Billy Joe Lee v. Commonwealth of Virginia ( 2017 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Decker, AtLee and Malveaux
UNPUBLISHED
Argued at Richmond, Virginia
BILLY JOE LEE
MEMORANDUM OPINION* BY
v. Record No. 1745-15-2 JUDGE MARY BENNETT MALVEAUX
MARCH 14, 2017
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ORANGE COUNTY
Daniel R. Bouton, Judge
Richard G. Morgan for appellant.
Victoria Johnson, Assistant Attorney General (Mark R. Herring,
Attorney General; David Uberman, Assistant Attorney General, on
brief), for appellee.
Billy Joe Lee (“appellant”) was convicted by a jury of felony homicide, in violation of
Code § 18.2-33, unlawful discharge of a firearm within an occupied building, in violation of
Code § 18.2-279, use of a firearm in the commission of a felony, in violation of Code
§ 18.2-53.1, shooting in the commission of a felony, in violation of Code § 18.2-53, and felony
child abuse and neglect, in violation of Code § 18.2-371.1. On appeal, appellant argues that the
trial court erred in refusing to grant a jury instruction for involuntary manslaughter. For the
reasons stated below, we affirm the judgment of the trial court.
I. BACKGROUND
On the evening of April 6, 2014, appellant returned home to his fiancée, Tina Marie
Toombs, and her ten-year-old son, G.T. Appellant and Toombs offered contrasting accounts of
subsequent events.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Appellant stated that he and Toombs began to argue over use of a debit card. During the
argument, G.T. entered the adults’ bedroom but they asked him to go back to his bedroom while
they were talking. Later, G.T. reentered the bedroom or stood in the bedroom door. Appellant
picked up a shotgun “to scare [Toombs],” but “[s]he grabbed hold to it too and . . . as I jerked it
away from her . . . [t]he butt of [the gun] went into the wall and . . . it went off and that’s when it
shot [G.T.].”
Toombs, by contrast, testified that she awoke in the couple’s bedroom to find G.T. in the
room with her while appellant was digging in her purse to retrieve a debit card. Toombs and
appellant began arguing over use of the card, and “[a]t that point it became a struggling match”
between them. Appellant pushed Toombs to the floor, and as she began to rise, Toombs
“glanced over and . . . I seen him reaching for one of the guns” that appellant kept in the
bedroom corner. When she saw appellant reaching for a gun, Toombs “grabbed [her] head and
closed [her] eyes and started backing up.” After backing away from appellant, she heard the gun
fire, looked behind her, and saw G.T. lying on the bedroom floor.
Appellant was charged with one count of felony homicide, in violation of Code
§ 18.2-33, one count of malicious discharge of a firearm in an occupied dwelling, in violation of
Code § 18.2-279, one count of felony child abuse and neglect, in violation of Code § 18.2-371.1,
one count of use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1,
and one count of shooting in the commission of a felony, in violation of Code § 18.2-53.1
1
Appellant was also charged with one count of first-degree murder, in violation of Code
§ 18.2-32, and one count of felony child endangerment, in violation of Code § 40.1-103.
However, the Commonwealth later entered a nolle prosequi to both the first-degree murder and
felony child endangerment charges.
-2-
Although appellant was not charged with involuntary manslaughter, at trial, appellant’s
counsel proffered a jury instruction for that offense.2 Appellant requested the instruction based
on his theory that he only brandished the shotgun and it accidently discharged. The trial court
questioned whether an instruction for involuntary manslaughter would be appropriate, since
appellant had not been charged with that offense. Appellant’s counsel replied that, under his
theory of the case, the evidence would support such a conviction. Further, he stated that
involuntary manslaughter was a “lesser[-included] offense.” The trial court expressed doubt that
involuntary manslaughter was a lesser-included offense of any crime for which appellant was
charged, noting that the Commonwealth had entered a nolle prosequi to a charge of first-degree
murder and “the [remaining] theories of homicide the Commonwealth is proceeding under . . .
would be the felony homicide statute and . . . secondly, the malicious discharge of the firearm
theory.”
