Goodson v. Com.

• Decision Date: 12 March 1996
• Docket Number: No. 1176-94-2,1176-94-2
• Citation: 467 S.E.2d 848,22 Va.App. 61
• Parties: Emory Adrian GOODSON v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 848

467 S.E.2d 848

22 Va.App. 61

Emory Adrian GOODSON v. COMMONWEALTH of Virginia.

Record No. 1176-94-2.

Court of Appeals of Virginia Richmond.

March 12, 1996.

Margaret Ann Englisby, Chesterfield (Denis C. Englisby; Englisby & Englisby, on brief), for appellant.

Steven A. Witmer, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: COLEMAN, ELDER and FITZPATRICK, JJ.

FITZPATRICK, Judge.

Emory Adrian Goodson (appellant) was convicted in a jury trial of being an accessory after the fact to attempted murder of James Kennedy (Kennedy). Additionally, he was convicted of attempted robbery of Kennedy, attempted murder of Irvin Condrey (Condrey), use of a firearm in the commission of attempted murder of Condrey, robbery of Condrey, and use of a firearm in the commission of robbery of Condrey. On appeal, he argues that the trial court erred in: (1) joining his jury trial with his accomplice's bench trial; (2) granting attempted murder instructions submitted by the Commonwealth that did not include intent to kill as a required element; (3) granting instructions defining malice and allowing the jury to infer malice from the use of a deadly weapon; (4) refusing an instruction for the lesser included offense of being an accessory after the fact to the second attempted murder and the robbery; (5) refusing to strike for cause two prospective jurors; and (6) allowing the Commonwealth to strike the only two African-American jurors on the jury panel. We hold that the trial court erred on the attempted murder charges in failing to include the requirement of a specific intent to kill in the jury instructions. Thus, we reverse and remand his convictions for being an accessory after the fact to attempted murder of Kennedy, attempted murder of Condrey, and use of a firearm in the commission of attempted murder of Condrey. Because the trial court did not err in its joinder of co-defendants for trial or in its rulings to seat the jury, we affirm appellant's convictions for attempted robbery of Kennedy, robbery of Condrey, and use of a firearm in the commission of robbery of Condrey.

BACKGROUND

On December 22, 1993, appellant met Corey Johnson (Johnson) and Johnson's cousin, Mark Hatcher, and drove Johnson to a job interview. After the interview, Johnson asked if appellant would drive him to pick up a friend, Herbert Ross (Ross). Once Ross joined the others, Johnson told appellant to drive to the Crestar Bank at the Pocono Crossing shopping center. On the way to the bank, appellant overheard Johnson and Ross talking about "taking somebody['s] money after they were getting it out of the bank." At 8:15 p.m., appellant, at Ross's direction, pulled behind James Kennedy's (Kennedy) car, which was parked at the Crestar drive-through automatic teller machine (ATM). Johnson and Ross got out of the car, planning to rob Kennedy. Kennedy heard the word "robbery," saw a black male outside of a vehicle pointing a pistol at him, and fled in his car. Ross fired two shots at Kennedy's car, striking the car once. Johnson and Ross returned to appellant's car, and appellant drove the men away from the bank.

Less than two hours later, at 10:00 p.m., appellant pulled into the parking lot of the NationsBank on Midlothian Turnpike. In the car, Johnson and Ross planned another robbery and told appellant he would get a cut. Irvin Condrey (Condrey) drove up to the ATM and withdrew $150. Johnson and Ross approached him, and Johnson pointed a pistol at Condrey and demanded the money. Condrey gave Johnson the cash and drove about thirty to forty yards away. Johnson and Ross got back into appellant's car. Condrey waited until appellant drove out of the parking lot and followed appellant's car down Midlothian Turnpike, flashing his lights and blowing his horn to attract attention. Johnson fired at Condrey's truck "a good twenty times," and hit the truck at least four times, including once in the windshield on the driver's side. During his pursuit, Condrey wrote the license plate number of appellant's car on his hand. Appellant was arrested on December 24, 1993.

MOTION TO SEVER

Prior to trial, appellant moved to sever his jury trial from that of his co-defendant Johnson, who had requested a bench trial. Appellant argued that combining a jury trial and bench trial would be confusing and inherently prejudicial. The Commonwealth argued that judicial economy required a joint trial and that the evidence against both defendants was substantially the same and involved approximately fourteen witnesses. In a letter opinion dated April 15, 1994, the trial judge denied appellant's severance motion, finding that "the Commonwealth's Attorney has shown good cause [and] no basis whereby any defendant would be prejudiced." The court joined appellant's jury trial with Johnson's bench trial.

