Walshaw v. Com.

• Decision Date: 12 October 2004
• Docket Number: No. 0605-03-4.,04 March 0605
• Citation: Walshaw v. Com., 603 S.E.2d 633, 44 Va. App. 103 (Va. App. 2004)
• Parties: Steve Frederick WALSHAW, S/K/A Steven F. Walshaw v. COMMONWEALTH OF VIRGINIA
• Court: Virginia Court of Appeals

603 S.E.2d 633

44 Va. App. 103

Steve Frederick WALSHAW, S/K/A Steven F. Walshaw v. COMMONWEALTH OF VIRGINIA

No. 0605-03-4.

Court of Appeals of Virginia.

October 12, 2004.

Michael F. Devine (James G. Connell, III; Devine & Connell, P.L.C., on briefs), Richmond, for appellant.

Stephen R. McCullough, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: CLEMENTS, FELTON and McCLANAHAN, JJ.

FELTON, J.

On November 26, 2002, a jury convicted Steve Frederick Walshaw (appellant), sometimes known as Steven F. Walshaw, of first-degree murder for the strangulation death of Karen Tegeler, and fixed his sentence at life imprisonment. On appeal, appellant contends that the short form indictment on which he was tried for first-degree murder was deficient because it failed to allege malice and premeditation and that the trial court erred in its instructions to the jury on voluntary manslaughter. Finding no error, we affirm his conviction.

BACKGROUND

On January 23, 2002, appellant killed Karen Paulette Tegeler, his girlfriend of three years. He gave a detailed confession to the police admitting that he killed Tegeler. He described how their relationship had become strained prior to Tegeler's death, how he suspected her of infidelity and had confronted her about it. He admitted to the police that he had contemplated killing her a month before he actually did.

On the day appellant killed Tegeler, he found a Valentine's card addressed to him in Tegeler's condominium. Inside the card was a handwritten note from Tegeler informing appellant that their relationship was over and that he had to move out of the condominium. Later that evening when Tegeler returned to the condominium from work, the two had sexual relations. Shortly thereafter while Tegeler was napping, appellant stepped outside, smoked a cigarette, and reread the note. He became "pretty upset" and then "he just lost it." He went back into the bedroom, laid beside Tegeler and then, with her head resting on his arm, strangled her until she was dead. Tegeler tried to resist, and the two struggled for five to seven minutes during which time Tegeler fell off the bed. When appellant knew Tegeler was dead, he left to buy some beer. He told the police that he contemplated suicide by throwing himself in front of a train, but there were no trains. He went to a friend's house and confessed the murder to her. She called the police, who then arrested him.

The indictment on which appellant was prosecuted for murder stated:

The GRAND JURY ... charges that on or about January 23, 2002, in the aforesaid Judicial Circuit, the accused, STEVE FREDERICK WALSHAW did feloniously kill and murder one Karen Paulette Tegeler, in violation of Virginia Code Section 18.2-32.

After the close of all the evidence and during the presentation of the jury instructions to the trial court, appellant objected that "[t]he indictment alleges only manslaughter ..." and "does not allege premeditation and or malice," the elements necessary to convict him of first-degree murder. The trial court overruled his contention that the jury should only be instructed on voluntary manslaughter.

The trial court granted Instruction B-1, which followed the format of I Virginia Model Jury Instructions, Criminal G.33.700 (1998 repl. ed. with 1999 supp.), and rejected Instruction B, an alternative murder instruction offered by appellant. Appellant objected to the portion of Instruction B-1 relating to voluntary manslaughter, arguing that it misallocated the burden of proof for voluntary manslaughter and thus erroneously stated the law. The trial court overruled appellant's objection.

The jury convicted appellant of first-degree murder and fixed his sentence at life imprisonment. The trial court entered judgment on the jury's verdict.

ANALYSIS

A. SHORT FORM MURDER INDICTMENT

"When considering on appeal whether an indictment charged a particular offense, we limit our scrutiny to the face of the document." Moore v. Commonwealth, 27 Va.App. 192, 198, 497 S.E.2d 908, 910-11 (1998).

At trial, appellant contended that he could not lawfully be convicted of or punished for an offense greater than voluntary manslaughter because the statutory short form murder indictment failed to contain the words "willful, deliberate and premeditated" or "with malice." He contends that these defects denied him adequate notice of the charge against him as required by the United States Constitution and Ring v. Ariona, 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999).

