Elliott Jerome Hawthorne v. Commonwealth of VA ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Norfolk, Virginia
ELLIOTT JEROME HAWTHORNE
MEMORANDUM OPINION * BY
v. Record No. 1455-98-1 JUDGE RICHARD S. BRAY
JUNE 29, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
J. Barry McCracken (Cook & McCracken, on
brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Elliott Jerome Hawthorne (defendant) was convicted by a
jury of first-degree murder. On appeal, defendant contends that
the trial court erroneously (1) overruled his Batson challenge
to the Commonwealth’s peremptory strikes of African-Americans
from the venire, (2) instructed the jury on “concert of action,”
(3) refused instructions on self-defense and voluntary
manslaughter, and (4) coerced the jury into a verdict. We
disagree and affirm the conviction.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
The pertinent evidence is substantially uncontroverted.
David Defoe and Sherri Peterson shared an apartment in the Ocean
View area of Norfolk with Frank Pritzer. On the morning of the
offense, Defoe and Pritzer walked “around the corner” to the
apartment of defendant’s brother, Keith Hawthorne, to purchase
cocaine. Pritzer soon returned and advised Peterson “that
[Defoe] had broke into [the] house.” Minutes later, Peterson
“heard a gunshot” and “saw [Defoe] running down the street” with
“an armful of things,” “look[ing] scared.” Arriving at the
apartment, Defoe instructed Peterson “to meet him on 14th Bay[]
[a]nd . . . took off running.” Before Peterson could rendezvous
with Defoe, however, Keith Hawthorne, appearing “mad,” “stopped
by . . . looking for [Defoe],” prompting Peterson to wait until
“it was okay to go to where [Defoe] was without anybody
following.”
After “about 20 minutes,” Peterson proceeded to an
apartment at 14th Bay and “went straight to the bedroom [where
Defoe] had all of the things he had stolen kind of spread out on
the bed . . . [including] three guns, a bag of weed,” “some
crack,” and “a camcorder.” After “both did a hit of crack,”
they heard “banging” on the front door and voices “telling us to
- 2 -
open up.” Defoe “grabbed the crack,” the pistol that “had a
clip in it,” “ran into the bathroom and jumped in the bathtub
behind the shower curtain.” Meanwhile, Peterson concealed the
spoils and “jumped on the loveseat trying to pretend like [she]
was asleep.” Moments later, three men, Keith Hawthorne, Dee
Washington, and defendant, “kicked . . . open” the entry and
bedroom doors of the apartment, each brandishing a firearm.
“They . . . pointed their guns at [Peterson], told [her] to get
up and open the closet door.” When “they saw [Defoe] wasn’t in
the closet they went directly to the bathroom door, . . . kicked
[it] open [and] told [Peterson] to go.”
Peterson moved into the living room area and immediately
heard someone direct Defoe “to put the gun down,” followed by
“some gunshots.” Keith Hawthorne then “ran out of the bedroom,
. . . out the back door, around to the bathroom window,” and
Peterson heard “more gunshots.” Hawthorne returned to the
bathroom, “more gunshots” sounded, and he and Washington “ran
out the front door,” leaving defendant alone in the bathroom
with Defoe. Defoe then declared to defendant, “I’m talking to
you man to man. Look at me. I’m bleeding,” followed by two
additional gunshots, and defendant fled from the apartment.
Investigator Jeffrey Allen Diener “[s]urveyed the [crime]
scene” on the morning of the offense and noted that a “force on
the [front] door [had] pulled the locked parts out.” Diener
- 3 -
observed a “.25 caliber pistol . . . over by the window of the
bathroom on the floor.” “The firearm had been fired[,] . . .
[but] [f]or whatever reason[,] the weapon did not function
properly . . . and eject the empty shell as it’s supposed to.”
Eight “9 millimeter shell casing[s]” were recovered from the
bathroom, and “[t]here were two holes in the screen [of the
bathroom window] . . . in the direction of travel . . . from the
outside to the inside.” Defoe’s body was in the bathtub,
riddled with ten gunshot wounds at divers sites, fired from no
fewer than two weapons.
At the conclusion of trial, defendant was convicted of
first-degree murder, and this appeal followed.
