Kirby v. Com.

• Decision Date: 11 December 2007
• Docket Number: Record No. 0829-06-3.
• Citation: 653 S.E.2d 600,50 Va. App. 691
• Court: Virginia Court of Appeals
• Parties: Earl Kruger KIRBY, III v. COMMONWEALTH of Virginia.

653 S.E.2d 600

50 Va. App. 691

Earl Kruger KIRBY, III v. COMMONWEALTH of Virginia.

Record No. 0829-06-3.

Court of Appeals of Virginia, Salem.

December 11, 2007.

Steven B. Novey (Novey and Tomko Law Firm, on brief), Prince George, for appellant.

Alice T. Armstrong, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and FRANK and KELSEY, JJ.

KELSEY, Judge.

Earl Kruger Kirby, III, killed his wife and buried her in the backyard of their home. Convicted by a jury of first-degree murder and use of a firearm during the murder, Kirby argues on appeal that the trial court committed reversible error by refusing to permit the jury to replay his videotaped confession during deliberations. The videotape had been played at trial while the jurors followed along with a verbatim transcript. We affirm Kirby's convictions, finding any error by the trial court was harmless under the circumstances of this case.

I.

One evening in January 2005, Kirby and his wife engaged in a bitter argument. Afterwards, Kirby walked into his wife's bedroom and retrieved a loaded pistol from a closet. While his wife watched television in bed, Kirby fired twice at her. One shot missed her entirely. The other shot, fired less than two feet from her face, severed her brain stem. Kirby cleaned up the "mess" (his description), dragged his wife by the feet out of the home, and buried her in a makeshift grave in the backyard. Kirby called his supervisor at work and told him that his wife had just died of a heart attack and that he needed to take "a couple of days" off. As friends and family later inquired about his wife, Kirby repeated that she had died of a heart attack. Her body, Kirby added, was going to be sent to California for burial by her son.

At the request of a concerned friend of Kirby's wife, a deputy sheriff stopped by Kirby's house. Upon speaking with Kirby, the deputy became highly suspicious based upon Kirby's remarks. After receiving warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Kirby twice confessed to killing his wife and told police where they could find her body. Kirby was arrested and later indicted for first-degree murder and use of a firearm during the murder. That evening, investigators videotaped the second confession.

At trial, Kirby did not dispute that he shot his wife and buried her in the backyard. Kirby's counsel told the jury in his opening statement that Kirby was guilty of second-degree murder but not first-degree murder. The evidence, he claimed, would show that Kirby's wife chronically argued with him about "his short-comings as a person and as a husband." In the videotaped confession, counsel said, Kirby explained that he "just lost it" and "couldn't take it anymore." The haranguing was just too much for him. So he shot her in the head. None of this proved, counsel suggested, that Kirby had a specific intent to kill his wife.

Among the Commonwealth's witnesses were the investigators who interviewed Kirby and a forensic medical expert who established that Kirby fired the fatal shot within two feet of his wife's face. One of the investigators testified about an unrecorded interview with Kirby in which he confessed his guilt. When asked why he murdered his wife, Kirby told the investigator that he "just snapped" and "couldn't take it anymore." His wife's "griping," Kirby said, provoked him to kill her.

The Commonwealth introduced the videotaped confession into evidence and played it for the jury. The Commonwealth also prepared a transcript to reflect a verbatim narrative of the dialogue on the videotape. Without objection, the trial court gave each juror a copy of the transcript while the videotape played on a monitor in front of the jury box. Kirby did not contest the accuracy of the transcript or object to it being provided to the jury. The trial court made the transcript part of the record but did not admit it as evidence. After the videotape was finished playing, the trial court directed the bailiff to retrieve the transcript copies previously handed out to the jurors.

In the videotape, as the transcript records, Kirby repeats what he had said earlier about his reason for killing his wife. In a rambling dialogue, Kirby stated his wife had been telling him every day that he "wasn't a good husband" and he simply "couldn't take it no [sic] more." After taking his dogs downstairs, Kirby said, he "just went in there and grabbed the pistol." As he walked up to her with a loaded pistol, she yelled at him. He then shot her in the face. "I just lost it," he repeatedly explained.

