Lenwood Lamont Kirby, III v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia
LENWOOD LAMONT KIRBY, III
MEMORANDUM OPINION * BY
v. Record No. 1788-01-3 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 8, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge
Dwight G. Rudd (Office of the Public
Defender, on brief), for appellant.
Margaret W. Reed, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
The trial court convicted Lenwood Lamont Kirby of assault
and battery on a family or household member, third offense. 1 On
appeal, the defendant contends the trial court erred in
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Code § 18.2-57.2 provides:
A. Any person who commits an assault and
battery against a family or household member
shall be guilty of a Class 1 misdemeanor.
B. On a third or subsequent conviction for
assault and battery against a family or
household member . . . such person shall be
guilty of a Class 6 felony.
convicting him of a felony (Code § 18.2-57.2(B)), rather than a
misdemeanor (Code § 18.2-57.2(A)). Finding no error, we affirm.
The defendant was indicted for a felony, and the
Commonwealth met its burden of proving each element of that
felony. The defendant concedes it did so: he unlawfully
assaulted his girlfriend, and he had two prior convictions of
that offense. However, the defendant contends the trial court
was required to consider convicting of a lesser offense because
the latest assault was "not the type of felony touching that
should be" a felony.
The defendant would require that a trial court consider
convicting of an offense other than the one proven. This
argument is most often raised at jury trials and is known as
"jury nullification." A jury has the "'"physical power to
disregard the law"'" but does not "'"have the moral right to
decide the law according to their own notions or pleasure."'"
Sims v. Commonwealth, 134 Va. 736, 763, 115 S.E. 382, 391 (1922)
(quoting Brown v. Commonwealth, 86 Va. 466, 472, 10 S.E. 745,
747 (1890) (quoting United States v. Battiste, 2 Sumn. 240, 24
F. Cas. 1042, 1043 (C.C.D. Mass. 1835) (No. 14545))).
Accordingly, a jury has the power of nullification but defense
counsel is not entitled to urge the jury to exercise this power.
United States v. Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969). A
jury has this power to refuse to apply the law to the proven
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facts because criminal trials are decided by general verdict and
the Commonwealth cannot appeal such decisions.
When a court sits without a jury, it has the power to
convict of something less than that which the Commonwealth
proved, but a defendant has no right to have it do so. Just as
"it is the duty of juries . . . to take the law from the court
and apply that law to the facts as they find them to be," Sparf
& Hansen v. United States, 156 U.S. 51, 102 (1894); Sims, 134
Va. at 763, 115 S.E. at 391, so it is the duty of the judge. We
will not mandate that a trial court disregard the law and
substitute its notion of law for that defined by the General
Assembly.
The Commonwealth proved the defendant committed the felony
charged. The trial court was required to give judgment to that
effect, and it did not err in doing so. Accordingly, we affirm.
Affirmed.
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