Steven Wayne Glenn, Sr. v. Commonwealth of Virginia ( 2020 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Russell and Athey
UNPUBLISHED
Argued by teleconference
STEVEN WAYNE GLENN, SR.
MEMORANDUM OPINION* BY
v. Record No. 0938-19-3 JUDGE CLIFFORD L. ATHEY, JR.
APRIL 28, 2020
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
W. Chapman Goodwin, Judge
Samuel Richard Thomas, Assistant Public Defender, for appellant.
Liam A. Curry, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Steven Wayne Glenn, Sr. (“Glenn”) appeals his conviction of involuntary manslaughter,
contending that the Circuit Court of Augusta County (“trial court”) erred “by denying [Glenn’s]
request for a jury instruction on the defense of accident despite it being supported by the
evidence.” For the following reasons, we affirm the trial court’s decision.
I. BACKGROUND
Glenn fatally shot his thirteen-year-old son in the head at their home in Augusta County
on April 21, 2018. The Augusta County Sheriff’s Office subsequently interviewed Glenn
concerning the shooting after advising him of his Miranda rights.
During the interview, Glenn stated that on the morning of the shooting, he was discussing
a recently purchased firearm—a Springfield XD .40 caliber pistol (“the firearm”)—with his son
(“the victim”) in Glenn’s upstairs bedroom. Glenn stated that both he and the victim were sitting
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
on the bed as Glenn disassembled the firearm in order to show the victim the proper cleaning and
maintenance of the firearm. According to Glenn, the victim was sitting near the foot of the bed,
to Glenn’s left, while Glenn sat near the middle of the bed disassembling the firearm. Glenn
stated that after reassembling the firearm, he “reache[d] across his body and motion[ed] to set the
pistol down on the bed surface flat in the direction of [the victim] and as he does, he said he was
going to get his cigarette with the same hand.”
Glenn claimed that as he laid the firearm flat onto the bed, the gun “went off.” However,
Glenn admitted that his finger was inside the trigger guard when the firearm discharged and
subsequently stipulated, at trial, that the firing of the weapon left gunshot primer residue on his
hands. Glenn stated that he did not realize that the victim had been shot until he saw the victim
fly back into a chair near the foot of the bed. Glenn was indicted for murder and the use of a
firearm in its commission, in violation of Code §§ 18.2-32 and 18.2-53.1.
Allen Shank (“Shank”) testified during the trial that, on the day of the shooting, he was
driving to a wedding reception and was flagged down by a “young girl and an elderly lady [who]
c[a]me bolting out of the house . . . screaming call 9-1-1, he’s been shot.” Shank immediately
contacted the police dispatch and remained on the phone with the dispatcher while entering
Glenn’s home. Shank located the victim sitting upright in a chair while Glenn, who appeared
distraught, emotional, and concerned, covered the victim’s forehead. After positioning the
victim per the instructions of dispatch, Shank waited until the first responders arrived.
Laura Hollenbeck (“Hollenbeck”), a forensic scientist working for the Virginia
Department of Forensic Science, testified that based on her examination and testing, Glenn’s
firearm had several safety features, including a trigger safety and a grip safety, both of which
functioned properly at the time of the shooting. She also testified that when a cartridge was in
the chamber of the firearm, an indicator on the weapon reflected that the cartridge was present in
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the chamber. Hollenbeck opined that it would have taken nearly six pounds of force pulling
back on the trigger before the firearm would have discharged.
Assistant Chief Medical Examiner Amy Tharp (“Tharp”) also testified for the
Commonwealth that the victim’s death came as the result of a single bullet that entered the
victim’s forehead above his right eye. Tharp found that this bullet, which came to rest in the
back left of the victim’s head, had traveled in a “front to back and right to left trajectory” with no
deviation up or down. Tharp further opined that, based on the stippling1 found around the
victim’s forehead, nose, and upper cheek, the firearm was about twelve inches away from the
victim’s head when it discharged. Tharp therefore ruled the victim’s death a homicide “based on
the scientific evidence not matching the story that [Glenn] provided,” because if the firearm had
been lying flat on the bed when it fired, as Glenn alleged, the victim’s “eye level would have to
be just at or below that bed level . . . for that bullet to enter in the forehead and come straight
across to the back.”
