Greer v. Commonwealth

• Decision Date: 21 February 2017
• Docket Number: Record No. 0175-16-1
• Citation: Greer v. Commonwealth, 67 Va.App. 324, 796 S.E.2d 422 (Va. App. 2017)
• Parties: Rayshawn Torrell GREER v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

67 Va.App. 324

796 S.E.2d 422

Rayshawn Torrell GREER

v.COMMONWEALTH of Virginia

Record No. 0175-16-1

Court of Appeals of Virginia, Norfolk.

FEBRUARY 21, 2017

Jeffrey C. Rountree for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Beales and O'Brien

OPINION BY JUDGE RANDOLPH A. BEALES

In this appeal, Rayshawn Torrell Greer ("appellant") argues that the trial court erred in denying his motion to strike the charge of possession of a firearm by a convicted felon, where the common law defense of necessity applied to his possession of a firearm. Appellant also asks this Court to reconsider its decision from Commonwealth v. Greer , 63 Va.App. 561, 760 S.E.2d 132 (2014), where this Court reversed the trial court's ruling in part, vacated appellant's sentence, and remanded the case to the trial court for a new sentencing proceeding before a different jury.

I. BACKGROUND

A. PROCEDURAL HISTORY

On September 12, 2013, appellant was tried and convicted by a jury in Newport News Circuit Court of one count of possession of a firearm by a violent felon in violation of Code § 18.2-308.2. During the penalty phase of appellant's trial, the trial court gave the following instruction to the jury: "You have found the defendant guilty of the crime of possessing or transporting a firearm after having been convicted of a violent felony. Upon consideration of all the evidence you have heard, you shall fix the defendant's punishment at a specific term of imprisonment of five years." During its deliberations, the jury submitted two questions to the trial court. The first question asked, "Is the 5 years the only option?" The trial court responded, "The answer is yes." The second question asked, "What if we do not all agree to fix punishment of 5 years?" In response to that question, the trial court issued an Allen charge and instructed the jury to resume its deliberations.¹

Later, the jury submitted the following question: "We cannot all agree on 5 years but we agree on 2 years. Do we have any other options or sit here till we agree on 5 years? Is this the minimal sentence for this crime?" The trial court brought the jury back into the courtroom and asked the foreman if the jury had reached a unanimous verdict. The foreman indicated that the jury had reached a unanimous verdict, so the trial court directed the jury to return to the jury room to complete the sentence verdict form. Ultimately, the jury returned a verdict sentencing appellant to two years in prison. The sentencing verdict form stated, "We, the jury, having found the defendant guilty of Possession of a Firearm by Convicted Violent Felon, fix his punishment at 2 years." The jury had struck through "5 years" on the sentencing verdict form and replaced it with "2 years."

After the trial court excused the jury, the Commonwealth objected to the jury's sentence as being below the mandatory minimum sentence required by statute. The trial court overruled the objection and entered an order on September 12, 2013, sentencing appellant in accordance with the jury's verdict. The Commonwealth then filed a written motion to set aside sentence and to impanel a new jury on September 17, 2013. After a hearing on September 25, 2013, the trial court denied the motion to set aside the sentence.

The Commonwealth appealed the trial court's imposition of the jury's recommended sentence to this Court pursuant to Code § 19.2-398(C). This Court found that the jury's sentence was unlawful and that the trial court's imposition of that sentence was void ab initio . Commonwealth v. Greer , 63 Va.App. 561, 760 S.E.2d 132 (2014) ("Greer I "). Accordingly, this Court vacated the September 12, 2013 final order in part and remanded the case to the trial court for a new sentencing proceeding before a different jury. On January 11, 2016, the trial court, sitting without a jury, sentenced appellant to five years in prison, with three years of that sentence to run concurrently with a federal sentence appellant was serving at that time. This time the Commonwealth did not appeal, but appellant filed his notice of appeal on February 2, 2016.

On June 10, 2016, this Court granted appellant's petition for appeal. This Court directed the parties to address in their briefs this Court's jurisdiction over this appeal by responding to the following question:

Was the original sentencing order dated September 12, 2013 the final order for purposes of computing the filing deadline for appellant's notice of appeal where we subsequently reversed the trial court's entry of that order holding "that the jury's sentence of two years was erroneous and the trial court's imposition of that sentence was void ab initio "? Commonwealth v. Greer , 63 Va.App. 561, 569, 760 S.E.2d 132, 135 (2014).

