James W. Waters, Jr v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Clements and Senior Judge Bray*
Argued at Chesapeake, Virginia
JAMES W. WATERS, JR.
OPINION BY
v. Record No. 2053-01-1 JUDGE JEAN HARRISON CLEMENTS
SEPTEMBER 24, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
David P. Bogardus (L. Dickerson Bragg;
Duncan R. St. Clair, III & Associates, P.C.,
on brief), for appellant.
John H. McLees, Senior Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
James W. Waters, Jr., was convicted in a jury trial of first
degree murder, in violation of Code § 18.2-32, conspiracy to
commit malicious wounding, in violation of Code § 18.2-22,
attempted malicious wounding, in violation of Code § 18.2-51, and
two counts of use of a firearm in the commission of a felony, in
violation of Code § 18.2-53.1. Appealing those convictions,
Waters contends the trial court erred (1) in refusing to grant his
proposed jury instruction on the defense of accidental killing and
(2) in failing to instruct the jury that parole had been abolished
in Virginia. Finding no error, we affirm Waters' convictions.
_________________
* Judge Bray participated in the hearing and decision of
this case prior to the effective date of his retirement on
September 1, 2002 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401.
I. BACKGROUND
The evidence in this case involved two related shooting
incidents that took place in the City of Virginia Beach on the
night of January 25, 1997. The first incident involved a
"drive-by" shooting in the Magic Hollow subdivision, during which
Waters, who was driving around with two other people, fired his
handgun at a man who was sitting at a street corner. Based on
that incident, Waters was charged with and convicted of conspiracy
to commit malicious wounding, attempted malicious wounding, and
use of a firearm in the commission of attempted malicious
wounding.
The second incident involved the fatal shooting of Timothy
Wheaton in the Landstown Meadows subdivision. Following the first
shooting incident, Waters and his cohorts drove to a different
area of the city to look for Ian Zinn. Apparently, Waters
suspected that Zinn had been involved two days earlier in an
altercation with a friend of Waters. Waters and his companions
first drove to a house where Waters believed Zinn's car was
parked. When no one answered his knock on the door of the house,
Waters used the butt of his pistol to smash the windshield of a
car parked outside the house.
A short while later, Waters and his companions were driving
through the subdivision when they observed three young men walking
up the street. Waters told the driver to pull up to the young
men. Waters, who was the passenger in the front seat, asked them
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if they knew Zinn. When they said they did not, Waters asked one
of the young men, Wheaton, if he was Zinn. When Wheaton responded
that he was not Zinn, Waters pulled out his handgun and, pointing
it at Wheaton, said, "If you're fucking lying to me, I'll kill
you." Two seconds later, Waters abruptly fired the gun, hitting
Wheaton in the chest from three feet away. The shot was fatal.
Immediately following the shooting, one of Wheaton's
companions heard laughter coming from inside the car occupied by
Waters and his cohorts. As Waters and his cohorts drove away, one
of Waters' cohorts asked him why he had shot Wheaton. Waters
replied that he knew the person he had shot was Zinn. Waters
later told other friends that he had done the shooting and bragged
about having committed a shooting that was "all over the news."
Waters testified in his own defense at trial. He claimed
that his intention in pulling the gun on Wheaton and his
companions was only to scare them. He said he pointed the gun off
to the side, rather than directly at the young men. He "was
lowering the pistol at the time," he testified, when he "just
touched the trigger and it went off, and [Wheaton] was right in
the way." "I didn't mean to shoot him or nothing," Waters added.
"It was pure accident, because there shouldn't have been no
shooting at all."
The Commonwealth offered two finding instructions pertaining
to the killing, one on first degree murder alone and the other on
first degree murder and lesser included offenses. The trial court
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judge declined the first instruction, stating that there was "more
than a scintilla of evidence to support [the] lesser included
offenses [of] . . . second degree murder[] and killing during an
unlawful act not a felony." Specifically, the trial judge noted:
[I]f there is evidence to the effect that the
defendant . . . says that he just intended to
scare this person by threatening him with a
gun — that would technically be an assault —
and he was killed when the gun went off
during this threat; and so there is some
evidence to support that theory.
