Timothy Rollison v. Commonwealth ( 2007 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Haley and Senior Judge Annunziata
Argued at Alexandria, Virginia
TIMOTHY ROLLISON
MEMORANDUM OPINION* BY
v. Record No. 3038-05-4 JUDGE LARRY G. ELDER
FEBRUARY 20, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William T. Newman, Jr., Judge
Jason S. Rucker (Rucker & Rucker, on brief), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Robert
F. McDonnell, Attorney General, on brief), for appellee.
Timothy Rollison (appellant) appeals from his jury trial convictions for aggravated
malicious wounding and use of a firearm in the commission of that offense. On appeal, he
contends the trial court erroneously instructed the jury. We conclude that no reversible error
occurred, and we affirm.
Appellant’s assignment of error is in two parts. First, he contends that the trial court
erred in instructing the jury that self-defense was not an issue in the case and that the jury should
decide the case on the instructions previously given. He contends this was error “because [he]
was not advancing the argument of self-defense.”1 Second, he avers that even if giving the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The Commonwealth argues appellant “has defaulted on” this aspect of his claim,
“[a]lthough [it admits] the matter [of default] is not free from doubt.” We conclude appellant
sufficiently preserved this argument for appeal.
When the trial court indicated it would caution the jury that self-defense was not an issue
rather than instruct them on self-defense, as the Commonwealth had suggested, appellant
expressed his belief that this was “perhaps a much wiser solution than what the Commonwealth
instruction was not error, the timing of the instruction was--“because the instruction . . . occurred
after [appellant] had made his closing argument but before the Commonwealth presented its
rebuttal closing argument.” On brief, he gives no indication of how he claims to have been
prejudiced by the instruction or the time at which the court chose to give it. At trial, he
articulated that the court’s giving the instruction immediately after his closing argument might be
taken by the jury to mean that “the Court disagree[d] with my closing argument, in essence” and
“that [such an interpretation] would be a prejudice to the defendant.”
The offense for which appellant was convicted, aggravated malicious wounding, required
proof, inter alia, that appellant acted with malice. Malice, as defined by the jury instructions that
have become the law of the case, see Spencer v. Commonwealth, 240 Va. 78, 89, 393 S.E.2d
609, 616 (1990),
is that state of mind which results in the intentional doing of a
wrongful act to another without legal excuse or justification, at a
time when the mind of the actor is under the control of reason.
Malice may result from any unlawful or unjustifiable motive
including anger, hatred or revenge. Malice may be inferred from
any deliberate[,] willful and cruel act against another, however
sudden.
Lynn v. Commonwealth, 27 Va. App. 336, 344 n.1, 499 S.E.2d 1, 5 n.1 (1998).
Self-defense negates a finding of malice by providing a legal justification or excuse for a
cruel act committed under the control of reason. See, e.g., Smith v. Commonwealth, 17
Va. App. 68, 435 S.E.2d 414 (1993). “To justify the use of deadly force, the defendant must
proposed.” However, he also stated immediately thereafter, “The question I have is, do we need
to tell them that something they have not been instructed on is not an issue?” When the court
indicated it thought such an instruction was appropriate and that it intended to give this
instruction, appellant commented further, “Very well, Your Honor. . . . I accept the Court’s
decision, but for the record, . . . [t]he reason we oppose that is because we believe at this stage
that . . . the jury might take this as . . . a comment on my closing argument, the Court disagreeing
with my closing argument, in essence . . . and that would be a prejudice to the defendant.” This
exchange constituted a specific objection made at the time of the trial court’s ruling and satisfied
the requirements of Rule 5A:18.
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have reasonably feared death or serious bodily injury from his victim, and there must have been
an overt threat.” Peeples v. Commonwealth, 30 Va. App. 626, 634, 519 S.E.2d 382, 386 (1999)
(en banc). A defendant claiming self-defense “implicitly admits the killing was intentional,”
McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978), but he “has no
burden to prove the defense or negate an element of the crime,” Graham v. Commonwealth, 31
Va. App. 662, 674, 525 S.E.2d 567, 573 (2000). Instead, an accused asserting self-defense must
provide merely “sufficient evidence [of self-defense] to raise a reasonable doubt about his guilt."
Smith, 17 Va. App. at 71, 435 S.E.2d at 416.
The existence of heat of passion may negate malice “when that heat of passion arises
from provocation that reasonably produces an emotional state of mind such as . . . fear so as to
cause one to act on impulse without conscious reflection,” see, e.g., Lynn, 27 Va. App. at 344
n.1, 499 S.E.2d at 5 n.1, rather than under the control of reason.
