Martin v. Commonwealth , 13 Va. App. 524 ( 1992 )

ON REHEARING EN BANC

Opinion

BENTON, J.

Carlish Junnie Martin appeals the trial judge’s refusal to instruct the jury on the elements of simple assault at his trial for attempted capital murder. In a memorandum opinion, a panel of this court concluded that the trial judge did not err. Martin v. Commonwealth, No. 1707-89-2 (Va. App. July 9, 1991). A dissenting opinion was filed to the panel decision. Pursuant to Code § 17-116.02(D), the Court convened en banc to consider the question presented. For the reasons that follow, we reverse the conviction and remand for a new trial.

I.

Although the Commonwealth prevailed at trial, the appropriate standard of review requires that we view the evidence pertinent to Martin’s refused instruction in the light most favorable to Martin. Blondel v. Hays, 241 Va. 467, 469, 403 S.E.2d 340, 341 (1991). When the evidence is so viewed, it established that several police officers responded at midnight to an alert of a possible burglary in a residential neighborhood in the City of Richmond. When a homeowner spied a man in his yard and shouted, the officers saw a man wearing blue jeans, a t-shirt, and a baseball cap fleeing through backyards.

Detective Paul Kiniry, who was dressed in plain clothes and driving approximately a block from the scene, saw Martin run, then walk toward him. Martin was wearing dark pants, a t-shirt, and a baseball cap. Kiniry exited his vehicle, identified himself as a police officer and ordered Martin to stop. Kiniry was in the process of frisking Martin for weápons when he felt a bulge in Martin’s back hip pocket. When Kiniry advised Martin that he was under arrest, Martin hit him with his elbow and fled.

Kiniry chased Martin on foot and followed Martin around a white van parked by a street curb. After their second circuit around the van, Kiniry found Martin standing on the curb with a large knife in his hand. Swinging the knife at Kiniry, Martin said, “Come on, get some of this shit. I’m going to kill you.” The knife passed immediately under Kiniry’s chin. Eluding the first swing of the knife, Kiniry fell backward against the van. As Martin swung a second time, Kiniry was trying to pull his gun from his holster. At that time, Martin was “two to three feet” from Kiniry. Kiniry could not recall whether Martin stepped toward him when he swung the second time. Before Kiniry could release his gun from its holster, Martin fled again. As a consequence of the incident at the van, Martin “got a couple of steps lead” on Kiniry. Kiniry pursued Martin into a fenced-in area; however, Martin jumped over the fence. Martin was apprehended by another officer in the vicinity.

At the conclusion of the evidence, Martin’s counsel tendered an instruction to inform the jury that assault is a lesser-included offense of attempted capital murder, thereby giving the jury the option of convicting Martin of the lesser offense. The trial judge refused the instruction and instructed the jury as to only the offenses of unlawful entry, Code § 18.2-119, and attempted capital murder. Code §§ 18.2-25 and 18.2-31(f)(now Code § 18.2-31(6)). After deliberating an entire day, the jury acquitted Martin of unlawful entry, found Martin guilty of attempted capital murder, and fixed his punishment at twenty years, the statutory minimum. Martin’s counsel made a motion for a new trial on the ground that the instruction should have been given. The trial judge denied the motion.

II.

A charge of attempted capital murder requires proof of “both a specific intent to kill the victim and an overt but ineffectual act committed in furtherance of the criminal purpose.” Wynn v. Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d 193, 198 (1987). Criminal assault, however, is “any attempt or offer with force or violence to do corporal hurt to another.” Jones v. Commonwealth, 184 Va. 679, 681, 36 S.E.2d 571, 572 (1946). It is a lesser included offense of attempted murder. See Wynn, 5 Va. App. at 292, 362 S.E.2d at 198.

The Commonwealth argues that because “there is no factual dispute,” the trial judge did not err in refusing the instruction. We disagree with the premise that a factual dispute did not exist. The disputed factual element in this case was the intent to kill. Although Martin’s words and actions were not disputed, his mental state was very much at issue. “The intent required to be proven in an attempted crime is the specific intent in the person’s mind.” Wynn, 5 Va. App. at 292, 362 S.E.2d at 198. The specific intent in the person’s mind may, and often must, be inferred from that person’s conduct and statements. Hargrave v. Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598 (1974).