Consequently, the trial judge granted the Commonwealth's
second finding instruction, which read:
Instruction No. 15
The defendant is charged with the crime
of first degree murder. The Commonwealth
must prove beyond a reasonable doubt each of
the following elements of that crime:
1. That the defendant killed Timothy
Wheaton; 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 each of the above elements of the
offense as charged, then you shall find the
defendant guilty of first degree murder.
If you find from the evidence that the
Commonwealth has proved beyond a reasonable
doubt each of the first two elements of the
offense as charged but you do not find beyond
a reasonable doubt that the killing was
willful, deliberate and premeditated, then
you shall find the defendant guilty of second
degree murder.
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If you find that the Commonwealth has
failed to prove beyond a reasonable doubt
that the killing was malicious but that the
Commonwealth has proved beyond a reasonable
doubt that the defendant killed Timothy
Wheaton and further:
1. That the killing was during the
commission of an unlawful act, not a felony,
then you shall find the defendant guilty of
voluntary manslaughter.
If you find that the Commonwealth has
failed to prove beyond a reasonable doubt any
of the above offenses, then you shall find
the defendant not guilty.
Waters did not object to this instruction. 1
The trial court also gave the following instructions:
Instruction No. 18
In order for the killing to amount to
murder in the second degree, although it is
not necessary for the Commonwealth to prove
willfulness, deliberation and premeditation,
it is incumbent upon the Commonwealth to
prove that the defendant acted with malice,
and unless you believe from the evidence
beyond a reasonable doubt that the defendant
did act with malice, you cannot find the
defendant guilty of second degree murder.
Instruction No. 19
Malice is that state of mind which
results in the intentional doing of a
wrongful act to another without legal excuse
or justification, at a time when the mind of
1
The Commonwealth acknowledges that the granted instruction
incorrectly identified the latter lesser included offense as
voluntary, rather than involuntary, manslaughter. Waters argues
that "this error is, on its face, significant enough to warrant
a resentencing." However, because Waters did not raise this
issue at trial, we will not consider it for the first time here.
See Rule 5A:18.
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the actor is under the control of reason.
Malice may result from any unlawful or
unjustifiable motive including anger, hatred
or revenge. Malice may be inferred from any
deliberate willful and cruel act against
another, however sudden.
Waters proffered a jury instruction on the defense of
accidental killing, which read:
ACCIDENTAL KILLING
Instruction No. ____
Where the defense is that the killing
was an accident, the defendant 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 the defendant not guilty.
The trial court judge refused this instruction, stating that it
did not "fit the facts in this case." "It's either a killing
during an unlawful act or a higher offense," the judge added.
In the penalty phase of the trial, Waters did not request
that the jury be advised that parole had been abolished in
Virginia. Nor did the jury inquire about the possibility of
parole.
II. INSTRUCTION ON ACCIDENTAL KILLING
On appeal, Waters contends the trial court erred in refusing
to grant his proposed jury instruction on accidental killing,
which, he maintains, was warranted by the evidence. Accordingly,
he argues, his convictions should be reversed.
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In reviewing the trial court's rejection of the proffered
jury instruction on the defense of accidental killing, we view the
evidence in the light most favorable to Waters. See Boone v.
Commonwealth, 14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992)
(holding that, "[a]lthough the Commonwealth prevailed at trial,
the appropriate standard of review requires that we view the
evidence with respect to the refused instruction in the light
most favorable to the defendant").
At the outset, we note that Waters' contention regarding the
refusal of his proposed jury instruction on the defense of
accidental killing relates only to his convictions of first degree
murder and use of a firearm in the commission of murder. Thus, if
upheld, that contention would not affect his convictions of
conspiracy to commit malicious wounding, attempted malicious
wounding, and use of a firearm in the commission of attempted
malicious wounding.
Moreover, our review of the record convinces us that Waters'
contention is without merit. As the Commonwealth acknowledges,
Waters' proposed jury instruction on accidental killing would have
correctly informed the jury that it was the Commonwealth's burden
to prove the killing was not an accident, rather than Waters'
burden to prove the killing was an accident. However, as the
Commonwealth also points out, that aspect of Waters' proposed
instruction was adequately presented in other jury instructions
given by the trial court. In giving "Instruction No. 15," the
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court informed the jury that, to prove first degree murder, the
Commonwealth had to prove beyond a reasonable doubt that "the
killing was malicious; and . . . [t]hat the killing was willful,
deliberate and premeditated." In giving the same instruction, the
trial court also told the jury that, to prove second degree
murder, the Commonwealth had to prove that "the killing was
malicious." In giving "Instruction No. 18," the trial court
emphasized that, to prove second degree murder, the Commonwealth
had "to prove that the defendant acted with malice." "Malice,"
the court told the jury in "Instruction No. 19," "is that state of
mind which results in the intentional doing of a wrongful act to
another without legal excuse or justification." (Emphasis added.)
