Darnell v. Com.

• Decision Date: 05 July 1988
• Docket Number: No. 0141-87-3,0141-87-3
• Court: Virginia Court of Appeals
• Parties: Norma Jean DARNELL v. COMMONWEALTH of Virginia. Record

Page 717

370 S.E.2d 717

6 Va.App. 485

Norma Jean DARNELL v. COMMONWEALTH of Virginia.

Record No. 0141-87-3.

Court of Appeals of Virginia.

July 5, 1988.

Gary L. Lumsden, Roanoke, for appellant.

Virginia B. Theisen, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and COLEMAN and MOON, JJ.

COLEMAN, Judge.

Norma Jean Darnell was convicted by a jury of involuntary manslaughter in the death of a police officer and sentenced to eight years in prison. She appeals that conviction on two grounds: (1) the jury was improperly instructed on the elements of the offense, and (2) the evidence was insufficient to support a conviction.

In the early morning hours of April 12, 1986, appellant arrived at her home in Roanoke. She checked her answering machine and found sixteen messages from Darrell Hensley, a man she had dated twice. Appellant called Hensley and told him to stop calling her. About ten minutes later, a drunk and argumentative Hensley came through appellant's back door into her house. Appellant talked Hensley into going outside to talk; when he was out she slammed the door, locked it, and called the police. The dispatcher's tape revealed that appellant told the dispatcher to send someone right away or "he's gonna get hurt real bad." Hensley began hitting the door and yelling. Appellant got her .32 caliber revolver from the bedroom, went back to the kitchen door, and cocked the pistol. She again called the police dispatcher who assured her that the police were at her house. She then looked through the peephole and confirmed that officers were present and had Hensley in custody. She opened the kitchen door, with the gun still in her hand and the barrel pointing outside. In her statements and at trial, she testified she was going outside to identify herself as the person who had telephoned the complaint. As she opened the screen door, the door hit her hand, causing the gun accidentally to discharge. A bullet hit one of the officers about seven feet away, fatally wounding him.

Appellant was arrested and tried for involuntary manslaughter. After the evidence was concluded, the judge instructed the jury as follows (Instruction No. 2):

The Commonwealth must prove beyond a reasonable doubt each of the following elements of [the crime of involuntary manslaughter]:

(1) That the defendant killed David W. Rickman; and

(2) That the killing, although unintended, was the direct result of negligence so great as to show a reckless disregard of human life; or that the killing, although unintended, was in the prosecution of some unlawful, but not felonious act, specifically reckless handling of a firearm so as to endanger the life, limb or property of any person.

He further informed the jury (Instruction No. 3) that the negligence involved in the crime must have been criminal negligence, and it must have been "reckless or wanton and of such a character as to show disregard of the safety of others under circumstances likely to cause injury or death." ¹

Appellant's complaint with respect to the jury instructions relates solely to the portion of Instruction No. 2 regarding violation of a statute as grounds for involuntary manslaughter. She argues that under the instructions given, the jury could convict her of involuntary manslaughter if they found that she committed the unlawful act of reckless handling of a firearm and death resulted. Pointing out that not every violation of a statute can be a predicate for involuntary manslaughter because the violation must manifest a callous disregard for human life, she argues that the jury should have been instructed that the violation of the statute must have involved criminal negligence. Appellant notes that the instruction requiring a finding of criminal negligence did not vitiate the problem since under the instructions, no finding of negligence was necessary to convict on the violation of the statute theory.

The Commonwealth concedes that a mere violation of any statute will not suffice to support a conviction but argues, at least impliedly, that when the statute proscribes inherently dangerous conduct, such as reckless handling of a firearm, to establish criminal negligence the Commonwealth need only show that a violation of the statute proximately caused the death. In other words, the Commonwealth argues that reckless handling of a firearm necessarily includes the concept of criminal negligence. It then argues that even if recklessness equivalent to criminal negligence is an element, in this case, the requisite recklessness was inherent in the violation of the statute. Therefore, there was no need to require an additional finding of recklessness. Finally, the Commonwealth argues that if Instruction No. 2 was incomplete, the error was remedied by Instruction No. 3 requiring a finding of gross and culpable negligence.