“‘Both the Commonwealth and the defendant are entitled to appropriate instructions to
the jury of the law applicable to each version of the case, provided such instructions are based
upon the evidence adduced.’” Stewart v. Commonwealth, 10 Va. App. 563, 570, 394 S.E.2d
509, 514 (1990) (quoting Simms v. Commonwealth, 2 Va. App. 614, 616, 346 S.E.2d 734, 735
(1986)).
“The purpose of an instruction is to furnish guidance to the jury in
their deliberations, and to aid them in arriving at a proper verdict,
so far as it is competent for the court to assist them. The chief
object contemplated in the charge of the judge is to explain the law
of the case, to point out the essentials to be proved on the one side
or the other, and to bring into view the relation of the particular
evidence adduced to the particular issues involved. In his
instructions the trial judge should inform the jury as to the law of
the case applicable to the facts in such a manner that they may not
be misled.”
Cooper v. Commonwealth, 2 Va. App. 497, 500, 345 S.E.2d 775, 777 (1986) (quoting 75
Am. Jur. 2d Trial § 573 (1974)).
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The trial judge commits error by not instructing the jury on a matter when, in the absence
of such instruction, the jury may make findings based upon a mistaken belief of the law. See
Martin v. Commonwealth, 218 Va. 4, 6-7, 235 S.E.2d 304, 305 (1977). “When a trial judge
instructs the jury in the law, he or she may not ‘single out for emphasis a part of the evidence
tending to establish a particular fact.’” Terry v. Commonwealth, 5 Va. App. 167, 170, 360
S.E.2d 880, 882 (1987) (quoting Woods v. Commonwealth, 171 Va. 543, 548, 199 S.E. 465, 467
(1938)). “On the other hand, instructions should relate to the specific evidence of the case;
abstract propositions of law do little to help and much to mystify a jury.” Id. at 170, 360 S.E.2d
at 882 (citing Gordon v. Director General, 128 Va. 426, 433, 104 S.E. 796, 798 (1920)). Finally,
a decision to give a cautionary instruction and when to give it will not be set aside on appeal
absent a showing of an abuse of discretion. Goins v. Commonwealth, 251 Va. 442, 465, 470
S.E.2d 114, 129 (1996).
Here, the court’s cautionary instruction did not emphasize “a part of the evidence tending
to establish a particular fact.” Terry, 5 Va. App. at 170, 360 S.E.2d at 882 (emphasis added).
Instead, it pointed out to the jury that a particular legal theory--self-defense--was not in issue.
The victim was a transsexual prostitute whose true gender appellant claimed to have learned only
moments before the shooting during what began as a consensual sexual encounter. Appellant
said he became fearful and pulled his firearm when the prostitute suggested that they continue
the sexual encounter despite the fact that the prostitute, like appellant, was male. As the
Commonwealth argued and the trial court found, appellant’s closing argument “[came]
perilously close” to a claim that appellant’s act of shooting the victim was excusable because it
was done in self-defense, i.e., because appellant feared the victim would take away his firearm
and then use the firearm against appellant. The likelihood of the jury’s misinterpreting
appellant’s argument was heightened by appellant’s claim that the fear he experienced negated a
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finding of malice but did so without supporting a heat-of-passion defense. Appellant’s ongoing
claim that he acted out of fear at a time when his mind was not under the control of reason but
that he was not asserting a heat-of-passion defense heightened the need for a cautionary
instruction to preclude a jury verdict based on self-defense, a defense that appellant did not raise
and expressly agreed he was not advancing. Under these circumstances, the trial court did not
abuse its discretion by informing the jury that self-defense was not a legal theory upon which
they could base an acquittal.
Similarly, we hold the trial court did not abuse its discretion by giving the contested
instruction after appellant made his closing argument and before the Commonwealth delivered
its rebuttal argument, rather than at the close of all argument as appellant had requested.
Although appellant expressed concern that the jury was more likely to interpret the instruction as
the court’s criticism of his closing argument if the court gave that instruction immediately
following appellant’s closing, appellant did not object to the Commonwealth’s right to argue in
rebuttal that self-defense was not an issue in the case. Further, the court’s instruction was
worded in a neutral fashion that made no mention whatever of appellant’s argument. The court
merely told the jury that it “want[ed] to emphasize . . . that self-defense is not an issue in this
case and that you’re going to decide this case . . . based only upon whatever you think about
what you’ve heard and these instructions.” The trial court said to the jury nothing beyond that
which appellant had told the court he agreed to--that self-defense was not an issue in the case.
The trial court’s decision to give this instruction prior to the Commonwealth’s rebuttal argument
was not an abuse of discretion.
For these reasons, we hold that the trial court did not commit reversible error in
instructing the jury, after appellant’s closing argument and before the Commonwealth’s rebuttal
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argument, that self-defense was not an issue in the case and that it must decide the case based on
the instructions previously given. Thus, we affirm the challenged convictions.
Affirmed.
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