Ian Cabili Pertos v. Commonwealth ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bumgardner
Argued at Richmond, Virginia
IAN CABILI PERTOS
MEMORANDUM OPINION * BY
v. Record No. 1664-97-2 JUDGE JERE M. H. WILLIS, JR.
SEPTEMBER 22, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
James E. Kulp, Judge
Craig S. Cooley for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from his conviction for first degree murder, 1
Ian C. Pertos contends that the trial court erred: (1) in
failing to instruct the jury properly on the term "deadly
weapon"; (2) in refusing to instruct the jury on voluntary
manslaughter; and (3) in refusing to strike the evidence as to
first degree murder. We affirm the judgment of the trial court.
I.
BACKGROUND
Pertos was romantically involved with the victim, Kila
Blount, and had lived with her for nearly a year. In the month
preceding her death, Blount began arriving home late from work
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Pertos does not appeal his convictions for grand larceny,
credit card theft and credit card fraud.
and showering upon her return. Pertos was convinced that she was
seeing another man. During the week prior to Blount's death, a
neighbor heard loud arguing between Pertos and Blount, and heard
Pertos threaten Blount.
On August 9, 1996, Pertos used a cord from a pair of
undershorts to strangle Blount to death. The medical examiner
testified that it took minutes for the strangulation to kill
Blount. When Blount began to bleed from her nose, Pertos placed
her body on a bed. He then left the apartment to purchase
garbage bags of a type different from those he usually kept at
his apartment. He wrapped Blount's body and the bloody bed
linens in the new plastic garbage bags and buried them in the
woods behind the apartment building. Within two hours following
Blount's death, Pertos used her ATM card, attempting to obtain
money from her account.
The morning after he killed Blount, Pertos pawned her
jewelry. He falsely told Blount's mother and a police officer
investigating a missing person report that he did not know where
Blount had gone. Pertos stayed at a friend's home for three
days. On the third evening, he told his friend that he was going
to play pool and never returned. Instead, he took a taxi to
Fredericksburg and went by bus to New York.
On August 30, 1996, Pertos was arrested in Hempstead, New
York by Detective Karlya, who was unaware of the killing in
Virginia. Prior to his commitment to jail, Pertos underwent a
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strip search. When he was informed that he could not bring the
drawstring from his undershorts into the jail, Pertos said, "Oh
s---, I made a mistake." He then told Karlya that he had killed
his girlfriend.
Thereafter, Pertos gave Karlya a statement in which he
stated that Blount had "played him." He told Karlya he could
smell the "rubber" of a new boyfriend on Blount's body. He told
Karlya that on the night of the murder Blount had received pages
on her beeper. He said he thought Blount's new boyfriend,
believed by him to be Wandell Taylor, was attempting to call her.
He told Karlya he strangled Blount from behind, and pulled the
cord tighter when she received a page while he was choking her.
He opined that he had buried Blount too close to the apartment
building.
After his extradition from New York, Pertos told Henrico
Investigator Brooks that he had been having disagreements with
Blount. Pertos stated that on the night in question, despite her
telling him she was going out with some female friends, he
believed she was going to meet her new boyfriend. Pertos said
that she had "played [him] for a fool" and that he was hurt. He
told Brooks, "I was just mad."
At trial, Pertos admitted knowing that Blount planned to
move to her mother's home and that he had discussed breaking the
lease with the apartment management. He admitted killing Blount,
but said he only intended to scare her. He explained that he had
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started to release the cord from around Blount's neck when her
pager sounded. He said he saw on the pager a number that he
believed to be Taylor's. Whereupon, he tightened his grip on the
cord and killed Blount.
II.
"DEADLY WEAPON" INSTRUCTION
The trial court instructed the jury as follows:
[Y]ou may infer malice from the deliberate
use of a deadly weapon, unless from all the
evidence you have a reasonable doubt as to
whether malice existed. A deadly weapon is
any object or instrument that is likely to
cause death or great bodily injury because of
the manner and under the circumstances in
which it is used.
Pertos contends that the trial court erred in failing to
instruct the jury that it should determine whether the cord was a
deadly weapon. He argues that without that explicit instruction,
the instruction misled the jury to conclude presumptively that
the ligature was a deadly weapon.
Pertos relies upon Pannill v. Commonwealth, 185 Va. 244, 38
S.E.2d 457 (1946). In Pannill, the trial court instructed the
jury as follows:
"[A] man is presumed to intend that which he
does or which is the immediate or necessary
consequence of his act, and if the prisoner,
with a deadly weapon in his possession,
without any, or upon very slight provocation,
gave to the deceased a mortal wound, he, the
prisoner, is prima facie guilty of wilful,
deliberate, and premeditated killing, and the
necessity rests upon him of showing the
extenuating circumstances, and unless he
proves such extenuating circumstances, or the
circumstances appear from the case made by
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the State, he is guilty of murder in the
first degree."
