JOHN E WOODWARD V COMMONWEALTH OF VIRGINIA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
JOHN E. WOODWARD
MEMORANDUM OPINION * BY
v. Record No. 2792-00-2 JUDGE JEAN HARRISON CLEMENTS
JULY 30, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
William T. Linka (Boatwright & Linka, on
brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
John E. Woodward was indicted for first degree murder, in
violation of Code § 18.2-32, and convicted in a jury trial of
second degree murder, in violation of Code § 18.2-32. On appeal,
he contends the trial court erred in refusing to grant his
proffered instruction on manslaughter. Finding appellate review
procedurally barred, we affirm Woodward's conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Dr. Deborah Kay, Assistant Chief Medical Examiner for the
Commonwealth, qualified at trial as an expert witness in the
field of forensic pathology. She testified that the cause of the
victim's death was "multiple skull fractures that were the result
of a blunt trauma." Woodward's counsel cross-examined Dr. Kay
extensively regarding the condition of the decedent's heart,
suggesting that the victim passed out or died as a result of an
arrhythmia or heart attack and sustained the skull fractures from
the resulting fall or collapse. However, when asked whether the
head wounds were consistent with someone falling after losing
consciousness because of arrhythmia, Dr. Kay testified, "I don't
think that it's likely that injuries on multiple sides of the head
are a result of a single fall typically of arrhythmia."
At the conclusion of the Commonwealth's evidence, Woodward
moved to strike the charge of first degree murder, arguing the
evidence failed to prove premeditation. After the trial court
denied the motion, Woodward rested and renewed his motion to
strike, making no new arguments.
The Commonwealth offered Instruction No. 13 on the elements
of proof of first degree murder and the lesser-included offense of
second degree murder. Woodward objected to the instruction, again
arguing there was an absence of evidence of premeditation
necessary to elevate the crime to first degree murder. Woodward's
counsel then added: "And if the jury has a problem that there is
malice, Judge, then we have a manslaughter case. And I would
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suggest to the Court that a manslaughter instruction is . . .
proper, as well." In response to the Commonwealth's claim that
there was no evidence to support a manslaughter jury instruction,
Woodward's counsel solely stated, "It's an accidental killing,
Judge." The trial judge overruled Woodward's objection and
granted Instruction No. 13, ruling, in part, that "the only
alternative even suggested by the defense is that [the victim]
fell as a result of a heart attack."
Woodward then tendered three proposed instructions, each of
which the trial court refused to grant:
INSTRUCTION NO. A
The difference between murder and
manslaughter is malice. When malice is
present, the killing is murder. When it is
absent, the killing can be no more than
manslaughter.
INSTRUCTION NO. C
You shall find the defendant not guilty
of murder or voluntary manslaughter if you
believe from the evidence that he struck the
deceased without intent to kill her or do her
great bodily harm.
INSTRUCTION NO. D
The Commonwealth must prove beyond a
reasonable doubt that the death of Barbara
Richardson was not as the result of an
accident. If after consideration of all the
evidence you have a reasonable doubt whether
the death of Barbara Richardson was as the
result of an accident or was an intentional
act, then you shall find the defendant not
guilty.
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Woodward contends, on appeal, that the trial court erred when
it refused to give an instruction on manslaughter. Specifically,
he argues, the court erred in refusing to give his proffered
Instruction No. A. 1
"'We are bound by the principle that the accused is
entitled, on request, to have the jury instructed on a lesser
included offense that is supported by more than a "scintilla of
evidence" in the record.'" Marsh v. Commonwealth, 32 Va. App.
669, 679-80, 530 S.E.2d 425, 430 (2000) (quoting Bunn v.
Commonwealth, 21 Va. App. 593, 599, 466 S.E.2d 744, 746 (1996)
(emphasis added)).
Here, Woodward requested a "manslaughter instruction" at
trial solely on the ground that the killing was "accidental."
While "an accidental homicide, contrary to the intention of the
parties, occurring during the performance of an unlawful, but not
felonious, act or during the improper performance of a lawful act"
constitutes involuntary manslaughter, Bolyard v. Commonwealth, 11
Va. App. 274, 276, 397 S.E.2d 894, 895-96 (1990), Woodward did not
articulate to the trial court that he was seeking an instruction
on involuntary manslaughter. Indeed, he proffered Instruction No.
1
Woodward makes no assertion, on appeal, that the trial
court's refusal to give his proffered Instruction No. C, regarding
unintended killing, or Instruction No. D, regarding accidental
death, was error. Thus, the propriety of the refusal of those
instructions is not before us. See Rule 5A:12(c); Cruz v.
Commonwealth, 12 Va. App. 661, 664 n.1, 406 S.E.2d 406, 407 n.1
(1991) (noting that only those questions presented in the petition
for appeal will be considered on appeal).
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C, which refers to "voluntary manslaughter," and he proffered no
instruction that addressed involuntary manslaughter. We also note
that Woodward's brief on appeal does not address the issue of
involuntary manslaughter and that Woodward conceded at oral
argument in this appeal that he was seeking an instruction to the
jury on voluntary manslaughter.
Voluntary manslaughter is an intentional killing committed
upon sudden passion or reasonable provocation or in mutual combat.
King v. Commonwealth, 4 Va. (2 Va. Cas.) 78 (1817). However,
Woodward made no argument to the trial court that the subject
killing was committed upon sudden passion or reasonable
provocation or in mutual combat. We "will not consider an
argument on appeal which was not presented to the trial court."
Rule 5A:18; Ohree v. Commonwealth, 26 Va. App. 299, 308, 494
S.E.2d 484, 488 (1988).
For these reasons, we are procedurally barred from
considering the present issue on appeal. Furthermore, our review
of the record in this case does not reveal any reason to invoke
the "good cause" or "ends of justice" exceptions to Rule 5A:18.
Accordingly, we affirm Woodward's conviction.
Affirmed.
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