COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Richmond, Virginia
CARLTON WILLIAM ARNOLD
OPINION BY
v. Record No. 0143-01-2 JUDGE ROBERT J. HUMPHREYS
MARCH 26, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Francis C. Terwilliger for appellant.
Stephen R. McCullough, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Carlton William Arnold appeals his conviction, after a jury
trial, for second degree murder. Arnold contends that the trial
court erred in: 1) refusing to instruct the jury that duress
could be considered in determining whether the Commonwealth had
proven the elements of murder; 2) refusing to instruct the jury
that heat of passion negated the element of malice when there was
evidence of duress; and 3) in refusing to instruct the jury on
manslaughter. For the reasons that follow, we affirm the
conviction.
I. Background
During the early morning hours of September 22, 1998, a gas
station convenience store clerk, Osama Hassan, was shot ten times
with a pistol and killed. A cash register was taken from the
store which contained $100.03.
An investigation conducted by the Charlottesville Police
Department led officers to question Arnold about the murder and
robbery. During the questioning, Arnold volunteered information
about the gas station robbery and admitted that he had shot
Hassan.
Arnold was charged with robbery, first degree murder,
burglary and two firearm charges. Due to his mild mental
retardation, Arnold was given a competency evaluation and found
competent to stand trial.
At trial, Arnold testified that on the night of the robbery,
he had been drinking alcohol and smoking marijuana with friends.
He later agreed to ride around with two of the friends, Isaac
Shelton Brown and Dylan Tyree. Arnold stated that after pulling
into a parking lot near a gas station, Tyree demanded that Arnold
do a "favor" for him - specifically, that Arnold rob and kill the
store clerk at the gas station. Arnold claimed that he refused
and tried to get out of the car, but Tyree "threw a gun" in his
face and threatened to kill him unless he complied with his
demands.
Tyree and Brown then took Arnold to the back of the store and
dressed him in a disguise, covering his head, arms and hands.
Arnold stated that they again told him that if he did not comply
with their demands, they would leave him there, dead. Tyree and
- 2 -
Brown gave Arnold a .22 caliber semi-automatic pistol. Arnold
claimed that Tyree also had a large caliber revolver. Tyree and
Brown then watched Arnold as he approached Hassan, who was sitting
in a chair on the front porch of the store. Tyree ordered him to
shoot, and Arnold shot Hassan ten times within one to two seconds.
Arnold stated he then took the cash box and ran.
At that point, Tyree took the gun from him and they left in
the car. Arnold claimed that Tyree again threatened to kill him
if he told anyone about the shooting. Arnold testified that
Tyree had shot at him on a separate occasion for losing stolen
watches he was trying to sell for Tyree.
A psychiatrist for the defense testified that Arnold is
mentally retarded and that, although he had been promoted at
school, he had been a part of the special education curriculum
since he was seven years old. Because of his condition, Arnold
often attempted to please persons in authority, and had
difficulty with solving complex problems and in determining
alternative courses of action. The psychiatrist also testified
that Arnold would often "believe[] threats he [had] heard."
At the close of the evidence, Arnold requested that the jury
be instructed as follows:
Duress is not a defense to the charge of
murder. However, you may consider evidence
of duress, together with all other evidence
in the case, in determining whether or not
the Commonwealth has proven all the elements
of murder beyond a reasonable doubt.
- 3 -
The Commonwealth objected to the duress instruction on the murder
charge.
Arnold next requested that the jury be instructed on heat of
passion, arguing there was heat of passion because Arnold was in
"terror" or "fear" of Tyree. Finally, Arnold requested that the
court instruct the jury on voluntary manslaughter. The court
denied Arnold's requests, holding that duress is not a defense to
murder, nor its "selective elements," and that "there was no
provocation other than from insulting words and threats . . . ."
After retiring for deliberation, the jury returned with two
questions: 1) "If we find that the defendant acted under duress,
is it still possible to find him guilty of first degree murder?"
and 2) "Does the elimination of the robbery charge by finding him
not guilty by reason of duress not allow us to consider the third
element for a first degree murder conviction?" 1 After hearing
argument, the trial court responded, "[y]es," to the first
question and, "[n]o, you may consider it," to the second question.
Thereafter, the jury returned its verdict, finding Arnold guilty
of second degree murder and acquitting him of the remaining
charges.
1
The third element referred to by the jury was whether "the
killing occurred in the commission or attempted commission of
robbery, or that said killing was willful, deliberate and
premeditated."
- 4 -
II. Analysis
On appeal, Arnold first argues that the trial court erred in
refusing to provide the jury with his proffered instruction
concerning duress. We disagree.