Id. at 253, 38 S.E.2d at 462. The Supreme Court reversed the
conviction, holding that the phrase "with a deadly weapon in his
possession" misled the jury. The Court ruled that the stick used
in the killing was not per se a deadly weapon. It concluded
that: "Generally, unless a weapon is per se a deadly one, the
jury should determine whether it, and the manner of its use,
places it in that category . . . ." Id. at 254, 38 S.E.2d at
462.
The error in Pannill was the failure of the trial court to
provide the jury a definition of "deadly weapon." Without that
definition, the inclusion of the term "deadly weapon" in the
instruction suggested that the stick was, as a matter of law, a
deadly weapon. See Bruce v. Commonwealth, 9 Va. App. 298,
300-01, 387 S.E.2d 279, 280 (1990).
Here, the trial court coupled its instruction on inferring
malice with a precise definition of "deadly weapon." See
Strickler v. Murray, 249 Va. 120, 129, 452 S.E.2d 648, 652-53,
cert. denied, 516 U.S. 850 (1995); Quintana v. Commonwealth, 224
Va. 127, 140, 295 S.E.2d 643, 649 (1982). See also Virginia
Model Jury Instructions, Criminal § 34.240 (1993). The trial
court also instructed the jury that "[they were] the judges of
the facts." While the trial court could have instructed the
jurors explicitly that they were to determine whether the
ligature was a deadly weapon, see Henry v. Commonwealth, 195 Va.
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282, 288-89, 77 S.E.2d 863, 868 (1953), it was not required to do
so. The trial court properly instructed the jury as to its duty
and provided it a correct definition of "deadly weapon."
III.
SUFFICIENCY OF EVIDENCE
Pertos next contends that the Commonwealth failed to prove
the premeditation necessary to sustain his conviction for first
degree murder. We disagree.
To prove premeditated murder, the
Commonwealth must establish: "(1) a killing;
(2) a reasoning process antecedent to the act
of killing, resulting in the formation of a
specific intent to kill; and (3) the
performance of that act with malicious
intent." Premeditation requires the
formation of a specific intent to kill.
Archie v. Commonwealth, 14 Va. App. 684, 689, 420 S.E.2d 718, 721
(1992) (quoting Rhodes v. Commonwealth, 238 Va. 480, 486, 384
S.E.2d 95, 98 (1989)). "A design to kill may be formed only a
moment before the fatal act is committed provided the accused had
time to think and did intend to kill." Giarratano v.
Commonwealth, 220 Va. 1064, 1074, 266 S.E.2d 94, 100 (1980)
(citation omitted). Whether a defendant acted with such
premeditation is a question to be determined by the trier of
fact. Morris v. Commonwealth, 17 Va. App. 575, 578, 439 S.E.2d
867, 869 (1994).
Viewing the evidence in the light most favorable to the
Commonwealth, Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987), we find it sufficient to prove beyond a
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reasonable doubt that Pertos premeditated, deliberated and
maliciously killed Blount.
Although Pertos testified that he intended only to frighten
Blount, the jury was entitled to reject this explanation and to
conclude that the killing was premeditated. See Cantrell v.
Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988).
Pertos knew that his relationship with Blount was changing. He
admitted that he killed her intentionally. He acknowledged that
he had considered ceasing his attack on Blount, but chose to kill
her. In the week prior to murdering Blount, he had threatened
her.
From the testimony of the witnesses and the circumstantial
evidence, the jury could conclude that Pertos knew of Blount's
intention to move, planned her murder, and then sought to avoid
discovery of his connection to the murder.
IV.
VOLUNTARY MANSLAUGHTER INSTRUCTION
Finally, Pertos contends that the trial court committed
reversible error in refusing an instruction on voluntary
manslaughter. We disagree.
Pertos was charged with first degree murder. The trial
court instructed the jury on the elements of first degree murder
and second degree murder. It refused an instruction on voluntary
manslaughter. The jury convicted Pertos of first degree murder.
[W]here the reviewing court is able to
determine that the trial court's error in
failing to instruct the jury could not have
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affected the verdict, that error is harmless.
Such a determination can be made where it is
evident from the verdict that the jury would
have necessarily rejected the lesser-included
offense on which it was not instructed. . . .
By contrast, where it is impossible to
determine from the verdict whether the jury
would have necessarily rejected a
lesser-included offense on which it was not
instructed, error in refusing to instruct on
that offense is not harmless.
Turner v. Commonwealth, 23 Va. App. 270, 276, 476 S.E.2d 504, 507
(1996), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997), cert. denied,
118 S. Ct. 1852 (1998).
Where a jury is instructed on first degree murder and second
degree murder, rejects second degree murder, and convicts the
defendant of first degree murder, such a verdict "compels the
conclusion that [the jury] would never have reached a voluntary
manslaughter verdict." Id. at 277, 476 S.E.2d at 508. Thus, if
we assume, which we do not, that the trial court erred in
refusing to instruct the jury on voluntary manslaughter, such
error was harmless.
The judgment of the trial court is affirmed.
Affirmed.
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