Via v. Commonwealth ( 2014 )

VIRGINIA:
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Cit:yo/~on Friday the 27th dayO/ June, 2014.
Robert King Via, Appellant,
against Record No. 131574
Court of Appeals No. 1759-12 1
Commonwealth of Virginia, Appel
Upon an appeal from a
judgment rendered by the Court
of Appeals of Virg a.
Upon consideration of the record, pleadings, briefs and
argument of counsel, Court is of the opinion that there is error
in Court of Appeals' judgment and, for the reasons stated below,
we will reverse the judgment of the Court of Appeals.
On September II, 2010, three masked gunmen entered Frank
Auche's residence, detained and threatened the rsons in t
residence, and robbed Auche. When the police arrived, the gunmen
fled. ood recove near the crime scene matched a DNA profile
for Reginald Jones. When Jones was arrested, he identifi Robert
King Via, Jr., Samuel Sanchez and a person known as "Carl" as
participants in crime. Via was arrest and indicted for crimes
associated with the invasion of Auche's home. Via denied any
involvement with the crimes but admitted he knew Jones, Sanchez and
Carl Gentline, the person known as "Carl." No forensic evidence
connected Via to the cr
Sanchez and Gentline both testif at Via's trial. Sanchez
testified that he had entered a plea agreement in whi he agreed to
provi truthful testimony as to any co-defendants who might be
tr Gentline mainta that, while he drove the getaway car, he
did so under ss because was afraid of the other participants,
who were armed. The Commonwealth never charged Gentline with any
crimes relating to the invasion of Auche's home. Both Sanchez and
Gentline testified that a partic in the home invas
a proffe the following jury instruction, Jury Instruction
A, regarding Gentline's testimony:
Carl Genteline [sic] has testified that was an
accomplice the commission of the crimes charged in the
ctments. While you may find your verdict upon his
uncorroborated testimony, you shou consider s
testimony with care and you are cautioned as to the
danger of convict the defendant upon the
uncorroborated testimony of an accomplice. Nevertheless,
if you are satisfied the evidence of t guilt of
the defendant beyond a reasonable doubt, the fendant
may convicted upon the uncorroborated evidence of an
accomplice.
Although the trial court ed a similar instruction rega ng
Sanchez' testimony, it refused Jury Instruction A cause the court
d "not th k Mr. Gentline meets the test of an accomplice." A
jury convi Via of all crimes charged, except one, and sentenced
him to 128 years and one day imprisonment.
Via appealed his convictions to the Court of Appeals. As
relevant here, Via asserted that the trial court erred in refusing
Jury Instruction A. Although the question of Gentline's status as
an accomplice was inherent this assignment of error, t Court of
Appeals did not address that issue directly. Rather, the Court of
Is, in a r curiam opinion, affirmed trial court's re al
of proposed jury inst on, stating that
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[e]ven if Gentline was considered an accomplice to the
crimes, his testimony was corroborated by that of
Sanchez, who admitted that he, appellant, and Jones were
the three men who entered Auche's home and threatened
those inside at gunpoint.
Via v. Commonwealth, Record No. 1759-12-1, sl op. at 3 (May 22,
2013) (footnote omitted). Via appealed from the Court of Appeals'
judgment, asserting, inter alia, that the Court of Appeals erred in
affirming the trial court's refusal of Jury Instruction A and in
ruling that Sanchez' testimony corroborated Gentline's testimony.
The parties do not dispute that Jury Instruction A correctly
states the law and should be given if a witness whose testimony is
at issue is an accomplice and if his or her testimony is
uncorroborated. Jones v. Commonwealth, 111 Va. 862, 868, 69 S.E.
953, 955 (1911). The test for whether a witness is an accomplice is
"whether he could be indicted the same offense." Guthrie v.
Commonwealth, 171 Va. 461, 469, 198 S.E. 481, 484 (1938). Whether
accomplice testimony is corroborated is subject to the long
established principle that accomplice testimony cannot be
corroborated by the testimony of another accomplice. Jones, 111 Va.
at 868, 69 S.E. at 955.
In this case, Gentline qualifi as an accomplice because, by
his own admission, he drove the getaway car and, therefore, could
have been indicted for the same offense. Grant v.
Commonwealth, 216 Va. 166, 168-69, 217 S.E.2d 806, 808
(1975) (finding driver of getaway car a principal the second
degree). Neither the ct that he was not charged th any cr
relating to the home invasion, nor the Commonwealth's claim that he
lacked criminal intent are relevant to determining whether Gentline
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could have been indicted for the offenses associated with the home
invasion. Gentline's testimony, therefore, required corroboration.
However, none of the dence produced by the Commonwealth
corroborated Gentline's testimony. Furthermore, contrary to the
Court of Appeals' holding, Sanchez' testimony could not corroborate
Gentline's testimony because Sanchez was also an accomplice. Jones,
III Va. at 868, 69 S.E. at 955. Because Gentline was an accomplice
and his testimony was not corroborated, the trial court abused its
discretion in refusing Jury Instruct A and the Court of Appeals'
judgment affirming the t al court's refusal to grant Jury
Instruction A was error.
Accordingly, the judgment of the Court of Appeals is reversed,
the convictions and sentences vacated, and the case is remanded for
further prosecution as the Commonwealth may see fit.
Justice Millette took no part in the consideration of this
case.
This order shall be published in the Virginia Reports and shall
be certified to the Court of Appeals of Virginia and to the Ci
Court of the City of Hampton.
A Copy,
Teste:
Clerk
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