The Commonwealth sought to have the jury infer the element of intent to kill from Martin’s words and actions. The evidence, however, is also reasonably susceptible to the interpretation that Martin’s words and feints with the knife were intended to intimidate and immobilize Kiniry in order to enable Martin to escape. Martin was fleeing from Kiniry when Martin stopped circling the van and again encountered Kiniry. The jury was entitled to infer from the evidence that because Martin disengaged from the confrontation and resumed his flight, Martin intended only to scare the officer into discontinuing the chase. See Wynn, 5 Va. App. at 288-92, 362 S.E.2d at 196-99 (jury could have believed that an accused who shot three times at an officer from a distance of four feet intended only to scare the officer). Kiniry’s testimony that Martin stood his ground and did not advance with the knife when Kiniry fell back against the van is additional evidence of conduct that would tend to negate an intent to kill. “It is immaterial that the jury could have reached contrary conclusions.” McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975).

The inferences that flow from the facts do not solely favor the Commonwealth’s theory of the case. It is fundamental that:

[t]he jury is not required to accept, in toto, either the theory of the Commonwealth or that of an accused. They have the right to reject that part of the evidence believed by them to be untrue and to accept that found by them to be true. In so doing, they have broad discretion in applying the law to the facts and in fixing the degree of guilt, if any, of a person charged with a crime.

Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958). Consequently, “[i]f a proffered instruction finds any support in credible evidence, its refusal is reversible error.” McClung, 215 Va. at 657, 212 S.E.2d at 293.

In a recent case, this Court specifically addressed “whether [a] jury was required to find a disputed factual element” in the absence of conflicting evidence. Bellfield v. Commonwealth, 11 Va. App. 310, 314, 398 S.E.2d 90, 93 (1990). In resolving that question, we relied upon a decision of the United States Supreme Court holding that “ ‘[a] lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.’ ” Id. at 314, 398 S.E.2d at 92 (quoting Sansone v. United States, 380 U.S. 343, 350 (1965)). We did not then, and we do not now, interpret the Sansone language

to mean that a lesser included offense instruction is proper only when there is conflicting testimony as to a factual element. Rather, we read Sansone to hold that a lesser included offense instruction is required so long as a factual element must be proved. This reading is consistent with Virginia decisions rendered subsequent to Sansone, which require a lesser included offense instruction as long as there is credible evidence to support such an instruction.

Id. at 314-15, 398 S.E.2d at 93.

Conceptually, the Bellfield ruling rests upon the most fundamental axiom of criminal law — that the prosecution is burdened with proving beyond a reasonable doubt each and every constituent element of a crime before an accused may stand convicted of that particular offense. See Jackson v. Virginia, 443 U.S. 307, 315-16 (1979). The accused’s not guilty plea disputes the criminal allegations and puts the Commonwealth to its task. Thus, the Commonwealth’s failure to prove just one element will result necessarily in an acquittal of the charged offense and either a finding of guilt of a lesser-included offense or a finding of not guilty. The principles Bellfield espouses apply directly to the case at hand.

The jury was instructed that the Commonwealth had the burden of proving beyond a reasonable doubt “[t]hat the defendant intended to kill. . . Kiniry.” The jury was also instructed that “[i]n determining whether the intent has been proved, you may consider the conduct of the person involved and all the circumstance revealed by the evidence” (emphasis added). The jury was not instructed, however, that if intent to kill was not proved, Martin could be found guilty of a lesser offense. “A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.” Francis v. Franklin, 471 U.S. 307, 314 (1985). Here, the jury was given the impermissible choice of drawing the conclusion that Martin either intended to kill Kiniry and was guilty of the charged offense or that Martin did not intend to kill him and was not guilty of any offense. The evidence permitted the jury to draw an inference of intent to assault so as to effect an escape. The jury should have been so instructed.

III.

