Jason A. Morant v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Humphreys
Argued at Alexandria, Virginia
JASON A. MORANT
MEMORANDUM OPINION * BY
v. Record No. 2559-00-4 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 22, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge
Daniel T. Lopez, Senior Assistant Public
Defender, for appellant.
John H. McLees, Jr., Senior Assistant
Attorney General (Randolph A. Beales, Acting
Attorney General, on brief), for appellee.
Appellant, Jason Morant, was convicted of first degree
murder by a jury and sentenced to forty years imprisonment. He
contends on appeal that the trial court erroneously refused to
grant his proffered instruction on voluntary manslaughter as a
lesser-included offense and that it improperly responded to
certain jury questions during its deliberations on guilt. For
the reasons that follow, we affirm.
Background
"Although the Commonwealth prevailed at trial, the
appropriate standard of review requires that we view the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
evidence with respect to the refused instruction in the light
most favorable to the defendant." Boone v. Commonwealth, 14 Va.
App. 130, 131, 415 S.E.2d 250, 251 (1992). The evidence proved
that Robin Kehrer, the victim in this case, and Morant were
engaged in an intense but unstable romantic relationship for
approximately six and one-half years before the offense at
issue. Kehrer had two children, at least one of which was
purportedly Morant's child. They worked for the same company,
Inacom, and lived together for various periods of time, up to
the last several months before Kehrer was killed.
On October 6, 1999, the Wednesday evening before the
killing, Morant and Kehrer had a dispute that resulted in each
moving out of the townhouse in which they had been living with
the two children. Kehrer did not return to work until Monday,
October 11, 1999. She appeared to be upset and asked a
co-worker to warn her if Morant appeared. When she was advised
he had arrived, Kehrer "snuck" into her cubicle.
Kehrer and Morant were later observed talking together in
an alcove leading to an entrance to an interior stairwell. A
few minutes later, Inacom employees heard a scream, which one
described as sounding like a call for help or an expression of
surprise.
Morant told police detective Boyle in an interview that
Kehrer "just went off, told him that she was going to ruin him,
destroy him, kick him out of the house, [sic] he was going to
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wish he had never been born." He told Boyle that "he just
snapped." He said he felt dizzy, saw white flakes, and just
lost it all in one day. "'[Kehrer] was the mother of my
children. I can't believe what happened. I wish I had hurt
myself instead.'" Morant measured more than six feet in height
and weighed over 220 pounds. Kehrer was five feet tall, and at
autopsy, weighed 126 pounds.
Morant testified to his relationship with Kehrer, the
difficulties he had with her family, the reasons for their
separation, the Monday confrontation before her death, and
threats Kehrer allegedly made to him. According to Morant,
Kehrer told him:
You're crazy. I'm going to tell everybody
you're crazy. You're never going to see the
kids again. I spoke with Wayna and she's
not going to let you see Kyle either. . . .
I'm going to get you fired from the job, you
know, I'm going to tell everybody that you
tried to commit suicide and, you know,
they're not going to want you here.
Morant described his response as follows:
And it hit me like a shock. . . . [M]y heart
started beating really, really fast. And at
that point it just -- emotionally, I was
surprised and hurt. And there was [sic] all
the things that I had shared with her about
how I felt, she just went right down the row
and hit like each one of them.
Morant started down the stairway but Kehrer grabbed him
about his waist to stop him. When he turned around, he had
"another flash and felt like the pain in my stomach again. I
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saw her standing like with her finger in my face. And I didn't
hear what she was saying . . . ." The next thing he remembered
was "kneeling down on the stairs with my hands around [Kehrer's]
neck, choking her."
He sat Kehrer up but she was "totally flaccid." He took
off his belt and put it around her neck and tied it to the
banister because he did not want to leave her on the ground and
"it made sense at the time to hang her there." He did not try
to revive her or call for help.
Asked why he killed her, Morant testified that "when she
confronted me with all the things she was going to do to me,
something just snapped. . . . Anger was the least of what I
felt." Morant gave varying explanations about his motivation,
stating and then retracting that the things that Kehrer said to
him that morning triggered the killing.
Kehrer's body was found at the bottom of the stairwell,
hanging by a belt wrapped around her throat and tied to the
handrail. She had socks on but no shoes. Police investigating
the crime scene found Kehrer hanging 50 steps below the fourth
floor. There was an earring loose in her hair. The medical
examiner testified that she had suffered bruises to the inside
of her lower lip, the front of her tongue, and the insides of
both sides of the front of her scalp. The latter bruises were
consistent with having been punched or having banged her head
against hard surfaces. She had two abrasions on the outside of
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her left foot consistent with having been dragged and abrasions
on her left knee and lower leg and back of her left shoulder. A
pierced earring hole in her left ear was bruised and bloodied.
The cause of death was strangulation; signs of both
strangulation by hand and by the belt were manifest. The
medical examiner was of the opinion that Kehrer could have been
revived if she had been given CPR within minutes of
asphyxiation.
The trial court gave a finding instruction allowing
possible verdicts of first or second-degree murder or not
guilty. It refused to give Morant's proffered finding
instruction and related instruction on voluntary manslaughter
and heat of passion. The jury was given Instruction H, which
reads:
Willful, deliberate, and premeditated means
a specific intent to kill adopted at some
time before the killing, but which need not
exist for any particular length of time.