A court does not err in refusing a proffered jury instruction if
the principles of law addressed in that instruction are adequately
presented in other instructions. Graham v. Commonwealth, 31
Va. App. 662, 674, 525 S.E.2d 567, 573 (2000).
In addition, to the extent the proffered instruction would
have told the jury that, "[i]f after considering all the evidence
you have a reasonable doubt whether the killing was accidental or
intentional, then you shall find the defendant not guilty," the
instruction was, as the trial court ruled, inapposite under the
facts of this case. The evidence upon which Waters relies to
support his proffered instruction comes from his own testimony.
He is bound by that testimony on appeal. See Delawder v.
Commonwealth, 214 Va. 55, 57, 196 S.E.2d 913, 915 (1973) (holding
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that "the defendant is bound by what he said on the witness
stand"). Waters testified that the shooting occurred accidentally
in an incident where he deliberately brandished a handgun in the
presence of the victim and two others for the purpose of scaring
them. Such an action by Waters was, at the very least, a
misdemeanor assault, as the trial court recognized, see Merritt v.
Commonwealth, 164 Va. 653, 658-59, 180 S.E. 395, 397-98 (1935);
see also Code § 18.2-56.1, or a misdemeanor of reckless handling
of a firearm, see Code § 18.2-56.1. Thus, the killing was, as the
trial court reasoned, "either a killing during an unlawful act or
a higher offense."
Accordingly, even if the killing had been an accident, as
Waters testified, it is clear from Waters' own testimony that the
killing occurred in the course of his commission of a misdemeanor.
An accidental killing committed in the course of an unlawful,
nonfelonious act constitutes involuntary manslaughter. See, e.g.,
Dowden v. Commonwealth, 260 Va. 459, 470, 536 S.E.2d 437, 443
(2000). Thus, Waters' proffered jury instruction, which required
an outright acquittal if the jury had a reasonable doubt as to
whether the killing was intentional, was improper under the facts
of this case.
We hold, therefore, that the trial court did not err in
refusing Waters' proffered jury instruction.
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III. INSTRUCTION ON PAROLE
Waters also contends on appeal that the trial court erred in
not advising the jury that parole had been abolished in Virginia.
The trial court, he argues, had an affirmative duty under the
Supreme Court's ruling in Fishback v. Commonwealth, 260 Va. 104,
532 S.E.2d 629 (2000), to instruct the jury on the abolition of
parole in this case.
In Fishback, the Supreme Court held that "juries shall be
instructed on the abolition of parole for non-capital felony
offenses committed on or after January 1, 1995, and that this new
rule of criminal procedure is limited to cases not yet final on
June 9, 2000." 2 Id. at 115-16, 532 S.E.2d at 634. Unlike the
circumstances of this case, however, in Fishback, the defendant
proffered an instruction on the abolition of parole in Virginia,
which the trial court refused, and the jury asked during its
deliberations on sentencing about the possibility of parole. Id.
at 109, 532 S.E.2d at 630. In response to the jury's inquiry, the
trial court instructed the jury members that they were not to
concern themselves with "what may happen afterwards." Id. at 110,
532 S.E.2d at 631. Fishback did object to the court's instruction
and did not renew his request for an instruction regarding the
abolition of parole. Id.
2
Although Waters' trial occurred in 1997, Waters' direct
appeal had not been completed prior to the Supreme Court's
decision in Fishback. The Commonwealth, therefore, does not
contest Waters' entitlement to raise this issue on appeal.
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Thus, as the Supreme Court noted in Jerman v. Commonwealth,
263 Va. 88, 92-93, 556 S.E.2d 754, 757 (2002),
the circuit court in Fishback had the
opportunity to consider during trial whether
to instruct the jury on the recent statutory
changes concerning parole. Although the
instructions that the defendant proffered
did not accurately reflect the statutory
changes, we nevertheless concluded that the
circuit court was required to correct the
instructions and give them in their accurate
form.
