Kirby v. Commonwealth

Present: All the Justices

JOHN POWHATAN KIRBY, JR.
OPINION BY
v. Record No. 020685 CHIEF JUSTICE HARRY L. CARRICO
November 1, 2002
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

The question presented by this appeal involves the

application of Code § 19.2-271.2, which deals with the

"[t]estimony of husband and wife in criminal cases." The appeal

results from the trial of a two-count indictment returned

against the defendant, John Powhatan Kirby, Jr., in the Circuit

Court of Campbell County.

In Count 1 of the indictment, the defendant was charged

with unlawfully and feloniously discharging "a firearm within a

building when occupied by one or more persons whereby their

lives or life were put in peril," in violation of Code § 18.2-

279. 1 In Count 2, the defendant was charged with unlawfully and

feloniously possessing "a firearm after having been convicted of

a felony," in violation of Code § 18.2-308.2. 2

1
In pertinent part, Code § 18.2-279 provides that if any
person unlawfully discharges a firearm within any building when
occupied by one or more persons in such a manner as to endanger
the life or lives of such person or persons, the person so
offending shall be guilty of a Class 6 felony.
2
In pertinent part, Code § 18.2-308.2 provides that it
shall be unlawful for any person who has been convicted of a
felony to knowingly and intentionally possess any firearm.
 Under Count 1, the trial court, sitting without a jury,

convicted the defendant of the reduced charge of reckless

handling of a firearm in violation of Code § 18.2-56.1 3 and

sentenced him to serve twelve months in jail, suspended. Under

Count 2, the court convicted the defendant of possessing a

firearm after having been convicted of a felony and sentenced

him to serve five years in the penitentiary.

The defendant appealed his convictions to the Court of

Appeals of Virginia, and that court affirmed. We awarded the

defendant this appeal.

The evidence shows that the defendant and his wife, Lisa

Kirby, lived in a small home in Altavista, with one bedroom, a

living room, and a kitchen on the first floor. On the morning

of September 1, 2000, the defendant and Lisa were alone in their

home. He was in an intoxicated condition, and he became angry

and "kept wanting [Lisa] to explain this piece of paper that he

found." He told Lisa "[o]ver and over" that this was "the day

[she] was going to die" and that she should "get [her] soul

right with the Lord."

Lisa owned a .22 caliber pistol that was ordinarily kept

either in the drawer or on the top of a nightstand in the

bedroom. At one point during the morning of September 1, the

3
In pertinent part, Code § 18.2-56.1 provides that it shall
be unlawful for any person to handle recklessly any firearm so

2
defendant was on a bed in the bedroom and Lisa was seated on a

sofa in the living room. From her position on the sofa, Lisa

could see the foot of the bed through an archway in the wall

separating the living room from the bedroom. She heard two

shots coming from the bedroom. "[A]s it turned out," the

bullets "didn't come close" to Lisa, but she "didn't know that

then." She grabbed her keys, went out the side door of the

house, got into her truck, and fled.

Lisa reported the incident to the Altavista police

department. The investigating officer, a state-certified

firearm instructor, found a .22 caliber pistol in the top drawer

of a chest of drawers in the bedroom. He also found two bullet

holes in the bedroom floor near the nightstand, along with two

.22 caliber slugs that were embedded in the floor. The holes

were located one foot from the bed and fifteen feet, nine inches

from where Lisa was sitting in the living room when the shots

were fired. Asked to categorize the firing of the gun "safety-

wise" under the circumstances existing in the Kirby home at the

time in question, the officer stated that it was "[n]ot safe at

all," that a lightweight projectile like a .22 caliber

projectile traveling at a high velocity and striking a "medium

with any density whatsoever would be more likely to have a

deflection."

as to endanger the life, limb, or property of any person.

3
 Lisa testified that, after the incident, the defendant

apologized for having scared her. According to Lisa, the

defendant stated that "he didn't mean to do it, he didn't know

what he was doing."

Code § 19.2-271.2 provides in pertinent part as follows:

In criminal cases husband and wife shall be allowed, and,
subject to the rules of evidence governing other witnesses
. . ., may be compelled to testify in behalf of each other,
but neither shall be compelled to be called as a witness
against the other, except (i) in the case of a prosecution
for an offense committed by one against the other . . . .

In the prosecution for a criminal offense as set forth
in (i) . . . above, each shall be a competent witness
except as to privileged communications.

The sole assignment of error in this case states as

follows:

The Court of Appeals erred when it held the trial court
properly admitted without limitation the testimony of Lisa
Kirby, spouse of John Kirby, when the witness was compelled
to testify over defendant's objection pursuant to §19.2-
271.2 of the Code of Virginia 1950, as amended and where
the indictment for neither offense mentioned Lisa Kirby
specifically as a victim.

Under this assignment of error, the defendant presents

three arguments, (1) the evidence was insufficient to show that

the prosecution in this case was for offenses committed by the

defendant against Lisa Kirby and, therefore, she could not be

compelled to testify against him, (2) the indictment failed to

name Lisa as a victim of either offense, and (3) the statements

of the defendant that were admitted at trial, especially the

4
statements regarding his apology to Lisa, were "privileged

communications" within the meaning of the final clause of Code

§ 19.2-271.2 and thus inadmissible.

