COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Senior Judge Hodges
Argued at Chesapeake, Virginia
GREGORY WARREN FOX
MEMORANDUM OPINION * BY
v. Record No. 1717-02-1 JUDGE ROBERT P. FRANK
JUNE 24, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Joseph A. Migliozzi, Jr. (Hooker & Migliozzi,
on brief), for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Jerry W. Kilgore, Attorney
General, on brief), for appellee.
Gregory Warren Fox (appellant) appeals his convictions after
a jury trial of second-degree murder, in violation of Code
§ 18.2-32, and use of a firearm during the commission of a felony,
in violation of Code § 18.2-53.1. He argues the trial court erred
(1) in refusing to permit a jury instruction on manslaughter and
(2) in overruling his motion for a mistrial, based on a witness's
reference to appellant's silence after his arrest. For the
reasons stated below, we reverse the convictions.
After both parties had presented evidence, the trial court
considered the instructions that the parties wanted submitted to
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
the jury. The court allowed instructions on self-defense.
Appellant then offered a jury instruction defining voluntary
manslaughter. Neither party made any argument as to this
instruction. The court denied the instruction, stating
"[t]here's no manslaughter instruction with a plea of
self-defense."
Appellant argues the trial court erred in refusing his
instruction for voluntary manslaughter, arguing the court's
reasoning was incorrect and the evidence supported the
instruction. The Commonwealth concedes the trial court's reason
for excluding the instruction was incorrect. However, the
Commonwealth contends appellant did not preserve this argument
and, further, the trial court should be affirmed under "right
result, wrong reason" analysis.
Appellant did preserve his argument for a voluntary
manslaughter instruction. He presented the instruction to the
trial court, and the instruction is in the record. When
presenting the instruction to the trial court, defense counsel
said, "[M]y client doesn't feel like it's justified under the
evidence." The Commonwealth interprets this statement to mean
appellant did not actually want a voluntary manslaughter
instruction. However, this interpretation is incorrect, given
appellant tendered the instruction to the court. Although
counsel's statement may be vague, appellant wanted the jury
instructed on manslaughter. The trial court clearly understood
- 2 -
that appellant was offering the instruction for presentation to
the jury, not that appellant withdrew it from consideration.
The trial court further expressed his reasons for not granting
the instruction.
The Commonwealth also argues appellant's presentation of
this instruction, after the instruction for first-degree and
second-degree murder were accepted by the trial court, was
untimely and did not preserve the issue for appeal. 1 However,
the dialogue between counsel and the trial court concerning the
instructions had not concluded when appellant offered his
voluntary manslaughter instruction. The trial court had an
adequate and timely opportunity to rule on the instruction,
which he did. Appellant did preserve his argument for a
manslaughter instruction.
The Commonwealth concedes the trial court's exclusion of
the manslaughter instruction, because "[t]here's no manslaughter
instruction with a plea of self-defense," was wrong. 2 The
Commonwealth instead contends the evidence did not support the
giving of the instruction to the jury. See Commonwealth v.
Vaughn, 263 Va. 31, 36, 557 S.E.2d 220, 222-23 (2002). The
1
Appellant objected to the first-degree murder instruction
on the ground that the evidence was insufficient to support such
an instruction. His objection was overruled.
2
"'The plea of self-defense and of passion . . . are not in
conflict with each other.'" McClung v. Commonwealth, 215 Va.
654, 657, 212 S.E.2d 290, 293 (1975) (quoting Wilkins v.
Commonwealth, 176 Va. 580, 583, 11 S.E.2d 653, 655 (1940)).
- 3 -
Commonwealth argues this Court should apply the principle of
"right result, wrong reason" in this case. However, the
Commonwealth ignores the requirements of this rule.
"An appellate court may affirm the judgment
of a trial court when it has reached the
right result for the wrong reason."
[Driscoll v. Commonwealth, 14 Va. App. 449,
452, 417 S.E.2d 312, 313 (1992)]. However,
The rule does not always apply. It
may not be used if the correct
reason for affirming the trial
court was not raised in any manner
at trial. In addition, the proper
application of this rule does not
include those cases where, because
the trial court has rejected the
right reason or confined its
decision to a specific ground,
further factual resolution is
needed before the right reason may
be assigned to support the trial
court's decision.
Id. at 452, 417 S.E.2d 313-14 (citation
omitted).
Here, the right reason was never presented to the trial
court. The Commonwealth never argued at trial that the evidence
did not support a manslaughter instruction. The Commonwealth
concedes the trial court's rationale for the exclusion of the
manslaughter instruction was erroneous. Since the Commonwealth
did not argue at trial that the evidence did not support the
instruction, we are obligated to find the trial court erred in
excluding the instruction. 3
3
The Commonwealth did not argue harmless error, either in
its brief or at oral argument.
- 4 -
CONCLUSION
As the trial court improperly excluded a jury instruction,
we reverse the convictions and remand for a new trial if the
Commonwealth be so inclined. In so doing, we need not address
the mistrial issue, since the issue is unlikely to arise in a
new trial.
Reversed and remanded.
- 5 -
Gregory Warren Fox v. Commonwealth
Combined Opinion