Edwards v. Commonwealth

• Decision Date: 22 December 2015
• Docket Number: Record No. 0954–14–1.
• Citation: 779 S.E.2d 858,65 Va.App. 655
• Court: Virginia Court of Appeals
• Parties: Jerrell Cortez EDWARDS v. COMMONWEALTH of Virginia.

65 Va.App. 655

779 S.E.2d 858

Jerrell Cortez EDWARDS

v.COMMONWEALTH of Virginia.

Record No. 0954–14–1.

Court of Appeals of Virginia, Norfolk.

Dec. 22, 2015.

Richard Clark, Senior Assistant Public Defender, for appellant.

Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: BEALES, CHAFIN and O'BRIEN, JJ.

MARY GRACE O'BRIEN, Judge.

A jury convicted Jerrell Cortez Edwards ("appellant") of second-degree felony murder, in violation of Code § 18.2–33, and felony child abuse or neglect, in violation of Code § 18.2–371.1(B). The victim was the two-year-old son of appellant's girlfriend. Appellant was sentenced to twenty-five years in the state penitentiary on the murder charge and five years in the penitentiary on the child abuse charge. On appeal, appellant alleges the following error: "The trial court erred in not granting either jury instructionn [sic] 1A or 1B which contained lesser included offenses because there was credible evidence to support such an instruction beyond a scintilla of evidence." We disagree and affirm the trial court's ruling.

I. BACKGROUND

"When reviewing a trial court's refusal to give a proffered jury instruction, we view the evidence in the light most favorable to the proponent of the instruction." Commonwealth v. Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221 (2002). So viewed, the evidence established that Laquita Lewis, the mother of the two-year-old victim, J.L., and another five-week-old son, was living with appellant on April 5, 2012. Approximately 7:20 p.m. that evening, she left the children in appellant's care while she attended a class. According to Lewis, J.L. appeared healthy and uninjured at the time she left the residence.

Appellant texted Lewis during her class. He told her that J.L. was out of diapers and that the child had cut his lip while appellant was changing his diaper. Lewis stopped to buy diapers after class and returned home just before 10:00 p.m. Upon her arrival, she found appellant in the child's room, attempting to perform CPR. J.L. was unresponsive. Lewis saw appellant slap J.L.'s face "a couple of times trying to get him to wake up" and saw him attempting chest compressions. He told Lewis "I don't know [what happened]. I just found him like this."

Lewis called 911, and emergency personnel responded approximately seven minutes later. The EMTs who responded noted that the victim's abdomen was distended. They had difficulty establishing an airway for the child, who was not breathing and had no heartbeat. J.L. was taken to the hospital, where he was pronounced dead.

A police officer initially questioned appellant while emergency personnel were attempting to treat the child at the residence. Appellant told the officer that J.L. had been "fussy" that evening, so around 7:30 p.m. he gave the child some juice and laid him down in bed "to put him to sleep to help calm him down." He told the officer that about two hours later, when he went to check on J.L., he noticed that the child had vomit on the side of his mouth and was not breathing. According to appellant, at that point he "started trying to perform CPR" on the child.

When Lewis returned from the hospital after her child's death, she noticed that the bathtub was about one-quarter filled with water. A detective arrived at the apartment and questioned appellant further. Appellant told the detective that he had three shots of vodka at about 6:00 p.m. that evening. He said that J.L. had a temper tantrum when Lewis left for school. He needed to change J.L.'s diaper and had to physically hold the child down, with his hand on the child's chest. While he was doing so, the child flailed about, and hit his mouth on appellant's watch. Appellant said that he took the child to the bathroom to clean the blood from his mouth and then left J.L. in his room with a bottle of water. Appellant went into another room where he had a forty-five-minute video chat with an ex-girlfriend. He ended the conversation just before Lewis was due to come home and checked on the victim. At that time he noticed that the victim was unresponsive and had vomit on his shirt.

At trial, Dr. Jeffrey Gofton, a medical examiner in the Office of the Chief Medical Examiner in Norfolk, testified that he performed an autopsy on J.L. on April 6, 2012. His examination revealed that the child had multiple external injuries to the head

that showed signs of healing. The doctor also identified abrasions to the victim's lips and mouth and fresh bruising behind the child's left ear. There were a series of bruises on both sides of the victim's chest, and other internal organs, including the heart, were bruised. Both the liver and stomach had been ruptured internally. J.L.'s autopsy also showed bruising to the large bowel and a fracture line to the liver approximately two inches long and two inches deep. The doctor stated that the injuries to the liver and stomach could not have been caused by misapplied CPR. He explained that typical injuries from CPR are "along the middle [of the body] just overlying the sternum or the breastplate," and J.L.'s injuries were not in that area. The doctor opined that the cause of the child's death was blunt force trauma to the chest and the abdomen.