In our opinion, the assignment of error properly

encompasses the defendant's argument regarding the sufficiency

of the evidence to show that the prosecution in this case was

for offenses committed by the defendant against Lisa. We are

also of opinion that this argument was properly preserved below.

However, with respect to the argument concerning the

failure of the indictment to name Lisa as a victim, although the

assignment of error properly encompasses the argument, the first

time the argument is ever mentioned in the case is in the

petition for appeal the defendant filed in the Court of Appeals.

As the Attorney General correctly states on brief: "Kirby never

objected to the wording of the indictments at trial. Rather,

his objection to [Lisa's] testimony went to whether the evidence

would show that the offenses were committed against her."

Hence, the argument concerning the wording of the indictment was

not properly preserved for appeal, and we will not consider it

further. Rule 5:25.

Finally, with respect to the argument regarding "privileged

communications," the assignment of error does not properly

encompass the argument. "The purpose of assignments of error is

to point out the errors with reasonable certainty in order to

5
direct this court and opposing counsel to the points on which

appellant intends to ask a reversal of the judgment . . . ."

Yeatts v. Murray, 249 Va. 285, 290, 455 S.E.2d 18, 21 (1995)

(internal quotation marks omitted); "counsel, in . . .

assignments of error in this court, should . . . lay his finger

on the error." First National Bank of Richmond v. William R.

Trigg Co., 106 Va. 327, 342, 56 S.E. 158, 163 (1907) (internal

quotation marks omitted). Here, counsel did not "lay his finger

on the error"; under no reasonable reading can the assignment of

error possibly direct this Court or opposing counsel to an

understanding that the defendant intends to ask reversal on an

alleged violation of the statute prohibiting the disclosure of

privileged communications between husband and wife. Hence, we

will not notice the defendant's argument on the subject. Rule

5:17(c).

Concerning the one question properly encompassed in the

assignment of error and properly preserved for appeal, i.e.,

whether the evidence was sufficient to show that the prosecution

in this case was for offenses committed by the defendant against

Lisa, it is not disputed that the defendant discharged a firearm

within the parties' home and that the home was occupied by one

or more persons. The focus of the inquiry turns, therefore, to

the portion of Code § 18.2-279 requiring a showing that the life

6
or lives of such person or persons "may be put in peril" by the

discharge of a firearm.

The defendant says there was no showing that the discharge

of the firearm may have put Lisa's life in peril and, therefore,

he did not commit an offense against her, because "nothing

actually happened to [her]," she "was not struck by a bullet,"

and there was "no evidence presented that the bullets were

specifically fired in her direction." However, the evidence

showed that on the occasion in question the defendant was

intoxicated, he was angry, and he repeatedly told Lisa "today

was the day [she] was going to die." He followed up this

threatening language by firing two shots from the bedroom within

a relatively short distance from where Lisa was seated in plain

view on a sofa in the living room.

It was not necessary for the Commonwealth to show that

something "actually happened to Lisa," or that she was "struck

by a bullet," or that "the bullets were specifically fired in

her direction." All the Commonwealth was required to show was

that the discharge of the firearm may have put Lisa's life in

peril. This requirement was fully met with the evidence just

recited, coupled with the testimony of the investigating police

officer that it was "[n]ot safe at all" to discharge a firearm

"within a house [with] somebody seated approximately fifteen

feet away." Clearly, therefore, the discharge of a firearm

7
under the circumstances of this case is an offense by one

spouse against the other.

The defendant argues, however, that in no event can his

conviction under Code § 18.2-308.2 for possession of a firearm

by a felon be considered an offense by one spouse against the

other. The defendant says the Code section is essentially a

regulatory statute designed to prohibit a particular group from

having ready access to firearms, and the General Assembly

"clearly intended the protection [against spousal testimony] to

encompass a spouse's knowledge of regulatory type crimes such as

possession of a firearm by a convicted felon." In short,

according to the defendant, possession of a firearm by a

convicted felon is a victimless crime.

We disagree with the defendant. We are of opinion that

where one spouse is charged with an offense against the other

and with an offense involving the violation of a statute

regulating some conduct involved in the first offense (e.g., one

spouse possessing a firearm as a convicted felon and discharging

the same firearm to the peril of the other spouse), the

endangered spouse can testify against the offending spouse in

the prosecution of both charges. See Brown v. Commonwealth, 223

Va. 601, 608, 292 S.E.2d 319, 323 (1982) (where one spouse is

indicted for offense against the other and for an offense

against a third party and both offenses arose from a common

8
criminal enterprise, the one spouse can testify against the

other in prosecution of both charges).

The parties debate whether Lisa testified against the

defendant voluntarily or under compulsion. If she was compelled

to testify, a proposition we will assume for purposes of

discussion, then the compulsion was proper because the

prosecution was for offenses committed by one spouse against the

other. Accordingly, the Court of Appeals did not err when it

held the trial court properly admitted Lisa's testimony, and we

will affirm the judgment of the Court of Appeals.

Affirmed. 4

4
The defendant cites Creech v. Commonwealth, 242 Va. 385,
387, 410 S.E.2d 650, 652 (1991), for the proposition that the
offense-against-spouse exception to Code § 19.2-271.2 does not
apply to his case. However, in Creech, the defendant's wife was
improperly permitted to testify against her husband where the
indictment charged him with arson in the burning of his own
house. Hence, the case is inapposite.

9