COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Richmond, Virginia
DECARLOS D. COLEMAN
MEMORANDUM OPINION * BY
v. Record No. 1654-01-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 10, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D'Alton, Jr., Judge
Steven P. Hanna for appellant.
Stephen R. McCullough, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
A jury convicted DeCarlos D. Coleman (appellant) of second
degree murder in violation of Code § 18.2-32 and use of a firearm
in the commission of murder in violation of Code § 18.2-53.1. 1
Appellant contends the trial court erred by (1) allowing the
Commonwealth to amend a jury instruction on transferred intent;
and (2) failing to instruct on self-defense. For the reasons that
follow, we affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
The jury acquitted appellant of the attempted murder of
Mario Roach and the use of a firearm in that attempted murder.
I. BACKGROUND
On August 31, 2000 appellant shot and killed Lucille Jones
(decedent). That evening appellant and two friends, Aaron
Briggs and Jamie Hairston, were driving in the City of
Petersburg. Briggs had to use the bathroom, so the group
stopped at the Lee Hall apartments. While Briggs was urinating
by the curb, Fred Jones (Jones) pulled into the parking lot with
his cousin Mario Roach (Roach) and a friend, Kevin Batts. Jones
lived in the apartments with his mother and brother. Jones
parked his car, got out and walked towards his apartment. At
that point, appellant got out of his car, "ran" over to Jones
and was "cussing him out." Appellant "got right there in front
of" Jones and pulled a gun on him and asked, "What's up with
that stuff now?" 2 Jones, who saw Briggs and knew him, asked for
Briggs' help. "I said, Aaron, man, you know I ain't with that."
Briggs vouched for Jones and got appellant to take the gun off
Jones. Jones went to his apartment, and appellant and Briggs
walked toward their car.
Briggs saw Kevin Batts in Jones' car. Briggs "had a beef"
with Batts, so he went to the car to confront Batts. Briggs
told Batts, "You're by yourself now, you know what I'm saying,
what you going to do now? I should whoop your little ass."
2
This question was apparently a reference to an incident
five or six days earlier in which appellant's house was "shot
up."
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Briggs, with appellant watching, opened the car door and hit
Batts "like two times" and "snatched" him out of the car. Batts
"knew he couldn't beat me . . . so it really won't no fight."
According to appellant, when Briggs pulled Batts out of the
car, he "heard a metal object hit the ground and picked it up."
Roach got out of the back seat of Jones' car with a beer in his
hand. "As soon as [Roach] got out of the car, appellant ran
around the back of the car and asked [him] what [he] was going
to do with the bottle." Appellant, still armed, put a gun in
Roach's face. Roach "put [his] hands in the air" and backed
away. When Roach backed up, appellant turned away and then
"heard a shot." Appellant "returned the shot" "in the direction
where I seen [sic] Fred Jones was at, where he had the gun at."
Appellant testified that he was firing at Jones rather than
Roach.
The bullet missed Jones and Roach but struck the decedent
in the chest as she stood in her doorway. Roach turned and ran
towards the apartment, where he saw the decedent "laid in the
doorway." Jones "heard shots as soon as she opened the door."
He "ran and got the phone, then ran to her because I heard,
heard her fell [sic] to the floor." When Jones reached her, the
decedent was "laying on the floor in the doorway." The decedent
died of the gunshot wound, which penetrated her heart and right
lung.
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The Commonwealth indicted appellant for the first degree
murder of Lucille Jones and the attempted murder of Roach. At
trial, to conform the jury instructions to the evidence adduced,
including that of appellant who stated that Jones was his
intended target rather than Roach, the Commonwealth amended the
proposed language of Instruction #13 from "Mario Roach" to "some
person" as the basis of appellant's transferred intent. The
trial court also refused to instruct the jury on self-defense.
The jury convicted appellant of second degree murder of Lucille
Jones and acquitted him of the attempted murder charge.