After further consideration, the trial court stated it had reviewed the instruction and did
not find that involuntary manslaughter, as defined in the instruction, “would amount to a lesser
included offense of any of the charges that are actually before the Court. . . . [F]urthermore, a
straight indictment for involuntary manslaughter would arguably make this instruction
appropriate but we don’t have that here, so for those reasons I’ll refuse the instruction.”
Following a three-day trial, the jury convicted appellant of felony homicide and unlawful
discharge of a firearm in an occupied dwelling.3 This appeal followed.
2
Appellant’s proffered jury instruction for common law involuntary manslaughter
adopted the language of 2 Virginia Model Jury Instructions – Criminal, No. G33.600 (2016 repl.
ed.). We note that appellant’s instruction, had it been given as drafted and proffered, would have
erroneously informed the jury that “[t]he defendant is charged with the crime of involuntary
manslaughter.”
3
Appellant was also convicted of felony child abuse and neglect, use of a firearm in the
commission of a felony, and shooting in the commission of a felony. Appellant does not
challenge those convictions in this appeal.
-3-
II. ANALYSIS
Appellant argues the trial court “erred when it refused to grant a jury instruction for
involuntary manslaughter, in violation of Virginia Code Section 18.2-33,”4 after it agreed to
grant an instruction for unlawful discharge of a firearm. On brief, appellant makes two distinct
arguments relating to his assignment of error. However, we are unable to reach the merits of
either, as appellant failed to properly preserve these arguments for appeal.
A. Code § 18.2-279
Appellant first argues the trial court erred in refusing his proffered instruction for
involuntary manslaughter because the instruction should have been given under Code
§ 18.2-279.5 However, appellant conceded at oral argument, and the record supports, that he
failed to make this argument to the trial court. “The Court of Appeals will not consider an
argument on appeal which was not presented to the trial court.” Frango v. Commonwealth, 66
Va. App. 34, 47, 782 S.E.2d 175, 181 (2016) (quoting Ohree v. Commonwealth, 26 Va. App.
299, 308, 494 S.E.2d 484, 488 (1998)); see also Rule 5A:18 (“No ruling of the trial court . . . will
be considered as a basis for reversal unless an objection was stated with reasonable certainty at
the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain
the ends of justice.”). This principle ensures that the trial court judge will be “advise[d] . . . of
the action complained of so that the court can consider the issue intelligently and, if necessary,
4
We note that appellant’s assignment of error indicates Code § 18.2-33 is a statutory
provision governing the offense of involuntary manslaughter. However, Code § 18.2-33,
correctly described, is Virginia’s felony homicide statute.
5
Code § 18.2-279 reads, in pertinent part,
If any such act [of discharging a firearm within an occupied
building] be done unlawfully, but not maliciously, the person so
offending is guilty of a Class 6 felony; and, in the event of the
death of any person resulting from such unlawful shooting . . . , the
person so offending is guilty of involuntary manslaughter.
-4-
take corrective action to avoid unnecessary appeals, reversals, and mistrials.” Chappelle v.
Commonwealth, 62 Va. App. 339, 348, 746 S.E.2d 530, 535 (2013) (quoting Head v.
