Kevin Jarard Martin v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Frank and Senior Judge Bray
Argued at Chesapeake, Virginia
KEVIN JARARD MARTIN
MEMORANDUM OPINION * BY
v. Record No. 0470-02-1 JUDGE ROSEMARIE ANNUNZIATA
APRIL 8, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
Charles E. Haden for appellant.
Leah A. Darron, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Kevin Jarard Martin, appellant, appeals his conviction by
jury as a principal in the first degree for second-degree
murder, shooting into an occupied vehicle, discharging a firearm
from a vehicle, three counts of attempted maiming, and four
counts of use of a firearm in the commission of a felony. He
cites as grounds for appeal the trial court's error 1) in
refusing to strike a juror, Erma Mitchell, for cause, 2) in
denying his request that the jury be instructed on manslaughter,
3) in denying his request to instruct the jury on attempted
unlawful wounding and unlawfully shooting into an occupied
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
vehicle and 4) in denying his request to instruct the jury on
justifiable homicide. For the reasons that follow, we affirm.
On appeal, when the issue is a refused jury instruction, we
view the evidence in the light most favorable to Martin, the
proponent of the instruction. Lynn v. Commonwealth, 27 Va. App.
336, 344, 499 S.E.2d 1, 4-5 (1998). So viewed, the record shows
that an altercation occurred on the evening of March 2, 2001
that resulted in the killing of a fourteen-year-old bystander,
Stephanie McSweeney. On the evening in question, roommates,
Orrien Hymes, Frank Massey and Brian Bennett went to the Plaza
Roller Skating Rink in Hampton. Martin and Audry Lawrence
Williams also went to the skating rink that evening. Massey,
who was skating "pretty fast," accidentally bumped into Williams
and knocked him to the floor of the rink. Massey continued
skating, unaware that he had knocked down another skater, but
Hymes, skating ten feet behind Massey, stopped to make sure
Williams was not injured.
Williams was "pretty hot about being knocked down" and
began screaming at Hymes. Martin joined them and began
exchanging words with Hymes, stating "You don't know who you're
messing with" and making "threatening gestures." Massey skated
around the rink and returned to the place where he had knocked
Williams down. He and Hymes tried to apologize, but "[Williams]
took it as we were threatening him." Massey and Hymes decided
to keep skating, but Martin "kept coming up at [them]," and
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followed them around the rink while they skated. After a
subsequent encounter between Hymes, Martin and Williams,
described by Bennett as a "struggle," the three roommates
decided to leave the rink.
The hostilities continued in the parking lot. As Hymes and
Massey walked into the lot and toward Hymes's car, Martin,
accompanied by Williams, continued to threaten Massey and Hymes,
stating "We are going to get you." Hymes testified that "[I]t
was possible [Massey] was making threats" to Williams and
Martin. Upon reaching his car, Hymes picked up a black plastic
toolbox, held it up and said to Martin and Williams, "We got
something in this box that will take care of you." Martin
responded that he had something in his car that would take care
of Hymes, walked toward Williams's car, entered the car and
drove toward the exit. The cars of each group arrived at the
exit at roughly the same time. As each waited to pull out of
the lot into traffic, Williams's car stalled, and Hymes and
Massey saw Martin reach for something under the front seat.
As Hymes sped away, he and his two roommates, Massey and
Bennett, heard gunfire, and Bennett saw Martin firing at them.
Massey saw "somebody grab their chest" and fall down and hit the
ground. The victim was fourteen-year-old Stephanie McSweeney,
who was crossing the street to use a pay phone. McSweeney died
from a single gunshot wound to her chest.
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Martin was arrested the next morning and questioned about
the shooting. He stated that he did not mean to shoot
McSweeney, but believed that one of the bullets he fired hit her
"because [he] was shooting that way."
Martin did not testify at trial. He was tried and found
guilty by a jury of second-degree murder in violation of Code
§§ 18.2-30 and 18.2-32(a), three counts of attempt to maim, in
violation of Code §§ 18.2-51 and 18.2-26, four counts of use of
a firearm in the commission of a felony in violation of Code
§ 18.2-53.1, one count of shooting from a vehicle, in violation
of Code § 18.2-286.1, and one count of shooting at an occupied
vehicle in violation of Code § 18.2-154. He was sentenced to
serve forty years in prison, with twenty-nine years suspended on
the murder conviction, and to three years in prison on the
attending firearm conviction. On each of the three remaining
firearm convictions, he was sentenced to serve five years in
prison. He received suspended sentences on his other
convictions, for an active sentence of twenty-nine years.
I. Jury Selection
On appeal, Martin first contends that that trial court
erred when it refused to strike a juror, Erma Mitchell, for
cause. We find no error and affirm.
Martin's claim on appeal is based on the following colloquy
during voir dire.
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THE COURT: Have any of you expressed or
formed any opinion as to the guilt or
innocence of the accused in this case?
THE JURORS: No.
THE COURT: Are any of you [sensible] of any
bias or prejudice against either the
Commonwealth or the accused?
THE JURORS: No.
THE COURT: The defendants are presumed to
be innocent. Is there anyone who does not
understand that?
