Willis v. Com.

• Decision Date: 05 June 1990
• Docket Number: No. 0139-88-2,0139-88-2
• Court: Virginia Court of Appeals
• Parties: Jimmy Craig WILLIS v. COMMONWEALTH of Virginia. Record

Page 405

393 S.E.2d 405

10 Va.App. 430

Jimmy Craig WILLIS v. COMMONWEALTH of Virginia.

Record No. 0139-88-2.

Court of Appeals of Virginia.

June 5, 1990.

Gilbert K. Davis, Vienna; Buddy H. Wallen, Clintwood (Davis and Associates, Vienna, on brief), for appellant.

Leah A. Darron, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen. of Va., on brief), for appellee.

Present: BARROW, COLEMAN and KEENAN, JJ.

COLEMAN, Judge.

Jimmy Craig Willis was convicted of second degree murder in violation of Code § 18.2-154 for maliciously shooting into an occupied motor vehicle which resulted in the death of the driver, sixteen year old Billy Stewart. He was also convicted of use of a firearm in the commission of murder in violation of Code § 18.2-53.1. The trial court sentenced Willis in accordance with the jury verdict to ten years in the penitentiary for murder and two years for use of the firearm.

Willis challenges the murder conviction on three grounds: (1) the trial court improperly permitted the indictment to be amended on the morning of trial to change the offense from maliciously shooting into an occupied vehicle to murder; (2) that Code § 18.2-154 is unconstitutionally vague because it permits the judge or jury to determine whether the murder is first or second degree without specifying any criteria that must be proven in order to differentiate between the degrees; ¹ and (3) that the evidence was insufficient to prove that the shooting was malicious, which was necessary to sustain a murder conviction. If the murder conviction is reversed on either ground, the firearm conviction, which is dependent upon the validity of the murder conviction, must also be reversed. Willis also contends that the court erred in failing to give proffered instructions and in refusing to grant his motion for a continuance when the indictment was amended.

The events which led to the charges against Willis occurred while he was on a hunting trip on January 1, 1987, in Lunenburg County. Just after dark on January 1, sixteen-year-old Billy Stewart and his friend, fourteen-year-old Brian Olha, were returning to the Stewart's vacation cottage in Stewart's pick-up truck from a nearby grocery store where they had gone to make a telephone call. On the drive home, Stewart and Olha observed two men standing along the roadway, motioning their vehicle to stop. The two men were Earl Delaney and Willis, who were in the area on a hunting trip. Due to inclement weather, the men had remained at the hunting camp drinking beer and wine until mid-afternoon, when they left camp to look for game. They were armed with rifles and a soft drink bottle half filled with whiskey, which they shared. Willis and Delaney did fire their rifles at some debris in the creek but did not see or shoot at any game. As dark approached, they became lost and when several local residents refused them use of their telephone to call their companions, the men began walking along Route 654, when the truck driven by Billy Stewart approached. The men informed the boys that they were lost and asked directions. The boys gave Willis and Delaney directions and agreed to give the two armed men a ride in the back of the pick-up truck. Billy Stewart had to turn his vehicle and drive in the opposite direction from which he was going on Route 654 in order to get the men to the intersection leading to their hunting camp, which was located approximately one mile along a dirt road which intersected with Route 654. When the boys reached the intersection of Route 654 and the dirt road, which Willis and Delaney were trying to locate, Billy Stewart refused the men's request to drive them to their campsite because he and Olha had to return home. The men offered to pay Stewart to drive them to their camp, but Stewart refused and requested that they get out of his truck. Willis climbed out of the truck and uttered some profanity and was followed by Delaney, who thanked the boys for the ride.

The men began walking down the dirt road toward their camp. Stewart turned his truck around and drove in the direction from which he had come. Within seconds, Olha heard two pings and turned to see that Billy Stewart was slumped over the steering wheel and that the truck's back window was shattered. As the truck started to veer off the road, Olha grabbed the steering wheel in an effort to control it, but it went off the road, struck a guy wire, hit a building and flipped upside down. Olha pulled Stewart from the truck and ran for help.