At the conclusion of all the evidence, Glenn proffered Instruction H:
Where the defense is that the killing was an accident, the defense is
not required to prove this fact. The burden is on the
Commonwealth to prove beyond a reasonable doubt that the killing
was not accidental. If after considering all the evidence you have a
reasonable doubt whether the killing was accidental or intentional,
then you shall find [] Glenn not guilty.
The Commonwealth objected to the trial court giving the instruction because the instruction was
“not an accurate statement of the law.” The trial court sustained the objection and refused to
give Instruction H because “you can have an accident where there is a conviction and the way
the instruction reads, if there’s an accident, it’s to be dismissed.” In denying Instruction H, the
1
Tharp testified that stippling is present when a firearm is fired close to skin or clothing
due to “smoke,” “flame,” or “bits of burning or unburned gun powder” being ejected upon
discharge. When those materials strike the skin, it creates a “sand blasting effect around the
wound,” known as stippling.
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trial judge wrote on the instruction that it was “not appropriate where involuntary [manslaughter
is] charged.”
The trial court did instruct the jury on involuntary manslaughter in Instruction No. 9
(“Instruction 9”), specifying in the instruction that “[t]he Commonwealth must prove beyond a
reasonable doubt each of the following elements of” first-degree murder, including:
(1) That [Glenn] killed [the victim]; and
(2) That the killing was malicious; and
(3) That the killing was willful, deliberate and premeditated.
....
If you find from the evidence that the Commonwealth has proved
beyond a reasonable doubt the first element of the offense as
charged, has not proved the second and third elements, but has
proved that the killing, although unintended, was the direct result
of negligence so gross, wanton and culpable as to show a callous
disregard of human life, then you shall find [Glenn] guilty of
involuntary manslaughter but you shall not fix the punishment
until your verdict has been returned and further evidence has been
heard by you.
If you find from the evidence that the Commonwealth has failed to
prove beyond a reasonable doubt either of the above offenses, then
you shall find [Glenn] not guilty.
Both Glenn and the Commonwealth proffered the Virginia Model Jury Instruction recited in
Instruction 9, which permitted the jury to find Glenn guilty of involuntary manslaughter. Glenn
also failed to object when the trial court instructed the jury accordingly.
After hearing the evidence and instructions, the jury found Glenn guilty of involuntary
manslaughter and fixed his sentence at eight (8) years in prison. This appeal followed.
II. ANALYSIS
“The decision regarding granting or denying a jury instruction generally rests ‘in the
sound discretion of the trial court.’” Graves v. Commonwealth, 65 Va. App. 702, 707 (2016)
(quoting Cooper v. Commonwealth, 277 Va. 377, 381 (2009)). Thus, we review this decision
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under an abuse of discretion standard, Witherow v. Commonwealth, 65 Va. App. 557, 565
(2015), but we review de novo “whether [the] instruction ‘accurately states the relevant law,’”
Graves, 65 Va. App. at 707 (quoting Sarafin v. Commonwealth, 288 Va. 320, 325 (2014)).
In doing so, our “sole responsibility . . . is to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly raises.” Cooper, 277 Va. at 381
(quoting Molina v. Commonwealth, 272 Va. 666, 671 (2006)). In addition to “correctly stat[ing]
the law,” Woolridge v. Commonwealth, 29 Va. App. 339, 348 (1999) (quoting Hatcher v.
Commonwealth, 218 Va. 811, 813-14 (1978)), the instruction must be “supported by
[more than a scintilla of] evidence,” Witherow, 65 Va. App. at 565 (alteration in original)
(quoting Eaton v. Commonwealth, 240 Va. 236, 255 (1990)), when viewing the evidence “in the
light most favorable to the proponent,” id. at 561 (quoting Commonwealth v. Vaughn, 263 Va.
