Wolfe v. Com.

• Decision Date: 02 August 1988
• Docket Number: No. 0707-86-3,0707-86-3
• Citation: 6 Va.App. 640,371 S.E.2d 314
• Court: Virginia Court of Appeals
• Parties: Robert Lee WOLFE v. COMMONWEALTH of Virginia. Record

Page 314

371 S.E.2d 314

6 Va.App. 640

Robert Lee WOLFE v. COMMONWEALTH of Virginia.

Record No. 0707-86-3.

Court of Appeals of Virginia.

Aug. 2, 1988.

Horace F. Sutherland, Galax, for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and COLEMAN and KEENAN, JJ.

KOONTZ, Chief Judge.

Robert Lee Wolfe was indicted and tried for murder and use of a firearm during the commission of murder. The jury found Wolfe guilty of the lesser included offense of voluntary manslaughter and use of a firearm in the commission of murder, in violation of Code § 18.2-53.1. In this appeal we decide (1) whether Wolfe's failure to file a trial transcript or statement of facts mandates that his appeal be dismissed, and (2) whether on the record before us Wolfe's conviction for use of a firearm in the commission of murder is barred by the jury's determination that he was guilty of voluntary manslaughter. We hold that the issue raised by Wolfe is capable of resolution without a transcript or statement of facts and, for the reasons that follow, affirm his firearm conviction.

When Wolfe filed a notice of appeal, he failed to file a trial transcript or statement of facts. The Commonwealth filed a motion to dismiss this appeal on the ground that a transcript or statement of facts is indispensable to the disposal of the issue of whether the jury's determination that Wolfe was guilty of voluntary manslaughter rather than murder barred his conviction for use of a firearm in the commission of murder. After granting Wolfe's petition for appeal, this Court overruled the motion to dismiss on the ground that we could not determine, prior to hearing the case on the merits, whether a transcript was essential to the resolution of the issue. We address this issue at this time.

As a threshold matter, we must determine whether the issue was raised and preserved below. Pursuant to Rule 5A:18, a ruling of a trial court will not be considered as a basis for reversal unless an objection and the grounds therefor are stated at the time of the ruling. Thus, we will not consider an issue on appeal unless an objection is stated with reasonable certainty, except for good cause shown or to enable us to attain the ends of justice. The purpose of this rule is self-evident. Any potential error should be brought to the trial court's attention so that the court may consider the issue and take corrective action to avoid unnecessary appeals, reversals and mistrials. Woodson v. Commonwealth, 211 Va. 285, 288, 176 S.E.2d 818, 820 (1970), cert. denied, 401 U.S. 959, 91 S.Ct. 990, 28 L.Ed.2d 244 (1971).

The record filed in this case, albeit without a transcript or statement of facts, indicates that the trial court entered an order on April 25, 1986, delaying entry of judgment. The order provided: "The attorney for the defendant [Wolfe] then moved the Court to set aside the verdict, for the reasons stated to the record, which motion was taken under advisement by the Court...." The Commonwealth filed a memorandum in response to Wolfe's motion to set aside the verdict on May 5, 1986. It may be gleaned from this memorandum that Wolfe's motion to set aside the verdict was based upon an alleged inconsistency between the verdicts of voluntary manslaughter and use of a firearm in the commission of murder. Wolfe filed a memorandum in response to the Commonwealth's memorandum. From this document, it is clear that Wolfe argued that because he was found guilty of voluntary manslaughter, instead of murder, and because manslaughter is not one of the enumerated crimes in Code § 18.2-53.1, the jury could not properly find him guilty of use of a firearm in the commission of murder. The final order reflects that a hearing was held on June 2, 1986, to determine the merits of Wolfe's motion. The trial court overruled the motion.

We believe the purposes of Rule 5A:18 have been fulfilled, and the record establishes that the issue Wolfe raises was properly preserved for appellate review. The April 25 court order indicates that Wolfe's trial counsel moved to set aside the verdict, and the memoranda officially received and filed by the clerk of the trial court pertaining to Wolfe's motion clearly show that the issue was addressed and considered by the trial court. Thus, Wolfe's motion to set aside the verdict shows his objection to the form of the verdict.

