COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
CHRISTOPHER ALLEN BURLILE
OPINION BY
v. Record No. 0162-99-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
JULY 18, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Elwood Earl Sanders, Jr., Appellate Defender
(Public Defender Commission, on briefs), for
appellant.
Pamela A. Rumpz, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Christopher Allen Burlile (appellant) was convicted in a
jury trial of, inter alia, capital murder for the willful,
deliberate, and premeditated killing of two persons within a
three-year period, in violation of Code § 18.2-31(8). On
appeal, he argues the trial court erred in refusing to instruct
the jury that the Commonwealth was required to prove that he was
the triggerman in both killings. Finding no error, we affirm.
I.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to that evidence all
reasonable inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
Appellant was charged with twelve felonies, including four
capital murder charges for the killing of Richard Harris, Jr.
(Harris) and Chakeisha Carter (Carter). Two indictments charged
appellant with capital murder, in violation of Code
§ 18.2-31(7), for the killing of more than one person as part of
the same act or transaction, and two indictments charged
appellant with capital murder, in violation of Code
§ 18.2-31(8), for the killing of more than one person within a
three-year period.
F-97-3771-RWD . . . On or about October 14,
1997, in the City of Richmond, Christopher
Allen Burlile did feloniously, unlawfully,
willfully, deliberately, and with
premeditation, kill and murder Richard
Harris Jr. while as part of the same act or
transaction, did willfully, deliberat[ely]
and with premeditation kill another.
F-97-3772-RWD . . . On or about October 15,
1997, in the City of Richmond, Christopher
Allen Burlile did feloniously, unlawfully,
willfully, deliberately, and with
premeditation, kill and murder Chakeisha
Carter while as part of the same act or
transaction, did willfully, deliberat[ely]
and with premeditation kill another.
F-98-2677-RWD . . . On or about October 14,
1997, in the City of Richmond, Christopher
Allen Burlile did feloniously, unlawfully,
willfully, deliberately, and with
premeditation kill and murder one Richard
Harris [Jr.] and within a three (3) year
period, did kill and murder another, namely:
Chakeisha Carter.
- 2 -
F-98-2676-RWD . . . On or about October 15,
1997, in the City of Richmond, Christopher
Allen Burlile did feloniously, unlawfully,
willfully, deliberately, and with
premeditation kill and murder one Chakeisha
Carter and within a three (3) year period,
did kill and murder another, namely:
Richard Harris Jr.
At trial, the evidence established that Dawn Harper,
Harris's girlfriend, saw appellant shoot Harris with a shotgun
in the evening of October 14, 1997. Later that night, appellant
and another individual broke into the Carter residence and
Chakeisha Carter was shot and killed. Carter's mother, Charlene
Carter, testified that she did not know who shot her daughter.
Carter's brother, Shea Carter, did not see the individuals
involved in the crime, but he heard two voices when they entered
the residence. Shotgun shells at the Harris murder scene
matched the shells found at the Carter residence.
At the conclusion of the evidence, defense counsel
requested the trial court to give the following jury
instruction: "To find the defendant guilty of capital murder,
you must find that he was the triggerman in two murders." The
trial court rejected defense counsel's proposed jury instruction
and, instead, instructed the jury as follows:
To find the defendant guilty of capital
murder, you must find that he was the
triggerman in at least one of the murders.
In the second murder, you may find that he
was the triggerman or a princip[al] in the
second degree.
- 3 -
Prior to jury deliberation and upon motion of both the
Commonwealth's attorney and defense counsel, the trial court
"combine[d]" indictments F-97-3771 and F-97-3772 to charge
appellant with one capital murder in violation of Code
§ 18.2-31(7) and "combine[d]" indictments F-98-2676 and
F-98-2677 to charge appellant with one capital murder in
violation of Code § 18.2-31(8). On each of the capital murder
charges, the jury found appellant guilty and recommended life
imprisonment. 1
II.
"[An appellate] 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. It is elementary that a jury must be informed as to the
essential elements of the offense; a correct statement of the
law is one of the essentials of a fair trial." Darnell v.
Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988)
(internal quotations and citations omitted). "[W]hen a
principle of law is vital to a defendant in a criminal case, a
trial court has an affirmative duty properly to instruct a jury
about the matter." Jimenez v. Commonwealth, 241 Va. 244, 250,
402 S.E.2d 678, 681 (1991).
1
Appellant's conviction for capital murder, in violation of
Code § 18.2-31(7), for the killing of more than one person as
part of the same act or transaction, is not the subject of this
appeal.
