Kenston Kangson Yi v. Commonwealth, Record No. 2487-11-4
| Decision Date | 29 January 2013 |
| Docket Number | Record No. 2487-11-4 |
| Parties | KENSTON KANGSON YI v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
UNPUBLISHED
Present: Judges Petty, Chafin and Senior Judge Annunziata
Argued at Alexandria, Virginia
MEMORANDUM OPINION* BY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Patrick M. Blanch (Elders, Zinicola & Blanch, PLLC, on briefs), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Kenston Kangson Yi was convicted in a jury trial of two counts of first-degree murder. On appeal, Yi assigns error to four rulings of the trial court: (1) the trial court erred by denying his proposed jury instructions on voluntary manslaughter, the definition of malice, and the order of deliberations of the jury regarding his insanity defense; (2) the trial court erred by denying his motion to suppress the evidence discovered by police officers upon entering his home without a warrant; (3) the trial court erred in finding that he waived his Miranda rights and gave a voluntary statement to the police; and (4) the trial court erred in excluding alleged excited utterances. For the reasons expressed below, we disagree with Yi's arguments. Therefore, we affirm his convictions.
Because the parties are fully conversant with the record in this case and this memorandum opinion carries no precedential value, we recite below only those facts and incidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal. "On appeal, 'we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).
Yi presents three assignments of error concerning proposed jury instructions: (1) the trial court erred in refusing his proposed voluntary manslaughter jury instruction; (2) the trial court erred in refusing his proposed jury instruction defining malice; and (3) the trial court erred in refusing his proposed jury instruction which instructed the jury to consider the insanity defense only after first making a finding of guilty on some degree of homicide. For the reasons stated below, we hold that the trial court did not err in refusing these instructions.
"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.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). On appeal, we review the trial court's "broad discretion in giving or denying instructions requested" for an abuse of discretion. Gaines v. Commonwealth, 39 Va. App. 562, 568, 574 S.E.2d 775, 778 (2003) (en banc).
Yi argues that the trial court erred in refusing his proposed voluntary manslaughter jury instruction. Specifically, Yi argues that there was evidence that the killing of his wife and child was not malicious and, thus, the trial court should have included voluntary manslaughter as a lesser-included offense of murder. We disagree.
When the proposed jury instruction touches upon lesser-included offenses, "[i]f the evidence is sufficient to support 'a conviction of the crime charged, and there is no independent evidence warranting a conviction [of the lesser-included offense], an instruction on the lesser-included offense need not be given.'" Commonwealth v. Vaughn, 263 Va. 31, 36, 557 S.E.2d 220, 222-23 (2002) () (quoting Guss v. Commonwealth, 217 Va. 13, 14, 225 S.E.2d 196, 197 (1976)).
[W]e view the facts in the light most favorable to the defendant. However, an instruction is proper only if supported by more than a scintilla of evidence. If the instruction is not applicable to the facts and circumstances of the case, it should not be given. Thus, it is not error to refuse an instruction when there is no evidence to support it.
Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001) (citations omitted).
" " Jenkins v. Commonwealth, 244 Va. 445, 457, 423 S.E.2d 360, 368 (1992) (quoting Barrett v. Commonwealth, 231 Va. 102, 105-06, 341 S.E.2d 190, 192 (1986)).
The lodestar which distinguishes murder from manslaughter is malice; malice is a requisite element of murder, but it is not required for manslaughter. Essex v. Commonwealth, 228 Va. 273, 280, 322 S.E.2d 216, 219-20 (1984). This is because "[m]alice and heat of passion are mutually exclusive; malice excludes passion, and passion presupposes the absence ofmalice." Barrett, 231 Va. at 106, 341 S.E.2d at 192. There are two types of malice: express and implied. Pugh v. Commonwealth, 223 Va. 663, 668, 292 S.E.2d 339, 341 (1982) ).