THE JURORS: No.
THE COURT: The Commonwealth must prove the
defendants' guilt beyond a reasonable doubt.
Does anyone not understand that?
THE JURORS: No.
THE COURT: The defendants in this case are
not required to produce any evidence. Is
there anyone who does not understand that?
THE JURORS: No.
THE COURT: Is there anyone who does not
know of any reason whatsoever why you cannot
give a fair and impartial trial to both the
Commonwealth and to the accused based solely
on the law?
THE JURORS: No.
The jurors were questioned individually, and Erma Mitchell
was asked if she had received any information about the case
from any source. She replied, "All I recall is just, you know,
when it happened on the TV and the newspaper." Mitchell told
the court she had seen news reports about the shooting and had
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some questions. The following colloquy occurred, inter alia,
between Mitchell, defense counsel and the court:
MR. CLANCY [Appellant's attorney]: "[I]f it
is shown that the young lady that was killed
is an innocent bystander, but it is also
shown that Mr. Martin acted reasonably under
the circumstances as presented to him, could
you find him not guilty of the murder of
that young lady?
MITCHELL: Well, that could be - - I would
have some questions in my own mind, you
know? You don't want me to say, do you?
MR. CLANCY: Actually, I do. This is
absolutely the time that you need to say.
We need to hear it from you.
MITCHELL: Well, why did he have a gun down
there in the first place that would be one
of the things. Accidentally shot is one
thing, but having a gun there I mean you are
asking for trouble.
MR. CLANCY: Did you learn about the gun
from the newspaper or media?
MITCHELL: The media.
THE COURT: Could you find Kevin Martin not
guilty if you find he acted reasonably under
the circumstances as believed by him . . .
despite the fact that an innocent bystander
was killed?
MITCHELL: That's a difficult question. Do
you want to go over that one more time . . .
I suppose so.
THE COURT: You could find him not guilty?
MITCHELL: Yes, sir.
MR. CLANCY: You seem like you have some
hesitancy. Would this be difficulty [sic]
for you because the law may tell you that
you have to do this, but you have personal
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beliefs or feelings that will make that
difficult?
MITCHELL: Yes, I guess it would be a little
difficult, but I still think I could, you
know, render a not guilty verdict.
MR. CLANCY: If the judge said under the law
you would have to do that.
MITCHELL: Right.
MRS. CURTIS [Commonwealth's Attorney]:
Judge, I just think the problem here is the
way the question is asked because he
emphasis on the question should be if she
found that he acted reasonably. If she
found, in fact, that he acted reasonably
then could she find him not guilty even
though an innocent bystander was killed.
MITCHELL: Yes.
MRS. CURTIS: And your answer to that is,
yes, and you can say that without
hesitation?
MITCHELL: Yes, I guess.
On appeal, we accord great deference to a trial court's
decision to deny a motion to exclude a juror for cause, and the
decision will not be disturbed on appeal absent manifest error.
Green v. Commonwealth, 262 Va. 105, 115, 546 S.E.2d 446, 451
(2001). "[D]oubts as to the impartiality of a juror should
always be resolved in favor the accused[,]" Educational Books,
Inc. v. Commonwealth, 3 Va. App. 384, 385, 349 S.E.2d 903, 906
(1986), but the fact that a prospective juror has some knowledge
of the case is not, in itself, a basis for disqualification.
Pope v. Commonwealth, 234 Va. 114, 124, 360 S.E.2d 352, 358
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(1987). "Even though a prospective juror may hold preconceived
views, opinions, or misconceptions . . .," nothing more is
required than the prospective juror's ability to "lay aside
[her] preconceived views and render a verdict based solely on
the law and evidence presented at trial." Griffin v.
Commonwealth, 19 Va. App. 619, 621, 454 S.E.2d 363, 364 (1995)
(citations omitted).
As a fact finder, the trial court must weigh
the meaning of the answers given in light of
the phrasing of the question posed, the
inflections, tone and tenor of the dialogue,
and the general demeanor of the prospective
juror. We are aware that, while the words
employed, may, when transcribed and read in
retrospect, appear ambivalent, the judge who
heard them uttered was uniquely positioned
to assess their ultimate import.
Smith v. Commonwealth, 219 Va. 455, 464-65, 248 S.E.2d 135, 141
(1978); see also People v. Kubat, 447 N.E.2d 247, 275 (Ill.
1983) (finding that a prospective juror's use of phrases during
voir dire, such as "I don't think" or "I don't know" is not
necessarily indicative of doubt and "a venireman [is not
expected] to express himself with meticulous preciseness
. . ."). To determine a prospective juror's qualifications to
reach a fair and impartial verdict, the trial court must
consider the totality of a juror's responses to voir dire,
including the manner in which the prospective juror responds as
well as the content and substance of the response. See Vinson
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v. Commonwealth, 258 Va. 459, 467, 522 S.E.2d 170, 176 (1999)
(citations omitted).
In the case at bar, the record shows that Mitchell advised
the court that she had seen news reports about the shooting.
