Dillard v. Com., 751000

• Docket Nº: No. 751000
• Citation: 216 Va. 820, 224 S.E.2d 137
• Case Date: April 23, 1976
• Court: Supreme Court of Virginia

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224 S.E.2d 137 216 Va. 820 John Early DILLARD
v.
COMMONWEALTH of Virginia. Record No. 751000. Supreme Court of Virginia. April 23, 1976.

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John L. Gregory, III, Benjamin R. Gardner, Martinsville (Young, Kiser, Haskins & Mann, Ltd., Frith, Gardner & Gardner, Martinsville, on brief), for plaintiff in error.

Alan Katz, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

[216 Va. 821] CARRICO, Justice.

The sole question for decision in this criminal appeal is whether the trial court erred in refusing defense Instructions B and C, relating to the corroboration of the testimony of an accomplice. The instructions were refused in the trial of the defendant, John Early Dillard, on charges of murder, conspiracy to rob, and robbery. The defendant was convicted by the jury of the charges, and his punishment was fixed at a total of 35 years confinement in the penitentiary. He was sentenced in accordance with the jury's verdict, and he now seeks reversal.

The record shows that on the evening of November 15, 1974, police officers found John Futrell, wounded and bleeding, on the front seat of his taxicab in Bassett, Henry County. He had been shot three times, and he died of a gunshot wound of the head, caused by a .22 calibre bullet.

Israel Gilbert, who implicated himself in the crimes, testified for the Commonwealth that the defendant had shot and robbed Futrell. Asserting that Gilbert's testimony was not sufficiently corroborated, the defendant contends that the trial court erred in refusing his tendered Instruction B. ¹

In Virginia, the jury, if satisfied of guilt, may convict an accused upon the uncorroborated testimony of an accomplice.

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Blount v. Commonwealth, 213 Va. 807, 810, 195 S.E.2d 693, 695 (1973). Where accomplice testimony is uncorroborated, however, it is the duty of the court to warn the jury against the danger of convicting upon such uncorroborated testimony. Jones v. Commonwealth, 111 Va. 862, 868, 69 S.E. 953, 955 (1911). This warning is required because the source of accomplice testimony is tainted with the temptation to exculpate oneself by laying the crime upon another. Largin v. Commonwealth, 215 Va. 318, 319, 208 S.E.2d 775, 776 (1974).

But where accomplice testimony is corroborated, it is not error to refuse a cautionary instruction. Clinton v. Commonwealth, 204 Va. 275, 283, 130 S.E.2d 437, 443 (1963), rev'd on other grounds, 377 U.S. 158, 84 S.Ct. 1186, 12 L.Ed.2d 213 (1964). Indeed, while this court has repeatedly stated the [216 Va. 822] principle that a jury should be warned to accept uncorroborated accomplice testimony with 'great care and caution,' our research has not disclosed a single instance where a conviction was reversed because of failure to grant a cautionary instruction. ² Just as consistently, where we have found corroboration, we have held it not reversible error to refuse a cautionary instruction. See, e.g., Richards v. Commonwealth, 187 Va. 1, 4, 46 S.E.2d 1, 2 (1948).

With the usual instruction, the test in determining whether it should be granted is: does the evidence support the instruction? Cautionary accomplice instructions, however, deal with a lack of evidence, evidence of a corroborative nature. The test, therefore, in determining whether a cautionary instruction should be granted becomes this: is corroborative evidence lacking? If it is, the instruction should be granted; if it is not lacking, the instruction should be refused, because to warn a jury against accepting uncorroborated testimony is to indicate that the court does not consider the testimony corroborated.

It is clear, therefore, that cautionary instructions should be granted when accomplice testimony is uncorroborated and that they should be refused when such testimony is corroborated. What is unclear, however, the defendant says, is the quantity and quality of corroborative evidence necessary to justify refusal of cautionary instructions. The corroborative evidence, the defendant contends, must measure up to the standard set forth in his refused Instruction C, ³ viz., the corroboration must constitute independent evidence which supports the ultimate fact that the accused committed the offense charged. We do not agree that this is the proper standard or that, in any event, the jury should be instructed with respect to the standard.

The 'ultimate fact' standard was contained in an instruction granted by the trial court, at the request of the accused, in Benson v. Commonwealth, 190 Va. 744, 58 S.E.2d 312 (1950). The instruction, however, was not in issue on appeal and, indeed, its content may be found only by resort to the record. In answering a contention of the accused that certain other instructions had been improperly refused, we said, 'It appears from the instructions granted that the jury was [216 Va. 823] fairly instructed on the issues involved, and that those offered by the defendant were properly refused.' 190 Va. at 754, 58 S.E.2d at 316. This did not amount to approval by this court of the 'ultimate fact' standard or to a holding that the jury should be instructed with respect to whatever standard is applicable.

The defendant argues that we did adopt the rigid 'ultimate fact' standard in Jones v. Commonwealth, supra, 111 Va. at 869, 69 S.E. at 955, when we said, '(T)he corroboration or confirmation must relate to some fact (or facts) which goes to establish

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the guilt of the accused.' We believe this is the proper standard, but it is not as rigid as the 'ultimate fact' test. The corroborative evidence, standing alone, need not be sufficient either to support a conviction or to establish all the essential elements of an offense. If those were the requirements,...