Isham D. Davis v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Clements
Argued at Alexandria, Virginia
ROBERT SYLVESTER DAVIS, JR.
v. Record No. 1716-00-2
COMMONWEALTH OF VIRGINIA OPINION BY
JUDGE ROSEMARIE ANNUNZIATA
ISHAM D. DAVIS JULY 31, 2001
v. Record No. 1813-00-2
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
(Cary B. Brown; Bowen, Bryant, Champlin &
Carr, on brief), for appellant Robert
Sylvester Davis, Jr. Appellant submitting
on brief.
William T. Linka (Boatwright & Linka, on
brief), for appellant Isham D. Davis.
(Mark L. Earley, Attorney General; John H.
McLees, Jr., Senior Assistant Attorney
General, on briefs), for appellee. Appellee
submitting on briefs.
The appellants, Robert Sylvester Davis, Jr. and Isham D.
Davis, appeal the sentences imposed by a jury impaneled for the
purpose of resentencing them upon their conviction for second
degree murder, in violation of Code § 18.2-32. The two
appellants and a third codefendant, Jermaine Harris, were
originally tried jointly and appealed their respective
sentences. Upon remand by this Court, the jury resentenced all
three codefendants to twelve years each. The appellants allege
that during the resentencing hearing the court erred in
instructing the jury on a concert of action theory. For the
following reasons, we affirm.
BACKGROUND
The appellants, along with another codefendant, Jermaine
Harris, were convicted of second-degree murder in a joint jury
trial for the beating death of Vincent Hall. The jury in the
original sentencing proceeding fixed punishment at twenty years
in prison for each of the defendants. All three appealed,
alleging, inter alia, that the prosecutor had made improper and
prejudicial comments to the jury during the sentencing
proceeding. We agreed, vacated the sentences, and remanded to
the circuit court for a new sentencing proceeding.
On remand in the circuit court, relevant portions of the
testimony detailing the crime were read to the jury. The
Commonwealth also introduced evidence regarding each defendant's
criminal history, and the Commonwealth called the victim's
mother to testify as to the impact of the crime. In mitigation,
the three defendants introduced other portions of the trial
testimony concerning how the fight began, together with the
testimony of Robert Davis's mother.
At the conclusion of the evidence, the trial court, sua
sponte, ruled that it would give the jury the same concert of
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action instruction that had been given to the previous jury
during the guilt phase of the trial. Each of the defendants
objected, claiming the instruction violated his right to be
sentenced individually. The trial court overruled the objection
and instructed the jury, inter alia, that:
If there is concert of action with the
resulting crime one of its incidental
probable consequences, then whether such
crime was originally contemplated or not,
all who participate in any way in bringing
it about are bound by the acts of every
other person connected with the consummation
of such resulting crime. Now, that does not
mean that you have to give all three of the
defendants the same punishment. That just
says that they're all bound by the acts of
the other. You decide the punishment for
each individual defendant. Do you
understand that? All right. You have heard
the evidence. These are the instructions.
I am not sure whether you have any questions
or not, but if you do I will try to answer
them if I can. All right. Seeing no
questions from the jury, you may summarize
your case.
The jury fixed each defendant's punishment at twelve years in
prison, and the court imposed judgment in accordance with those
verdicts. The appellants now appeal separately from the
judgment of the court.
ANALYSIS
The appellants contend the court's issuance of a concert of
action instruction improperly influenced the jury's deliberation
and prevented the appellants from being sentenced as
individuals. We disagree.
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A joint trial for the purpose of resentencing each of the
defendants was proper under the circumstances of the case. Code
§ 19.2-262.1 provides, "[o]n motion of the Commonwealth, for
good cause shown, the court shall order persons charged with
participating in contemporaneous and related acts or occurrences
or in a series of acts or occurrences constituting an offense or
offenses, to be tried jointly unless such joint trial would
constitute prejudice to a defendant." See also Rule 3A:10(a).
The purpose and function of jury instructions are to confer
upon the trier of fact the legal basis for which a defendant may
be found guilty and for which he or she could be punished. The
Virginia Supreme Court in Spradlin v. Commonwealth, 195 Va. 523,
528, 79 S.E.2d 443, 445 (1954), established the concert of
action theory of guilt and explicitly related it to an
accomplice theory of punishment. The Court found that, based on
the defendants' concerted action, they had aided and abetted in
the commission of the crime and that each was "liable to the
same punishment as if he had actually committed the offense,"
each being an "accessory . . . [or] principal in the second
degree, but . . . tried and punished as if a principal in the
first degree." Id. at 527, 79 S.E.2d at 445. Subsequently, in
Riddick v. Commonwealth, 226 Va. 244, 308 S.E.2d 117 (1983), the
Supreme Court reiterated its holding:
[T]he evidence establishes that Riddick and
Butts were acting in concert. . . . Due to
the concert of action, defendant is deemed
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to have shared Butts' intent. Thus, even if
Butts killed one victim, defendant was
criminally responsible for the acts of the
gunman, Butts, as a principal in the second
degree. And every principal in the second
degree may be indicted, tried, convicted,
and punished, with certain exceptions not
applicable here, as if a principal in the
first degree.
