Calvin Lee Bland v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia
CALVIN LEE BLAND
v. Record No. 2065-94-1 MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA DECEMBER 12, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
George B. Pavek III, for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Following a jury trial on August 22, 1994, the appellant,
Calvin Lee Bland ("Bland"), was convicted of second degree murder
and the use of a firearm in the commission of a felony. He was
thereafter sentenced to forty years imprisonment for the murder
and three years for the firearm offense. On appeal, Bland argues
(1) that the evidence was insufficient to convict him of second
degree murder; and (2) that the trial court erred, failing to
instruct the jury on the elements of involuntary manslaughter.
Bland contends for the first time on appeal that his
conviction was contrary to the evidence. Bland failed to move
the trial court to strike the evidence either after the
Commonwealth concluded its case or after Bland concluded his, nor
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
did Bland move the court to set aside the verdict. Accordingly,
Bland is barred from raising his sufficiency of evidence claim on
appeal. See Parnell v. Commonwealth, 15 Va. App. 342, 349, 423
S.E.2d 834, 838-39 (1992); McQuinn v. Commonwealth, 20 Va. App.
753, 755, 460 S.E.2d 624, 625 (1995).
Furthermore, Bland failed to object to the instruction of
the court which omitted involuntary manslaughter as an
alternative finding the jury could make. Rule 5A:18 bars this
Court from reviewing objections which a party fails to make on
time, when the occasion arises. Marlowe v. Commonwealth, 2 Va.
App. 619, 621, 347 S.E.2d 167, 168 (1986).
Bland urges the Court to apply the ends of justice exception
to Rule 5A:18 and to consider the issue on appeal despite his
failure to object. However, the "ends of justice" exception to
Rule 5A:18 applies only when the record "affirmatively shows that
a miscarriage of justice has occurred, not when it merely shows
that a miscarriage might have occurred." Mounce v. Commonwealth,
4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987).
Here, the jury was properly instructed that malice is the
state of mind which results in the intentional doing of a
wrongful act to another without justification and that malice can
be inferred from the deliberate use of a deadly weapon. The
evidence is undisputed that Bland shot an unarmed man from close
range with a high caliber weapon after which he fled the scene
and hid the murder weapon. As such, even if failing to give an
- 2 -
involuntary manslaughter instruction was erroneous, the record
does not affirmatively show that a miscarriage of justice
occurred. The evidence was sufficient to convict Bland of second
degree murder beyond a reasonable doubt.
Accordingly, Bland's convictions are affirmed.
Affirmed.
- 3 -