"A reviewing court's responsibility in reviewing jury
instructions is 'to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.'" 2 "A defendant is entitled to have the jury instructed
only on those theories of the case that are supported by
evidence. The evidence to support an instruction 'must be more
than a scintilla.'" 3 "[F]or purposes of resolving the issue of
the trial court's jury instruction, we are concerned with
[appellant's] version of the events surrounding the crime[] and
not a determination of its truthfulness." 4 However, "[a] jury
instruction, even though correctly stating the law, should not
be given if it is not applicable to the facts in evidence." 5
2
Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d
717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 503,
290 S.E.2d 856, 858 (1982)).
3
Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267,
280 (1986) (quoting LaVasseur v. Commonwealth, 225 Va. 564, 581,
304 S.E.2d 644, 653 (1983), cert. denied 464 U.S. 1063 (1984))
(other citations omitted).
4
Sam v. Commonwealth, 13 Va. App. 312, 322, 411 S.E.2d 832,
837 (1991).
5
Bolyard v. Commonwealth, 11 Va. App. 274, 277, 397 S.E.2d
894, 896 (1990).
- 5 -
"Duress excuses criminal behavior 'where the defendant shows
that the acts were the product of threats inducing a reasonable
fear of immediate death or serious bodily injury.'"6
"The rationale of the defense of duress is
that, for reasons of social policy, it is
better that the defendant, faced with a
choice of evils, choose to do the lesser
evil (violate the criminal law) in order to
avoid the greater evil threatened by the
other person." Thus, a person subject to
duress may justifiably violate the literal
language of the criminal law in order to
avoid a harm of greater magnitude. 7
"Where it is properly shown, duress is a complete defense to a
crime." 8 "[However,] [i]t is this balancing of harms that
generally precludes the use of duress as a defense to murder." 9
"An exception to the rule that duress is not available as a
defense to murder is in felony murder cases, where one
confederate is held responsible for a killing committed by his
co-actor during the commission of the underlying felony." 10
Here, there was no evidence that a co-actor committed the
murder. Thus, Arnold was not entitled to the duress instruction
on the murder charge. Further, the defense of duress "[i]s not
6
Graham v. Commonwealth, 31 Va. App. 662, 674, 525 S.E.2d
567, 573 (2000) (quoting Pancoast v. Commonwealth, 2 Va. App.
28, 33, 340 S.E.2d 833, 836 (1986)).
7
Sam, 13 Va. App. at 323, 411 S.E.2d at 838 (quoting 1 W.
LaFave & A. Scott, Substantive Criminal Law 614 (1986)).
8
Pancoast, 2 Va. App. at 33, 340 S.E.2d at 836.
9
Pugliese v. Commonwealth, 16 Va. App. 82, 95, 428 S.E.2d
16, 26 (1993).
10
Id.
- 6 -
available to negate only selected elements, as urged by
appellant. Such an argument misconceives the nature of the
defense." 11
"The rationale of the defense is not that
the defendant, faced with the unnerving
threat of harm unless he does an act which
violates the literal language of the
criminal law, somehow loses his mental
capacity to commit the crime in question.
Rather, it is that, even though he has the
mental state which the crime requires, his
conduct which violates the literal language
of the criminal law is justified because he
has thereby avoided a harm of greater
magnitude." 12
Accordingly, we find no error in the trial court's decision to
refuse the instruction.
Arnold next argues that the trial court erred in refusing to
instruct the jury that heat of passion negated the element of
malice, when the evidence demonstrated that Arnold was in "terror"
or "in fear for his life" at the time he shot Hassan. Again, we
13
disagree.
11
Pancoast, 2 Va. App. at 33, 340 S.E.2d at 836.
12
Id. (quoting W. LaFave & A. Scott, Criminal Law 374 (3d
ed. 1983).
13
Neither the voluntary manslaughter instruction nor the
heat of passion instruction were made a part of the record.
