Whitt v. Commonwealth

• Decision Date: 26 March 2013
• Docket Number: Record No. 0885–11–3.
• Citation: 739 S.E.2d 254,61 Va.App. 637
• Parties: Steve WHITT v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

61 Va.App. 637

739 S.E.2d 254

Steve WHITT

v.COMMONWEALTH of Virginia.

Record No. 0885–11–3.

Court of Appeals of Virginia, Richmond.

March 26, 2013.

T. Shea Cook (T. Shea Cook, P.C., on brief), for appellant.

Alice T. Armstrong, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: Felton, C.J., and ELDER, FRANK, HUMPHREYS, KELSEY, PETTY, BEALES, ALSTON, McCULLOUGH, HUFF and CHAFIN, JJ.

UPON REHEARING EN BANC

McCULLOUGH, Judge.

We consider in this appeal whether the appellant, Steve Whitt, failed to comply with the requirements of Rule 5A:12(c)(1) in his petition for appeal, and, if so, whether this failure requires us to dismiss his appeal. We conclude that this Court may entertain Whitt's motion to amend his assignment of error. Therefore, the petition for appeal is properly before us. Turning to the merits of the appeal, we affirm Whitt's convictions.

BACKGROUND

Appellant, who was a witness in a police investigation, telephoned the police and asked Investigator Mike Thompson to come over to appellant's residence. Thompson went, accompanied by Investigator Eric Breeding. Appellant invited the investigators into his mobile home. Appellant sat on a couch. The two investigators sat on a couch across from him, separated by a coffee table. Appellant soon began acting in a hostile and erratic fashion. He told Investigator Breeding that Breeding was “aggravating him” so Breeding should sit down. App. at 19. Appellant became increasingly angry, loud, and aggressive. He did not display any indicia of intoxication, such as slurred speech, unsteadiness on his feet, or an odor of alcohol.

Gesturing toward Investigator Thompson, appellant said he was going to shoot Thompson. Appellant then gestured toward Investigator Breeding and said he was going to shoot him. Appellant indicated that he had a pistol under his cushion. Investigator Breeding could see part of an object protruding from under the couch cushion. Appellant's hand was dangling about three to four inches away from the object. Neither officer could see at that point what the object was. Appellant urged Breeding to put his hand on his gun. Appellant made a number of threats.

Appellant moved his hand away from this object for a brief time, perhaps to reach for a drink. Investigator Thompson took advantage of this opportunity to jump over the coffee table. After a brief struggle, the officers were able to subdue appellant. Appellant never made a gesture toward the partially concealed object before Investigator Thompson jumped over the coffee table. During the struggle, however, his arm was “at the back of the cushion.” Officer Thompson testified that appellant was “going for it.” App. at 131, 133.

After appellant's arrest, police recovered a knife, rather than a gun, under the cushion where appellant had been seated. The knife's blade is approximately nine inches long. Police also recovered a pellet or BB rifle under a couch. No actual firearm was recovered.

At trial, appellant testified that he wanted the officers to kill him, but that he could not kill himself because it was against his Baptist religion to commit suicide. He explained that a number of personal tragedies, including the death of his stepmother, a tumor on his right lung, the death of a friend, and the struggles of his father all served as motives for the purported attempt at what is colloquially called a “suicide by cop.” After his arrest, however, appellant told a guard at the jail that he was not suicidal. In response to questions by the officers, he denied being suicidal.

Following a jury trial, appellant was convicted of two counts of attempted capital murder of a law enforcement officer, in violation of Code § 18.2–31. At trial, counsel for appellant moved to strike the evidence on the grounds that appellant lacked the specific intent to murder the officers and that he did not commit the overt act necessary to convict him of attempted capital murder.

Whitt filed his petition for appeal with this Court, containing a single assignment of error: “The circuit court judge committed error by not dismissing the convictions against the appellant based upon insufficient evidence as a matter of law.” The Commonwealth moved to dismiss Whitt's petition for appeal for failure to include an adequate assignment of error. Appellant argued that his assignment of error was adequate, but, in the alternative, he asked for leave of court to amend his petition for appeal to include the following, more specific, assignment of error: “The circuit court judge committed error by not dismissing the convictions against the appellant based upon insufficient evidence as a matter of law regarding the elements of intent and overt, but ineffectual action. Transcript of December 20, 2010, page 3–4.”