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." Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982). It is elementary that a jury must be informed as to the essential elements of the offense; a correct statement of the law is one of the " 'essentials of a fair trial.' " Dowdy v. Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508 (1979) (reversing conviction due to trial court's failure to instruct the jury as to the essential elements of the crime) (citations omitted) (emphasis omitted).

Generally, jury instructions that set forth the essential elements of the crime are patterned on the definition of the crime. As a common-law crime, involuntary manslaughter is defined not by statute, but in caselaw. "Involuntary manslaughter is the killing of one accidentally, contrary to the intention of the parties, in the prosecution of some unlawful, but not felonious, act; or in the improper performance of a lawful act." Mundy v. Commonwealth, 144 Va. 609, 615, 131 S.E. 242, 244 (1926). "Improper performance" has been held to require criminal negligence " 'so gross and culpable as to indicate a callous disregard of human life.' " Beck v. Commonwealth, 216 Va. 1, 4, 216 S.E.2d 8, 10 (1975) (quoting Goodman v. Commonwealth, 153 Va. 943, 952, 151 S.E. 168, 171 (1930)). Appellant, citing King v. Commonwealth, 217 Va. 601, 231 S.E.2d 312 (1977), contends that the same criminal negligence is also essential when the charge is based on violation of a statute or "in the prosecution of some [other] unlawful, but not felonious act."

In King the court reversed an involuntary manslaughter conviction that was based on the defendant's violation of a statute requiring vehicles to display lighted head lamps at night. The court noted that although it had held previously that a death proximately caused by driving while intoxicated constituted involuntary manslaughter,

[o]ther statutory violations do not necessarily fall into the same category, depending upon the nature and extent of the offenses. Inadvertent acts of negligence, without recklessness, while giving rise to civil liability, will not suffice to impose criminal responsibility.... Intentional, willful, and wanton violation of safety statutes, resulting in death, however, will justify conviction of involuntary manslaughter.

King, 217 Va. at 606, 231 S.E.2d at 316; see also Jenkins v. Commonwealth, 220 Va. 104, 107, 255 S.E.2d 504, 506 (1979) (failure to keep proper lookout and driving left of center insufficient to support conviction); Lewis v. Commonwealth, 211 Va. 684, 687-88, 179 S.E.2d 506, 509 (1971) (failure to keep a proper lookout insufficient to support a conviction). Recently, this court cited King in holding that the failure to keep a proper lookout, failure to use reasonable care, and failure to stop and yield the right of way, though all statutory violations, were insufficient to support a conviction because, standing alone and under the facts of that case, they did not constitute negligence "so gross, wanton, and culpable as to show a reckless disregard of human life." Tubman v. Commonwealth, 3 Va.App. 267, 275, 348 S.E.2d 871, 875 (1986).

The Commonwealth argues that the King rationale of requiring a violation of a statute to be criminally negligent is limited to violations of motor vehicle statutes. Citing Bailey v. Commonwealth, 5 Va.App. 331, 362 S.E.2d 750 (1987), to support this proposition, it points out further that in Bailey, this court held that "[a] violation of Code § 18.2-56.1(A) [the reckless handling of a firearm statute], unlike most safety statutes dealing with the operation of motor vehicles, contemplates an inherently dangerous act. Where, as here, the intentional violation of the statute involves an inherently dangerous act which is the proximate cause of the resulting homicide, the killing is involuntary manslaughter." Id. at 334-35, 362 S.E.2d at 751. Therefore, argues the Commonwealth, the violation itself of the reckless handling of a firearm statute imputes the requisite callous disregard of human life; an additional finding of recklessness is unnecessary.

We disagree with the Commonwealth's characterization of Bailey. On appeal, Bailey argued that the evidence was insufficient to support a conviction; he did not argue...