B. FACTS RELATED TO APPELLANT'S CONVICTION

At trial, appellant testified in his own defense. On August 4, 2010, appellant told Frank Griffin that he was no longer allowed to stay at appellant's apartment. Appellant testified that he did not live with Griffin, but that Griffin "stayed there from time to time." Appellant claimed that Griffin had "overstayed his welcome and was asking [appellant] for money and all types of strange behavior." Later that night, appellant went to a nightclub called the Alley. When appellant left the nightclub around 1:30 or 2:00 a.m., he checked his cell phone and noticed that he had several missed calls from Griffin. At some point after appellant had returned to his residence, he answered a phone call from Griffin. Appellant testified that Griffin demanded to know where appellant was. Appellant described Griffin as aggressive. Appellant lied to Griffin by telling him that he "was at Jobet's parking lot." Appellant testified that he was afraid that Griffin would try to harm him.

After he had spoken to Griffin on the phone, appellant retrieved his firearm from his apartment to arm himself. He then left his apartment and "went to the next parking lot" to get "as far away from [his] apartment as possible." The parking lot in question was the same parking lot where appellant told Griffin he was located, despite appellant's having testified that he was afraid of Griffin. The Commonwealth asked the question, "You went inside your apartment, armed yourself with the firearm and went to the exact place you supposedly lied about to stay away from him. Is that what you're testifying to today?" Appellant responded, "Yes, ma'am." Appellant then testified:

At the point in time when I told him I was at Jobet's parking lot, I really wanted to keep him as far away from my apartment as possible and really wanted to get a location on where he was at. I didn't feel safe not knowing where he was at. So I really felt I would be safe if I knew his location.

Eventually, appellant arrived at the parking lot near Jobet's and observed Griffin outside of Jobet's residence. Appellant noticed that Griffin was carrying a firearm in his hand. Appellant testified that Griffin then called out to appellant. However, Police Detective Wayne Verdaasdonk testified that appellant told him that it was appellant himself who first called out to Griffin by stating, "Hey, I'm over here." When appellant first observed Griffin, appellant did not leave—even though he knew Griffin was armed and he admitted that nothing prevented him from being able to leave the scene. Appellant also testified he did not leave because he "really didn't believe the situation was as serious as it was" at that time despite having previously testified that he did not feel safe around Griffin.

Griffin then approached appellant, who tried to keep his distance from Griffin by standing on the other side of a car. When Griffin got close enough to appellant, Griffin put his gun to appellant's head. Appellant pushed the gun aside, claiming later that he believed that Griffin was "horseplaying." When Griffin placed his gun to appellant's head a second and third time, appellant realized Griffin "was serious." A struggle between the two individuals ensued as both men struggled for control of Griffin's weapon. During that struggle, appellant "just panicked," pulled out his own firearm, and shot Griffin twice. Griffin died from his wounds.²

Police Detective Verdaasdonk testified that he spoke with appellant on August 6, 2010 about the shooting death of Frank Griffin. During the course of the interview, appellant told Verdaasdonk that he shot Griffin with a gun that appellant owned—"a Taurus 9mm" handgun. Appellant told Verdaasdonk that he had been convicted of a felony and that he knew he was not allowed to carry a firearm. Appellant admitted to Verdaasdonk that he sold marijuana, and he explained to Verdaasdonk that he carries a firearm because he lives in a dangerous neighborhood and because he sells marijuana. After the conclusion of his interview with the police, appellant voluntarily took the police to his girlfriend's house to retrieve his firearm.

II. ANALYSIS

A. JURISDICTION OF THIS COURT TO CONSIDER APPELLANT'S FIRST ASSIGNMENT OF ERROR

In this Court's order granting appellant's petition for appeal, this Court directed the parties to respond to the following question:

Was the original sentencing order dated September 12, 2013 the final order for purposes of computing the filing deadline for appellant's notice of appeal where we subsequently reversed the trial court's entry of that order holding "that the jury's sentence of two years was erroneous and the trial court's imposition of that sentence was void ab initio "? Commonwealth v. Greer , 63 Va.App. 561, 569, 760 S.E.2d 132, 135 (2014).

Appellant argues that because this Court determined that the September 12, 2013 sentencing order was void ab initio and a complete nullity, that order cannot be the final order for purposes of computing the filing deadline for appellant's notice of appeal in this matter. The Commonwealth argues that appellant cannot...