II. CONSTRUCTIVE AMENDMENT TO THE INDICTMENT
Appellant first contends that when the trial court amended
the language of Instruction #13 to reflect that appellant
attempted to shoot someone other than Roach, it resulted in an
impermissible variance between the indictment and the evidence.
Appellant objected as follows:
[My] objection to Instruction Number 13, use
of the term "some person," I object to that
in that it should have stayed the original,
which was "Mario Roach" in that any
attempted killing of Fred Jones was
supported by the evidence on the basis that—
was supported by the evidence to go to the
jury on the basis that Fred Jones fired
first and [appellant] returned fire.
Appellant did not object to a "variance" or a "constructive
amendment." 3
3
We note that the original argument on the instructions
occurred in chambers and no record of that discussion is before
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The indictment reads, in pertinent part that, "DeCarlos
Dewayne Coleman on about the 31st day of August in the year Two
Thousand did willfully, deliberately and with premeditation,
kill and murder one Lucille Jones against the peace and dignity
of the Commonwealth of Virginia." There is no language on the
face of the indictment regarding transferred intent. The
indictment clearly charges appellant with the first degree
murder of Lucille Jones. That is the same charge the trial
court submitted to the jury. There was no amendment,
constructive or otherwise, to the indictment.
Jury Instruction #13 originally read: "If you believe
beyond a reasonable doubt that the defendant intended to kill
Mario Roach but that he killed Lucille Jones by mistake, then
the intent is transferred to the killing of Lucille Jones."
After appellant's testimony that his intent was to fire in the
direction of Jones rather than Roach, the trial court amended
Instruction #13 to encompasses the factual scenarios of both the
Commonwealth and the defense, that appellant intended to shoot a
person other than the victim: "If you believe beyond a
reasonable doubt that the defendant intended to kill some person
but that he killed Lucille Jones by mistake, then the intent is
us. Just prior to instructing the jury, the trial court noted
that appellant had an objection to Instruction #13 and stated
"you can consider your objections preserved to those and you can
re-explain your objection to that instruction when you read the
other two [refused instructions] into the record after we
close."
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transferred to the killing of Lucille Jones." Nothing in this
instruction resulted in an amendment of the indictment, which
charged appellant with the murder of Lucille Jones. Thus, the
trial court did not err in giving Instruction #13 defining the
requirements of transferred intent.
Appellant's reliance on United States v. Floresca, 38 F.3d
706 (4th Cir. 1994), and Hawks v. Commonwealth, 228 Va. 244, 321
S.E.2d 650 (1984), is misplaced. Both of these cases concerned
a difference between the specific allegations made in the
indictment and the proof of the crime at trial. In Floresca,
the defendant was charged with witness tampering in violation of
18 U.S.C. § 1512(b)(1); however the trial court "instructed the
jury on the essential elements of 18 U.S.C. § 1512(b)(3)."
Floresca, 38 F.3d at 709. The trial court's instruction,
therefore, amounted to a "constructive amendment of the
indictment" because "the jury was allowed to return a guilty
verdict upon a finding that Floresca approached [a potential
witness] with the intent to affect either his cooperation in the
investigation or his testimony at trial. This resulted in a
broadening of the bases for Floresca's conviction." Id. at 711. 4
In Hawks, the defendant complained that although he was charged
with abduction, the evidence adduced at trial "was at variance
4
Under the indictment, Floresca was expressly charged with
attempting to affect the witness cooperation with the
investigation.
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with the charge of abduction for which he was indicted and that
in essence, he was tried for abduction with the intent to
defile." Hawks, 228 Va. at 247, 321 S.E.2d at 651. "A variance
is fatal, however, only when the proof is different from and
irrelevant to the crime defined in the indictment and is,
therefore, insufficient to prove the commission of the crime
charged." Id. at 247, 321 S.E.2d at 651-52. The instant case
implicates neither of these scenarios.
We hold there was no fatal variance from the indictment
because there was no variance at all. Instruction #13
accurately reflected the evidence adduced at trial and did not
"broaden" the charge appellant faced.
