Dalton v. Com.

• Decision Date: 16 March 1999
• Docket Number: Record No. 3134-96-3.
• Citation: 512 S.E.2d 142,29 Va. App. 316
• Parties: Paul Michael DALTON, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

512 S.E.2d 142

29 Va. App. 316

Paul Michael DALTON, Jr. v. COMMONWEALTH of Virginia.

Record No. 3134-96-3.

Court of Appeals of Virginia, Richmond.

March 16, 1999.

H. Victor Millner, Jr., Chatham, for appellant.

Richard B. Smith, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and BENTON, COLEMAN, WILLIS, ELDER, BRAY, ANNUNZIATA, BUMGARDNER and LEMONS, JJ., and OVERTON,¹ Senior Judge.

ELDER, Judge.

Paul Michael Dalton, Jr., (appellant) appealed his conviction for first degree murder. On appeal, he contended the trial court erred in refusing to instruct the jury on the crime of accessory after the fact to murder. A panel of this Court agreed with appellant and reversed his conviction. See Dalton v. Commonwealth, 27 Va.App. 381, 499 S.E.2d 22 (1998)

. We granted the Commonwealth's petition for rehearing en banc and stayed the mandate of that decision. Upon rehearing en banc, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

I. FACTS

Appellant was charged with three crimes: (1) murder "in the commission of or attempt to commit robbery," (2) murder, and (3) "use [of] a shotgun in committing or attempting to commit murder or robbery." None of the indictments against appellant expressly charged him with being an accessory after the fact to any of these crimes.

The evidence at trial proved that, on December 17, 1995, the body of Clark Aubrey Adkins (victim) was found buried in a shallow grave in a wooded area about two-tenths of a mile from the nearest state road. The victim had been killed by a gunshot wound to his right upper chest. The victim also had been shot a second time in his left side "just above the belt" after his heart had stopped beating.

Three witnesses, Ronald Cassady, Matthew Cassady, and Jimmy Cook, testified that appellant confessed to killing the victim during the week of December 12. Ronald Cassady testified that appellant told him that "when [the victim] come down the road, [appellant] was laying in the road and jumped up when [the victim] stopped and shot him." Matthew Cassady testified that appellant told him "he met ... [the victim] on his grandma's road, and somehow he got in the car or something and he shot him." Matthew Cassady also testified that appellant said he killed the victim "because [the victim] raped his sister, Mary Dalton." Jimmy Cook testified that, after appellant drafted a note confessing to the murder, he explained his reasons for doing so. According to Cook, appellant "said he wanted to write a note ... because he said he done it all by himself, and he didn't want to get his sister or Joseph [Smith] [appellant's sister's boyfriend], to get neither one of them blamed for something they didn't do."

The Commonwealth also introduced into evidence a note written and signed by appellant in which appellant stated that he "did in fact kill [the victim] ... and Mary and Jos[e]ph did not have inthing [sic] to do with it."

At trial, appellant denied shooting the victim. Appellant testified that, on December 12, he and Joseph Smith were sitting in the woods watching his sister, Mary Dalton, as she attempted to buy marijuana from the victim while in his car. Appellant testified that after his sister exited the victim's car, he saw Smith approach the victim and shoot him twice. According to appellant, Smith "shot [the victim] one time through the passenger side door, and he reloaded, and he walked around and he opened the driver's side door and shot him again." After the shooting, appellant helped Smith place the victim's body in the trunk and accompanied Smith as he drove the victim's car to a remote location in the woods. Appellant testified that, at some point, Smith took "between twelve hundred and fifteen hundred dollars" and some "pot" from the victim's body and distributed it among himself, appellant, and appellant's sister. "A couple of days later," appellant helped Smith carry the victim's body from the trunk of his car to a location in the woods where Smith buried it. Appellant testified that he wrote his confession note "`cause [he] didn't want [his sister] to go to jail."

At the conclusion of the evidence, appellant requested a jury instruction on the crime of being an accessory after the fact. The trial court refused to give the instruction, and appellant objected to the ruling. Appellant argued that an instruction on accessory after the fact was warranted "based on the evidence in this case." The trial court ruled that it refused appellant's request for an instruction on accessory after the fact "because [it did] not think that accessory after the fact is a lesser included offense to any of the charges."

