Allen Lamont Harris v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
ALLEN LAMONT HARRIS
OPINION BY
v. Record No. 1933-99-2 JUDGE ROBERT J. HUMPHREYS
AUGUST 29, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
(Derek E. Leake; Taylor, Taylor & Taylor, on
brief), for appellant. Appellant submitting
on brief.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Allen Lamont Harris appeals his convictions in a jury trial
for murder in the second degree and grand larceny. He contends
the trial court erred (1) in instructing the jury following a
question by a juror regarding the failure of the parties to call
a particular individual as a witness, and (2) failing to impanel
a new jury for sentencing purposes when the jury recommended a
sentence greater than the statutory maximum which existed on the
date of the offense. We find no error and for the reasons that
follow, affirm his convictions.
I. Background
On July 31, 1992, Jackson Burrell, Jr. was found dead in
his home by his father. Burrell had been stabbed seven times.
Except for his socks, Burrell was unclothed. An unwrapped
condom was found in the hallway near the body. There was no
sign of forced entry.
Until just prior to his death, Burrell lived with Delon
Moore. Moore did not reside with Burrell at the time of his
death, and Burrell had expressed to members of his family that
he was afraid of Moore. On the night before he died, Burrell
told his mother to make sure his fire insurance was paid up
because "they" might burn his house down.
The appellant ("Harris") was acquainted with Burrell and
claimed that Burrell owed him money. Barbara Richardson
testified that she was a former girlfriend of Harris and that
Harris told her, a few days after Burrell's murder, that he had
gone to see Burrell to collect the debt and that Burrell had
"come at him" with a knife so Harris took the knife away and
stabbed Burrell. Harris also told Richardson that after
stabbing Burrell, he took Burrell's car and parked it on another
street after taking out the radio and battery and disposing of
the keys.
Burrell's Pontiac Grand Am was later recovered by the
police. A fingerprint belonging to Moore was found in the car.
No fingerprints belonging to Harris were found. In addition,
swabs containing blood taken from Burrell's bathtub were
analyzed through DNA testing and the DNA in the blood from the
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bathtub was determined to be consistent with a mixture of the
DNA of Harris and Burrell.
Harris was tried by a jury on May 25, 1999. Moore was not
called as a witness by either party.
Following jury instructions and closing arguments of
counsel, a juror raised his hand and the court took his question
in a sidebar conference. The juror asked why Delon Moore was
not called as a witness in the case. After taking the question,
the court instructed the juror to return to the jury box and the
sidebar conference continued with counsel. The prosecutor
suggested that the question could not be answered because it
went beyond the evidence. Counsel for Harris responded by
saying, "[W]e can't explain the question because it goes beyond
the scope of the witnesses presented. I think that would be
more accurate."
The court then instructed the jury as follows:
Ladies and gentlemen of the jury, one of the
members of your jury has a question in
regards [sic] to a matter that was not
presented to you. As you will see in your
instructions - but I will tell you now – you
are to decide the cases based on the law and
the evidence that you have heard in this
courtroom as respects to evidence presented
and the law presented to you by way of the
instructions and to not go outside of the
evidence or speculate or conjure [sic] as to
why or why not something was or was not
presented to you.
Following this instruction, counsel for Harris requested
another sidebar conference, objected to the instruction, and
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suggested that the jury should be permitted to consider why
Delon Moore was not called as a witness. The trial court
overruled the objection and declined to modify its instruction.
The jury convicted Harris of murder in the second degree and the
grand larceny of Burrell's car.
During the penalty phase of the trial, the jury was
instructed, without objection by Harris, that the maximum
penalty for second degree murder was forty years in the state
penitentiary. The jury subsequently recommended that Harris be
sentenced to forty years on the charge of murder in the second
degree and ten years on the charge of grand larceny.
Following the preparation of a pre-sentence report, a
sentencing hearing was held on August 9, 1999. During this
hearing, the prosecutor advised the court that when the crime
occurred in 1992, the maximum penalty prescribed by law for
second degree murder was twenty years. 1 The court then sentenced
Harris to twenty years for murder in the second degree and ten
years for grand larceny.
II. Instruction of the Jury
Harris cites Robinson v. Commonwealth, 165 Va. 876, 879,
183 S.E. 254, 256 (1935), as authority for his position that the
court's instruction was erroneous. Harris' reliance on Robinson
1
Effective July 1, 1993, the General Assembly increased the
maximum penalty for murder in the second degree from twenty
years imprisonment to forty years.