I. Batson Challenge
Defendant first contends that the Commonwealth exercised
peremptory strikes to remove two African-American venirepersons,
Ms. Flyth and Ms. Wilkins, for discriminatory purposes, contrary
to the mandate of Batson v. Kentucky, 476 U.S. 79 (1986).
“Batson dictates that purposeful discrimination based upon
race in selecting jurors violates the Equal Protection Clause.
Once an accused makes a prima facie showing of such
discrimination, a prosecutor must furnish a reasonable
explanation in rebuttal, showing that the reason for the
peremptory strike was race neutral.” Kasi v. Commonwealth, 256
Va. 407, 421, 508 S.E.2d 57, 65 (1998). “A ‘trial court’s
- 4 -
decision on the ultimate question of discriminatory intent
represents a finding of fact of the sort accorded great
deference on appeal,’ which should be disturbed only if ‘clearly
erroneous.’” Barksdale v. Commonwealth, 17 Va. App. 456, 460,
438 S.E.2d 761, 763 (1993) (en banc) (citations omitted). “Age,
education, employment, and demeanor during voir dire may
constitute race-neutral explanations for a peremptory strike.”
Goodson v. Commonwealth, 22 Va. App. 61, 81, 467 S.E.2d 848, 858
(1996) (citation omitted).
Here, in response to defendant’s challenge, the prosecutor
explained that she thought Ms. Flyth “was white . . . . [But,]
[m]ore importantly, . . . she’s the youngest person on the panel
and [the Commonwealth] ha[s] had problems in the past with young
jurors not wanting to listen to the arguments of older jurors.”
The prosecutor added that she had removed Ms. Wilkins, age
twenty-four, for the “[s]ame type of reasons,” noting that her
employment in “telemarketing” differentiated her from another
venireperson of similar age but “in a management position.”
Assuming, without deciding, that defendant made a prima
facie showing of purposeful discrimination, the record supports
the trial court’s determination that the Commonwealth offered “a
race-neutral reason for the strikes.” With regard to Ms. Flyth,
defense counsel agreed “to give the Commonwealth the benefit of
the doubt . . . simply because [the prosecutor] clearly made a
- 5 -
mistake,” thereby conceding the issue. See Johnson v.
Commonwealth, 26 Va. App. 674, 683, 496 S.E.2d 143, 147 (1998).
The prosecutor attributed the Wilkins strike to age and
employment, considerations clearly race-neutral and undisputed
by defendant.
II. Jury Instructions
Defendant next complains that the trial court erroneously
instructed the jury on “concert of action,” while refusing to
instruct on self-defense and voluntary manslaughter.
A. Concert of Action
It is “well established that ‘a defendant is entitled to
have the jury instructed only on those theories of the case that
are supported by the evidence,’ and a trial court errs when it
refuses such an instruction that is supported by ‘more than a
scintilla’ of evidence.” Dalton v. Commonwealth, 29 Va. App.
316, 323-24, 512 S.E.2d 142, 145 (1999) (en banc) (citations
omitted). “On appeal, when the issue is a refused jury
instruction, we view the evidence in the light most favorable to
the proponent of the instruction.” Lynn v. Commonwealth, 27 Va.
App. 336, 344, 499 S.E.2d 1, 4-5 (1998), aff’d, 257 Va. 239, 514
S.E.2d 147 (1999) (citation omitted).
Over defendant’s objection, the trial court instructed the
jury:
If there is concert of action with the
resulting crime one of its incidental
- 6 -
probable consequences, then whether such
crime was originally contemplated or not,
all who participate in any way in bringing
it about are equally answerable and bound by
the acts of every other person connected
with the consummation of such resulting
crime.
1 Model Jury Instructions, Criminal, No. 3.160 (1998 Repl. Ed.).
“Concerted action is defined as ‘action that has been planned,
arranged, adjusted, agreed on and settled between parties acting
together pursuant to some design or scheme.’” Rollston v.
Commonwealth, 11 Va. App. 535, 542, 399 S.E.2d 823, 827 (1991)
(citation omitted). The instruction is “proper to use when any
unlawful enterprise is intended” by the participants. Id. at
543-44, 399 S.E.2d at 828.
