Green v. Commonwealth

• Decision Date: 13 February 2018
• Docket Number: Record No. 0344-17-1
• Court: Virginia Court of Appeals
• Parties: JAMAR DOMINIC GREEN v. COMMONWEALTH OF VIRGINIA

JAMAR DOMINIC GREEN v. COMMONWEALTH OF VIRGINIA

Record No. 0344-17-1

COURT OF APPEALS OF VIRGINIA

FEBRUARY 13, 2018

UNPUBLISHED

Present: Judges Humphreys, Malveaux and Senior Judge Frank

Argued at Newport News, Virginia

MEMORANDUM OPINION^* BY JUDGE ROBERT P. FRANK

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS

C. Peter Tench, Judge

Joshua A. Goff (Goff Voltin, PLLC, on brief), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Jamar Dominic Green, appellant, was convicted in a jury trial of use of a firearm in the commission of a felony in violation of Code § 18.2-53.1 and discharge of a firearm in a public place in violation of Code § 18.2-280. He argues on appeal that Code § 18.2-280(E) precluded the Commonwealth from charging him with both firearm offenses, that the evidence was insufficient to convict him, and that the trial court erred in refusing to instruct the jury on self-defense, accidental wounding of another while acting in self-defense, duress, and the right to arm. We hold that the jury was properly instructed and the evidence was sufficient to convict appellant, but we find the trial court erred in not requiring the Commonwealth to elect which firearm offense it would prosecute. Thus, we remand appellant's convictions under Code §§ 18.2-53.1 and 18.2-280 with direction for the Commonwealth to elect which one of the firearm convictions should be set aside.

BACKGROUND

The evidence established that on the evening on March 3, 2016, Michael Griffin went to Club Paradise in Newport News with some friends. Griffin saw appellant sitting at the bar with some other men, but was not acquainted with appellant and had no interaction with him. At some time after 11:00 p.m., Griffin testified he went outside to put some food he had ordered in his car and then stood outside the club to smoke a cigar. Video excerpts from the club's surveillance cameras, which were played at trial, showed that as Griffin re-entered the club, a man and a woman left the club and got into an SUV that was parked on the left side of the club toward the rear of the building. The man turned on the vehicle's lights as though he "was ready to go," but he did not leave immediately. The club owner testified that the man had argued with the woman earlier in the evening after seeing her talk with appellant and that the man grabbed the woman and "yanked" her out of the club.

The video further revealed appellant exited the club and stood outside near the front door. About a minute later, Griffin and another man, who was wearing a knit hat and had been seen inside the club with appellant, came out of the club. Griffin testified he walked toward the parked SUV, intending to talk to the man about playing more pool, as they had played earlier in the evening. While the man with the knit hat stood at the front door of the club, holding it partially open, appellant walked to the passenger side of appellant's car, which was parked near the left corner of the building, and retrieved an item from the car before returning to the walkway at the corner of the building. Appellant appeared to be hiding something. The video revealed that as soon as appellant returned to the "balcony" of the club, he turned around with a gun in his hand. The club owner, who was watching the incident in real time on the surveillance cameras inside the club, testified that appellant retrieved his gun from his vehicle, returned to the front of the club, turned around, and was "aiming to shoot" the man in the SUV, but before he could doso, "[t]he [SUV] guy got [appellant] first." Appellant ran into the club after he was shot. The man in the knit hat grabbed appellant's gun and then stood at the partially opened front door and fired at the departing SUV. Appellant left the premises before police arrived at 12:38 a.m. Griffin was the only person in the parking lot when the police arrived.

Griffin was shot in his left hip as he was standing by the driver's side of the SUV talking with the driver. Griffin testified at trial that immediately before he was shot, the man driving the SUV told him to "get out the way." Griffin said he was shot before he saw the SUV driver pull out a gun and start shooting, as the SUV fled the parking lot at a high rate of speed. The driver did not aim his gun at Griffin. Griffin heard "a whole lot of shooting" as he ducked for cover behind a nearby parked car.

The officers investigating the crime initially thought that appellant was a victim of the shooting. When interviewed at the hospital a few days after the incident, before he was a suspect, appellant told the police he had not had a gun at the time of the shooting, had not fired any shots, and did not know who the shooter was. After watching the surveillance video, the police determined appellant had fired the first shot and did not follow up on other possible suspects. The persons in the SUV were never identified or located.