At the close of all the evidence, the trial court gave an agreed jury instruction explaining that first-degree murder involves a willful, deliberate, and premeditated killing. "Willful deliberate, and premeditated," the court stated, "means a specific intent to kill, adopted at some time before the killing, but which need not exist for any particular length of time." See 2 Virginia Model Jury Instructions, Criminal, No. 33.260, at 33-87 (2006).

During closing argument, Kirby's counsel again contended that the facts did not support a charge of first-degree murder. It was a murder, he admitted, but not one committed with a specific intent to kill. In response, the Commonwealth argued the evidence from Kirby himself demonstrated he intended to kill his wife simply because he could not bear her allegedly unrelenting haranguing. Following closing arguments, the trial court advised the jurors that several pieces of evidence (the pistol, bullets, and the videotape) would remain in the courtroom after they retired for deliberations. "If you ... need to see it," the court noted, "let us know."

During deliberations, the jury foreman asked the trial court if the jury could "have a transcript of the tape, since it's unclear." (Emphasis added.) Without objection, the court told the jury that the transcript was not in evidence and could not be used during deliberations. The court then advised counsel that the jury had also requested the videotape. Kirby's counsel asked that the videotape be provided to the jury during deliberations, given that it had been admitted into evidence as a separate exhibit.

The trial court initially agreed with Kirby's position and noted the prosecutor's objection for the record. A discussion thereafter followed about logistics. Who would operate the videotape player?, the court asked. Kirby's counsel replied that the jurors themselves could operate the videotape recorder. The court then confirmed with Kirby's counsel his agreement that the bailiff would not go into the jury room during deliberations and thus would not operate the tape recorder for them.

After this discussion, the prosecutor raised a concern about whether the videotape could be accidentally erased by a juror inexperienced with operating a videotape recorder. "Judge our concern is that the tape may be erased," the prosecutor worried, "while they're trying to figure out how to play it." Hearing no satisfactory response, the trial court reconsidered and decided that the jury would not be given the videotape for replay during deliberations. "It creates problems," the court remarked, "that it might get erased, which causes all kinds of problems for us." Kirby's counsel objected to this ruling, contending it violated the defendant's right to a fair trial under the Fourth, Fifth, and Sixth Amendments.

When the jury returned to the courtroom, the trial court provided this response to their request to replay the videotaped confession:

Members of the jury, you will recall ... I told you that we could not replay or reproduce the testimony made during the course of the trial. You will only hear it one time. I want to remind you of that instruction at that time, and give you the further ruling that you cannot — we can't — for any number of reasons, we are not able to ... play this tape in the jury room at this time.

The jurors returned to their deliberations and found Kirby guilty of first-degree murder and of using a firearm during the murder. See Code §§ 18.2-32, 18.2-53.1.

II.

On appeal, Kirby argues that the trial court violated Code § 8.01-381 by failing to provide the videotape to the jury during deliberations.¹ That statute provides:

No pleadings may be carried from the bar by the jury. Exhibits may, by leave of court, be so carried by the jury. Upon request of any party, the court shall instruct the jury that they may request exhibits for use during deliberations. Exhibits requested by the jury shall be sent to the jury room or may otherwise be made available to the jury.

Code § 8.01-381. The Commonwealth argues that, even if Kirby could demonstrate a violation of this statute, we would have no authority to reverse his convictions because the alleged error by the trial court was harmless as a matter of law.² We agree.

(a) THE HARMLESS ERROR STANDARD

A criminal defendant "`is entitled to a fair trial but not a perfect one,' for there are no perfect trials." Brown v. United States, 411 U.S. 223, 231-32, 93 S.Ct. 1565, 1570, 36 L.Ed.2d 208 (1973) (citations omitted). "No litigant has the right to demand more, and no Commonwealth ought to give less." Walker v. Commonwealth, 144 Va. 648, 652, 131 S.E. 230, 231 (1926). Absent an error of constitutional magnitude, "no judgment shall be arrested or reversed" when "it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached...." Code § 8.01-678. Put another way:

If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand.... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not...