Id. at 248, 308 S.E.3d at 119 (citing Code § 18.2-18, which
provides: "every principal in the second degree and every
accessory before the fact may be indicted, tried, convicted and
punished in all respects as if a principal in the first
degree . . ."); see also Charlton v. Commonwealth, 32 Va. App.
47, 526 S.E.2d 289 (2000). In short, the Supreme Court treats
concert of action as a species of accomplice liability, carrying
with it the principle that the punishment imposed on each
accomplice may be the same.
Upon remand for resentencing, the nature and circumstances
of the crime committed by the appellants were properly before
the jury. Watkins v. Commonwealth, 229 Va. 469, 479-80, 331
S.E.2d 422, 431 (1985) (new jury impaneled for resentencing
would have to be informed of nature and circumstances of
offense). Integral to the circumstances underlying this case
was each defendant's action in concert with others in committing
the offense, which made each defendant equally culpable for the
acts of the others, and answerable for the consequences.
Accordingly, the court was required to give a concert of action
instruction to the jury, advising them that each participant in
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the crime may be held accountable for the actions of the other
participants. Spradlin, 195 Va. at 528, 79 S.E.2d at 445 ("If
there is concert of action with the resulting crime one of its
incidental probable consequences, then whether such crime was
originally contemplated or not, all who participate in any way
in bringing it about are equally answerable and bound by the
acts of every other person connected with the consummation of
such resulting crime."); see also Westry v. Commonwealth, 206
Va. 508, 514, 144 S.E.2d 427, 431 (1965); Boggs v. Commonwealth,
153 Va. 828, 836-37, 149 S.E. 445, 447 (1929).
In this case, the jury instruction properly explained the
legal basis for imposing punishment. It did not instruct the
jury on the specific penalty to impose. The court instructed
the jury that they did not have to give each defendant the same
sentence and were, in fact, required to punish each defendant
individually. Furthermore, individualized evidence regarding
the appropriate penalty was admitted, including each defendant's
role in the crime and their respective criminal histories. 1
1
Isham Davis had been convicted twice of violating
probation. Robert Davis had been convicted of unauthorized use of
an automobile. Jermaine Harris had been convicted of two
assaults, distribution of cocaine, and a violation of probation.
The testimony read to the jury showed that Vincent Hall, the
victim, was attacked by a group of people, which included the
three defendants, following Hall's altercation with a woman.
Hall was thrown to the ground and the group continued to "kick[]
and stomp[]" Hall for a period of twenty to twenty-five minutes,
while Hall lay on the ground bleeding and "moaning." Despite the
pleas of witnesses to the attack, the group did not stop beating
Hall until the police arrived. The evidence showed that Isham
and Robert Davis "kicked and stomped" Hall's head during the
attack, while codefendant Jermaine Harris kicked Hall's legs.
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Contrary to appellants' contention, the fact that each
defendant received the same sentence does not compel a finding
that the jury disregarded the court's instruction that each
defendant be considered individually for purposes of punishment
and that the jury failed to sentence each defendant
individually. See LeVasseur v. Commonwealth, 225 Va. 564, 589,
304 S.E.2d 644, 657 (1983) (it is presumed that jury followed
court's instruction). The punishments imposed bear a rational
relationship to the circumstances of the crime and the
individual histories of each defendant.
Finally, we reject appellants' argument that because the
Commonwealth cannot introduce evidence of a sentence received by
one codefendant in the separate trial of another codefendant,
the court erred in instructing the jury on a concert of action
theory at appellants' joint sentencing hearing. See Ward v.
Commonwealth, 205 Va. 564, 573, 138 S.E.2d 293, 300 (1964);
Brown v. Commonwealth, 3 Va. App. 101, 103, 348 S.E.2d 408,
409-10 (1986); Walker v. Commonwealth, 212 Va. 289, 291, 183
S.E.2d 739, 741 (1971) ("[A] defendant has a right to have his
guilt or innocence, and punishment, determined by the evidence
against him and not by what sentence has been imposed in another
criminal prosecution against an accomplice, a co-defendant or
anyone else."). The infirmity sought to be avoided in the line
of cases cited by appellants is the imposition of a sentence by
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rote application of a prior sentence and "in the abstract,"
viz., without evidence relevant to each of the sentencing
factors, including the defendant's criminal history, the
particular role the defendant played in the commission of the
crime, and evidence of any mitigating or aggravating
circumstances attending the crime uniquely associated with the
defendant. In this case, a single jury had before it all the
evidence relevant to its determination of an appropriate
sentence for each of the defendants. We find that the procedure
followed is fully consistent with the principles articulated in
Ward and its progeny.
Because we find no error in the instruction given by the
court, we affirm.
Affirmed.
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