Jermaine B. Jones v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
JERMAINE B. JONES
MEMORANDUM OPINION * BY
v. Record No. 1947-95-1 JUDGE RICHARD S. BRAY
NOVEMBER 5, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
Timothy S. Fisher (Overman, Cowardin &
Martin, P.L.C., on brief), for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Jermaine B. Jones (defendant) was convicted by a jury for
second degree murder and the related use of a firearm, violations
of Code §§ 18.2-32 and 18.2-53.1, respectively. On appeal, he
complains that the trial court improperly instructed the jury
with respect to inconsistent verdicts and erroneously denied his
attendant motion for a mistrial. Although we agree that the
disputed instruction was not correct, the error was harmless.
Accordingly, we affirm the convictions.
The parties are fully conversant with the record, and we
recite only those facts necessary to a resolution of the issues
on appeal.
The relevant procedural history is uncontroverted. The
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
trial court first properly instructed the jury that conviction
for a violation of Code § 18.2-53.1 necessitated proof that a
firearm was used in the commission or attempted commission of
murder. However, following closing arguments, the court further
instructed the jury, sua sponte, that "[i]f [you] determine that
the Defendant is guilty of voluntary manslaughter, you may also
find [him] guilty of use of a firearm during the commission of a
murder." Although such inconsistent verdicts do not provide
grounds for reversal on appeal, see Wolfe v. Commonwealth, 6 Va.
App. 640, 649-50, 371 S.E.2d 314, 319-20 (1988), the trial court
has an "affirmative duty" to properly instruct a jury on a
"principle of law . . . vital to a defendant." Johnson v.
Commonwealth, 20 Va. App. 547, 553-54, 458 S.E.2d 599, 602 (1995)
(quoting Jiminez v. Commonwealth, 241 Va. 244, 250, 402 S.E.2d
678, 681 (1991)). Nevertheless, we find that the erroneous
instruction was harmless in this instance. 1
"The United States Supreme Court has repeatedly stated that
harmless error analysis is appropriate in the context of improper
jury instructions." Kil v. Commonwealth, 12 Va. App. 802, 812,
407 S.E.2d 674, 679-80 (1991).
In Virginia, non-constitutional error is
harmless "[w]hen 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." Code § 8.01-678 (emphasis added).
1
In addressing this issue, we assume, without deciding, that
defendant's mistrial motion was timely. See Cheng v.
Commonwealth, 240 Va. 26, 393 S.E.2d 599 (1990).
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"[A] fair trial on the merits and
substantial justice" are not achieved if an
error at trial has affected the verdict.
Consequently, under Code § 8.01-678, a
criminal conviction 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. An error does
not affect a verdict if a reviewing court can
conclude, without usurping the jury's
fact-finding function, that, had the error
not occurred, the verdict would have been the
same.
Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,
911 (1991) (en banc). Whether an error at trial has affected the
verdict necessarily depends on the circumstances of each case.
Id. at 1009, 407 S.E.2d at 913.
Here, notwithstanding the erroneous instruction, the jury
convicted defendant of a requisite predicate felony, second
degree murder, thereby avoiding an inconsistent verdict. We,
therefore, can conclude, without usurping the jury's fact-finding
function, that the verdict would have been unchanged had the
error not occurred. See Smoot v. Commonwealth, 18 Va. App. 562,
566-68, 445 S.E.2d 688, 691 (1994) (although jury instruction
omitted essential element of crime, error harmless because
evidence of such circumstance was uncontradicted in the record);
cf. LeVasseur v. Commonwealth, 225 Va. 564, 592 n.3, 304 S.E.2d
644, 659 n.3 (1983), cert. denied, 464 U.S. 1063 (1984) (failure
to instruct jury on second degree murder harmless because
conviction of capital murder manifested a rejection of second
degree murder).
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Defendant next contends that the action and attendant
remarks of the trial court suggested to the jury that defense
counsel had presented either an untruthful or erroneous argument,
inviting prejudice to defendant's cause. However, when defendant
requested a mistrial, he addressed only the inconsistent verdict
implications of the trial court's error, without mention of any
incidental prejudice. Defendant first raised this issue to the
court in additional argument several months after trial. Thus,
defendant did not afford the trial judge an opportunity to remedy
any error in a timely fashion. Because Rule 5A:18 precludes our
review of issues not properly raised before the trial court, save
for good cause or to attain the ends of justice, 2 this argument
was not preserved for appellate review. See, e.g., Deal v.
Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897, 900 (1992).
Accordingly, we affirm the convictions.
Affirmed.
2
Defendant has not argued either the good cause or the ends
of justice exceptions to Rule 5A:18, and we do not find either
applicable in this instance.
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