Both the United States and Virginia Constitutions guarantee a criminal defendant the right "to be advised of the cause and nature of the accusation lodged against him."¹Simpson v. Commonwealth, 221 Va. 109, 115, 267 S.E.2d 134, 139 (1980) (upholding use of Virginia short's form murder indictment in conviction of first-degree murder and robbery). However, our Supreme Court has held that there is no constitutional or statutory requirement "that the indictment charge the degree of murder alleged or use the specific statutory language constituting that degree of offense." Id.

The purpose of an indictment "`is to give an accused notice of the nature and character of the accusations against him in order that he can adequately prepare to defend against his accuser.'" King v. Commonwealth, 40 Va.App. 193, 198, 578 S.E.2d 803, 806 (2003) (quoting Sims v. Commonwealth, 28 Va.App. 611, 619, 507 S.E.2d 648, 652 (1998)). Code § 19.2-220 provides, in pertinent part, that:

The indictment or information shall be a plain, concise and definite written statement... describing the offense charged.... In describing the offense, ... the indictment or information may state so much of the common law or statutory definition of the offense as is sufficient to advise what offense is charged.

Rule 3A:6(a) also requires the indictment to "cite the statute or ordinance that defines the offense ...." See also Reed v. Commonwealth, 3 Va.App. 665, 667, 353 S.E.2d 166, 167-68 (1987). "[T]he inference to be drawn from the provisions of Code § 19.2-220 and Rule 3A:6(a) is clearly that incorporation by ... reference of the statute cited in the indictment" provides adequate notice of the charges against the accused. Thomas v. Commonwealth, 37 Va.App. 748, 753, 561 S.E.2d 56, 58 (2002). Here, appellant clearly had adequate notice of the offense for which he was to stand trial.

The indictment on which appellant was tried precisely follows Code § 19.2-221, providing short form indictments for murder and voluntary manslaughter. "While any form of presentment, indictment or information which informs the accused of the nature and cause of the accusation against him shall be good the [short form indictment] shall be deemed sufficient for murder ...." Code § 19.2-221. The statute "specifically validates murder indictments which allege only that the defendant `feloniously did kill and murder' the victim." Simpson, 221 Va. at 115, 267 S.E.2d at 138-39; see also Satcher v. Commonwealth, 244 Va. 220, 257, 421 S.E.2d 821, 843 (1992) (affirming conviction under short form indictment filed pursuant to Code § 19.2-221 for first-degree murder).

"If, therefore, any proposition of law can be considered as settled by decision and no longer open to debate" ... then the proposition that the short statutory form of indictment for murder includes the charge of murder in the first degree is now the established law in this Commonwealth....

Barber v. Commonwealth, 206 Va. 241, 247, 142 S.E.2d 484, 489 (1965) (quoting Hobson v. Youell, 177 Va. 906, 912, 15 S.E.2d 76, 78 (1941)).

Our Supreme Court has consistently held that it is unnecessary to include the words "willfully, deliberately and premeditatedly" or "malice" in the indictment to convict a defendant of murder in violation of Code § 18.2-32. Simpson, 221 Va. at 115, 267 S.E.2d at 139. See Hartman v. Lee, 283 F.3d 190, 199 (4th Cir.2002), cert denied, 537 U.S. 1114, 123 S.Ct. 851, 154 L.Ed.2d 789 (2003); Satcher, 244 Va. at 257, 421 S.E.2d at 843.

The statutory short form of the indictment fully informed appellant "of the nature and cause of the accusation against him." See Code § 19.2-221. The indictment clearly alleges that appellant "did feloniously kill and murder one Karen Paulette Tegeler, in violation of Code § 18.2-32." It specifically refers to Code § 18.2-32, which provides that "murder ... by any willful, deliberate, and premeditated killing ... is murder in the first degree .... All murder other than capital murder and murder in the first degree... is murder in the second degree." The clear language of the indictment gave appellant unequivocal notice that he was charged with the first-degree murder of Tegeler, and gave him notice of the elements of the offense necessary for the Commonwealth to prove in order to convict him.

Moreover, at appellant's arraignment on the indictment prior to the beginning of the trial, the trial court informed him that he was charged with murder. In response to the specific inquiry by the trial court of whether he understood the charge for which he was standing trial, appellant stated that he understood the nature of the charge against him. He further stated that he had discussed the charge fully with his attorney.² When the trial court asked appellant if he was entering his not guilty plea freely and voluntarily, he answered "I'm entering it on my own accord, freely, yeah. I'm not pleading to first degree." Based on appellant's own statements, it is clear that he knew that the charge against him was the first-degree murder of Karen Paulette Tegeler in violation of Code § 18.2-32.

Appellant argues, however, that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, ...