King v. Commonwealth

• Decision Date: 07 April 2015
• Docket Number: Record No. 1684–13–4.
• Citation: 770 S.E.2d 214,64 Va.App. 580
• Court: Virginia Court of Appeals
• Parties: Ladawn Shrieves KING v. COMMONWEALTH of Virginia.

64 Va.App. 580

770 S.E.2d 214

Ladawn Shrieves KING

v.COMMONWEALTH of Virginia.

Record No. 1684–13–4.

Court of Appeals of Virginia, Richmond.

April 7, 2015.

Amy L. Wilson, Reston (Amy L. Wilson, PLC, on briefs), for appellant.

Craig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: HUFF, C.J., and HUMPHREYS, PETTY, BEALES, ALSTON, McCULLOUGH, CHAFIN, DECKER, O'BRIEN, RUSSELL and ATLEE, JJ.

UPON REHEARING EN BANC

HUFF, Chief Judge.

LaDawn Shrieves King (“appellant”) appeals her convictions for malicious wounding, in violation of Code § 18.2–51, and use of a firearm in the commission of a felony, in violation of Code § 18.2–53.1. Following a jury trial in the Circuit Court of Fairfax County (“trial court”), appellant was sentenced to a total of eight years' incarceration in the Virginia Department of Corrections. On appeal, appellant contends that the trial court erred by failing to properly instruct the jury on the defense of accident. For the following reasons, this Court reverses appellant's convictions and remands this matter to the trial court for a new trial, at the discretion of the Commonwealth.

I. BACKGROUND

“When reviewing a trial court's refusal to give a proffered jury instruction, we view the evidence in the light most favorable to the proponent of the instruction.” Commonwealth v. Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221 (2002)citing Blondel v. Hays, 241 Va. 467, 469, 403 S.E.2d 340, 341 (1991) ). So viewed, the evidence is as follows.

At trial, the Commonwealth and appellant presented two different accounts of the events that transpired. Dwayne King (“King”), appellant's husband, testified that he and appellant had been discussing divorce for a year and a half. On the evening of November 20, 2012, King was rubbing appellant's head to provide relief for appellant's migraine. Appellant fell asleep on King's lap and, shortly thereafter, King went to sleep on the other couch in the living room. King next remembered “waking up to a gunshot.” At first, King did not realize he had been shot in the right forearm, but he noticed appellant “standing on the other side of the couch” with a “gun in [her] hand.” King reached for his cell phone, but it was no longer in the location he had left it. Appellant “immediately ran through the kitchen,” and King followed. Upon entering the kitchen, King seized the house phone, “locked [himself] into the bathroom on the main level,” and called 911. At the same moment, appellant ran upstairs. While King was on the phone, he heard appellant “come down the stairs” and the front door slam. Shortly thereafter, King exited the bathroom and “saw that [appellant's] vehicle was gone.”

Appellant testified that on November 20, 2012, she and King were “[i]n over our heads in a lot of ways.”¹ Because of this, appellant decided she “didn't want to live anymore” and was going to kill herself using her firearm. Next, appellant explained that she loaded her firearm and took King's phone so she could leave a message for him. Afterwards, appellant went downstairs into the kitchen and sent her son a text message saying she loved him. According to appellant, she then put the phone down and saw King standing in front of her. King then reached for the firearm in appellant's right hand and attempted to pull it away. During the struggle, the firearm discharged and wounded

King in the right forearm.

Unaware that King had been injured, appellant “put the gun to [her] head” and attempted suicide, however, the firearm failed to discharge. Next, appellant immediately ran up the stairs, locked herself in a bathroom, and attempted suicide again. After the firearm failed to discharge a second time, appellant grew fearful that the police would arrive and take her to a mental institution. Consequently, appellant hid the firearm in the upstairs linen closet, ran to her vehicle, and drove away. At the hospital, King was examined by Dr. Michael Pitta (“Pitta”) who indicated in medical records that King “was shot by his girlfriend accidentally in his right forearm.” Pitta did not testify at trial.

At trial, the jury was given instructions defining malicious wounding² and malice.³ Instruction 6, in pertinent part, instructed, “You may infer malice from the deliberate use of a deadly weapon unless, from all the evidence, you have a reasonable doubt as to whether malice existed.” Appellant relied on an accident theory in her defense and proffered a modified model jury instruction (“Instruction L”) on accident. The instruction stated:

Where the defense is that malicious wounding was an accident, the defendant is not required to prove this fact. The burden is on the Commonwealth to prove beyond a reasonable doubt that the malicious wounding was not accidental. If after considering all the evidence you have a reasonable doubt whether the malicious wounding was accidental or intentional, then you shall find the defendant not guilty.

