Brent Arthur M. Whitaker v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Bray and Senior Judge Duff
Argued at Alexandria, Virginia
BRENT ARTHUR M. WHITAKER
v. Record No. 1790-95-4 MEMORANDUM OPINION * BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA JUNE 4, 1996
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge
Judith M. Barger, Assistant Public Defender
(Clinton O. Middleton, Senior Assistant
Public Defender; Office of the Public
Defender, on brief), for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Brent Arthur M. Whitaker was convicted of malicious
wounding, and sentenced in accordance with the jury's verdict to
six years in the penitentiary. Whitaker argues on appeal that
the trial court improperly denied him a jury instruction on
self-defense. He also argues that the trial court erroneously
permitted the jury to consider evidence, during the sentencing
phase of the proceeding, of two felony convictions for breaking
and entering and one felony conviction for grand larceny. We
affirm the conviction and sentence.
On February 2, 1995, Fairfax Police Officer Elizabeth
Eppright was on foot patrol at a shopping center. She was in
uniform and carrying a gun and a police radio.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Officer Eppright testified that she was walking in front of
the shopping center, about thirty yards from the entrance to a
drugstore, when she saw Whitaker and two other young males
running out of the drugstore carrying beer. As they continued to
run, Officer Eppright ran after them and yelled "Stop, police"
several times. The three turned to look at her, and then
continued running across the front of the shopping center. They
turned after the last store and ran to the back of the shopping
center. Officer Eppright pursued them and saw them standing in
back of the store, Whitaker at the top of a small incline and the
other two below him. Officer Eppright acknowledged that Whitaker
appeared to have stopped in compliance with her order, but the
other two appeared uncertain of whether to stay or continue
running. Eppright testified that although it was dark outside,
she had no trouble seeing due to streetlights and lights on the
rear of the building.
Officer Eppright approached Whitaker and grabbed him by the
shoulders. As she took Whitaker's shoulders, she turned to his
companions and told them that they had better stop as well.
Whitaker then hit her in the eye, grabbed her, pulled her towards
him and kicked and struck her repeatedly. Officer Eppright fell
to the ground. She then radioed for assistance and pulled her
gun. She stood up and was face-to-face with Whitaker. She held
onto him and told him, "I'm going to shoot you." The gun became
stuck between Whitaker's left arm and his side. He continued to
kick Eppright, and told her to go ahead and shoot. She managed
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to free the gun and shot Whitaker. She testified that Whitaker
was standing sideways to her when she fired.
Whitaker acknowledged that he and his friends had stolen the
beer. He testified that Eppright shouted "Stop, boys, stop" and
that he did not know that she was a police officer, but instead
thought that she worked for the drugstore. He stated that he
dropped the beer as she came around the corner, and planned to
give the beer back so that she would let him go. He claimed that
Eppright slammed into him, grabbed him by the shoulders, shook
him, and shouted obscenities. He shook her back and they got
into a "little struggle." He claimed that he hit Eppright once
after she drew her gun, because he was scared. He then tried to
flee, took two or three steps, and was shot. Whitaker stated
that he was shot in the back; expert testimony showed that the
shot went through the lower left back of Whitaker's jacket.
Whitaker was charged with malicious wounding of a law
enforcement officer. He requested an instruction on self-defense
where the defendant was to some degree at fault, as well as an
instruction on the use of force to repel an assault. 1 The trial
1
The proposed instructions read as follows:
H. If you believe from the evidence that the
defendant was to some degree at fault in
provoking or bringing on the difficulty, and
if you further believe that when attacked:
(1) he retreated as far as he safely could
under the circumstances;
(2) in a good faith attempt to abandon the
difficulty; and
(3) made known his desire for peace by word
or act; and
(4) he reasonably feared, under the
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court indicated initially that it would allow the self-defense
instruction, but not the other instruction because it was
redundant. On further review, the court decided to deny both
instructions. The jury convicted Whitaker of the lesser included
offense of malicious wounding.
At the sentencing phase, the Commonwealth introduced
evidence of several juvenile convictions, including two for
breaking and entering and one for grand larceny. For the
breaking and entering convictions, the record indicated that
counsel was appointed and that Whitaker pled guilty, withdrew his
plea, and then re-entered it. He was remanded to the Department
of Corrections for twelve months. For the grand larceny
conviction, the record indicated simply that Whitaker waived
counsel, with no information on the surrounding circumstances.
Whitaker pled guilty and was ordered to make restitution and
perform community service.
JURY INSTRUCTIONS
A party is entitled to have the jury instructed according to
the law favorable to his or her theory of the case if credible
circumstances as they appeared to him, that
he was in danger of bodily harm; and
(5) he used no more force than was
reasonably necessary to protect himself from
the threatened harm, then you shall find the
defendant not guilty.
J. A person in reasonable apprehension of bodily
harm by another is privileged to exercise
reasonable force to repel the assault, but
the amount of force must be reasonable in
relation to the perceived threat.
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evidence in the record supports the instruction. See Foster v.
Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991);
Belfield v. Commonwealth, 11 Va. App. 310, 313, 398 S.E.2d 90, 92
(1990). Where evidence tends to sustain both the prosecution's
and the defense's theory of the case, the trial court must give
requested instructions covering both theories. Diffendal v.
Commonwealth, 8 Va. App. 417, 422, 382 S.E.2d 24, 26 (1989). In
determining whether a jury instruction was properly refused, we
view the evidence in the light most favorable to the party who
offered the instruction. See Martin v. Commonwealth, 13 Va. App.