Delaney testified that after alighting from the truck, he walked a few steps down the road in front of Willis when he heard Willis fire his rifle. Delaney estimated that the truck pulled away from the intersection and had travelled about two hundred feet at the time. Delaney turned toward Willis in time to observe from the truck's taillights that it veered off the road, struck something and turned upside down. Willis immediately exclaimed, "[L]et's go," and he and Delaney ran from the scene. Willis and Delaney became separated and that was the last time that Delaney saw Willis. Willis stayed in the woods that night until he returned to his campsite the following morning. When he returned to camp, his father informed him that the police were looking for him and he voluntarily turned himself in.

Forensic medical experts testified that Billy Stewart died from a brain injury caused by a single gunshot wound to the back of the head. At the time Stewart was shot, the bullet was tumbling and its jacket had already separated from the bullet core when it struck Stewart, indicating that it had hit an intermediate object before striking the victim.

Willis, in a written statement given to the police the morning he turned himself in, admitted that he fired his rifle as the truck drove away but claimed that he had fired into the air, not intending to shoot at the truck or anyone. He explained that when he saw the truck's brake lights come on and veer off the road and sparks fly, he panicked and ran. Willis admitted drinking two bottles of wine during the day but denied using drugs.

At trial, Willis contended that the shooting was accidental. He testified that he was carrying the gun at his waist, parallel to the ground and pointing in the direction in which the truck was travelling. He introduced evidence showing that the angle between himself and the truck, from the intersection of the two roads, would have placed the truck in line with the direction which the rifle would have been pointed when carried in this manner. Willis stated that he did not know why he had fired his rifle. An expert witness in the effects of alcohol on the human body testified for Willis that Willis would have been intoxicated at the time he fired the shot and that his vision and ability to think rationally would have been affected. Two ballistics experts testified that the missing bullet jacket indicated that the bullet probably had struck a hard, intermediate object before hitting Billy Stewart, causing the jacket to separate from the core. A defense expert testified that, in his opinion, based on the size of the hole in the window of the truck and that the bullet jacket was not recovered from the scene of the crash, the bullet had struck another object and ricocheted prior to striking the truck window. The Commonwealth's expert testified that, in his opinion, the jacket could have separated from the bullet core when it struck the truck's window.

I. Amending the Indictment

The Commonwealth indicted Willis for murder in violation of Code § 18.2-32, use of a firearm in commission of murder in violation of Code § 18.2-53.1, and for maliciously shooting at or against an occupied vehicle in violation of Code § 18.2-154. Prior to the October 7, 1987 trial, the Commonwealth's attorney informed defense counsel by letters dated August 20, 1987, and October 2, 1987, that he intended to prosecute Willis for murder under Code § 18.2-154, rather than under Code § 18.2-32. On the morning of trial, on motion of the Commonwealth's attorney, the court permitted an amendment to the indictment which charged Willis with violating Code § 18.2-154 for shooting into an occupied vehicle. The amended indictment added language that the shooting resulted in the death of an occupant of the vehicle. The trial court contemporaneously granted the motion to nolle prosequi the murder charge in violation of Code § 18.2-32.

Willis contends that the amendment to the indictment substantially changed the charge by elevating the offense from maliciously shooting into an occupied vehicle, a Class 4 felony carrying a maximum penalty of ten years imprisonment, to first or second degree murder, either a Class 2 or 3 felony potentially carrying a maximum penalty of life imprisonment. He claims that this amendment changed the nature and character of the offense from a property crime defined in Chapter 5 of Title 18.2, to a crime against the person codified in Chapter 4 of Title 18.2. Willis argues that an amendment which charges a new offense can only be accomplished by reindictment by a grand jury, not by motion of the prosecutor and an amendment by the trial judge. Furthermore, he contends that even if the amendment were proper, the trial court abused its discretion by denying his request for a continuance to allow him an opportunity to prepare his defense to this "new and unusual charge."

Code § 19.2-231 and its predecessors authorize trial courts to amend indictments, provided the amendment does not change the nature and character of the offense. The statute authorizes a trial court to amend indictments in two instances: where there is a defect in form, or where there is a variance between the allegations and the evidence, provided the amendment does not change the nature or character of the offense charged. The statute is remedial in nature and is to be liberally construed in order to achieve the laudable purpose of avoiding further unnecessary...