We now turn to whether a transcript or statement of facts is necessary to decide the issue presented. "The importance of the record is obvious, for it is axiomatic that an appellate court's review of the case is limited to the record on appeal." Turner v. Commonwealth, 2 Va.App. 96, 99, 341 S.E.2d 400, 402 (1986). "If ... the transcript is indispensable to the determination of the the case, then the requirements for making the transcript a part of the record on appeal must be strictly adhered to." Id. However, the filing of a transcript is not mandatory under the rules, and the failure to file a transcript does not remove our jurisdiction. "If the record on appeal is sufficient in the absence of the transcript to determine the merits of the appellant's allegation, we are free to proceed to hear the case." Id.

The record filed in this appeal contains, inter alia, the following: the indictment listing the offense for which Wolfe was charged; the jury verdict form, indicating the jury found Wolfe guilty of use of a shotgun to commit murder; the jury instructions; and the trial court's final order entering judgment. It is apparent from the documents contained in the record that Wolfe was convicted of voluntary manslaughter, and the Commonwealth readily concedes this fact. We therefore believe the record is sufficient to determine the merits of this appeal. We emphasize that our decision to review this case without a trial transcript or statement of facts is the rare exception rather than the general rule. The trial transcript usually is indispensable. However, we believe the issue presented by Wolfe is capable of resolution without a transcript. We therefore address the merits of the appeal.

In Kuckenbecker v. Commonwealth, 199 Va. 619, 101 S.E.2d 523 (1958), the Supreme Court held: "[T]he conviction of the accused of the lower offense of voluntary manslaughter is an acquittal of the higher offenses of first and second degree murder." Id. at 623, 101 S.E.2d at 526. Relying primarily on that decision, Wolfe argues, as a matter of law, that because the jury found him guilty of voluntary manslaughter, it acquitted him of murder; therefore, the jury could not then find him guilty of use of a firearm in the commission of murder. ¹ Wolfe further argues that this is so because use of a firearm in the commission of voluntary manslaughter is not an enumerated crime in Code § 18.2-53.1. The Commonwealth argues in response that murder and use of a firearm in the commission of murder are independent and distinct offenses, that the firearm charge does not require a conviction of the murder charge, and that consequently the firearm conviction may stand even though Wolfe was found guilty of voluntary manslaughter rather than murder.

Code § 18.2-53.1 provides, in pertinent part: "It shall be unlawful for any person to use ... any pistol, shotgun, rifle, or other firearm ... while committing or attempting to commit murder, rape, robbery, burglary, malicious wounding ... or abduction. Violation of this section shall constitute a separate and distinct felony...." A violation of this section "occurs only when the firearm is used with respect to the specified felonies of murder, rape, robbery, burglary, [malicious wounding or] ... abduction." Bundy v. Commonwealth, 220 Va. 485, 488, 259 S.E.2d 826, 828 (1979).

The apparent conflict between Wolfe's acquittal of murder and his conviction of use of a firearm in the commission of murder must be analyzed and resolved in the procedural context in which they arose in this particular case. It is particularly significant that Wolfe was tried without objection in a single criminal jury trial on both the murder charge and the charge of use of a firearm in the commission of murder. ² We further note that Wolfe did not seek a cautionary instruction that if the jury acquitted him of murder, they should then find him not guilty of use of a firearm in the commission of murder. Obviously there are sound tactical reasons why an accused would not desire such an instruction and thus permit the jury to show leniency in convicting him of a lesser included offense of the primary felony; i.e., in this case voluntary manslaughter rather than murder. Finally, we note that Wolfe was in fact found guilty of use of a firearm in the commission of murder and not use of a firearm in the commission of voluntary manslaughter, the latter not being a criminal offense under Code § 18.2-53.1.

While not specifically argued by Wolfe, the fact that he was tried in a single criminal jury trial for murder and use of a firearm in the commission of murder eliminates a double jeopardy argument. Because double jeopardy concerns are closely related to the issue presented in this appeal, we briefly address them in our analysis of Wolfe's arguments. "The constitutional prohibition of double jeopardy consists of three separate guarantees: (1) 'It protects against a second prosecution for the same offense after acquittal. [ (2) ] It protects against a second prosecution for the same offense after conviction. [ (3) ] And it protects against multiple punishments for the same offense.' " Turner v. Commonwealth, 221 Va. 513, 529, 273 S.E.2d 36, 46 (1980) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)), rev'd on other grounds, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1985). The first two constitutional guarantees are not relevant because Wolfe was tried in a single trial; no second prosecution occurred. The issue of the guarantee...