Dwayne Michael Barnhill v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Overton
Argued at Alexandria, Virginia
DWAYNE MICHEAL BARNHILL
MEMORANDUM OPINION * BY
v. Record No. 2733-01-4 JUDGE NELSON T. OVERTON
OCTOBER 8, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
William D. Hamblen, Judge
William A. Boge for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
A jury convicted Dwayne M. Barnhill, appellant, of first
degree murder and use of a firearm in the commission of murder.
On appeal, he contends the trial court erred in refusing to
instruct the jury on voluntary manslaughter and that such error
was not harmless. We disagree and affirm.
BACKGROUND
Appellant, Kenneth Wilson, Fahd Eltobgi and Terrell Weathers
drove a Subaru to a certain area in Prince William County,
Virginia, to purchase marijuana. A Jeep pulled alongside the
Subaru and a few individuals, including Christopher Bouling, the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
victim, exited and approached the Subaru on foot. Bouling reached
through the driver's window of the Subaru and punched Wilson in
the face and threw or hit Wilson with a bottle. After the assault
on Wilson, several shots were fired from the Subaru that appellant
occupied. Eltobgi and Weathers testified appellant fired the
shots. Eltobgi also testified appellant stated to Wilson, "I did
it for you Kenny." Eltobgi testified that later in the evening
appellant kissed Wilson on the forehead and said, "We're brothers
now." Star Hambleton testified he had a conversation with
appellant the following day and appellant admitted firing the
shots. Appellant testified he did not fire the gun, but that
Wilson had fired it. Appellant also denied making the admission
to Hambleton and denied telling Wilson, "I did it for you Kenny."
Appellant asked the trial court to instruct the jury on
voluntary manslaughter and proffered the instructions. Appellant
argued he acted upon reasonable provocation and in the heat of
passion when he observed Bouling hit Wilson. The trial court
found that Wilson and appellant had a "casual friendship." The
trial court also found that seeing Bouling hit Wilson did not give
appellant adequate provocation and that appellant did not act in
the heat of passion. The trial court instructed the jury on
first and second degree murder, and refused appellant's
proffered instructions on voluntary manslaughter.
- 2 -
HARMLESS ERROR
[W]here the reviewing court is able to
determine that the trial court's error in
failing to instruct the jury could not have
affected the verdict, that error is
harmless. Such a determination can be made
where it is evident from the verdict that
the jury would have necessarily rejected the
lesser-included offense on which it was not
instructed.
Turner v. Commonwealth, 23 Va. App. 270, 276, 476 S.E.2d 504,
507 (1996), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997). When a
jury was instructed on first degree murder and second degree
murder and convicted the defendant of first degree murder, such
a verdict "compels the conclusion that [the jury] would never
have reached a voluntary manslaughter verdict." Id. at 277, 476
S.E.2d at 508.
Code § 18.2-32 provides in part, "[m]urder . . . by any
willful, deliberate, and premeditated killing . . . is murder of
the first degree." "'To premeditate means to adopt a specific
intent to kill, and that is what distinguishes first and second
degree murder.'" Rhodes v. Commonwealth, 238 Va. 480, 485, 384
S.E.2d 95, 98 (1989) (citation omitted). "Second degree murder
is defined as a 'malicious killing' of another person." Lynn v.
Commonwealth, 27 Va. App. 336, 351, 499 S.E.2d 1, 8 (1998),
aff'd, 257 Va. 239, 514 S.E.2d 147 (1999). "Manslaughter, on
the other hand, is the unlawful killing of another without
malice." Barrett v. Commonwealth, 231 Va. 102, 105, 341 S.E.2d
- 3 -
190, 192 (1986). "'Malice and heat of passion are mutually
exclusive; malice excludes passion, and passion presupposes the
absence of malice.'" Robertson v. Commonwealth, 31 Va. App.
814, 823, 525 S.E.2d 640, 645 (2000) (citation omitted).
Assuming without deciding the trial court erred in refusing
to instruct the jury on voluntary manslaughter, the error was
harmless because the jury convicted appellant of first degree
murder. In convicting appellant of first degree murder, the
jury rejected the lesser-included offense of second degree
murder. In so doing, the jury found beyond a reasonable doubt
that appellant acted not only maliciously, but also willfully,
deliberately, and with premeditation. Any error was harmless
beyond a reasonable doubt because the jury necessarily rejected
the factual basis of voluntary manslaughter. Based upon the
foregoing, we affirm appellant's convictions.
Affirmed.
- 4 -