COURT OF APPEALS OF VIRGINIA
Present: Judge Annunziata, Senior Judges Cole and Baker *
Argued at Richmond, Virginia
RUSSELL ERIN GRAY
OPINION BY
v. Record No. 3017-96-2 JUDGE MARVIN F. COLE
AUGUST 18, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
John F. Daffron, Jr., Judge
Joseph D. Morrissey (Morrissey, Hershner &
Jacobs, on brief), for appellant.
Richard B. Smith, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Appellant, Russell Erin Gray, was tried by a jury upon
indictments charging him with the murder of Matthew Shuster and
the use of a firearm in the commission of murder. 1 At the
conclusion of the guilt phase of appellant's bifurcated trial,
the jury found appellant guilty of involuntary manslaughter of
Shuster and use of a firearm in the commission of murder of
Shuster. The jury's sentencing verdict recommended twelve months
imprisonment for the involuntary manslaughter conviction and
three years incarceration for the firearm offense.
*
Judge Baker participated in the hearing and decision of
this case prior to the effective date of his retirement on July
31, 1998 and thereafter by his designation as senior judge
pursuant to Code § 17-116.01.
1
Appellant also was tried upon indictments charging him with
the malicious wounding of Margaret Keel and the use of a firearm
in the commission of malicious wounding. The jury acquitted
appellant of these offenses.
On appeal, appellant contends the trial court erred in
refusing to instruct the jury, while it was deliberating during
the sentencing phase, that if it acquitted him of murder, it
should find him not guilty of the use of a firearm in the
commission of murder. We disagree and affirm appellant's
convictions.
FACTS
At the guilt phase, the trial court instructed the jury
that, as to Shuster, it could acquit appellant or find him guilty
of first degree murder, second degree murder, voluntary
manslaughter, involuntary manslaughter, or assault and battery.
Without objection from appellant, the trial court gave
Instruction 14, which stated as follows:
The defendant is charged with the crime
of using or displaying in a threatening
manner a firearm while committing the murder
of Matthew Shuster. The Commonwealth must
prove beyond a reasonable doubt each of the
following elements of the crime:
(1) That the defendant used a firearm;
and
(2) That the use was while committing
the murder of Matthew Shuster.
* * * * * * *
If you find the Commonwealth has failed
to prove beyond a reasonable doubt either
element of the offense, then you shall find
the defendant not guilty.
Upon these instructions, the jury returned inconsistent verdicts
of guilt for involuntary manslaughter and the use of a firearm in
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the commission of murder. The trial court denied appellant's
motion to set aside the verdicts due to their inconsistency.
During argument to the jury at the sentencing phase, defense
counsel told the jury it had made a "tragic error" which it could
correct by reconsidering its finding of guilt on the firearm
offense and refusing to sign the verdict form to impose the
mandatory three-year sentence for that crime. After
deliberating, the jury foreperson indicated that the jury had
reached a sentencing verdict as to involuntary manslaughter.
However, the jury returned unsigned the verdict form on the
firearm offense because the jury could not reach a unanimous
decision. The trial court then stated,
Is it the decision of the jury that you wish
to reconsider your verdict on the firearms
charge? I am going to instruct the jury, if
you find the defendant guilty of possession
of [a] firearm, you must impose a three-year
sentence.
I will also tell the jury that until you
leave the courtroom and you are discharged,
that you may have the right and I don't say
this legally, but in an informal way, to
change your mind on a decision.
The court advised the jurors that it intended to send them back
to the jury room to reconsider their verdicts in light of all the
instructions previously given. The court further stated as
follows:
If it is your decision to unanimously
find the defendant guilty of use of a firearm
in the commission of the murder and that is
your unanimous verdict, then you must impose
the three-year sentence for that charge.
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If it is not your unanimous decision,
then you should tell me by way of the verdict
form, either that you find the defendant not
guilty of that offense, that you cannot come
to a decision on that offense or that you
reaffirm your verdict.
The court advised the jury that it could reconsider its decision
on guilt or innocence and sent the jury to deliberate.
During the subsequent deliberations, defense counsel
requested the following cautionary instruction: "If you acquit
the defendant of murder, then you should find him not guilty of
use of a firearm in the commission of murder." The court refused
to instruct the jury further. The jury later returned a verdict
imposing sentences for both convictions. When polled, each juror
indicated agreement with the verdicts.
ANALYSIS
The sole question presented in appellant's petition for
appeal was whether the trial court erred in refusing appellant's
proposed cautionary instruction at the sentencing phase.
Therefore, the trial court's ruling on this issue is the only
issue properly before this Court. See Rule 5A:12(c) ("[o]nly
questions presented in the petition for appeal will be noticed by
the Court of Appeals"). However, we must consider this issue in
the context of the earlier jury instructions, the guilt phase
verdicts, and the proceedings during the sentencing phase.
As noted above, the jury rendered apparently inconsistent
verdicts at the conclusion of the guilt phase. A finding that
appellant was guilty beyond a reasonable doubt of murdering
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Shuster was a necessary element of the firearm offense, as
charged under Code § 18.2-53.1. The jury found appellant guilty
of the lesser offense of involuntary manslaughter. The use of a
firearm during the commission of involuntary manslaughter is not
a criminal offense under Code § 18.2-53.1.
However, Virginia law regarding inconsistent verdicts is
well settled.
As this Court has held, "[t]he fact that
verdicts may, on their face, arguably appear
inconsistent does not provide a basis to
reverse either conviction on appeal, provided
the evidence is sufficient to support each
verdict." Pugliese v. Commonwealth, 16 Va.