Code § 19.2-262.1 provides as follows:

On motion of the Commonwealth, for good cause shown, the court, in its discretion, may order persons charged with participating in contemporaneous and related acts or occurrences or in a series of acts or occurrences constituting an offense or offenses to be tried jointly unless such joint trial would constitute prejudice to a defendant.

(Emphasis added). Code § 19.2-262.1 is similar to Rule 3A:10(b) ¹ governing joinder of offenses, which provides as follows:

The court may direct that an accused be tried at one time for all offenses then pending against him, if justice does not require separate trials and (i) the offenses meet the requirements of Rule 3A:6(b) or (ii) the accused and the Commonwealth's attorney consent thereto.

Under Rule 3A:10(b), "[a] trial court has limited discretion to order that an accused be tried concurrently for multiple offenses." Johnson v. Commonwealth, 20 Va.App. 49, 55, 455 S.E.2d 261, 265 (1995). Similarly, Code § 19.2-262.1 limits the discretion of the trial court as to joinder of defendants and requires a court to provide separate trials for individual defendants unless good cause exists for joinder and no prejudice would result from a joint trial. In determining whether a joint trial would prejudice a defendant, the trial court should require "[t]he party moving for severance [to] establish that actual prejudice would result from a joint trial." United States v. Reavis, 48 F.3d 763, 767 (4th Cir.) (emphasis added), cert. denied, --- U.S. ----, 115 S.Ct. 2597, 132 L.Ed.2d 844 (1995). ²

Although the trial procedures used in a bench trial may vary from those required in a jury trial, there is nothing inherently prejudicial in joining them for trial. No inherent prejudice arises simply because a defense counsel is allowed to cross-examine the co-defendant's witnesses, thereby creating the impression that the co-defendants may be hostile to each other's position. Although the jury may hear evidence that is material or germane only to the co-defendant's charges, appellant has shown no prejudice in this case. Thus, the trial court did not abuse its discretion in joining appellant and Johnson for trial.

At the time of the motion for severance, appellant made no specific allegation of actual prejudice, but argued only that combining his jury trial with Johnson's bench trial would be "inherently prejudicial." Appellant's later arguments that the joint trial was confusing and prejudicial did not meet the threshold of establishing actual prejudice. Ample evidence supports the trial court's finding that good cause existed for the joint trial and that no actual prejudice resulted.

JURY INSTRUCTIONS--ATTEMPTED FELONY MURDER

Appellant next contends that the trial court erred on the attempted murder charges by failing to include the requisite intent to kill in its instructions to the jury and by extending the felony murder analysis to attempted murder charges where there was no homicide. No Virginia case has addressed the question of whether attempted felony murder is a crime. We join the majority of states and hold that, in order for a felony murder analysis to be applicable, a homicide must occur. Thus, we hold that there can be no conviction for attempted murder without proof of a specific intent to kill.

At trial, the Commonwealth combined the theories of concert of action used in the robbery and attempted robbery charges and the felony murder doctrine in formulating its instructions on attempted first degree murder. The Commonwealth's Instructions 7 and 16 set forth the elements of attempted first degree murder as follows:

1. That the defendant or someone acting in concert with him attempted to kill [victim];

2. That the attempted killing was malicious; and

3. That the attempted killing occurred during the commission of attempted robbery/robbery.

No requirement of a specific intent to kill was included in the attempted murder instructions. Additionally, the Commonwealth submitted Instruction 5, defining the overt act required for an attempt crime. However, although the attempted robbery instruction (Instruction 4) required proof of an overt act toward the commission of robbery, the attempted murder instructions did not require proof of an overt act toward the commission of murder.

Appellant first argues that the Commonwealth's instructions removed "one of the basic elements of an attempt" to murder, that is, proof of the specific intent to kill or commit murder. The trial judge stated as follows:

If you're involved in a felony and a murder occurs, then you're presumed to intend that to be the natural and probable consequence of your act being involved in the robbery, and that's the whole purpose of the felony murder doctrine. The intent is presumed. You're arguing that they must show the intent, and I don't know that that's the law, under the felony murder doctrine, and that's the theory of their case.

This ruling effectively relieved the Commonwealth of its burden to prove both the specific intent to kill and an overt act toward the commission...