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is misplaced. In Robinson, the Supreme Court of Virginia
considered whether, in a perjury trial, it was error for the
prosecutor to comment in closing argument on the failure of the
defendant to call a witness who was present in court at the
hearing when the perjury occurred and who, according to the
defendant, could have corroborated his testimony. The Supreme
Court held this "was a circumstance to be considered by the
jury, and was the legitimate subject of comment by the
Commonwealth's Attorney." Id. at 881, 183 S.E. at 256.
Here, there is no suggestion by Harris that Moore, if
called as a witness by the Commonwealth, would have given
testimony contradicting the Commonwealth's case. Indeed, in
making his objection, Harris failed to proffer what testimony
Moore would have given.
We have an adversary system of justice and while the
Commonwealth may call to testify such witnesses as it deems
necessary and appropriate to prove its case, likewise, "[t]he
Sixth Amendment provides that 'the accused shall enjoy the right
. . . to have compulsory process for obtaining witnesses in his
favor.' Because this right 'is an essential attribute of the
adversary system itself,' we have repeatedly stated that few
rights 'are more fundamental than that of an accused to present
witnesses in his own defense.'" United States v. Scheffer, 523
U.S. 303, 326 (1998). Thus, if Moore had evidence that was
helpful to the defense, Harris could have availed himself of the
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court's power to produce Moore and compel him to testify,
subject only to Moore's exercise of his own constitutional
rights or recognized privilege. Because neither Harris nor the
Commonwealth called Moore, we must consider whether the jury
should have been specifically instructed on what legal
conclusions they might draw from the failure of either party to
produce a witness who might conceivably have been called by
either or both of the parties.
In Russell v. Commonwealth, 216 Va. 833, 223 S.E.2d 877
(1976), the Supreme Court of Virginia held:
[I]t is one thing for this court to employ a
judicial guideline in determining the
sufficiency of evidence, or to say that a
matter may be the legitimate subject of
comment by counsel for one party or another,
or to indicate that a circumstance may be
considered by the trier of fact; it is quite
another thing, however, for a trial court to
instruct a jury that an adverse presumption
arises from the failure of one or the other
of the parties to a criminal proceeding to
call a particular witness.
Id. at 836, 223 S.E.2d at 879.
In permitting juries to determine the facts, we expect and
require them to limit their fact finding exercise to the
evidence presented and any reasonable inferences they care to
draw from that evidence. The rationale behind this requirement
is grounded in the presumption of innocence and ensures that the
burden of proof remains with the prosecution. See e.g., Hayden
v. Commonwealth, 203 Va. 398, 124 S.E.2d 13 (1962), and Campbell
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v. Commonwealth, 162 Va. 818, 174 S.E. 856 (1934). We find that
the trial court's instruction to the jury in response to the
juror's question was consistent with this principle and was,
therefore, not erroneous.
III. Sentencing
Harris acknowledges that he made no objection to the jury
instruction relating to the maximum sentence the jury could
recommend for second-degree murder. Unless we invoke the "ends
of justice" exception to Rule 5A:18, his assignment of error is
procedurally barred. See Clark v. Commonwealth, 30 Va. App.
406, 409-10, 517 S.E.2d 260, 261 (1999). Because our holding in
Dargan v. Commonwealth, 27 Va. App. 495, 500 S.E.2d 228 (1998),
squarely resolves this identical issue, we decline to consider
this assignment of error under the "ends of justice" exception
to Rule 5A:18. 2
Affirmed.
2
In Dargan, a plurality of this Court held that "[a] trial
court may correct a void or unlawful sentence at any time
. . . . [As a consequence,] [a] court may impose a valid
sentence in substitution for one that is void . . . [w]here the
sentence imposed is in excess of that prescribed by law, that
part of the sentence which is excessive is invalid. A sentence
in excess of one prescribed by law is not void ab initio because
of the excess, but is good insofar as the power of the court
extends, and is invalid only as to the excess." Dargan, 27 Va.
App. at 497-98, 500 S.E.2d at 229 (citations omitted). In
addition, here as in Dargan, the jury recommended the maximum
sentence available in the instruction and the trial court
reduced it to the maximum sentence allowable by law. See id. at
499-500, 500 S.E.2d at 230 (Elder, J. concurring).
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