App. 82, 96, 428 S.E.2d 16, 26 (1993) (citing
United States v. Powell, 469 U.S. 57, 66
. . . (1984) (emphasis added)). "Jury
verdicts may appear inconsistent because the
jury has elected through mistake, compromise,
or lenity to acquit or to convict of a lesser
offense for one charged crime that seems in
conflict with the verdict for another charged
offense." Pugliese, 16 Va. App. at 96, 428
S.E.2d at 26.
Tyler v. Commonwealth, 21 Va. App. 702, 708, 467 S.E.2d 294, 296
(1996) (footnote omitted). In Powell, the United States Supreme
Court concluded that "'[t]he most that can be said in such cases
is that the verdict shows that either in the acquittal or the
conviction the jury did not speak their real conclusions, but
that does not show that they were not convinced of the
defendant's guilt.'" Powell, 469 U.S. at 63 (citation omitted).
Where juries reach inconsistent verdicts, it is "unclear whose
ox has been gored," the government's or the defendant's. Id. at
65.
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Regardless of the jury's underlying conclusions in finding
appellant guilty of involuntary manslaughter and the use of a
firearm in the commission of murder, the apparently inconsistent
verdicts were nonetheless valid. 2 See Wolfe v. Commonwealth, 6
Va. App. 640, 650, 371 S.E.2d 314, 319-20 (1988) (affirming jury
verdicts for voluntary manslaughter and use of a firearm in the
commission of murder). Moreover, the jury was without power to
change the verdicts rendered at the conclusion of the guilt
phase.
The justifications for allowing inconsistent
verdicts are not diminished simply because
the verdicts are entered at the conclusion of
the guilt phase of a bifurcated trial instead
of at the end of a unitary proceeding. In
either a unitary or a bifurcated proceeding,
mistake, lenity, or compromise may underlie
the jury's decision. Trial courts lack the
authority to disturb inconsistent valid
verdicts rendered at the conclusion of the
guilt phase because such verdicts are final
determinations of guilt or innocence. While
the same jury may subsequently fail to reach
a unanimous verdict in the punishment phase,
this failure does not diminish the fact that
the jury's determinations of guilt became
final verdicts at the moment they were
unanimously reached.
Tyler, 21 Va. App. at 709, 467 S.E.2d at 297.
Code § 19.2-295.1 requires a bifurcated proceeding in all
felony jury trials. The statute divides the trial into two
distinct phases. First, the jury resolves issues of the
defendant's guilt or innocence. Then, "upon a finding that the
2
Appellant raises no challenge to the sufficiency of the
evidence to support the two convictions.
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defendant is guilty . . . , a separate proceeding limited to the
ascertainment of punishment shall be held as soon as practicable
before the same jury." Code § 19.2-295.1. "[A] jury verdict of
guilty emanating from the guilt phase of a bifurcated trial,
approved by the trial court, resolves that issue, leaving
sentence as the sole question remaining to be decided by an
additional verdict incidental to a 'separate proceeding.'" Daye
v. Commonwealth, 21 Va. App. 688, 691, 467 S.E.2d 287, 288 (1996)
(quoting Code § 19.2-295.1).
At the sentencing phase of appellant's trial, the jury was
charged with the responsibility of determining appellant's
punishment for the offenses of which he had been convicted. See
id. The cautionary instruction requested by appellant during the
sentencing phase invited the jury to reconsider issues it had
already conclusively determined in the guilt phase. At the time
appellant requested the cautionary instruction, despite the trial
court's comments to the contrary, the jury did not possess the
3
authority to revisit the findings of guilt and innocence. See
Tyler, 21 Va. App. at 709, 467 S.E.2d at 297.
3
In contravention of Tyler, the trial court advised the
jury, after it returned unsigned the verdict form for the firearm
offense, that it could reconsider its verdicts as to guilt or
innocence. However, as the jury did not act upon this advice and
did not disturb the verdicts regarding appellant's guilt or
innocence, no harm resulted from this error. See Smoot v.
Commonwealth, 18 Va. App. 562, 566-68, 445 S.E.2d 688, 691 (1994)
(although jury instruction omitted essential element of crime,
error harmless because evidence of such circumstance was
uncontradicted in the record).
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"If an instruction 'is not applicable to the facts and
circumstances of the case, it should not be given.'" Hubbard v.
Commonwealth, 243 Va. 1, 16, 413 S.E.2d 875, 883 (1992) (citation
omitted). At the juncture at which he offered it, appellant's
proposed instruction was inapplicable to the issues remaining for
the jury's determination. Therefore, the trial court did not err
in refusing appellant's proposed instruction during the
sentencing phase.
Appellant contends that, in affirming apparently
inconsistent verdicts in Wolfe, this Court found significant the
absence of a defense request for an instruction stating that if
the jury acquitted the defendant of murder, it should find him
not guilty of the use of a firearm in the commission of murder.
See Wolfe, 6 Va. App. at 645, 371 S.E.2d at 316. However, at the
time Wolfe was decided, Virginia had not adopted the procedures
contained in Code § 19.2-295.1 concerning bifurcated jury trials
in felony proceedings. Furthermore, we did not determine in
Wolfe, and we need not decide here, whether an instruction such
as the one offered by appellant would be proper prior to the
jury's resolution of the issue of guilt or innocence.
For the foregoing reasons, the trial judge did not err in
refusing to grant the cautionary instruction requested by
appellant. Accordingly, appellant's convictions are affirmed.
Affirmed.
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