31, 33 (2002)).
“Where the evidence warrants, an accused is entitled to an instruction presenting his
theory of accidental killing as a defense.” Helmick v. Commonwealth, 38 Va. App. 558, 568
(2002) (quoting Martin v. Commonwealth, 218 Va. 4, 6 (1977)). “However, ‘[n]o instruction
should be given that incorrectly states the applicable law or which would be confusing or
misleading to the jury.’” Schmuhl v. Commonwealth, 69 Va. App. 281, 311 (2018) (alteration in
original) (quoting Morgan v. Commonwealth, 50 Va. App. 120, 133 (2007)).
Here, even if more than a scintilla of evidence supported Instruction H, the trial court
properly denied the instruction for two reasons. First, Instruction H incorrectly stated the law
applicable under the facts of this case. Second, in addition to Instruction H incorrectly stating
the law, giving both Instruction H and Instruction 9 would have confused the jury as the
instructions contradicted each other.
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First, the trial court properly found that Instruction H incorrectly stated the applicable law
because Instruction H required dismissal of the entire case, including murder, use of a firearm in
the commission of murder, and involuntary manslaughter, if the jury had a reasonable doubt as to
whether the killing was intentional or accidental. We agree that such an instruction is “not
appropriate where involuntary [manslaughter is] charged” because “you can have an accident
where there is a conviction and the way the instruction reads, if there’s an accident, it’s to be
dismissed.” See Noakes v. Commonwealth, 280 Va. 338, 345 (2010) (“We have defined the
common law crime of involuntary manslaughter as ‘the killing of one accidentally, contrary to
the intention of the parties, in the prosecution of some unlawful, but not felonious, act; or in the
improper performance of a lawful act.’” (quoting Mundy v. Commonwealth, 144 Va. 609, 615
(1926))).
Instruction 9, which instructed the jury on involuntary manslaughter as Glenn and the
Commonwealth agreed was appropriate here, reflected that an involuntary manslaughter
conviction was permitted as an alternative to a murder conviction. Although Instruction H could
have been proper if it specified that the accident defense did not require acquittal in the case of
involuntary manslaughter, Instruction H, as written, was properly denied. See Waters v.
Commonwealth, 39 Va. App. 72, 80 (2002) (affirming the trial court’s denial of an accident
instruction that “required an outright acquittal if the jury had a reasonable doubt as to whether
the killing was intentional” when an involuntary manslaughter conviction was a possible
outcome).2
Instruction 9 permitted the jury to find Glenn guilty even if the killing was unintentional
or accidental if the Commonwealth proved beyond a reasonable doubt that the accidental killing
2
We observe that King v. Commonwealth, 64 Va. App. 580, 592 (2015) (en banc),
overruled the other holding in Waters, but King does not affect the outcome of this matter.
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was a direct result of Glenn’s negligence where that negligence was so gross, wanton, and
culpable as to show a callous disregard of human life. In fact, the jury found Glenn guilty of
involuntary manslaughter based on the facts and instructions provided. Instruction 9 correctly
informed the jury that the burden of proof rested with the Commonwealth and cautioned that if
the Commonwealth failed to prove beyond a reasonable doubt either murder or involuntary
manslaughter, the law required acquittal.
Second, providing Instruction H along with Instruction 9 would have confused the jury as
the instructions contradicted each other. Although Instruction 9 permitted an involuntary
manslaughter conviction in some instances of accidental killing, Instruction H required an
acquittal in any accidental killing. Thus, jurors would have been confused or misled into
believing that an accidental killing would require an acquittal without consideration of
involuntary manslaughter.
Because Instruction H incorrectly stated the applicable law and because providing it with
Instruction 9 would have been confusing or misleading to the jury, the trial court properly denied
Instruction H.
III. CONCLUSION
For the foregoing reasons, this Court affirms the decision of the trial court.
Affirmed.
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