Commonwealth v. Barney
| Docket Number | Record No. 211126 |
| Decision Date | 16 March 2023 |
| Citation | 884 S.E.2d 81 |
| Parties | COMMONWEALTH of Virginia v. Kimberly Paul BARNEY |
| Court | Virginia Supreme Court |
Virginia B. Theisen, Senior Assistant Attorney General (Jason S. Miyares, Attorney General of Virginia, on briefs), for appellant.
Anthony J. Balady Jr., Senior Assistant Public Defender, on brief, for appellee.
PRESENT: Goodwyn, C.J., Powell, Kelsey, McCullough, Chafin, and Mann, JJ., and Mims, S.J.
OPINION BY JUSTICE D. ARTHUR KELSEY
Kimberly Paul Barney handed a note to a cashier demanding money or her life. The cashier took the threat seriously because she saw Barney place her hand in a pocket and point what appeared to be a handgun at the cashier. A jury convicted Barney of using a firearm during the commission of a robbery. The Court of Appeals vacated the jury verdict, holding that the jury instructions were flawed and that no rational jury could find that Barney had a firearm in her pocket. On both points, we disagree and reverse.
I.
The evidence at Barney's jury trial consisted primarily of testimony from Linda Daugherty, a cashier at a Walgreens store. Early one morning in 2015, Barney appeared at Daugherty's cash register. "[P]art of her face was shielded" by a hat that covered her eyes and "upper half of the face." J.A. at 166, 169-70. Barney presented Daugherty with a box of candy and a handwritten note that stated: "[T]his is a robbery, stay calm, [and] don't make a sound if you want to live." Id. at 157. Mistakenly thinking the note was a shopping list, Daugherty initially ignored it, "rang up" the candy on the cash register, and put the candy in a bag. Id. Displeased by the oversight, Barney verbally commanded: "[G]ive me the money." Id. at 158. Daugherty then read the note.
"[W]hen I saw the note," Daugherty testified, "I looked and it appeared to me that she had a weapon in her pocket[,] and it was pointing at me in a motion for me to notice that she had what I believed to be a weapon." Id. She continued, "I was being robbed at what I believed to be gunpoint." Id. at 157. Reviewing at trial a photograph taken by a security camera at that moment, Daugherty confirmed her understanding that Barney had "her hand in her pocket pointing what I believed to be a weapon in my direction." Id. at 159. She further testified, because "the weapon was being pointed at me" in a way "that if she was to pull that trigger ... I would be shot basically." Id. at 160-61.
"[S]cared out of [her] mind," id. at 172-73, Daugherty gave Barney the cash she was demanding. After the robbery was complete, Barney held the cash in her left hand and walked out of the store. The security video shows that Barney did not take her right hand out of her pocket at any point during her departure. The jury watched the security footage of the incident. A police detective testified that Barney was arrested the following day, but investigators were never able to find the getaway vehicle and search it. They had been able to search other vehicles "related to" Barney but had found no firearm in them. Id. at 193.
After denying Barney's motions to strike at the end of trial, the court instructed the jury. On the charge alleging the use of a firearm during the commission of a felony, the court used a definitional instruction from the Virginia Model Jury Instructions. Instruction No. 7 defined a "firearm" under Code § 18.2-53.1 as J.A. at 276; see also Virginia Model Jury Instructions—Criminal, No. 18.616, at 18-67 (2021-2022 repl. ed.).1 The model instruction thus included not only real firearms but also replicas appearing to be real firearms. See generally Startin v. Commonwealth , 281 Va. 374, 381-82, 706 S.E.2d 873 (2011).
Barney's counsel made clear that he did not "disagree with that model instruction" and did not object to it being given by the trial court. J.A. at 206. He did, however, offer ten additional instructions that he wanted to have considered. Counsel said that he "particularly like[d]" one of them, which stated: "The defendant's fingers or hands are not considered a firearm." Id. at 206, 281. After a long discussion, the prosecutor assured the court that he was "not going to say that a finger can be a gun" to the jury during closing argument. Id. at 219. The court thereafter refused all of Barney's 10 additional instructions. True to his word, the prosecutor in closing argument simply summarized the cashier's testimony and argued that circumstantial evidence had proven that Barney had used a firearm during the robbery.