The overwhelming evidence in this case demonstrates that Yi committed a malicious killing. With a sedate, deliberate mind, and formed design, Yi walked to the lower floor of his apartment, convinced his daughter he was going to give her a massage, placed a ten-pound barbell to her neck, pressed down, and slowly and methodically suffocated his daughter to death as she futilely struggled for life. After checking his daughter for a pulse, and finding none, Yi picked up a larger barbell and stalked upstairs to where his wife slept. Yi knew that his wife, unlike his daughter, would likely struggle if he tried to merely suffocate her with the barbell. So, as his wife was lying asleep in bed, Yi pummeled her in the head with the barbell and then used it to suffocate her to death. Like he did with his daughter, Yi checked for a pulse from his wife before he was satisfied that his killing was finished.
There is simply no evidence warranting a conviction of voluntary manslaughter. In fact, Yi concedes the absence of heat of passion and adequate provocation. Yet, Yi still argues that a voluntary manslaughter instruction should have been given to the jury. In so arguing, Yi proposes a new kind of voluntary manslaughter. Yi's voluntary manslaughter proposal does not require that the killing be committed with heat of passion or adequate provocation. Yi supports his argument by pointing to his purpose in killing his wife and daughter: to spare them from the shame and hardship that his suicide would bring. Yi claims his subjective intention, or purpose, in killing his wife and child is sufficient to negate malice. There is no authority for the existenceof Yi's proposed voluntary manslaughter killing. Voluntary manslaughter requires heat of passion and reasonable provocation. Jenkins, 244 Va. at 457, 423 S.E.2d at 368. Yi did not present a scintilla of evidence supporting a finding of either heat of passion or reasonable provocation. Therefore, the trial court did not err in refusing Yi's proposed voluntary manslaughter jury instruction.
Furthermore, and notwithstanding the fact that the evidence did not warrant an instruction on voluntary manslaughter, any error in the trial court's ruling would have been harmless. "An error is harmless 'if a reviewing court can conclude, without usurping the jury's fact finding function, that, had the error not occurred, the verdict would have been the same.'" Turner v. Commonwealth, 23 Va. App. 270, 275, 476 S.E.2d 504, 507 (1996) (quoting Davies v. Commonwealth, 15 Va. App. 350, 353, 423 S.E.2d 839, 840 (1992)). Accordingly, if we are "able to determine that the trial court's error in failing to instruct the jury could not have affected the verdict, that error is harmless." Id. at 276, 476 S.E.2d at 507. We can make this determination "where it is evident from the verdict that the jury would have necessarily rejected the lesser-included offense on which it was not instructed." Id.
Here, the jury convicted Yi of first-degree murder.
In convicting [Yi] of first degree murder, the jury rejected the lesser-included offense of second degree murder. In so doing, the jury found beyond a reasonable doubt that [Yi] acted not only maliciously, but also willfully, deliberately, and premeditatedly. Homicide committed pursuant to a preconceived plan is not voluntary manslaughter; premeditation and reasonable provocation cannot co-exist. The verdict reached by the jury here compels the conclusion that it would never have reached a voluntary manslaughter verdict.
Id. at 277-78, 476 S.E.2d at 508.
In rejecting the lesser-included offense of second-degree murder, the jury "necessarily rejected the factual basis upon which it might have rendered a verdict on the lesser-includedoffense of voluntary manslaughter." Id. at 278, 476 S.E.2d at 508. As in Turner, "[t]he verdict reached by the jury here compels the conclusion that it would never have reached a voluntary manslaughter verdict." Id. at 277, 476 S.E.2d at 508. Therefore, any error in the trial court's refusal to instruct the jury on voluntary manslaughter was harmless.
Yi next argues that the trial court erred in refusing his proposed jury instruction defining malice. We disagree.
At trial, Yi proposed to expand upon the model jury instruction defining malice. The model jury instruction stated:
Malice is that state of mind which results in the intentional...
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