The jury convicted appellant of first degree murder but acquitted him of the firearm charge. The trial court subsequently dismissed the indictment charging appellant with murder in the commission of or attempt to commit robbery.

II. JURY INSTRUCTION

Appellant contends the trial court erred when it refused to instruct the jury on the crime of being an accessory after the fact. He argues that Rule 3A:17(c) of the Rules of the Supreme Court of Virginia entitled him to an instruction on accessory after the fact because more than a scintilla of evidence supported this theory. We agree that the jury should have been instructed that convicting appellant of being an accessory after the fact to murder was an option when it determined its verdict.

As a preliminary matter, we decline, by an evenly divided court,² the Commonwealth's request to apply Rule 5A:18 to bar appellant's claim that Rule 3A:17(c) supports his argument on appeal.³ This case presents an issue of first impression in Virginia: whether a criminal defendant who has not been expressly charged with the crime of being an accessory after the fact has a right to a jury instruction on the offense of being an accessory after the fact to the crime of which he or she was charged when supported by the evidence.

"A reviewing court's responsibility in reviewing jury instructions is `to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.'" Darnell v. Commonwealth, 6 Va.App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)).

Although neither the Code nor the Rules of the Supreme Court of Virginia set forth jury instructions that the trial court must give at the conclusion of the evidence in a criminal case, it is well established as a matter of common law that "[i]t belongs to the [trial] court to instruct the jury as to the law, whenever they require instruction, or either of the parties request it to be given." Thornton v. Commonwealth, 65 Va. (24 Gratt.) 657, 662(1874). It is equally well established that "[a] defendant is entitled to have the jury instructed only on those theories of the case that are supported by the evidence," and a trial court errs when it refuses such an instruction that is supported by "more than a scintilla" of evidence. Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280 (1986); see also Baylor v. Hoover, 123 Va. 659, 660-61, 97 S.E. 309, 310 (1918); Bowles v. Commonwealth, 103 Va. 816, 830-31, 48 S.E. 527, 532 (1904).

The scope of the jury instructions that the trial court is required to give depends upon the evidence and the range of available dispositions of a particular charge. "At common law the jury was permitted to find the defendant guilty of any lesser offense necessarily included in the offense charged." Beck v. Alabama, 447 U.S. 625, 633, 100 S.Ct. 2382, 2387, 65 L.Ed.2d 392 (1980); see also Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973)

; Hardy v. Commonwealth, 58 Va. (17 Gratt.) 616, 618-20 (1867) (stating that under Virginia common law, "a party might be convicted of any offence substantially charged in the indictment, provided it was of the same grade [either felony or misdemeanor] with the principal or total offence charged"). Thus, as a matter of common law, "[i]t is reversible error for the trial court to refuse to instruct the jury on the lesser offenses charged in the indictment if there is any evidence in the record tending to prove such lesser offenses." Taylor v. Commonwealth, 186 Va. 587, 591, 43 S.E.2d 906, 908 (1947) (citations omitted); see also Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986); McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 292-93 (1975); Porterfield v. Commonwealth, 91 Va. 801, 803, 22 S.E. 352, 353 (1895); Miller v. Commonwealth, 5 Va.App. 22, 24, 359 S.E.2d 841, 842 (1987); 23A C.J.S. Criminal Law § 1357 (1989) (stating that "[t]he right to a jury instruction on a lesser included offense... is purely a matter of common law"). Conversely, we have stated as a general proposition that "an accused on trial for one offense is not entitled to have the jury instructed on an offense which is not included as a lesser offense of the one charged." Simms v. Commonwealth, 2 Va.App. 614, 616, 346 S.E.2d 734, 735 (1986); see also Crump v. Commonwealth, 13 Va.App. 286, 290, 411 S.E.2d 238, 241 (1991); Taylor v. Commonwealth, 11 Va.App. 649, 651, 400 S.E.2d 794, 795 (1991).

Although the crime of being an accessory after the fact is not a lesser-included offense of the principal charge, Code § 19.2-286 and Rule 3A:17 provide that, on the charge of a principal offense, the jury may find the accused guilty of an attempt or of being an accessory after the fact. Only if the jury is instructed upon what constitutes an attempt or being an accessory after the fact may the jury fulfill its responsibility under the statute and rule.

Prior to the 1960 amendment of Code § 19.2-286,⁴ a defendant not charged with being an accessory after the fact was not expressly entitled to a jury instruction on this offense because the crime of...