COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Richmond, Virginia
DION RANDOLPH WILLIS
OPINION BY
v. Record No. 2970-00-2 JUDGE RUDOLPH BUMGARDNER, III
DECEMBER 18, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Gregory W. Franklin, Assistant Public
Defender (Office of the Public Defender, on
briefs), for appellant.
Susan M. Harris, Assistant Attorney General
(Randolph A. Beales, Acting Attorney General,
on brief), for appellee.
A jury convicted Dion Randolph Willis of first degree
murder and use of a firearm in the commission of a felony. On
appeal, he contends the trial court (1) violated his statutory
right to a speedy trial and (2) erred in refusing to instruct on
second degree murder and voluntary manslaughter. Finding no
error, we affirm.
The defendant contends the trial court violated his
statutory right to a speedy trial when it tried him more than
five months after a preliminary hearing by the juvenile and
domestic relations district court. The proceedings against the
defendant, a juvenile, began with his detention on juvenile
petitions charging murder and use of a firearm in the commission
of a felony. The juvenile court found probable cause and
transferred the charges to the circuit court where a grand jury
indicted. However, the defendant filed a motion entitled
"Motion to Clarify Jurisdiction" asserting the circuit court
lacked jurisdiction under Code § 16.1-271. 1 That section
provides that conviction as an adult in circuit court precludes
a juvenile court from exercising jurisdiction over the juvenile
for subsequent offenses. See Broadnax v. Commonwealth, 24 Va.
App. 808, 485 S.E.2d 666 (1997). In this case, the circuit
court had convicted the defendant as an adult of maiming in
1998.
Code § 16.1-269.6(C) 2 directs the circuit court to enter an
order divesting the juvenile court of jurisdiction over future
criminal acts upon convicting a juvenile as an adult. The order
1
Code § 16.1-271, entitled "Subsequent offenses by
juvenile," provides in part:
The trial . . . of a juvenile as an
adult . . . shall preclude the juvenile
court from taking jurisdiction of such
juvenile for subsequent offenses committed
by that juvenile.
Any juvenile who is tried and convicted
in a circuit court as an adult . . . shall
be considered and treated as an adult in any
criminal proceeding resulting from any
alleged future criminal acts . . . .
2
Once a juvenile is convicted as an adult, Code
§ 16.1-269.6(C) mandates "that the circuit court shall issue an
order terminating the juvenile court's jurisdiction over that
juvenile with respect to any [of his] future criminal acts
. . . ."
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of conviction in 1998 omitted that required provision, so the
trial court entered an order nunc pro tunc to August 11, 1998,
terminating jurisdiction by the juvenile court over the
defendant. In a separate order, the circuit court remanded the
charges pending against the defendant to the general district
court for an expedited preliminary hearing.
Warrants charging murder and use of a firearm were issued.
The general district court held a preliminary hearing and
certified both charges on May 25, 2000, and a grand jury
returned new indictments. The trial commenced within five
months of that preliminary hearing but more than five months
after the preliminary hearing on the juvenile petitions. The
defendant was in custody continuously. The trial court
overruled the defendant's motion to dismiss the indictments for
violating his right to a speedy trial under Code § 19.2-243, and
a jury convicted him of the charges.
Under Code § 16.1-271, once a juvenile is tried and
convicted as an adult, the juvenile court is precluded from
taking jurisdiction over the defendant regarding any alleged
future criminal acts. This directive is mandatory. Broadnax,
24 Va. App. at 815, 485 S.E.2d at 669. The juvenile court never
wielded jurisdiction over the defendant, and the circuit court
could derive no jurisdiction from it.
The lack of jurisdiction in the juvenile court under Code
§ 16.1-271 is not dependent upon entry of an order as mandated
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in Code § 16.1-269.6(C). The failure to include the provision
in the 1998 order was properly corrected by an order nunc pro
tunc. A circuit court has no discretion over the matter, and
the action of the trial court accomplished a ministerial duty
that corrected a clerical oversight. Harris v. Commonwealth,
222 Va. 205, 209, 279 S.E.2d 395, 398 (1981). The order entered
nunc pro tunc properly corrected the record of the earlier
proceeding.