The trial court rejected the instruction explaining, “My basis for denying L is that I think the other instructions adequately instruct the jury as to the fact that it has to be an intentional act, whether or not it is unlawful wounding, a malicious wounding or assault.”

During deliberations the jury asked, in writing, two questions. The first question was, “If a weapon were discharged during a struggle or accidentally, would this constitute a shooting with intent to kill, as stated in element two of malicious wounding?” The second jury question was, “What is the legal definition of an unlawful wounding?” Over the objection of defense counsel the trial court responded to the jury's questions by stating, “You must rely upon the instructions previously provided and give the words in each of the instructions their plain and ordinary meaning.”

After further deliberations the jury returned its verdict finding appellant guilty of malicious wounding and use of a firearm in the commission of a felony. Appellant appealed to this Court and, by memorandum opinion, a panel reversed and remanded. 2014 WL 5437586, 2014 Va.App. LEXIS 356 (Va.Ct.App. Oct. 28, 2014). Upon motion of the Commonwealth, rehearing en banc was granted thereby vacating the panel decision and staying the Court's mandate.

II. STANDARD OF REVIEW

“As a general rule, the matter of granting and denying instructions ... rest[s] in the sound discretion of the trial court.” Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187 (2009) (citing Daniels v. Commonwealth, 275 Va. 460, 466, 657 S.E.2d 84, 87 (2008) ). The trial court's “broad discretion in giving or denying instructions requested” is reviewed for an abuse of discretion. Gaines v. Commonwealth, 39 Va.App. 562, 568, 574 S.E.2d 775, 778 (2003) (en banc ). On appeal, this Court's “ ‘sole 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.’ ” Molina v. Commonwealth, 272 Va. 666, 671, 636 S.E.2d 470, 473 (2006) (quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982) ).

“ ‘A defendant is entitled to have the jury instructed only on those theories of the case that are supported by [more than a scintilla of] evidence.’ ” Eaton v. Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 397 (1990) (quoting Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280 (1986) ). “ ‘The weight of the credible evidence that will amount to more than a mere scintilla ... is a matter to be resolved on a case-by-case basis' by assessing the evidence in support of a proposition against the ‘other credible evidence that negates' it.” Woolridge v. Commonwealth, 29 Va.App. 339, 348, 512 S.E.2d 153, 158 (1999) (quoting Brandau v. Commonwealth, 16 Va.App. 408, 411–12, 430 S.E.2d 563, 565 (1993) ). “If a proffered instruction finds any support in credible evidence,” however, “its refusal is reversible error.” McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975) (citing Taylor v. Commonwealth, 186 Va. 587, 591, 43 S.E.2d 906, 908 (1947) ).

Additionally, “[w]here the conflicting evidence tends to sustain either the prosecution's or defense's theory of the case, the trial judge must instruct the jury as to both theories.” Foster v. Commonwealth, 13 Va.App. 380, 383, 412 S.E.2d 198, 200 (1991) (emphasis added) (citing Delacruz v. Commonwealth, 11 Va.App. 335, 338, 398 S.E.2d 103, 105 (1990) ). Phrased differently, “[i]f there is evidence in the record to support the defendant's theory of defense, the trial judge may not refuse to grant a proper, proffered instruction. ” Id. (emphasis added). Consequently, “the trial court must instruct on both theories to guide a jury in their deliberations as to the law applicable to the case, depending upon how the jury decides the facts.” Id. (citing Cooper v. Commonwealth, 2 Va.App. 497, 500, 345 S.E.2d 775, 777 (1986) ). Parties are not entitled, however, to duplicative or repetitive instructions covering the same principle of law. Remington v. Commonwealth, 262 Va. 333, 349, 551 S.E.2d 620, 631 (2001) ; see also Bagley v. Weaver, 211 Va. 779, 783, 180 S.E.2d 686, 689 (1971) ( “[W]e take the opportunity to condemn the multiplication of instructions and the requesting and granting of those that are repetitious. Such action can only confuse and mislead the jury and tends to provoke error.”).

III. ANALYSIS

On appeal, appellant contends that the trial court erred by failing to properly instruct the jury on accident. Specifically, appellant contends that there was sufficient evidence in the record supporting appellant's accident theory, the proffered instruction was a proper statement of the law, and, therefore, her proposed accident instruction should have been given.

During the en banc oral argument, the Commonwealth conceded that appellant's accident defense was supported by more than a scintilla of the evidence. While this Court is not bound by a party's concessions of law, ...