In his closing argument, Barney's counsel asserted that there was no firearm of any kind in Barney's pocket. She had merely put "her hands in the shape of a gun." Id. at 237-38. "Of course," counsel conceded, Daugherty "thought it was a gun." Id. at 238. "It is possible," counsel also admitted, that Barney perhaps had a "really small" handgun in her pocket. Id. at 241. But, he ultimately argued, Barney "didn't have a gun." Id. at 239. Nor did she have "an object that gives the appearance of a firearm" because "[w]hat we are talking about with that" is "BB guns, ... replica guns, fake guns that are convincing." Id. Instead of possessing any of those objects, counsel concluded, Barney merely had "a finger" in her pocket, and "a finger is not an object that gives the appearance of a gun." Id. at 239-40.
In his rebuttal argument, the prosecutor did not contest the interpretation given by Barney's counsel of the firearm definitional instruction. To the contrary, he accepted it as a given. "When [Barney] leaves with the cash," the prosecutor rhetorically asked the jury, "does she take her hand out?" Id. at 243. Id. If she was not concealing a handgun, Barney could have pulled her hand out of her pocket while "going out the store" because at that point there was no reason to continue any ruse. Id. at 244. "The only reason [Barney] didn't take her hand out of her pocket," the prosecutor concluded, "is because inside that pocket was not just her hand , it was an object that had the appearance of an actual handgun that could fire a shot." Id. (emphases added).
The jury returned a unanimous verdict of guilty. During their deliberations, the jurors submitted no questions or requests for clarification to the trial judge. After the court entered a final judgment, Barney appealed to the Court of Appeals on two grounds. First, she argued that the firearm jury instruction was erroneous in the absence of one of her ten explanatory instructions. While counsel acknowledged that he did not "ever properly object[ ] to the model instruction"2 and further conceded that "the model instruction is not inaccurate,"3 he nonetheless argued that the instruction needed to be amplified to ensure that the jury did not convict Barney in the event that she merely placed her finger in her pocket. Second, Barney argued that the evidence was insufficient as a matter of law to prove her guilt. Counsel did not dispute that "the victim in this case ... had every belief that Ms. Barney had an object that was capable of expelling a projectile by force or gunpowder." CAV Writ Panel Oral Argument Audio at 3:02 to 3:12 (May 18, 2021). Even so, counsel argued, no circumstantial evidence proved that Daugherty was correct.
A panel of the Court of Appeals vacated the jury verdict and reversed the conviction. See Barney v. Commonwealth , 73 Va. App. 599, 615, 863 S.E.2d 877 (2021). Addressing the definitional instruction, the majority opinion stated that it was "ambiguous" because a "reasonable jury may have" thought that a finger in a pocket fit within the instruction's definition of firearm. Id. at 611, 863 S.E.2d 877. The majority opinion did not say which of the alternative instructions best clarified this ambiguity, but it did conclude that "at least one" of them should have been given by the trial court. Id. at 612, 863 S.E.2d 877.
Addressing Barney's challenge to the sufficiency of the evidence, the majority opinion acknowledged that a "pocket bulge may serve as circumstantial evidence that [Barney] had a ‘firearm,’ " but held that, under the circumstances of this case, no rational jury could find that Barney concealed a handgun in her pocket. Id. at 608, 863 S.E.2d 877. In support of this conclusion, the panel viewed the security video that had been shown to the jury. Acknowledging that the "bulge first juts out and points towards Daugherty," the majority opinion determined that the bulge later "subside[d]" and developed a "shifting appearance." Id. at 614, 863 S.E.2d 877. The majority opinion also considered Barney's death threat — cooperate "if you want to live," J.A. at 157 — but downgraded its persuasive weight because the note did not identify the intended murder weapon. Finally, the majority noted that "[i]nvestigators never found a firearm." Barney , 73 Va. App. at 614, 863 S.E.2d 877.
The third judge on the Court of Appeals panel filed an opinion "concurring in the judgment" to the extent that it found the "evidence insufficient as a matter of law." Barney , 73 Va. App. at 615-16, 863 S.E.2d 877 (Ortiz, J., concurring). The insufficiency holding in the majority opinion, the concurring judge pointed out, ended the case in its entirety because that finding secured Barney's double-jeopardy right not to be retried on remand. The concurring opinion also observed that the majority's ruling on the jury instruction issue — which, if correct, would permit a retrial on remand — was not a holding at all but rather "advisory dicta." Id. at 616, 863 S.E.2d 877. See Commonwealth v. White , 293 Va. 411, 419, 799 S.E.2d 494 (2017) ; see also Butcher v. Commonwealth , 298 Va. 392, 396-97, 838 S.E.2d 538 (2020)...
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