The news reports she read raised questions about the reason
Martin and Williams were carrying a gun on the evening in
question. When further questioned, Mitchell informed the trial
court that she could set aside any concerns and decide the case
based on the law and the evidence presented. The court found
that any hesitation with which Mitchell answered the inquiries
regarding her ability to be fair and impartial to be a
reflection of her effort to answer complicated questions
truthfully. The court specifically found that Mitchell's
answers did not reflect an inability to be impartial. Because
the trial court was in a unique position to assess the
prospective juror's responses, we find no abuse of discretion in
its determination that Mitchell could render a fair and
impartial verdict in the case.
II. Jury Instructions
Martin further contends the trial court erred in refusing
to give the jury an instruction on voluntary manslaughter,
unlawful wounding, and unlawful shooting at an occupied vehicle
on the ground that the facts support a finding that he acted in
the heat of passion and in the absence of malice. We disagree.
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Jury instructions are properly refused if not supported by
more than a scintilla of evidence. Commonwealth v. Donkor, 256
Va. 443, 445, 507 S.E.2d 75, 76 (1998). On appeal, when the
issue is a refused jury instruction, "[the evidence is viewed]
in the light most favorable to the proponent of the
instruction." Lynn, 27 Va. App. at 344, 499 S.E.2d at 4-5(citation omitted). "'A jury instruction, even though correctly
stating the law, should not be given if it is not applicable to
the facts in evidence.'" Arnold v. Commonwealth, 37 Va. App.
781, 787, 560 S.E.2d 915, 919 (2002) (quoting Darnell v.
Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988)).
To reduce a homicide from murder to voluntary manslaughter,
the killing must have been done in the heat of passion and upon
reasonable provocation. Barrett v. Commonwealth, 231 Va. 102,
105-06, 341 S.E.2d 190, 192 (1986) (citing Martin v.
Commonwealth, 184 Va. 1009, 1016-17, 37 S.E.2d 43, 46 (1946)).
"Heat of passion excludes malice when provocation reasonably
produces fear [or anger] that causes one to act on impulse
without conscious reflection." Graham v. Commonwealth, 31
Va. App. 662, 671, 525 S.E.2d 567, 571 (2000).
We find the record in this case does not support Martin's
argument that the court erred in refusing his proffered
instructions. The evidence fails to support Martin's contention
that he shot in the "heat of passion" and without reflection
because he was afraid or angry. Instead, the evidence shows
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that he acted in a calculated and purposeful manner. In
response to his observation that someone in Hymes's car was
pointing a gun at his companion Williams's head, Martin shot his
gun in the air one time "in order to make them put the gun
down." Thereafter, he shot two more times, until someone in
Hymes's car fired at Williams, at which point he fired all the
shots in his clip. When Martin spoke to the police about the
shooting, he stated that the three men "shouldn't have messed
with us"; the statement reflects deliberation and intent, rather
than the "heat of passion."
Moreover, the evidence in the record shows that there was
reasonable opportunity for Martin to cool. His conduct in
shooting the victim, therefore, cannot be attributed to the heat
of passion. See Miller v. Commonwealth, 5 Va. App. 22, 25, 359
S.E.2d 841, 842 (1987). Martin and Williams stated they were
the first to leave the skating rink and the first to enter the
car to drive away. By the time the shooting incident occurred,
sufficient time had passed for the provocation caused by the
incident, if any existed, to cool. In short, the evidence fails
to support the conclusion that Martin was "rendered deaf to the
voice of reason." Canipe v. Commonwealth, 25 Va. App. 629, 645,
491 S.E.2d 747, 754. 1
1
Martin further contends the trial court erred in refusing
a jury instruction on the lesser offenses of attempted unlawful
wounding and unlawfully shooting into an occupied vehicle, on
the ground that there was evidence of "heat of passion."
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Martin also contends the trial court erred in refusing to
instruct the jury that he acted in self-defense. 2 His contention
is without merit. Martin offered the following justifiable
homicide instruction:
If you believe that the defendants were
without fault in provoking or bringing on
the difficulty, and if you further believe
that the defendants reasonably feared, under
the circumstances as they appeared to them,
that they were in danger of being killed or
that they were in danger of great bodily
harm, then the killing was in self-defense,
and you shall find the defendants not
guilty. The defendants must be totally free
from fault, and must not have even remotely
contributed to the cause of the difficulty.
To warrant an instruction on the theory of justifiable
homicide, the defendant must be "totally free" from fault and
must not have "even remotely" contributed to the affray, as
noted in the proposed instruction. If the accused is "even
slightly at fault at creating the difficulty leading to the
necessity to kill, the killing is not justifiable homicide."
Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416
(1993) (internal quotations and citations omitted). After
Williams was knocked down, Martin admitted that he approached
Hymes and threatened him. Martin was therefore not "totally
Because we find, for the reasons set forth in this opinion, that
there was not a scintilla of evidence to support a "heat of
passion" instruction, we reject Martin's contention.
2
Martin's proffered instruction on excusable homicide was
granted.
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free from fault" and was not entitled to the justifiable
homicide instruction.
Finding no error in the trial court's decision, we affirm
Martin's convictions.
Affirmed.
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