Although Rule 5A:7(a)(2) states that the record on appeal from
the trial court must include "each instruction marked 'given' or
'refused' and initialed by the judge," the record in this case
contains no explanation why the trial judge did not make the
refused instructions a part of this record. Indeed, the
Commonwealth does not contend that this fact precludes Arnold's
appeal on the instructions. Further, "[t]he purpose of [Rule
5A:18] is to allow the trial court to cure any error called to
its attention, thereby avoiding unnecessary appeals and
- 7 -
"Every malicious homicide is murder." 14 However, a homicide
is reduced from murder to voluntary manslaughter if the
defendant acted "in the heat of passion and upon reasonable
provocation." 15 "Heat of passion is determined by the nature and
degree of the provocation, and may be founded upon rage, fear,
or a combination of both." 16 While it is true that "[m]alice and
heat of passion are mutually exclusive," 17 we have held that
where it is not the victim of the crime who invoked the
defendant's heat of passion, there was no evidence to support a
finding of heat of passion. 18 Thus, since there was no evidence
that Hassan, the victim, committed any action invoking fear
and/or rage in Arnold, we find no error in the trial court's
refusal of the instruction.
retrials." Herring v. Herring, 33 Va. App. 281, 286, 532 S.E.2d
923, 926 (2000) (citation omitted). Here, the colloquy between
defense counsel and the trial judge adequately satisfied the
purpose of Rule 5A:18. The trial judge knew of the instruction
and had the issues and arguments before him so that he could
make an informed decision. Thus, the lack of the precise
written instruction in the record before us does not engender a
situation where the rationale of Rule 5A:18 applies.
14
Barrett v. Commonwealth, 231 Va. 102, 105, 341 S.E.2d
190, 192 (1986).
15
Id. at 105-06, 341 S.E.2d at 192.
16
Id. at 106, 341 S.E.2d at 192.
17
Id.
18
Peeples v. Commonwealth, 30 Va. App. 626, 634-35, 519
S.E.2d 382, 386 (1999).
- 8 -
Arnold also contends the trial court erred in refusing to
provide the jury with his proffered instruction of manslaughter,
as well as a corresponding verdict form. We disagree.
As stated above, "[t]o reduce a homicide from murder to
voluntary manslaughter, the killing must have been done in the
heat of passion and upon reasonable provocation." 19 Here, it is
clear from the evidence that Hassan neither provoked Arnold, nor
engaged him in mutual combat. Instead, Arnold argues that
because Tyree and Brown placed him in a state of fear, the jury
could have found that he acted out of "fear for his life"
instead of "malice."
"Malice aforethought" implies a mind under
the sway of reason, whereas "passion" whilst
it does not imply a dethronement of reason,
yet is the furor brevis, which renders a man
deaf to the voice of reason; so that,
although the act was intentional of death,
it was not the result of malignity of heart,
but imputable to human infirmity. Passion
and malice are, therefore, inconsistent
motive powers, and hence an act which
proceeds from the one, cannot also proceed
from the other. 20
Arnold contends that because he feared for his life, he acted
out of a sense of self-preservation. Thus, although he may have
been in fear, Arnold's own testimony established that he made
the conscious choice to kill Hassan, rather than risk injury to
19
Barrett, 231 Va. at 105-06, 341 S.E.2d at 192.
20
Hannah v. Commonwealth, 153 Va. 863, 870, 149 S.E. 419,
421 (1929).
- 9 -
himself. Accordingly, the circumstances in evidence clearly
proved a malicious act, with no suggestion of the provocation or
passion necessary to support an instruction on voluntary
manslaughter.
Moreover, Arnold's claim that his deficient mental capacity
and alleged intoxication negated his ability to reason is of no
consequence. Evidence of a criminal defendant's mental state at
the time of the offense is, in the absence of an insanity
defense, irrelevant to the issue of guilt. 21 Further, voluntary
intoxication is not an excuse for any crime. At most, it may
negate the deliberation and premeditation required for first
degree murder. 22 We further note that, despite Arnold's
persistent attempts to provide the jury with an instruction
negating the element of malice, the jury had the option of
finding Arnold acted without malice by finding him not guilty of
either first or second degree murder.
Finally, although Arnold correctly asserts that the trial
court erred in finding there was no evidence Arnold was
confronted with overt threats by Tyree and Brown, given the
above discussion, we find that the error was harmless. 23
21
See Stamper v. Commonwealth, 228 Va. 707, 717, 324 S.E.2d
682, 688 (1985).
22
See Downing v. Commonwealth, 26 Va. App. 717, 721, 496
S.E.2d 164, 166 (1998).
23
See Davies v. Commonwealth, 15 Va. App. 350, 353, 423
S.E.2d 839, 840 (1992) (noting that an error is harmless "'if a
reviewing court can conclude, without usurping the jury's fact
- 10 -
Therefore, we find no error in the trial court's refusal to
offer the voluntary manslaughter instruction, nor to offer the
jury a corresponding verdict form.
Affirmed.
finding function, that, had the error not occurred, the verdict
would have been the same'" (quoting Lavinder v. Commonwealth, 12
Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc))).
- 11 -