The Supreme Court further explained in Jerman that its
decision in Fishback was based on the established rule that
"'the trial court is not required to amend or
correct an erroneous instruction, but . . .
when the principle of law is materially vital
to a defendant in a criminal case, it is
reversible error for the trial court to
refuse a defective instruction instead of
correcting it and giving it in the proper
form.'"
Id. at 93, 556 S.E.2d at 757 (quoting Fishback, 260 Va. at 117,
532 S.E.2d at 635 (quoting Whaley v. Commonwealth, 214 Va. 353,
355-56, 200 S.E.2d 556, 558 (1973))). Indeed, the Supreme Court
stated in Fishback that, under the new rule established therein,
"the task of the trial courts will require only that instructions
with regard to the abolition of parole be tailored to the facts of
a particular case." 260 Va. at 116, 532 S.E.2d at 634 (emphasis
added). "In contrast," the Supreme Court noted in Jerman, "a
circuit court ordinarily does not have the affirmative duty to
give a jury instruction on a particular legal principle when a
criminal defendant fails to request that the jury be instructed on
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that principle." 263 Va. at 93, 556 S.E.2d at 757. "We have,"
the Supreme Court added, "regularly applied this rule in criminal
cases." Id. Citing Rule 5:25, the Court also noted that it has
"repeatedly . . . refused to consider challenges to jury
instructions for the first time on appeal." Id. at 94, 556 S.E.2d
at 757.
In Jerman, the defendant did not request a jury instruction
on the abolition of parole or object to the trial court's
instruction, in response to the jury's inquiry during
deliberations about the possibility of parole, that the members of
the jury should not concern themselves "with what comes
afterwards." Id. at 90, 556 S.E.2d at 755. The Supreme Court
held that, because the defendant failed to timely object to the
trial court's instruction, his challenge to the lack of a jury
instruction on the abolition of parole was procedurally barred
under Rule 5:25. Id. at 94, 556 S.E.2d at 757.
We find that, while Jerman and the present case are factually
distinct in that the jury in the instant case did not inquire as
to the possibility of parole and thus received no instruction
thereon, the principles espoused in Jerman, as set forth above,
control the resolution of the case before us. Rule 5:25's
counterpart in this Court is Rule 5A:18, which provides that
"[n]o ruling of the trial court . . . will be considered as a
basis for reversal unless the objection was stated together with
the grounds therefor at the time of the ruling, except for good
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cause shown or to enable the Court of Appeals to attain the ends
of justice." "The purpose of the rule is to ensure that the
trial court and opposing party are given the opportunity to
intelligently address, examine, and resolve issues in the trial
court, thus avoiding unnecessary appeals." Andrews v.
Commonwealth, 37 Va. App. 479, 493, 559 S.E.2d 401, 408 (2002).
Consequently, we "will not consider an argument on appeal which
was not presented to the trial court." Ohree v. Commonwealth,
26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).
Here, it is clear that the trial court had no opportunity to
consider during trial the issue of whether it was proper to
instruct the jury on the abolition of parole in Virginia. Be it
for tactical purposes or other reasons, Waters did not request an
instruction on the abolition of parole. See Manetta v.
Commonwealth, 231 Va. 123, 127-28 n.2, 340 S.E.2d 828, 830 n.2
(1986) (noting that, although defendant was entitled to an
instruction, the trial judge was not required to give it sua
sponte as defendant may not have sought it for sound tactical
reasons). Likewise, no evidence or argument placed the issue of
parole before the jury, and the jury did not inquire about the
possibility of parole or the effects of parole on any sentence
that it might impose or otherwise evidence a need for instruction
on parole in fulfilling its sentencing responsibilities.
Furthermore, the record reveals that, during the sentencing phase
of the trial, the trial court instructed the jury, without
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objection by Waters, solely on the statutory parameters of
punishment for each offense. It offered no instruction on the
issue of parole.
We hold, therefore, that, because the trial court never had
the opportunity to consider whether the jury should be instructed
on the abolition of parole, we are barred by Rule 5A:18 from
considering the issue of whether the trial court erred in not
instructing the jury on the abolition of parole. Moreover, our
review of the record in this case reveals no reason to invoke the
"good cause" or "ends of justice" exceptions to Rule 5A:18.
Accordingly, we affirm Waters' convictions.
Affirmed.
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