Commonwealth, 3 Va. App. 163, 167, 348 S.E.2d 423, 426 (1986)). Because appellant failed to
present to the trial court his argument with respect to Code § 18.2-279, we do not consider this
argument on appeal.6
B. Code § 18.2-33
Appellant further contends on brief that his proffered instruction for common law
involuntary manslaughter should have been given because involuntary manslaughter is a
lesser-included offense of felony homicide under Code § 18.2-33.7 However, at oral argument,
appellant conceded this argument by stating that there is no lesser-included offense of felony
homicide. Appellant’s concession of law acts as “an express withdrawal of an appellate
challenge to a trial court judgment.” Logan v. Commonwealth, 47 Va. App. 168, 172 n.4, 622
S.E.2d 771, 773 n.4 (2005) (en banc). This Court “may accept the concession — not as a basis
for deciding the contested issue of law, but as a basis for not deciding it.” Id. Thus, due to
appellant’s concession at oral argument, we do not consider his argument regarding involuntary
manslaughter as a lesser-included offense of felony homicide.8
6
Appellant does not argue that this Court should invoke either the good cause or ends of
justice exceptions to Rule 5A:18, and this Court will not consider the Rule 5A:18 exceptions sua
sponte. See Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en
banc), aff’d by unpub’d order, No. 040019 (Va. Oct. 15, 2004); see also Jones v.
Commonwealth, ___ Va. ___, ___ n.5, 795 S.E.2d 705, ___ n.5 (2017) (noting that the Virginia
Supreme Court will not, sua sponte, consider good cause or ends of justice exceptions to their
analogous Rule 5:25).
7
Code § 18.2-33 defines felony homicide as “[t]he killing of one accidentally, contrary to
the intention of the parties, while in the prosecution of some felonious act other than those
specified in [Code] §§ 18.2-31 and 18.2-32.”
8
We also note that even without appellant’s concession at oral argument, our Court will
not address appellant’s argument due to his failure to comply with Rule 5A:20. That rule
requires that an appellant’s brief contain not only the standard of review, but also “argument
-5-
III. CONCLUSION
Appellant failed to present one portion of his argument to the trial court and conceded the
remainder of his argument during oral argument. Therefore, we are unable to consider his
assignment of error and affirm the judgment of the trial court.
Affirmed.
(including principles of law and authorities) relating to each assignment of error.” Rule
5A:20(e). Beyond establishing the standard of review, appellant’s cited case law authorities
simply reiterate general legal propositions with respect to when it is proper to instruct a jury on
lesser-included offenses. Appellant’s cited authorities relate either to his argument with respect
to Code § 18.2-279—which, as noted above, was not preserved at trial—or lack relevance to
appellant’s argument with respect to Code § 18.2-33.
Nothing in appellant’s cited authorities “relat[es] to [the] assignment of error” preserved
in the proceeding below. Rule 5A:20(e). He also fails in any way to explain why Code
§ 18.2-36.1, which is cited on brief and defines various statutory offenses as involuntary
manslaughter, required that his proffered instruction for a common law offense be given. “If
[appellant] believe[s] that the circuit court erred, it [is his] duty to present that error to us with
legal authority to support [his] contention.” Mitchell v. Commonwealth, 60 Va. App. 349, 352,
727 S.E.2d 783, 784 (2012) (alterations in original) (quoting Fadness v. Fadness, 52 Va. App.
833, 851, 667 S.E.2d 857, 866 (2008)). This Court has made clear that arguments on brief which
are unsupported by principles of law or authority “do not merit appellate consideration.”
Williams v. Commonwealth, 57 Va. App. 750, 768 n.3, 706 S.E.2d 530, 539 n.3 (2011) (quoting
Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992)). Further,
[a] court of review is entitled to have the issues clearly defined and
to be cited pertinent authority. The appellate court is not a
depository in which the appellant may dump the burden of
argument and research. To ignore such a rule by addressing the
case on the merits would require this court to be an advocate for, as
well as the judge of the correctness of, [appellant’s] position on the
issues he raises. On the other hand, strict compliance with the
rules permits a reviewing court to ascertain the integrity of the
parties’ assertions which is essential to an accurate determination
of the issues raised on appeal.
Jones v. Commonwealth, 51 Va. App. 730, 734-35, 660 S.E.2d 343, 345 (2008) (quoting People
v. Trimble, 537 N.E.2d 363, 364 (Ill. App. Ct. 1989)), aff’d, 279 Va. 52, 60, 688 S.E.2d 269, 273
(2010).
-6-