Burlile v. Commonwealth, Record No. 002003.

• Decision Date: 20 April 2001
• Docket Number: Record No. 002003.
• Citation: 261 Va. 501,544 S.E.2d 360
• Court: Virginia Supreme Court
• Parties: Christopher Allen BURLILE v. COMMONWEALTH of Virginia.

544 S.E.2d 360

261 Va. 501

Christopher Allen BURLILE v. COMMONWEALTH of Virginia.

Record No. 002003.

Supreme Court of Virginia.

April 20, 2001.

S. Jane Chittom (Public Defender Commission, on brief), for appellant.

Pamela A. Rumpz, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: All the Justices.

KOONTZ, Justice.

In this appeal, we consider whether the Court of Appeals erred in holding the trial court, the Circuit Court for the City of Richmond, properly refused to instruct the jury that in order to convict a defendant of capital murder in "[t]he willful, deliberate, and premeditated killing of more than one person within a three-year period" in violation of Code § 18.2-31(8), it is necessary that the jury find the defendant was a principal in the first degree, or "triggerman," in each killing at issue.

BACKGROUND

Because our review is limited to a single, narrow issue, a succinct statement of the facts surrounding the charged crimes in this case, presented in the light most favorable to the Commonwealth as the party prevailing below, will suffice. Fishback v. Commonwealth, 260 Va. 104, 108, 532 S.E.2d 629, 630 (2000). For reasons that will become apparent, the procedural background will be related in some detail.

On December 1, 1997, Christopher Allen Burlile was indicted on two capital murder charges for the killing of Richard Harris, Jr. and Chakeisha Carter. The indictments, F-97-3771 and F-97-3772, charged that the killings of Harris and Carter were part of the same act or transaction in violation of Code § 18.2-31(7). On July 6, 1998, the Commonwealth obtained two additional indictments charging Burlile with capital murder arising from the same killings in violation of Code § 18.2-31(8):

F-98-2676 ... On or about October 15, 1997, in the City of Richmond, CHRISTOPHER ALLEN BURLILE did feloniously, unlawfully, willfully, deliberately and with premeditation kill and murder one Chakeisha Carter and within a three (3) year period, did kill and murder another, namely: Richard Harris Jr.

F-98-2677 ... On or about October 14, 1997, in the City of Richmond, CHRISTOPHER ALLEN BURLILE did feloniously, unlawfully, willfully, deliberately and with premeditation kill and murder one Richard Harris [Jr.] and within a three (3) year period, did kill and murder another, namely: Chakeisha Carter.

At trial, the evidence established that Dawn Harper, Harris's girlfriend, saw Burlile shoot Harris with a shotgun on the evening of October 14, 1997. Harris died as a result of his wounds. Harper testified that Burlile was accompanied by another man at the time of the shooting.

Later that night, Burlile and an accomplice broke into the Carter home. Chakeisha Carter was shot with a shotgun and died as a result of her wounds. Shotgun shells recovered at the scene matched the shells recovered at the Harris murder scene.

Chakeisha's mother, Charlene Carter, and Chakeisha's brother, Shea Carter, were also wounded by shotgun blasts during the breakin at the Carter home. Charlene Carter testified that she did not know who shot her daughter, but identified Burlile as the assailant who fired the shots that wounded her and Shea. Shea did not see who fired the shots that injured him and his mother or the shot that killed his sister, but testified that he heard two unfamiliar voices in the home prior to the shootings.

At the conclusion of the evidence in the guilt-determination phase of a bifurcated trial, Burlile requested that the trial court give his instruction A, which directed the jury that "[t]o find the defendant guilty of capital murder, you must find that he was the triggerman in two murders." Although the instruction failed to identify the theory of capital murder to which Burlile intended it to apply, the context of the colloquy between the trial court, counsel for Burlile, and counsel for the Commonwealth makes clear that the instruction was addressed to the charges of capital murder in violation of Code § 18.2-31(8) only.

The Commonwealth objected to instruction A, asserting that Code § 18.2-31(8) required only that the defendant have committed a murder within three years of the killing for which a conviction for capital murder was sought. Burlile's counsel responded, "Judge, it's our position that the reasoning or logic of the case law requires another instance of capital murder, only the triggerman can be guilty of capital murder."

The trial court refused Burlile's instruction A and instead gave Commonwealth's instruction 28, which provides that:

To find the defendant guilty of capital murder, you must find that he was the triggerman in at least one of the murders. In the second murder, you may find that he was the triggerman or a princip[al] in the second degree.

Burlile objected to this instruction "[i]n view of the instruction earlier that we offered that was refused."

