Rollston v. Com., No. 0245-89-2

• Docket Nº: No. 0245-89-2
• Citation: 399 S.E.2d 823, 11 Va.App. 535
• Case Date: January 02, 1991
• Court: Court of Appeals of Virginia

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399 S.E.2d 823 11 Va.App. 535 Michael Duane ROLLSTON
v.
COMMONWEALTH of Virginia. Record No. 0245-89-2. Court of Appeals of Virginia. Jan. 2, 1991.

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[11 Va.App. 537] Thomas P. Collins (Eck, Lewis, Anderson & Collins, Richmond, on brief), for appellant.

Thomas D. Bagwell, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., David A. Rosenberg, Asst. Atty. Gen., on brief), for appellee.

Present: COLE, COLEMAN and WILLIS, JJ.

COLE, Judge.

Michael Duane Rollston was convicted of two counts of first degree murder as a principal in the second degree and two counts of use of a firearm in commission of the murders. He was sentenced to a total of forty-six years with nine years suspended. On appeal, he contends that the trial court erred in granting the jury instructions concerning concert of action and principal in the second degree and that the evidence was insufficient to sustain the first degree murder and firearm convictions. Finding that the instructions were proper and the evidence sufficient to support the convictions, we affirm.

After John Bondurant's home had been broken into several times and property stolen, he and a friend, Ben Shumaker, began collecting information concerning Keith Mittelstadter and Michael Rollston, the defendant, to give to the police. Bondurant and Ben Shumaker provided Detective Bateman with detailed information concerning Mittelstadter and Rollston, including the type of activities that they were involved in. They also gave Bateman the address of a vacant house on Mill Road where they [11 Va.App. 538] suspected some of Bondurant's stolen goods were being stored.

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During the early morning hours of February 17, John Bondurant and Brian Shumaker were shot and killed in Bondurant's house. Brian Shumaker was the brother of Ben Shumaker, who together with John Bondurant, had given information to Detective Bateman concerning the defendant and Mittelstadter. Each had been shot once in the head. Rollston was convicted of all four charges against him and this appeal followed.

The trial court granted Instruction No. 12 over the defendant's objection. It provides:

A principal in the first degree is the person who actually commits the crime. A principal in the second degree is a person who is present, sharing the criminal intent of the perpetrator or aiding and abetting, by helping in some way in the commission of the crime. Presence or consent alone is not sufficient to constitute aiding and abetting. It must be shown that the defendant intended his words, gestures, signals or actions to in some way encourage, advise, or urge, or in some way help the person committing the crime to commit it.

A principal in the second degree is liable for the same punishment as the person who actually committed the crime. The Commonwealth must prove beyond a reasonable doubt that the defendant is a principal in the second degree.

If you find the Commonwealth has failed to prove beyond a reasonable doubt any one or more of the elements of the offense, then you shall find the defendant not guilty.

(emphasis added). This instruction is the standard principal in the second degree instruction found in 1 Virginia Model Jury Instructions, Criminal, No. 3.100 (1989), with the addition of the words, "sharing the criminal intent of the perpetrator or." This additional language was added by the trial judge at the suggestion of the defendant.

The Commonwealth and Rollston agree that the charges against Rollston were prosecuted under the theory that he was a principal in the second degree. They further agree that two first degree murders occurred and murder, except felony murder, is a specific intent crime. Rollston consistently took the position during [11 Va.App. 539] the trial, as he does before us, that to convict him, the Commonwealth was required to prove that he shared the specific intent to murder. The Commonwealth, on the other hand, takes the position that the standard of proof is shared specific intent or some overt act. The defendant contends that no disjunctive instruction, as given in this case, is permitted in principal in the second degree to first degree murder cases. He argues that since Instruction No. 12 was clearly in the disjunctive, it was an incorrect statement of law and prejudicial to the defendant.

