same incident.
A group of more than ten men and women, armed with an assortment of firearms and clubs, was involved in a "shoot out" at a music festival in Tazewell County on June 8, 1979. One participant was killed and several others, including Dennis Ellis Keen, were injured. As a result Brown was indicted for six separate crimes, (1) the murder of Danny Ray Keen, (2) the attempted murder of Dennis Ellis Keen, (3) the attempted murder of Clifford Keen, (4) the malicious wounding of Dennis Ellis Keen, (5) the unlawful and felonious use of a firearm in a threatening manner in violation of Code § 18.2-53.1, and (6) the unlawful brandishing of a firearm at one Carolyn Mann.
A jury acquitted Brown of the murder of Danny Ray Keen and of the attempted murder of Clifford Keen. He was convicted of assault and battery under the indictment charging the attempted murder of Dennis Keen, and of unlawful wounding under the indictment charging the malicious wounding of Dennis Keen. The jury also convicted Brown under the two indictments charging him with the unlawful use of firearms. We are concerned here with the convictions of assault and battery and of unlawful wounding.
The evidence establishes that the defendant shot his victim, Dennis Keen, in the leg with a high caliber pistol at close range. After Dennis Keen had been shot, Benny Wilson, a friend of Brown's, got on top of Keen, ground his wounded leg into the dirt, shot, and beat him. The examining physician testified that Keen sustained multiple wounds on the left side of the face, the right side of the chest, and the right thumb. He also stated that there was a gaping wound in both sides of the victim's right lower leg. He indicated that the wounds were inflicted at close range and by bullets from different caliber guns.
The record shows that at the conclusion of the Commonwealth's evidence, counsel for defendant moved to strike the indictments charging the attempted murder and malicious wounding of Dennis Keen. He argued:
The Commonwealth's Attorney responded that the evidence showed that two shots were fired by Brown at Dennis Keen. He observed: The trial judge agreed, ruling: "I think at this point, the Court will overrule the Motions; that's in regard to (indictments) 2 and 4."
After his motion to strike was overruled, the defendant introduced evidence in his own behalf and did not renew his motion to strike at the conclusion of all the evidence. The Attorney General contends that he thereby waived his right to stand upon the motion, citing Inge v. Commonwealth, 217 Va. 360, 228 S.E.2d 563 (1976), and numerous other cases. The rule in Inge, which contemplates a motion to set aside on the ground the evidence is insufficient, is not applicable here.
The Attorney General further points out that the defendant also failed to make any motion to set aside the verdicts of the jury convicting him of assault and battery and unlawful wounding. It is argued that this constitutes a violation of Rule 5:21 because the defendant failed to state with reasonable certainty his objection to the ruling of the court below permitting the jury to consider both indictments and to find verdicts of guilty under both. The Attorney General also contends that the defendant demonstrated his intent not to rely on his original motion to strike by failing to proffer an instruction giving the jury the alternative of finding him guilty of an offense under one indictment but not under both, and by making no objection to the instructions which permitted the jury to convict the defendant under both indictments.
Counsel for the defendant responds that he made his fundamental objection to the manner in which the Commonwealth's Attorney was proceeding clear to the trial court on his motion to strike. He asserts the court was aware of his contention that the defendant could not be prosecuted and convicted of both an attempt to murder and a malicious wounding because the Commonwealth's Attorney was relying upon the same facts to convict in each case. While defendant's objection was not stated with the desired precision and clarity, we think that it was sufficient to have alerted the trial court of the grounds of Brown's objection to being tried and convicted on both indictments, and that it therefore complied with Rule 5:21.
The Attorney General additionally argues that there was sufficient evidence to warrant separate indictments for attempted murder and malicious wounding and to sustain the verdicts returned. His theory is that the assault and battery conviction under the attempted murder indictment was supported by testimony...
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