Glen Douglas Green, Jr. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Overton
Argued at Alexandria, Virginia
GLEN DOUGLAS GREEN, JR.
v. Record No. 1671-94-4 MEMORANDUM OPINION * BY
JUDGE NELSON T. OVERTON
COMMONWEALTH OF VIRGINIA JANUARY 16, 1996
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
Susan Patterson (Richard C. Goemann; Kevin T.
Gaynor; Office of Public Defender, on brief), for
appellant.
Marla Graff Decker, Assistant Attorney General
(James S. Gilmore, III, Attorney General; John H.
McLees, Jr., Assistant Attorney General, on
brief), for appellee.
Glen Green was convicted in a jury trial of second degree
murder in violation of Code § 18.2-32 and felonious use of a
firearm while committing murder in violation of Code § 18.2-53.1.
On appeal he complains that the trial court erred both in
denying one of the defendant's jury instructions and in granting
two of the Commonwealth's jury instructions. Finding no error,
we affirm the convictions.
At trial, the defendant tendered a jury instruction based on
Virginia Model Jury Instruction 34.700 (Homicide — Lesser
Included Offenses) but containing slightly different language.
Specifically, the defendant added the wording:
If you find that the defendant acted in the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
heat of passion upon reasonable provocation such
that you find that the Commonwealth has failed to
prove that the killing was malicious beyond a
reasonable doubt, then you shall find the
defendant not guilty of murder.
If you find that the Commonwealth has proved
beyond a reasonable doubt
(1) That the defendant killed Kenyon Clark;
and
(2) That the killing was the result of an
intentional act; and
(3) That the killing was committed while in
the sudden heat of passion upon reasonable
provocation;
then you shall find the defendant guilty of
voluntary manslaughter . . . .
in place of the Model Instruction's wording:
If you find that the Commonwealth has failed to
prove beyond a reasonable doubt that the killing
was malicious but that the Commonwealth has proved
beyond a reasonable doubt that the defendant
killed Kenyon Clark and further:
(1) That the killing was the result of an
intentional act; and
(2) That the killing was committed while in
the sudden heat of passion upon reasonable
provocation;
then you shall find the defendant guilty of
voluntary manslaughter . . . .
The Commonwealth submitted the Model Instruction, which the judge
chose over defendant's version.
Defendant claims that the Commonwealth's instruction shifts
the burden of proving malice from the Commonwealth to the
defendant. We do not agree. The jury was appropriately
instructed as to the Commonwealth's burden of proof. The
elements of malice and heat of passion were defined for the jury.
The jury was told that the heat of passion excludes malice and
that the difference between murder and manslaughter was the
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presence or absence of malice. The given instruction accurately
and clearly stated the law and, in combination with the other
instructions, covered all the issues raised. Hudspith v.
Commonwealth, 17 Va. App. 136, 137, 435 S.E.2d 588, 589 (1993).
The trial court did not err in choosing the given instruction.
The defendant also assigns error to the granting of the
Commonwealth's instruction on the inference of malice. He
charges that the given instruction shifts the burden of proving
malice to the defendant and that the instruction unfairly
emphasizes the element of malice and is duplicative of other
instructions. These arguments fail.
As stated, the elements of the charged offenses as well as
the burdens of proof were explained to the jury clearly from a
reading of the instructions as a whole. The burden of persuasion
regarding malice was not shifted to the defendant. The
permissive inference of malice establishes a burden of production
and not one of persuasion. Warlitner v. Commonwealth, 217 Va.
348, 350, 228 S.E.2d 698, 700 (1976), cert. denied, 430 U.S. 957
(1977). As this instruction was the only one to allow the jury
to infer malice, it was not duplicative nor unduly emphatic.
For the reasons above, the trial court did not err in
granting the Commonwealth's instructions and denying the
defendant's.
Affirmed.
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