III. SELF-DEFENSE
Appellant next contends the trial court erred in refusing
to instruct the jury on self-defense. We disagree.
"Self-defense is an affirmative defense which the accused must
prove by introducing sufficient evidence to raise a reasonable
doubt about his guilt." Smith v. Commonwealth, 17 Va. App. 68,
71, 435 S.E.2d 414, 416 (1993) (citing McGhee v. Commonwealth,
219 Va. 560, 562, 248 S.E.2d 808, 810 (1978); Yarborough v.
Commonwealth, 217 Va. 971, 979, 234 S.E.2d 286, 292 (1977)).
"[A] person assaulted while in the discharge
of a lawful act, and reasonably apprehending
that his assailant will do him bodily harm,
has the right to repel the assault by all
the force he deems necessary, and is not
compelled to retreat from his assailant, but
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may, in turn, become the assailant,
inflicting bodily wounds until his person is
out of danger."
Dodson v. Commonwealth, 159 Va. 976, 979, 167 S.E. 260, 260
(1933) (quoting Jackson's Case, 96 Va. 107, 30 S.E. 452 (1898)).
"The evidence upon which [appellant] relies to support his
proffered instruction comes from his own testimony. He is bound
by that testimony on appeal." Waters v. Commonwealth, 39
Va. App. 72, 79, 569 S.E.2d 763, 766 (2002) (citing Delawder v.
Commonwealth, 214 Va. 55, 57, 196 S.E.2d 913, 915 (1973)). We
view the evidence with respect to the refused instruction in the
light most favorable to the appellant. Boone v. Commonwealth,
14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992).
So viewed, the evidence showed that appellant confronted
Jones, although he denied he had any weapons. When Briggs told
Jones, "you all right [sic] with me, but I won't [sic] out there
when they came and they shot up the house," appellant and Briggs
"walked off" and Jones "ran in the house." Appellant and Briggs
then saw Batts. Appellant asked Briggs "don't you have some
beef with him?" Whereupon, Briggs attacked Batts.
According to appellant, when Briggs pulled Batts out of the
car, he "heard a metal object hit the ground and picked it up."
Then appellant saw Roach get out of the back of the car with a
bottle in his hand. Appellant conceded that Roach did not get
into the fight because appellant "met him," with gun in hand,
and asked Roach what he was going to do with the bottle.
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Appellant said when Roach backed up, he turned away and then
"heard a shot." Appellant turned around, saw Jones "with a gun
in his hand" and "returned the shot." Appellant, however,
neither saw Lucille Jones on the porch nor did he see anyone
shoot at him. Appellant fled the scene with Briggs and
Hairston.
"Justifiable homicide in self-defense
occurs [when] a person, without any fault on
his part in provoking or bringing on the
difficulty, kills another under reasonable
apprehension of death or great bodily harm
to himself." If an accused "is even
slightly at fault" at creating the
difficulty leading to the necessity to kill,
"the killing is not justifiable homicide."
Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416
(1993) (quoting Bailey v. Commonwealth, 200 Va. 92, 96, 104
S.E.2d 28, 31 (1958); Perricllia v. Commonwealth, 229 Va. 85,
94, 326 S.E.2d 679, 685 (1985); Dodson v. Commonwealth, 159 Va.
976, 981, 167 S.E. 260, 261 (1933)). "Any form of conduct by
the accused from which the fact finder may reasonably infer that
the accused contributed to the affray constitutes 'fault.'" Id.
(quoting Bell v. Commonwealth, 2 Va. App. 48, 58, 341 S.E.2d
654, 659 (1986)). By his own testimony, appellant was not
engaged in the discharge of a lawful act when he shot. To the
contrary, appellant had instigated two separate confrontations:
one with Jones and a second with Roach. Under the facts of this
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case, a self-defense instruction was not warranted.
Accordingly, we affirm.
Affirmed.
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