The police did not recover any weapons, but they found nineteen cartridge cases at the scene, most of which were located within nineteen feet of the front door of the club and on the left side of the parking lot. Two cars belonging to persons who were at the club, which were parked on the left side of the lot near the street, were hit by bullets.

At the conclusion of the Commonwealth's case in chief, appellant moved to strike the charges, arguing the evidence showed that he had acted in self-defense and that Code § 18.2-280(E) precluded the Commonwealth from prosecuting him for discharging a firearm in public as well as aggravated malicious wounding and the related use of a firearm in thecommission of that offense. The Commonwealth argued that the offenses had different elements, and the court denied the motion. Appellant presented no evidence and renewed his motion on the same grounds, which the court again denied.

This appeal followed.

ANALYSIS

I. Code § 18.2-280(E)

Code § 18.2-280 criminalizes the willful discharge of firearms in public places. Depending on where the act occurs and whether anyone is injured, the offense may be punished as a Class 1 misdemeanor, or a Class 4 or a Class 6 felony. Here, appellant was charged with a Class 6 felony under Code § 18.2-280(A), namely, that he willfully discharged a firearm in a public place, which resulted in bodily injury to another person. Appellant also was charged with aggravated malicious wounding and the related use of a firearm. The jury acquitted appellant of aggravated malicious wounding but convicted him of discharging a firearm in public under Code § 18.2-280 and use of a firearm in the commission or attempted commission of aggravated malicious wounding or malicious wounding under Code § 18.2-53.1.

Code § 18.2-280(E) states: "Nothing in this statute shall preclude the Commonwealth from electing to prosecute under any other applicable provision of law instead of this section." According to appellant, this subsection "does not allow the Commonwealth to charge a defendant with discharging a firearm in public causing bodily injury and another crime involving an injury that occurred from the same gunshot."

The sole issue presented in the assignment of error is the construction of Code § 18.2-280(E). On appeal, we consider questions of statutory interpretation de novo. Warrington v. Commonwealth, 280 Va. 365, 370, 699 S.E.2d 233, 235 (2010); Le v. Commonwealth, 65 Va. App. 66, 76, 774 S.E.2d 475, 488 (2015).

Appellant contends that the unambiguous language of subsection (E) requires the Commonwealth to choose either to prosecute under Code § 18.2-280(A), (B), or (C) or to prosecute under "any other applicable provision of law instead of [Code § 18.2-280]." Specifically, appellant argues that a prosecution for aggravated malicious wounding and a related charge for use of a firearm bars a prosecution for discharging a firearm under Code § 18.2-280(A). The Commonwealth responds that appellant's interpretation would create absurd results, as it would bar the Commonwealth from prosecuting a clear violation of Code § 18.2-280(A) in a case where a perpetrator shot a victim during the course of a robbery, causing permanent and significant physical impairment. The Commonwealth also posits that appellant's interpretation would limit the Commonwealth to prosecuting the perpetrator only for discharging a firearm under Code § 18.2-280(A), rather than for the more serious offenses of robbery and aggravated malicious wounding.

Under well-established principles of statutory construction,

when a statute . . . is clear and unambiguous[,] . . . a court may look only to the words of the statute to determine its meaning. The intention of the legislature must be determined from those words, unless a literal construction would result in a manifest absurdity. Thus, when the legislature has used words of a clear and definite meaning, the courts cannot place on them a construction that amounts to holding that the legislature did not intend what it actually has expressed.

Hubbard v. Henrico Ltd. Pshp., 255 Va. 335, 339-40, 497 S.E.2d 335, 337 (1998) (citations omitted). Also, "[w]ords in a statute should be interpreted, if possible, to avoid rendering words superfluous." Cook v. Commonwealth, 268 Va. 111, 114, 597 S.E.2d 84, 87 (2004).

Code § 18.2-280(E) states the Commonwealth is not precluded "from electing to prosecute under any other applicable provision of law instead of this section." (Emphasis added). "Generally, the words and phrases used in a statute should be given their ordinary and usually accepted meaning . . . ." Woolfolk v. Commonwealth, 18 Va. App. 840, 847, 447 S.E.2d530, 534 (1994). "Elect" is defined as "to pick out; to select from two or more; to choose; to determine in favor of." Webster's New Universal Unabridged Dictionary 582 (2d ed. 1983). "Instead" is defined as "an alternative or substitute," used "in place of the person or thing mentioned." Id. at 951...