Prior to jury deliberation and upon the joint motion of the Commonwealth and Burlile's counsel, the trial court "combined for one transaction" indictments F-98-2676 and F-98-2677 to charge Burlile with "the capital murder of Chakeisha Carter and Richard Harris, Jr." in violation of Code § 18.2-31(8). Indictments F-97-3771 and F-97-3772 similarly were "combined for one transaction" to charge Burlile with "the capital murder of Chakeisha Carter and Richard Harris, Jr." in violation of Code § 18.2-31(7). The jury found Burlile guilty of each combined capital murder charge and, in the subsequent penalty-determination phase of the trial, recommended a sentence of life imprisonment for each combined capital murder charge. On January 7, 1999, the trial court sentenced Burlile in accord with the jury's recommendation.

Burlile filed a petition for appeal in the Court of Appeals, presenting three questions for review. Two of the issues raised related to the admission of evidence concerning Burlile's activities as a drug dealer and the trial court's refusal to require the Commonwealth to present for an in camera review elements of the police investigation file that Burlile contended might contain exculpatory evidence. The remaining issue addressed the trial court's failure to give instruction A. Burlile did not directly appeal his conviction for capital murder in violation of Code § 18.2-31(7).

By order entered September 28, 1999, a panel of the Court of Appeals awarded Burlile an appeal, framing the sole issue to be addressed as follows:

Whether the trial court erred in instructing the jury "[t]o find the defendant guilty of capital murder, you must find that he was the triggerman in at least one of the murders. In the second murder, you may find that he was the triggerman or a princip[al] in the second degree."

In his opening brief in the Court of Appeals, Burlile asserted that the language of Code § 18.2-31(8) was ambiguous and should be construed strictly against the Commonwealth. Asserting the rationale of Harward v. Commonwealth, 229 Va. 363, 367, 330 S.E.2d 89, 91 (1985), Burlile contended that "[t]he willful, deliberate, and premeditated killing of more than one person within a three-year period" defining capital murder under Code § 18.2-31(8) should be interpreted as requiring that each killing qualify individually as a capital murder. Applying that interpretation, Burlile, citing Harrison v. Commonwealth, 220 Va. 188, 191, 257 S.E.2d 777, 779 (1979), argued that since "only the triggerman can be convicted for capital murder... [Burlile] must be the triggerman for both murders" in order to be found guilty under Code § 18.2-31(8).

Stating that it was addressing "the narrow issue raised in this appeal ... whether Code § 18.2-31(8) requires proof that the defendant was the triggerman in the two killings alleged," the Court of Appeals rejected Burlile's assertion and affirmed his conviction. Burlile v. Commonwealth, 32 Va.App. 796, 800, 531 S.E.2d 26, 28 (2000). In reaching this conclusion, the Court of Appeals relied upon Graham v. Commonwealth, 250 Va. 487, 492, 464 S.E.2d 128, 130, cert. denied, 516 U.S. 997, 116 S.Ct. 535, 133 L.Ed.2d 440 (1995), and held, in a construction similar to our construction of Code § 18.2-31(7) in that case, that Code § 18.2-31(8) should be construed as requiring "proof that the defendant was the triggerman `in the principal murder charged' and at least an accomplice in another killing within a three-year period." Burlile, 32 Va.App. at 802, 531 S.E.2d at 29.

Although Burlile had not presented argument addressing the issue, the Court of Appeals then went on to note that "[Although the jury instruction [28], as given, failed to include the exact language from Graham [that the defendant must be the triggerman in the principal murder charged], any error would be harmless." The Court reasoned that this was so because "[t]he jury's verdict form clearly identified the principal murder charged to be that of Richard Harris and the second murder within three-years to be that of Chakeisha Carter," and credible evidence in the record supported a finding that Burlile "was the triggerman in the killing of Harris." Id. In a footnote, the Court quoted the "verdict form" as stating that Burlile "did kill Richard Harris, Jr., and, within a three-year period, did kill Chakeisha Carter." Id. at 802 n. 3, 531 S.E.2d at 29 n. 3.

Burlile filed a petition for appeal in this Court for review of the judgment of the Court of Appeals, reasserting the evidentiary and discovery issues for which an appeal had been denied in the Court of Appeals, and making the following assignment of error with respect to the issue for which an appeal had been granted below:

The Circuit Court erred in not granting a jury instruction requiring the defendant to be a principal in the first degree in both homicides in order for the murder of two or more persons in a three-year period to be capital murder.

By order dated December 1, 2000, we awarded Burlile an appeal limited to the issue raised in this...