Gray v. Com.
Decision Date | 18 August 1998 |
Docket Number | Record No. 3017-96-2. |
Citation | 28 Va. App. 227,503 S.E.2d 252 |
Parties | Russell Erin GRAY v. COMMONWEALTH of Virginia. |
Court | Virginia Court of Appeals |
Joseph D. Morrissey (Morrissey, Hershner & Jacobs, on brief), Richmond, for appellant.
Richard B. Smith, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
Present: ANNUNZIATA, J., and COLE and BAKER,1 Senior Judges.
Appellant, Russell Erin Gray, was tried by a jury upon indictments charging him with the murder of Matthew Shuster and the use of a firearm in the commission of murder.2 At the conclusion of the guilt phase of appellant's bifurcated trial, the jury found appellant guilty of involuntary manslaughter of Shuster and use of a firearm in the commission of murder of Shuster. The jury's sentencing verdict recommended twelve months imprisonment for the involuntary manslaughter conviction and three years incarceration for the firearm offense.
On appeal, appellant contends the trial court erred in refusing to instruct the jury, while it was deliberating during the sentencing phase, that if it acquitted him of murder, it should find him not guilty of the use of a firearm in the commission of murder. We disagree and affirm appellant's convictions.
At the guilt phase, the trial court instructed the jury that, as to Shuster, it could acquit appellant or find him guilty of first degree murder, second degree murder, voluntary manslaughter, involuntary manslaughter, or assault and battery. Without objection from appellant, the trial court gave Instruction 14, which stated as follows:
Upon these instructions, the jury returned inconsistent verdicts of guilt for involuntary manslaughter and the use of a firearm in the commission of murder. The trial court denied appellant's motion to set aside the verdicts due to their inconsistency.
The court advised the jurors that it intended to send them back to the jury room to reconsider their verdicts in light of all the instructions previously given. The court further stated as follows:
The court advised the jury that it could reconsider its decision on guilt or innocence and sent the jury to deliberate.
During the subsequent deliberations, defense counsel requested the following cautionary instruction: "If you acquit the defendant of murder, then you should find him not guilty of use of a firearm in the commission of murder." The court refused to instruct the jury further. The jury later returned a verdict imposing sentences for both convictions. When polled, each juror indicated agreement with the verdicts.
The sole question presented in appellant's petition for appeal was whether the trial court erred in refusing appellant's proposed cautionary instruction at the sentencing phase. Therefore, the trial court's ruling on this issue is the only issue properly before this Court. See Rule 5A:12(c) (). However, we must consider this issue in the context of the earlier jury instructions, the guilt phase verdicts, and the proceedings during the sentencing phase.
As noted above, the jury rendered apparently inconsistent verdicts at the conclusion of the guilt phase. A finding that appellant was guilty beyond a reasonable doubt of murdering Shuster was a necessary element of the firearm offense, as charged under Code § 18.2-53.1. The jury found appellant guilty of the lesser offense of involuntary manslaughter. The use of a firearm during the commission of involuntary manslaughter is not a criminal offense under Code § 18.2-53.1.
However, Virginia law regarding inconsistent verdicts is well settled.
As this Court has held, "[t]he fact that verdicts may, on their face, arguably appear inconsistent does not provide a basis to reverse either conviction on appeal, provided the evidence is sufficient to support each verdict." Pugliese v. Commonwealth, 16 Va.App. 82, 96, 428 S.E.2d 16, 26 (1993) . "Jury verdicts may appear inconsistent because the jury has elected through mistake, compromise, or lenity to acquit or to convict of a lesser offense for one charged crime that seems in conflict with the verdict for another charged offense." Pugliese, 16 Va.App. at 96,428 S.E.2d at 26.
Tyler v. Commonwealth, 21 Va.App. 702, 708, 467 S.E.2d 294, 296 (1996) (footnote omitted). In Powell, the United States Supreme Court concluded that "`[t]he most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt.'" Powell, 469 U.S. at 63, 105 S.Ct. 471 (citation omitted). Where juries reach inconsistent verdicts, it is "unclear whose ox has been gored," the government's or the defendant's. Id. at 65, 105 S.Ct. 471.
Regardless of the jury's underlying conclusions in finding appellant guilty of involuntary manslaughter and the use of a firearm in the commission of murder, the apparently inconsistent verdicts were nonetheless valid.3 See Wolfe v. Commonwealth, 6 Va.App. 640, 650, 371 S.E.2d 314, 319-20 (1988)
(. ) Moreover, the jury was without power to change the verdicts rendered at the conclusion of the guilt phase.
The justifications for allowing inconsistent verdicts are not diminished simply because the verdicts are entered at the conclusion of the guilt phase of a bifurcated trial instead of at the end of a unitary proceeding. In either a unitary or a bifurcated proceeding,...
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