"A principal in the second degree is one not the perpetrator, but present, aiding and abetting the act done, or keeping watch or guard at some convenient distance." Brown v. Commonwealth, 130 Va. 733, 736, 107 S.E. 809, 810 (1921). As for what constitutes "aiding and abetting," it is clear that mere presence and consent will not suffice. E.g., Underwood v. Commonwealth, 218 Va. 1045, 1048, 243 S.E.2d 231, 233 (1978). The defendant's conduct must consist of "inciting, encouraging, advising or assisting in the murder." Frye v. Commonwealth, 231 Va. 370, 389, 345 S.E.2d 267, 280 (1986). It must be shown that the defendant procured, encouraged, countenanced, or approved commission of the crime. Augustine v. Commonwealth, 226 Va. 120, 124, 306 S.E.2d 886, 888-89 (1983). "To constitute one an aider and abettor, he must be guilty of some overt act, or he must share the criminal intent of the principal." Triplett v. Commonwealth, 141 Va. 577, 586, 127 S.E. 486, 489 (1925); see also Moehring v. Commonwealth, 223 Va. 564, 567, 290 S.E.2d 891, 892 (1982). One commentator has explained Triplett as follows:

When the alleged accomplice is actually present and performs overt acts of assistance or encouragement, he has communicated to the perpetrator his willingness to have the crime proceed and has demonstrated that he shares the criminal

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intent of the perpetrator. When the alleged accomplice is actually present, but performs no overt act, he is nonetheless a principal in the second degree if he has previously communicated to the perpetrator that he shares the perpetrator's criminal purpose.

Groot, Criminal Offenses and Defenses in Virginia 183 (1984). This communication of shared intent makes the perpetrator more likely to act. Id.; see also, Perkins, Parties to Crime, 89 U.Pa.L.Rev.[11 Va.App. 540] 581, 600 (1941).

Thus, to prove defendant was an aider and abettor, "the evidence must show that [the defendant] was not only present but that [the defendant] procured, encouraged, countenanced, or approved commission of the crime. In other words, [the defendant] must share the criminal intent of the party who actually committed the [crime] or be guilty of some overt act in furtherance thereof." Augustine, 226 Va. at 124, 306 S.E.2d at 888-89; see also Sutton v. Commonwealth, 228 Va. 654, 666, 324 S.E.2d 665 (1985); Hall v. Commonwealth, 225 Va. 533, 536, 303 S.E.2d 903, 904 (1983).

The defendant offered Instruction A defining a principal in the second degree. Instruction A stated that in order to convict the defendant, the Commonwealth must prove, among other things, "that the defendant shared the criminal intent to murder the victims with the person or persons who actually committed the murders." The defendant based this instruction on Hall v. Commonwealth which recites the language of Triplett that a principal in the second degree must share the criminal intent of the perpetrator or be guilty of some overt act. 225 Va. at 536, 303 S.E.2d at 904. Rather than giving Instruction A, the court inserted the phrase "sharing the criminal intent of the perpetrator" into the model instruction. The court did not insert "or be guilty of some overt act," but stated instead: "The overt act is aiding and abetting, so I'm not going to repeat that."

Specific intent is not required to convict the defendant as a principal in the second degree. The defendant relies on the comment to Model Instruction 3.100 for the proposition that a principal in the second degree to murder must possess the specific intent to kill. This comment states that since murder in the first degree involves specific intent to kill and the principal in the second degree must share the criminal intent, "[i]t would seem therefore that the defendant must have the intent to have the victim killed." 1 Virginia Model Jury Instructions, Criminal, No. 3.100, I-51 (1989). However, "share the criminal intent" has been interpreted to mean that "the accused must either know or have reason to know of the principal's criminal intention and must intend to encourage, incite, or aid the principal's commission of the crime." McGhee v. Commonwealth, 221 Va. 422, 427, 270 S.E.2d 729, 732 (1980); Cirios v. Commonwealth, 7 Va.App. 292, 298, 373 [11 Va.App. 541] S.E.2d 164, 167 (1988) (both applying the same standard to accessory before the fact in murder convictions). In addressing the mens rea requirement, other cases simply state that the defendant must intend his actions "to in some way encourage, advise, or urge, or in some way help the person committing the crime to commit it." E.g., Ramsey v. Commonwealth, 2 Va.App. 265, 269, 343 S.E.2d 465, 468 (1986). Neither approach requires that the defendant have the specific intent to commit the crime. The defendant attacks the instruction because it allows the defendant to be convicted of a specific intent crime without having the specific intent to kill. However, an abettor can be charged with specific intent where he or she gives encouragement knowing that the perpetrator has the intent to kill. Perkins, Parties to Crime, supra at 601. Also, it is by legislative authority that principals in the second degree are punished as principals in the first degree. Code § 18.2-18.

It is the duty of the jury to consider the instructions as a whole and in the light of the evidence applicable to the issues presented. Although it may have been better if the trial court had used the language of the model instruction, we do not find that the jury could have been misled by Instruction No. 12. It is clear from the instruction that, whether Rollston shared in the criminal intent of the perpetrator...