Here, defendant, his brother, and Washington, brandishing
deadly weapons, forcibly entered the 14th Bay apartment in
search of Defoe, obviously intent upon the recovery of articles
stolen by Defoe from the brother. Collectively, they engaged in
a murderous assault upon the victim, armed and hidden alone in
the bathroom. Such conduct, together with other attendant
circumstances, provided ample support for the fact finder to
conclude that the three assailants entered the apartment in
pursuit of an unlawful purpose and prepared for a violent
encounter, clearly justifying a concert of action instruction.
- 7 -
B. Self-defense
“‘An instruction is properly refused when it is unsupported
by the evidence.’” Wilson v. Commonwealth, 25 Va. App. 263,
274, 487 S.E.2d 857, 863 (1997) (citation omitted). “[A] person
cannot rely upon a plea of self-defense in a case of homicide or
assault when he himself was the aggressor and wilfully [sic]
brought on, without legal excuse, the necessity for the homicide
or assault.” Jordan v. Commonwealth, 219 Va. 852, 855, 252
S.E.2d 323, 325 (1979); see Sims v. Commonwealth, 134 Va. 736,
760, 115 S.E. 382, 390 (1922). Thus, defendant and his
confederates, “clearly the aggressor[s] in the altercation,”
were precluded from reliance “upon self-defense or provocation
. . . induced by [their] own belligerent behavior.” Huffman v.
Commonwealth, 185 Va. 524, 528, 39 S.E.2d 291, 293 (1946)
(citations omitted). Accordingly, the trial court correctly
declined to instruct the jury on the principles of self-defense.
C. Voluntary Manslaughter
“[A] trial court must instruct the jury on the
lesser-included offense of voluntary manslaughter if the
evidence of heat of passion and reasonable provocation amounts
to ‘more than a scintilla.’” Turner v. Commonwealth, 23 Va.
App. 270, 275, 476 S.E.2d 504, 507 (1996) (citation omitted),
aff’d, 255 Va. 1, 492 S.E.2d 447 (1997), cert. denied, 118
S. Ct. 1852 (1998). However,
- 8 -
where the reviewing court is able to
determine that the trial court’s error in
failing to instruct the jury could not have
affected the verdict, that error is
harmless. Such a determination can be made
where it is evident from the verdict that
the jury would have necessarily rejected the
lesser-included offense on which it was not
instructed.
Id. at 276, 476 S.E.2d at 507 (citations omitted).
“Murder” is the unlawful killing of another with malice.
See Thomas v. Commonwealth, 186 Va. 131, 139, 41 S.E.2d 476, 480
(1947). “Manslaughter on the other hand, is the unlawful
killing of another without malice.” Barrett v. Commonwealth,
231 Va. 102, 105, 341 S.E.2d 190, 192 (1986) (citation omitted).
In convicting defendant of first-degree murder, the jury found,
beyond a reasonable doubt, that “the killing was willful,
deliberate and premeditated,” as properly defined in the
instructions. Thus, “[t]he verdict reached by the jury . . .
compels the conclusion that it would never have reached a
voluntary manslaughter verdict . . . [because it] necessarily
rejected the factual basis upon which it might have rendered a
verdict on the lesser-included offense.” Turner, 23 Va. App. at
277-78, 476 S.E.2d at 508 (citations omitted). Under such
circumstances, any error which may have attended refusal of a
voluntary manslaughter instruction was clearly harmless.
- 9 -
III. Jury Coercion
Lastly, the defendant asserts that the trial court
impermissibly coerced the jury into the verdict. Jury
deliberations began at 2:40 p.m., recessed at 5:35 p.m., and
resumed the following morning, after an “Allen charge” from the
court. Subsequently, the jury notified the court that all
jurors had “agreed on four criteria for offense. However, one
jury [sic] did not want to convict the person of the crime of
first-degree murder even though she agreed to all four
criteria.” The court then admonished the jury that “no Virginia
judge may compel any Virginia juror to convict any defendant of
any criminal offense. I will remind you though [you] took the
oath to render a true verdict according to the evidence.”
The jury had been previously instructed, “If you find from
the evidence that the Commonwealth has proved beyond a
reasonable doubt each of the above elements of the offense as
charged, then you shall find the defendant guilty of
first-degree murder.” The exchange in issue clearly revealed
that the elements of first-degree murder had been proved to the
satisfaction of the entire panel, and the court’s comment only
reminded the jury of earlier instructions, without hint of
coercion or bias.
Accordingly, we affirm the conviction.
Affirmed.
- 10 -