This Court granted Whitt's petition and directed the parties to address the following additional question:

Is an assignment of error stating “[t]he circuit court judge committed error by not dismissing the convictions against the appellant based upon insufficient evidence as a matter of law,” an insufficient assignment of error under Rule 5A:12(c)(1)(ii) and, if so, does this Court have active jurisdiction to consider the appeal in light of Davis v. Commonwealth, 282 Va. 339, 717 S.E.2d 796 (2011)?

A panel of this Court held that it was without active jurisdiction to consider Whitt's appeal, and consequently dismissed it. The Court subsequently determined on its own motion to rehear the appeal en banc, pursuant to Code § 17.1–402(D).

ANALYSIS

I. This court may permit the amendment to an assignment of error in limited circumstances.

Rule 5A:12(c)(1)(ii) specifically provides that an assignment of error “which merely states that the judgment or award is contrary to the law and the evidence is not sufficient.” A properly crafted assignment of error will “point out the specific errors claimed to have been committed by the court below.” First Nat'l Bank of Richmond v. William R. Trigg Co., 106 Va. 327, 341, 56 S.E. 158, 163 (1907) (citation omitted). Such specificity “enable[s] the reviewing court and opposing counsel to see on what points plaintiff's counsel intends to ask a reversal of the judgment or decree, and to limit discussion to those points.” Id. Merely stating that the evidence was insufficient does not point out with the requisite level of specificity the error made by the court below, i.e. in what way the evidence was insufficient. See Friedline v. Commonwealth, 265 Va. 273, 278–79, 576 S.E.2d 491, 494 (2003); P. Lorillard & Co. v. Clay, 127 Va. 734, 748, 104 S.E. 384, 388 (1920).

The broad wording of Whitt's assignment of error does not comply with the requirement of specificity imposed by the Rule and by precedent. If this Court were to permit Whitt to amend his assignment of error, however, the assignment of error would comply with the Rule and with precedent.¹

A. The authority to amend pleadings and the concept of active jurisdiction

1. Courts, including appellate courts, possess the authority derived from the common law to allow amendments to timely filed pleadings.

In Virginia, unless modified by rule of court or by statute, the common law “continue[s] in full force.” Code § 1–200. Although the evidence is mixed concerning the extent to which courts at common law had the power to permit the amendment of pleadings, it is beyond dispute that a court possessed the power to permit amendments to pleadings. For example, Professors Charles Alan Wright and Arthur R. Miller conclude that “[a]t common law a litigant had very little freedom to amend the pleadings other than to correct formal defects and remedy errors of oversight.” Charles Alan Wright et al., Federal Practice and Procedure § 1471 (2010). On the other hand, no less of an authority than Chief Justice John Marshall, who had practiced extensively in Virginia's trial and appellate courts before his elevation to the bench, took the view that courts possessed broad power to allow amendments: “[t]hat a court possesses the power to allow any amendments in the pleadings while a case is [ ]pending, is not to be questioned; and this power is liberally exercised, both in courts of equity and common law, for the furtherance of justice.” Calloway v. Dobson, 4 F.Cas. 1082, 1083 (C.C.D.Va.1807).² Appellant here seeks an amendment to correct a formal defect and to remedy an error of oversight. Therefore, regardless of the breadth of the authority granted to courts at common law to permit amendments, such an amendment would be permissible under the court's common law power to allow the amendment of pleadings.

There is no reason to conclude that appellate courts possess less authority than trial courts with regard to allowing a litigant to correct defective pleadings. The Supreme Court expressly has stated that “[a] petition for a writ of error [now a petition for appeal] is in the nature of a pleading.” Worley v. Mathieson Alkali Works, 119 Va. 862, 863, 89 S.E. 880, 880 (1916) (emphasis in original). See also Nat'l Mechanics' Bank v. Schmelz Nat'l Bank, 136 Va. 33, 38, 116 S.E. 380, 382 (1923) (same). The Court also has stated that “[a]n assignment of errors is in the nature of a pleading, and in the court of last resort it performs the same office as a declaration or complaint in a court of original jurisdiction.” First Nat'l Bank of Richmond, 106 Va. at 341, 56 S.E. at 163 (citation omitted).

In fact, both this Court and the Supreme Court of Virginia routinely have permitted or ordered litigants to file amended briefs to correct a range of deficiencies, such as typographical errors or pages inadvertently omitted during the printing process. See, e.g., Rowe v. Commonwealth, 277 Va. 495, 500, 675 S.E.2d 161, 164 (2009) (noting that the Court of Appeals twice required appellant to file a new petition for appeal to conform to Rule 5A:20(c)). This practice is consistent with the understanding that appellate...