Edward Leroy Marshall, Jr. v. Commonwealth of Virginia ( 2018 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges O’Brien and Russell
Argued by teleconference
UNPUBLISHED
EDWARD LEROY MARSHALL, JR.
MEMORANDUM OPINION* BY
v. Record No. 1208-16-3 CHIEF JUDGE GLEN A. HUFF
JANUARY 30, 2018
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AMHERST COUNTY
J. Michael Gamble, Judge
Dirk B. Padgett (Dirk Padgett Law PLLC, on brief), for appellant.
Christopher P. Schandevel, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Edward Leroy Marshall, Jr. (“appellant”), appeals his conviction of second-degree
murder, in violation of Code § 18.2-32.1 Following trial in the Circuit Court of Amherst County
(“trial court”), the trial court imposed the jury’s recommended sentence of life imprisonment
plus sixty-five years’ incarceration. On appeal, appellant contends that the trial court erred by
refusing to provide his proffered jury instruction concerning a voluntary intoxication defense.
For the following reasons, this Court affirms appellant’s conviction.
I. BACKGROUND
“When reviewing a trial court’s refusal to give a proffered jury instruction, we view the
evidence in the light most favorable to the proponent of the instruction.” King v.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant was also convicted of petit larceny, third or subsequent offense, in violation
of Code § 18.2-96; burglary, in violation of Code § 18.2-89; and aggravated malicious
wounding, in violation of Code § 18.2-51.2. These convictions are not at issue in this appeal.
Commonwealth, 64 Va. App. 580, 583, 770 S.E.2d 214, 216 (2015) (en banc) (quoting
Commonwealth v. Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221 (2002)). So viewed, the
evidence is as follows.
On the night of January 21–22, 2015, appellant broke into the home of Allen Freeman and
his elderly mother, Norma Jean. He entered the bedroom where they were asleep and struck them
repeatedly with a blunt object, killing Norma Jean and permanently injuring Allen. Following his
arrest for the attacks, a grand jury ultimately indicted appellant with several offenses, including
first-degree murder for the killing of Norma Jean.
At trial, the Commonwealth called Shari Merrill, who had been in a romantic relationship
with appellant during January 2015, to testify regarding his actions on the night in question. She
testified, inter alia, that she had observed appellant consume drugs several times during the time
they spent together that night. At the close of all evidence, counsel for appellant proffered a jury
instruction on a voluntary intoxication defense to first-degree murder based on Merrill’s testimony
about appellant’s drug use. The trial court refused the instruction because appellant had not
presented any evidence regarding the effect of the drugs on his conduct, and thus there was not
“more than a scintilla of the evidence” to support the proffered instruction. The jury ultimately
convicted appellant of second-degree murder, a lesser-included offense of first-degree murder. This
appeal followed.
II. ANALYSIS
In his sole assignment of error, appellant contends that the trial court erred in denying the
proffered voluntary intoxication instruction. This Court, however, need not reach the merits of
appellant’s argument because even if the trial court erred by refusing the instruction, such error
was harmless.
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“In Virginia, non-constitutional error is harmless ‘when it plainly appears from the
record and the evidence given at the trial that the parties have had a fair trial on the merits and
substantial justice has been reached.’” Lavinder v. Commonwealth, 12 Va. App. 1003, 1005-06,
407 S.E.2d 910, 911 (1991) (en banc) (quoting Code § 8.01-678). “Consequently, under Code
§ 8.01-678, a criminal conviction [arising in a trial that included non-constitutional error] must
be reversed unless ‘it plainly appears from the record and the evidence given at the trial that’ the
error did not affect the verdict.” Id. at 1006, 407 S.E.2d at 911. “An error does not affect a
verdict if a reviewing court can conclude . . . that, had the error not occurred, the verdict would
have been the same.” Id.
“[V]oluntary intoxication is no defense to the lesser degrees of homicide, or to any other
crime.” Essex v. Commonwealth, 228 Va. 273, 281-82, 322 S.E.2d 216, 220 (1984). A
successful voluntary intoxication defense reduces a defendant’s liability for capital murder or
first-degree murder to second-degree murder. Id. In returning a guilty verdict for second-degree
murder, the jury in this case effected the best result appellant could have hoped for even had the
trial court given his proffered voluntary intoxication instruction. Appellant conceded this reality
at oral argument, acknowledging that the verdict would have been the same if the jury had
received and followed appellant’s requested jury instruction. Accordingly, this Court holds that
the trial court’s error, if any, in denying the instruction was ultimately harmless because it did
not affect the jury’s verdict. For this reason, the judgment of the trial court is affirmed.
Affirmed.
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