Dillard v. Com.

• Decision Date: 23 April 1976
• Docket Number: No. 751000,751000
• Parties: John Early DILLARD v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 137

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.

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.

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. 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 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 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 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, and the Commonwealth had at hand independent evidence sufficient to satisfy them, then the need to use accomplice testimony would not arise.

What is required to satisfy the 'relation to guilt' standard, enunciated in Jones, was demonstrated in Crosby v. Commonwealth, 132 Va. 518, 110 S.E. 270 (1922). There, the accused was charged with illegal sale of intoxicating liquor. He denied the sale. An accomplice, the purchaser of the liquor, testified for the Commonwealth that the accused had made the sale. The only other evidence was produced by a police officer, who testified he saw the accused at the window of the house where the sale was alleged to have occurred; observed the accused look up and down the street; noticed the alleged purchaser enter the house; and afterwards found whiskey in the possession of the purchaser. After reciting these facts, the opinion states:

'(S)o . . . the occasion and opportunity for the crime as well as the possession (by the purchaser) of the whiskey alleged to have been purchased were all clearly shown. This, then, is not a case in which the accused has been convicted upon the uncorroborated testimony of his accomplice.' 132 Va. at 520, 110 S.E. at 271.

We held it was not error for the trial court to refuse to instruct the jury to receive with caution the testimony of the accomplice.

Where, therefore, the testimony of an accomplice is corroborated in material facts which tend to connect the accused with the crime, sufficient to warrant the jury in crediting the truth of the accomplice's testimony, it is not error to refuse a cautionary instruction. This rule applies even though the corroborative evidence falls short of constituting 'independent evidence which supports the alleged ultimate fact' that the accused committed the offense charged.

In the present case, Instruction C, tendered by the defendant, contained the improper 'ultimate fact' standard. This, alone, would be sufficient to sustain the trial court's refusal of the instruction. We do not believe, however, that any instruction relating to standard should have been granted. In this area of the law, a legal standard enunciated by this court is for the guidance of the trial courts in determining whether accomplice testimony has or has not been sufficiently corroborated to warrant, as the case may be, refusing or granting a cautionary instruction warning the jury to accept uncorroborated accomplice testimony with 'great care and caution.' Whether the standard has been met is a legal question for the court, not a factual question for the jury. Here, Instruction C would have permitted the jury to determine the legal question. For this additional reason, therefore, the trial court did not err in refusing Instruction C.

Whether, however, Instruction B, containing the 'great care and caution' warning, should have been granted depends, in turn, upon whether the testimony of the defendant's accomplice, Israel Gilbert, was sufficiently corroborated. Resolution of this question requires analysis of the evidence upon which the trial court acted in...