524, 526, 414 S.E.2d 401, 401 (1992) (en banc).
A person who reasonably apprehends bodily harm by another is
privileged to use reasonable force in self-defense. Foster, 13
Va. App. at 383, 412 S.E.2d at 200; Diffendal, 8 Va. App. at 421,
382 S.E.2d at 25. This includes the right to defend against
aggression by a police officer in certain circumstances,
including where, as here, the defendant was allegedly unaware of
the officer's status and was placed in fear of bodily harm. See
Delacruz v. Commonwealth, 11 Va. App. 335, 398 S.E.2d 103 (1990).
"Justifiable" self-defense arises when the defendant is
completely without fault in precipitating the incident.
"Excusable" self-defense arises when the defendant, who was at
some fault in precipitating the incident, abandons the fight and
retreats as far as he safely can before he attempts to repel the
attack. Foote v. Commonwealth, 11 Va. App. 61, 68, 396 S.E.2d
851, 855 (1990). The instruction offered by Whitaker was for
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"excusable" self-defense--properly so, as his unlawful conduct in
stealing the beer precipitated the conflict between himself and
Officer Eppright. 2
Even when viewed in the light most favorable to the
defendant, the evidence does not support the proposed instruction
on self-defense. Whitaker did not retreat as far as he safely
could under the circumstances; indeed, he did not retreat at all
before striking Officer Eppright, but immediately began to
grapple with her when she tried to apprehend him. Similarly, he
did not make known a desire for peace or make a good faith effort
to abandon the difficulty--when Officer Eppright shook him, as he
claimed, he immediately responded in kind and then struck her.
The trial court did not err in refusing to grant the proposed
instruction.
USE OF PREVIOUS CONVICTIONS AT SENTENCING
It is now well established that uncounseled misdemeanor
convictions can be considered for sentencing purposes. Nichols
v. United States, U.S. , 114 S. Ct. 1921, 1927-28 (1994);
see also Griswold v. Commonwealth, 21 Va. App. 22, 461 S.E.2d 5922
Whitaker complains primarily of the trial court's failure
to grant the self-defense instruction, but also refers to the
court's failure to grant the instruction on use of force. The
self-defense instruction covered the appropriate use of force
where the defendant was at fault. Even if the trial court erred
in refusing the instruction on self-defense, which it did not,
there would be no error in refusing the second instruction.
"When granted instructions fully and fairly cover a principle of
law, a trial court does not abuse its discretion in refusing
another instruction relating to the same legal principle." Gray
v. Commonwealth, 233 Va. 313, 351, 356 S.E.2d 157, 177-78, cert.
denied 484 U.S. 873 (1987).
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(1996). However, this principle does not apply to felonies. In
felony cases, the defendant has the right to counsel unless that
right is intelligently and competently waived. Nichols, 114
S. Ct. at 1926 n.9 (citing Gideon v. Wainwright, 372 U.S. 335(1963)). A sentence that is based on a prior felony conviction
invalid under Gideon must be set aside. Id. (citing United
States v. Tucker, 404 U.S. 443, 446-47 (1972)); see also James v.
Commonwealth, 18 Va. App. 746, 752, 446 S.E.2d 900, 904 (1994).
Whitaker did not appeal his convictions directly based on
lack of counsel, but instead seeks to attack them collaterally in
this proceeding. In the context of a collateral attack, a
"presumption of regularity" attaches to the judgment of
conviction, even where the question is waiver of constitutional
rights. Parke v. Raley, 506 U.S. 20, 29-30 (1993). The
Commonwealth has the burden of going forward with evidence
showing the previous convictions, which burden it satisfied here
through production of certified court records of convictions
appearing on their face to be valid. James, 18 Va. App. at 752,
446 S.E.2d at 904; see Code § 19.2-295.1. There must be some
evidence establishing that the defendant was represented by
counsel or had properly waived counsel in the earlier criminal
proceeding. Id. (citing Burgett v. Texas, 389 U.S. 109, 114
(1967)). Once the Commonwealth has made this showing, the
presumption of regularity applies to the convictions and the
defendant must produce credible evidence of a constitutional
violation in order to invalidate them. Id.
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Here, as in James, the record of conviction for the breaking
and entering charges indicated that Whitaker was represented by
counsel. Although the record does not affirmatively show that
counsel was present when the guilty plea was re-entered, such
evidence is not necessary under Parke and James. Whitaker
presented no evidence that he was unrepresented by counsel when
he entered his guilty plea. The trial court therefore did not
err in allowing the jury to consider these convictions for
sentencing purposes.
For the conviction of grand larceny, the record indicated
that Whitaker waived counsel. In the context of a collateral
attack, this evidence is sufficient to trigger the presumption of
regularity. Whitaker presented no evidence to rebut the
presumption. Accordingly, the trial court did not err in
allowing the jury to consider this conviction for sentencing
purposes. 3 For these reasons, we affirm Whitaker's conviction.
Affirmed.
3
Whitaker argues that the grand larceny conviction was
inadmissible because the records did not show a "final order of
conviction." The records showed that Whitaker pled guilty and
was ordered to perform community service and make restitution and
was placed on supervised probation. The judge also checked off a
box indicating that "imposition of any and all other dispositions
is withheld indefinitely." While the form is somewhat ambiguous,
it indicates a guilty plea followed by imposition of a penalty,
and the record of conviction was admissible under Code
§ 19.2-295.1.
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