Bruce v. Com., 0504-88-2
| Decision Date | 02 January 1990 |
| Docket Number | No. 0504-88-2,0504-88-2 |
| Citation | 9 Va.App. 298,387 S.E.2d 279 |
| Parties | Thomas Edward BRUCE v. COMMONWEALTH of Virginia. |
| Court | Virginia Court of Appeals |
Scott Goodman, for appellant.
Frank S. Ferguson, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: BENTON, DUFF and COLE, JJ.
Thomas Edward Bruce was convicted by a jury of second degree murder and use of a sawed-off shotgun in the commission of murder. He contends that the trial judge erred: (1) in instructing the jury that, as a matter of law, the weapon used was a sawed-off shotgun; and (2) in refusing to consider a reduction in the jury's recommended sentence. For the reasons that follow, we reverse the convictions and remand for a new trial.
Fred Scott and Bruce consumed a quantity of alcoholic beverages at Bruce's home and became engaged in an argument. Bruce picked up a handgun and shot into the floor at Scott's feet. As the argument escalated, Scott took the same handgun and threatened Bruce. Bruce then retreated to his bedroom, warning Scott not to follow. As Scott walked into the bedroom, Bruce reached for a shotgun and fired, fatally wounding Scott.
The trial judge instructed the jury in accordance with the Commonwealth's instruction fourteen, which stated: Over Bruce's objection, the trial judge also gave the Commonwealth's instruction fifteen, which read: "Under the law, the weapon in this case was a sawed-off shotgun."
We agree with Bruce that the trial judge committed reversible error by giving instruction fifteen. In Cooper v. Commonwealth, 2 Va.App. 497, 345 S.E.2d 775 (1986), this Court stated that the chief objective of the charge to the jury is to explain the law relevant to the case, to point out the essentials to be proved by either side, and to "bring into view the relation of the particular evidence adduced to the particular issues involved." Id. at 500, 345 S.E.2d at 777. An instruction should not be given which incorrectly states the applicable law or which would be confusing or misleading to the jury. See id.
Code § 18.2-300(A) provides that "[p]ossession or use of a 'sawed-off' shotgun in the perpetration or attempted perpetration of a crime of violence is a Class 2 felony." In order to convict Bruce under this statute, which carries a more severe penalty than manslaughter or second degree murder, the Commonwealth was required to prove, as an element of its case, that the weapon used was a sawed-off shotgun. A " 'sawed-off' shotgun" is statutorily defined as:
any weapon, loaded or unloaded, originally designed as a shoulder weapon, utilizing a self-contained cartridge from which a number of ball shot pellets or projectiles may be fired simultaneously from a smooth or rifled bore by a single function of the firing device and which has a barrel length of less than eighteen inches for smooth bore weapons and sixteen inches for rifled weapons. Weapons of less than .225 caliber shall not be included.
"In effectuating [the] presumption [of innocence], a criminal defendant is entitled to be clothed with indicia of innocence until ... guilt is established by the trier of fact from the evidence presented at trial." Vescuso v. Commonwealth, 4 Va.App. 32, 40, 354 S.E.2d 68, 72 aff'd, 5 Va.App. 59, 360 S.E.2d 547 (1987). In order to satisfy the due process requirements of the Constitution, the Commonwealth is required to prove to the trier of fact all elements of the offense beyond a reasonable doubt. Stokes v. Warden, 226 Va. 111, 117, 306 S.E.2d 882, 885 (1983). Whether the weapon met the statutory definition was a factual issue for the jury to decide.
The Commonwealth argues that instruction fourteen cured the defect. We disagree. By instructing the jury both that the Commonwealth was required to prove beyond a reasonable doubt the use of a sawed-off shotgun and that this same issue to be proved was resolved as a matter of law, the trial judge gave directions that, at best, could only have served to confuse the jurors. Common sense suggests, however, the likelihood that the jury understood instruction fifteen to be a direction, "[u]nder the law," that the requirement of instruction fourteen had been met by the Commonwealth's proof.
The Commonwealth's contention that the error was harmless also lacks merit. "Error will be presumed prejudicial unless it plainly appears that it could not have affected the result." Joyner v....
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