During deliberations, the jury sent out two written
questions: "Can 'premeditation' occur during the act of
'killing?'" and "Does 'killing' mean the act, i.e.,
strangulation, or the moment of death?" In response, the trial
court first re-read to the jury Instruction "H" defining
"willful, deliberate and premeditated." It then said,
Is that the killing you're talking about, in
that context? And in the context of this
case, and in the context of this
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instruction, that means the time of death,
adopted before the time of death, but need
not exist for any particular length of time,
"Can premeditation occur during the act of
killing?" If what you mean by that is
during the act of the strangulation, yes, as
long as it's before it's completed.
Analysis
A. Refusal to Grant Voluntary Manslaughter Instruction
Assuming without deciding that the trial court erred by
refusing to instruct the jury on voluntary manslaughter, any
such error was harmless beyond a reasonable doubt. See Turner
v. Commonwealth, 23 Va. App. 270, 275-78, 476 S.E.2d 504, 507-08
(1996) (holding that failure to instruct jury on voluntary
manslaughter was harmless because jury had rejected second
degree murder conviction), aff'd, 255 Va. 1, 492 S.E.2d 447(1997). In Turner, we reasoned that by rejecting the
lesser-included offense of second degree murder, "the jury found
beyond a reasonable doubt that appellant acted not only
maliciously, but also willfully, deliberately, and
premeditatedly." Id. at 277, 476 S.E.2d at 508. Because
"premeditation and reasonable provocation can not co-exist,"
id., "[the jury] necessarily rejected the factual basis upon
which it might have rendered a verdict on the lesser-included
offense of voluntary manslaughter." Id. at 278, 476 S.E.2d at
508. Bound by our decision in Turner, we affirm the trial
court's refusal to instruct the jury on voluntary manslaughter.
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B. Response to Jury Question
Morant contends that the court's response to the jury's
questions misrepresented the law, improperly usurped the fact
finding task of the jury, and effectively instructed the jury
that all strangulations are first degree murder. We disagree.
It is elemental that the trial court must "give a direct
and correct repose to an inquiry by the jury and its failure to
do so is ground for reversal." Shepperson v. Commonwealth, 19
Va. App. 586, 591, 454 S.E.2d 5, 8 (1995); accord Jimenez v.
Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991). In
this case, the jury inquired "Can 'premeditation' occur during
the act of 'killing?'" and "Does 'killing' mean the act, i.e.,
strangulation, or the moment of death?" The trial court
responded that "[I]f what you mean by that is during the act of
the strangulation, yes, as long as it's before it's completed."
In effect, the trial court told the jury that premeditation
may occur during the act that causes death, but before the
victim actually died. This instruction is consistent with
Virginia case law. It is well settled that premeditation may
arise "at the time of the murder." Beck v. Commonwealth, 2 Va.
App. 170, 176, 342 S.E.2d 642, 646 (1986); accord Clozza v.
Commonwealth, 228 Va. 124, 134, 321 S.E.2d 273, 279 (1984)
(holding that the intention to kill need not exist for any
specified length of time prior to the actual killing but may be
formed "only a moment before the fatal act is committed provided
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that the accused had time to think and did intend to kill"
(emphasis added)); Akers v. Commonwealth, 216 Va. 40, 48, 216
S.E.2d 28, 33 (1975) ("The intent to kill may spring into
existence for the first time at the time of the killing
. . . ."); Bradshaw v. Commonwealth, 174 Va. 391, 398-99, 4
S.E.2d 752, 755 (1939) (holding that premeditation may "come
into existence for the first time at the time of [the] killing
. . ." (citation omitted)).
Consistent with this rule, it is settled that a defendant's
prolonged physical effort to cause death is relevant to
determine the existence of premeditation. Lenz v. Commonwealth,
261 Va. 451, 469, 544 S.E.2d 299, 309 (2001) (holding that
defendant's act of repeatedly stabbing the victim in the chest
entitled jury to find he acted with premeditation); Whitley v.
Commonwealth, 223 Va. 66, 72, 286 S.E.2d 162, 165 (1982)
(holding that defendant had ample time to meditate because the
evidence proved that he choked his victim with his hands,
strangled her with a rope and cut her throat with a knife);
Shell v. Commonwealth, 11 Va. App. 247, 257, 397 S.E.2d 673, 679
(1990) (finding that evidence that defendant killed victim by
kicking, striking, stabbing, and tying him with wire and
electric cord sufficiently demonstrated time and opportunity for
premeditation); Beck, 2 Va. App. at 176, 342 S.E.2d at 646
(holding that defendant's prolonged effort to strangle and
suffocate victim was properly considered as evidence of
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premeditation). Therefore, it is implicit that premeditation
can occur during the act that causes death, as the trial court
properly instructed the jury.
Morant also contends that the trial court's reference to
"strangulation" rather than to "the act of killing" usurped the
jury's role as fact finder such that the court, and not the
jury, determined the cause and manner of death. See Clozza, 228
Va. at 134, 321 S.E.2d at 279 (holding that premeditation is a
jury question). We find no merit in this contention. In its
inquiry, the jury referred to the act of killing as
"strangulation." Furthermore, the only evidence of the act
resulting in the victim's death in this case was that of
strangulation, and defendant never contended otherwise. We
conclude, therefore, that the trial court did not err in its
response to the jury's question and did not improperly provide
"any suggestion in the jury instructions as to the conclusion
[to be drawn]." Terry v. Commonwealth, 5 Va. App. 167, 171, 360
S.E.2d 880, 882 (1987).
For the foregoing reasons, we affirm the conviction.
Affirmed.
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