The first indictments were without effect because the
juvenile court lacked authority to certify the charges made in
the original petitions. The criminal warrants heard in the
general district court supplanted the original charges, and the
indictments returned on their certification supplanted the
earlier indictments. Brooks v. Peyton, 210 Va. 318, 322, 171
S.E.2d 243, 246 (1969). The speedy trial period commenced with
the preliminary hearing on the second indictments. Code
§ 19.2-243. The defendant’s jury trial on September 18, 2000
commenced within the statutory period.
Next, we consider whether the trial court erred in refusing
to instruct on second degree murder and voluntary manslaughter.
We view the evidence in the light most favorable to the
defendant's theory of the case. Hunt v. Commonwealth, 25 Va.
App. 395, 400, 488 S.E.2d 672, 674 (1997). Only the
Commonwealth presented evidence.
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The defendant and the victim got into a scuffle over a
bracelet during a party in an apartment. The victim choked the
defendant and threatened to kill him. Two companions eventually
broke up the unarmed fight. After they did so, the victim made
no more threats, did not go after the defendant, and went into
the kitchen. As the defendant left the apartment, he said that
he would be back and, "I'm going to kill him." One witness said
the defendant was mad and "was like watch. You know what I'm
saying. Boom, like that. You know what I'm saying?" The
defendant went outside the building, retrieved a gun from a
trashcan, and returned. He shot the victim five times.
"The difference between murder in the first and second
degree depends upon the intent of the accused at the time of the
killing. Every malicious homicide is murder. If in addition
the killing be wilful, deliberate, and premeditated, it is
murder in the first degree." Pannill v. Commonwealth, 185 Va.
244, 255, 38 S.E.2d 457, 463 (1946) (citation omitted).
The record contains no evidence that the defendant acted
other than with premeditation and a deliberate intent to kill.
Friends broke up an unarmed tussle between the defendant and the
victim. The defendant announced that he would return and kill
the victim. He left, and once outside the apartment, he
retrieved a gun and returned. The defendant went to the kitchen
and shot the victim repeatedly. No evidence suggests the victim
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was armed or had threatened the defendant immediately before the
shooting.
A "defendant is not entitled to a lesser degree instruction
solely because the case is one of murder." Clark v.
Commonwealth, 220 Va. 201, 209, 257 S.E.2d 784, 789 (1979)
(citation omitted). A second degree murder instruction is only
appropriate where evidence supports it, and that evidence "must
amount to more than a scintilla." Justus v. Commonwealth, 222
Va. 667, 678, 283 S.E.2d 905, 911 (1981) (citing Hatcher v.
Commonwealth, 218 Va. 811, 814, 241 S.E.2d 756, 758 (1978)).
Heat of passion can reduce a homicide to voluntary
manslaughter.
"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.
Hannah v. Commonwealth, 153 Va. 863, 870, 149 S.E. 419, 421
(1929).
The defendant announced his intention to return and kill
the victim. He left, armed, and returned to consummate his
stated intention. His actions were those of a rational person
whose mind was under the control of reason. He announced his
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intention and then proceeded to accomplish it. The evidence
reflects he had time to think; it does not indicate he felt
provoked, shot without thinking, or killed in anger. No
evidence suggests the defendant was reasonably provoked or acted
in the heat of passion. Barrett v. Commonwealth, 231 Va. 102,
105-06, 341 S.E.2d 190, 192 (1986).
We conclude the trial court properly refused to instruct on
second degree murder and voluntary manslaughter. The
uncontroverted evidence shows the defendant intended to kill,
prepared to do so, and acted on his pronouncement. His conduct
shows willful, deliberate, and premeditated action under the
control of reason. A witness characterized the defendant as
"mad" as was the defendant in Buchanan v. Commonwealth, 238 Va.
389, 384 S.E.2d 757 (1989). As in that case, the evidence
showing the murder "'to have been deliberate, premeditated and
wilful could be so clear and uncontroverted that a trial court
could properly refuse to instruct on the lesser included
offenses.'" Id. at 409, 384 S.E.2d at 769 (quoting Painter v.
Commonwealth, 210 Va. 360, 366, 171 S.E.2d 166, 171 (1969)).
We conclude the trial court did not deny the defendant a
speedy trial or err in instructing the jury. Accordingly, we
affirm the defendant's convictions.
Affirmed.
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