- 4 -
Appellant contends the trial court erred in refusing to
instruct the jury that, to convict appellant of capital murder
under Code § 18.2-31(8), the Commonwealth was required to prove
he was the "triggerman" in both the murders of Harris and
Carter. Thus, the narrow issue raised in this appeal is whether
Code § 18.2-31(8) requires proof that the defendant was the
triggerman in the two killings alleged. We find no such
requirement.
Code § 18.2-31(8) defines capital murder as "[t]he willful,
deliberate, and premeditated killing of more than one person
within a three-year period." Although we have not addressed the
precise issue raised by appellant, the Supreme Court addressed a
substantially similar challenge in Graham v. Commonwealth, 250
Va. 487, 464 S.E.2d 128 (1995). In Graham, the Supreme Court
considered whether Code § 18.2-31(7), which prohibits the
"willful, deliberate, and premeditated killing of more than one
person as a part of the same act or transaction," requires proof
that the defendant was the triggerman in each murder referenced
in the indictment. See id. at 492, 464 S.E.2d at 130.
The Court in Graham thoroughly reviewed the legislative
intent of the capital murder statute and stated:
The language of Code § 18.2-31(7) evidences
a legislative determination that the
described offense is qualitatively more
egregious than an isolated act of
premeditated murder. This result is
accomplished by the addition of a gradation
crime to the single act of premeditated
- 5 -
murder. Under this subsection, the
gradation crime is the defendant's killing
of more than one person as part of the same
act or transaction.
Id. at 491, 464 S.E.2d at 130.
Relying upon its decisions in Briley v. Commonwealth, 221
Va. 563, 273 S.E.2d 57 (1980), and Watkins v. Commonwealth, 229
Va. 469, 331 S.E.2d 422 (1985), the Court concluded that
Code § 18.2-31(7) does not require proof
that a defendant charged with capital
murder, in the premeditated killing of more
than one person as part of the same act or
transaction, was the triggerman in each
murder referenced in the indictment.
Rather, this section requires proof only
that the defendant was the triggerman in the
principal murder charged, and that he was at
least an accomplice in the murder of an
additional person or persons as part of the
same act or transaction.
Graham, 250 Va. at 492, 464 S.E.2d at 130 (emphasis added).
Similar to Code § 18.2-31(7), Code § 18.2-31(8) requires
the addition of a gradation crime to the single act of
premeditated murder. See id. at 491, 464 S.E.2d at 130. Under
Code § 18.2-31(8) of the capital murder statute, the gradation
or nexus crime is the killing of "more than one person within a
three-year period." Accordingly, we conclude that Code
§ 18.2-31(8) requires "proof only that the defendant was the
triggerman in the principal murder charged, and that he was at
least an accomplice in the murder of an additional person or
- 6 -
persons" within a three-year period. Graham, 250 Va. at 492,
464 S.E.2d at 130. 2
Applying these principles to the instant case, we conclude
that the trial court did not err in rejecting appellant's
proffered instruction because it contained an erroneous
statement of the law. See Woodard v. Commonwealth, 19 Va. App.
24, 28-29, 448 S.E.2d 328, 330-31 (1994). Contrary to
appellant's argument, the Commonwealth was not required to prove
that appellant was the triggerman in both killings. Rather,
Code § 18.2-31(8) requires proof that the defendant was the
triggerman "in the principal murder charged" and at least an
accomplice in another killing within a three-year period.
Although the jury instruction, as given, failed to include
the exact language from Graham, any error would be harmless.
The jury's verdict form clearly identified the principal murder
charged to be that of Richard Harris and the second murder
within three years to be that of Chakeisha Carter. 3 Furthermore,
2
Appellant's reliance on Harward v. Commonwealth, 229 Va.
363, 330 S.E.2d 89 (1985), is misplaced. In Harward, the
defendant was convicted of capital murder, in violation of former
Code § 18.2-31(e), for the willful, deliberate and premeditated
killing of a person during the commission of, or subsequent to,
rape. See id. at 364, 330 S.E.2d at 90. The Supreme Court held
that the statute "only prescribes the murder of a rape victim and
cannot be extended to include the murder of another." Id. at
367, 330 S.E.2d at 91. The Court did not consider whether a
defendant accused of the premeditated killing must also be the
immediate perpetrator of the gradation or nexus crime. See id.
3
The verdict form stated that appellant "did kill Richard
Harris, Jr., and, within a three year period, did kill Chakeisha
Carter . . . ."
- 7 -
the evidence, including the eyewitness account of Dawn Harper,
established beyond a reasonable doubt that appellant was the
triggerman in the killing of Harris. Thus, any error in failing
to include the Graham language--"in the principal murder
charged"--was harmless.
For the foregoing reasons, appellant's conviction under
Code § 18.2-31(8) is affirmed.
Affirmed.
- 8 -