Although the record proves that Martin tendered an instruction for simple assault which the trial judge refused, the Commonwealth asserts that Martin has not sufficiently preserved this issue for appeal and is, therefore, procedurally barred under Rule 5A:18 from bringing it to this Court. We disagree.

As discussed above, the record clearly indicates that there was evidence allowing the jury to form a permissible inference that Martin lacked the necessary intent to commit attempted capital murder. Martin offered a proper instruction consistent with this lack of intent which outlined the lesser included offense of simple assault. The record states that “the court and counsel considered instructions to which there were no objections or exceptions” after which the trial judge refused the instruction on simple assault.

The primary function of Rule 5A:18 is to alert the trial judge to possible error so that the judge may consider the issue intelligently and take any corrective actions necessary to avoid unnecessary appeals, reversals and mistrials. Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991)(en banc). By tendering the assault instruction, Martin fully alerted the trial judge and the Commonwealth that simple assault is a lesser-included offense of attempted capital murder and sufficient evidence supported granting the instruction. At this point in the proceedings, the trial judge had an affirmative duty to include the instruction. See Jimenez v. Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991). Nonetheless, the trial judge refused the instruction. Requiring Martin to “object” after this refusal would, in effect, recreate the requirement of noting an exception to a final adverse ruling of the trial judge. As we stated in Martinez v. Commonwealth, 10 Va. App. 664, 668, 395 S.E.2d 467, 470 (1990), aff'd as modified, 241 Va. 557, 403 S.E.2d 358 (1991), “the requirement for an exception [has been] eliminated.”

The Commonwealth relies upon the holdings of Harlow v. Commonwealth, 195 Va. 269, 77 S.E.2d 851 (1953), and Smith v. Commonwealth, 165 Va. 776, 182 S.E. 124 (1935), in support of its position. These cases are distinguishable from the case at hand. In Harlow, the alleged error involved the trial judge’s exercise of discretion in choosing an instruction provided by the Commonwealth over an instruction provided by the defendant. 195 Va. at 273, 77 S.E.2d at 854. Unlike Harlow, we need not examine the trial judge’s exercise of discretion. Because the instruction was proper and instructed the jury on an essential element of Martin’s case, the trial judge had an affirmative duty to offer it to the jury. “[W]hen a principle of law is vital to a defendant in a criminal case, the trial court has an affirmative duty properly to instruct the jury about the matter.” Jimenez v. Commonwealth, 241 Va. at 250, 402 S.E.2d at 681 (citing Bryant v. Commonwealth, 216 Va. 390, 393, 219 S.E.2d 669, 671 (1975)).

Smith is also distinguishable from Martin’s case. In Smith, the “instructions . . . were offered by the defendant and refused by the court to which action of the court the defendants excepted.” Smith, 165 Va. at 781, 182 S.E. at 126. The defendant alleged that the trial judge erred in refusing the instruction on justifiable homicide after granting the instruction on excusable homicide, a distinction which the Supreme Court characterized as “shadowy.” Id. at 782, 182 S.E. at 127. The Court ruled the appeal procedurally barred because the excusable homicide instruction “substantially sets out Smith’s claim,” id. at 785, 182 S.E. at 128, and thus, Smith had failed to state the grounds of his objection with reasonable certainty. However, the Court then qualified its holding by stating, “[o]f course this rule should not be applied where the character of the objection is perfectly patent.” Id. at 781, 182 S.E. at 127 (citing Davis v. Commonwealth, 161 Va. 1037, 1041-42, 171 S.E. 598, 599 (1933)). Since we have determined that Martin’s counsel made an unambiguous request for an assault instruction based upon the evidence, the objection was patent. Martin’s objection that the jury was not instructed as to an essential element was preserved. Thus, Smith is distinguishable from the case at hand.

For these reasons, we hold that the issue was preserved for appeal, and we need not discuss whether the arguments made to the trial judge at the hearing on Martin’s motion for a new trial for failure to give the instruction sufficed to preserve the issue. Accordingly, the judgment is reversed and the case is remanded for a new trial if the Commonwealth be so advised.

Reversed and remanded.

Koontz, C.J., Barrow, J., Bray, J., Coleman, J., Elder, J., Moon, J., and Willis, J., concurred.