Dr. Michelle Clayton, a pediatrician, who was qualified as an expert in the field of child abuse, testified that she attended the autopsy and reviewed the victim's medical records. She opined that the abrasions inside J.L.'s mouth could not have been caused by contact with appellant's watch because they were too extensive. She also agreed with the medical examiner that the injuries to the victim's chest were not sustained during CPR. She noted that a significant portion of the child's circulating blood was found in his abdominal cavity and opined that the victim had been subjected to "severe blunt force trauma of multiple body areas including multiple blows to his face, ... multiple blows to his chest[,] and ... severe blunt force trauma to his abdomen." She described a "large purple bruise on [J.L.'s] lower intestine and appendix" and a bruise to the large intestine and surrounding tissue. Dr. Clayton opined that none of the injuries appeared accidental, based on their severity, location, and the "absence of any reasonable accidental explanation."

Appellant testified in his defense. He told the jury that before Lewis left for class, J.L. begged her not to leave. Lewis and J.L. were in another room when appellant "heard her slap him. Then [he] heard boom, boom, and then [he] heard some hollow punches to[o] like it was the chest area." Appellant reiterated his claim that his watch hit the child's mouth while appellant was changing him. Then, to "rinse the blood out of [J.L.'s] mouth," appellant put J.L.'s head under the bathtub faucet "four to five, possibly six" times. He testified that he put the child in bed with a small bottle of water and left the room to video-chat. When he returned to the room, he found J.L. lying face up with vomit on his mouth and shirt. Appellant said that he was trained in adult CPR and that he began performing CPR on J.L. When J.L. did not respond, appellant "panicked" and "started hitting [the child] on his legs, on his chest[,] [ ] started tapping his sides[,] [ ] started pinching him trying to get him to react." Appellant further stated that "[he] was tapping his—hitting his face, ... just trying to get a response out of [the child]." He claimed that he did not intend to hurt the victim.

At the conclusion of the evidence, the court instructed the jury on the elements of each of the charges. The court denied appellant's proffered Instructions 1A and 1B. Appellant asserts that the instructions, which defined involuntary manslaughter and assault and battery, were proper statements of law, and were warranted by the facts of the case.

II. ANALYSIS

A. Standard of Review

Granting or denying jury instructions "rest[s] in the sound discretion of the trial court." King v. Commonwealth, 64 Va.App. 580, 586, 770 S.E.2d 214, 217 (2015) (alteration in original) (quoting Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187 (2009) ). On appeal, we consider the trial court's ruling with an abuse of discretion standard of review. Gaines v. Commonwealth, 39 Va.App. 562, 567, 574 S.E.2d 775, 778 (2003) (en banc ). "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.’ " Rhodes v. Commonwealth, 41 Va.App. 195, 200, 583 S.E.2d 773, 775 (2003) (quoting Darnell v. Commonwealth, 6 Va.App. 485, 488, 370 S.E.2d 717, 719 (1988) ).

"A trial court should instruct the jury ... ‘on all principles of law applicable to the pleadings and the evidence.’ " Mouberry v. Commonwealth, 39 Va.App. 576, 582, 575 S.E.2d 567, 569 (2003) (quoting Dowdy v. Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508 (1979) ). However, while a defendant is entitled to have the jury instructed on his theory of the case, "such an instruction [must be] supported by some appreciable evidence." Harris v. Commonwealth, 134 Va. 688, 695, 114 S.E. 597, 600 (1922). In other words, the defendant's theory must be supported by "more than a scintilla of evidence." Eaton v. Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 397 (1990). We have declined to define the term "scintilla," but instead held that it should be " ‘resolved on a case-by-case basis' by assessing the evidence in support of a proposition against the ‘other credible evidence that negates' it." Woolridge v. Commonwealth, 29 Va.App. 339, 348, 512 S.E.2d 153, 157 (1999) (quoting Brandau v. Commonwealth, 16 Va.App. 408, 411–12, 430 S.E.2d 563, 565 (1993) ).

Further, if an instruction is offered for a lesser-included offense, the evidence must "provide the necessary quantum of independent evidence" to support the instruction. Commonwealth v. Leal, 265 Va. 142, 146–47, 574...