COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Overton
Argued at Alexandria, Virginia
DARROW EUGENE HERBERT
MEMORANDUM OPINION * BY
v. Record No. 0888-00-4 JUDGE LARRY G. ELDER
APRIL 10, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Frank A. Hoss, Jr., Judge
Michael F. Devine (James C. Love, IV;
Devine & Connell, on briefs), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Darrow Eugene Herbert (appellant) was convicted in a jury
trial for attempted capital murder of a police officer, use of a
firearm in the commission of attempted capital murder, and
possession of a firearm by a convicted felon. On appeal, he
contends the trial court committed reversible error in the guilt
phase of the trial by erroneously instructing the jury on the
elements of attempted capital murder, necessitating reversal of
that conviction and his conviction for the concomitant use of a
firearm. He also contends the trial court erred in the
sentencing phase of the trial by erroneously instructing the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
jury, in response to its specific question regarding whether
appellant would be eligible for parole, that the jury should
"not []concern [itself] with what may happen after[]"
sentencing.
We hold that the omission of material elements of the
offense from the attempted capital murder instruction was error
which was not harmless. We also hold that the trial court's
failure in the sentencing phase to instruct the jury on the
status of parole constituted reversible error. Therefore, we
reverse appellant's convictions for attempted capital murder and
the concomitant use of a firearm and remand for a new trial on
those offenses. We also vacate appellant's sentence on the
felon-in-possession conviction and remand for resentencing on
that offense.
I.
A.
CAPITAL MURDER INSTRUCTION
Rule 5A:18 provides that no ruling of the trial court shall
be reversed on appeal unless the party's objection to the ruling
"was stated together with the grounds therefor at the time of
the ruling, except for good cause shown or to enable the Court
of Appeals to attain the ends of justice." "[T]he ends of
justice exception is narrow and is to be used sparingly." Brown
v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 11 (1989).
However,
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"[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[,]" . . . even when
"trial counsel neglected to object to the
instruction.'" Obviously, the proper
description of the elements of the offenses
is vital to a defendant. Attaining the
"ends of justice" requires correction of an
instruction which allows a jury to convict a
defendant without proof of an element of a
crime.
Campbell v. Commonwealth, 14 Va. App. 988, 991-92, 421 S.E.2d
652, 654 (1992) (en banc) (quoting Jimenez v. Commonwealth, 241
Va. 244, 248, 250, 402 S.E.2d 678, 679, 681 (1991)).
Here, appellant concedes he failed to object
contemporaneously to the trial court's alleged omission from the
instructions of two elements, (1) the existence of specific
intent to commit capital murder and (2) the commission of an
overt act toward that murder. However, he contends the trial
court had an affirmative duty to instruct on these principles
because they were elements of the crime and, as such, were vital
to his defense. 1 Thus the issue of preservation for appeal is
1
Appellant also assigns error to the confusing nature of
Instruction three in general and to the trial court's failure to
give instructions defining the terms "attempted" and "willful,
deliberate and premeditated." Appellant proffered no
instructions defining these terms and posed no contemporaneous
objection to the trial court's failure to instruct the jury on
their meaning. Insofar as these claimed errors relate to the
definitions of included terms and elements rather than the
omission of essential elements from the finding instructions,
the ends of justice exception does not apply and Rule 5A:18 bars
our consideration of these issues on appeal. But see Goodson v.
Commonwealth, 22 Va. App. 61, 77, 467 S.E.2d 848, 856 (1996)
(holding that failure to define "attempt" as requiring proof of
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inextricably linked with our consideration of the merits. If
the existence of specific intent and commission of an overt act
were elements of the crime of attempted capital murder and the
court failed properly to instruct the jury on them, this failure
constituted error reviewable on appeal regardless of whether
appellant contemporaneously objected to the failure.
A conviction for attempted capital murder requires proof of
a specific intent to commit that offense. See Goodson v.
Commonwealth, 22 Va. App. 61, 72-75, 467 S.E.2d 848, 854-55
(1996). Instruction three, the attempted capital murder finding
instruction, did not use the term, "specific intent." It
required proof only that the attempted killing was willful,
deliberate and premeditated. We hold the language of
Instruction six defining "[w]illful, deliberate and
premeditated" as "a specific intent to kill" is insufficient to
compensate for the absence of intent language from Instruction
three. Further, the specific intent to kill referenced in
Instruction six is not the same as a specific intent to commit
capital murder, the element omitted from Instruction three.
Proof that appellant had the specific intent to commit capital
murder required findings that the person he intended to kill was
a law enforcement officer and that his intent existed for the
a specific intent and an overt act amounts to a failure to
instruct on the essential elements of an offense, a non-waivable
error).
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purpose of interfering with the officer's official duties. See
Code § 18.2-31(6). Thus, we hold the instructions did not
sufficiently apprise the jury of the specific intent element of
the offense of capital murder.
We conclude that omission of the "overt act" element of the
offense of attempted capital murder also constituted error, as
the Commonwealth concedes. We addressed this issue in Goodson,
22 Va. App. at 77, 467 S.E.2d at 856, in which we held that an
instruction requiring proof merely that the defendant "attempted
to kill [victim]" failed properly to apprise the jury of the
essential elements of the offense because it did not require
proof of "'an overt but ineffectual act . . . in furtherance of
the criminal purpose.'" Id. (quoting Martin v. Commonwealth, 13
Va. App. 524, 527, 414 S.E.2d 401, 402 (1992) (en banc)). Thus,
here, as in Goodson, the court's failure to instruct on the
elements of an "attempt" constituted error. In addition,
because the error resulted from a failure to instruct on the
essential elements of the offense, appellant's failure to object
or proffer a proper instruction at trial does not bar our
consideration of this issue on appeal. See Campbell, 14 Va.
App. at 991-92, 421 S.E.2d at 654; see also Jimenez, 241 Va. at
251, 402 S.E.2d at 681.
We also hold that these deficiencies in Instruction three
were not harmless.
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"'The Constitution gives a criminal defendant the right to
have a jury determine, beyond a reasonable doubt, his guilt of
every element of the crime with which he is charged.'" Allard
v. Commonwealth, 24 Va. App. 57, 65, 480 S.E.2d 139, 143 (1997)
(quoting United States v. Gaudin, 515 U.S. 506, 522-23, 115
S. Ct. 2310, 2320, 132 L. Ed. 2d 444 (1995)). However, an error
in instructing the jury does not require reversal if the error
was harmless. Kil v. Commonwealth, 12 Va. App. 802, 812, 407
S.E.2d 674, 679-80 (1991). Thus, as with all forms of
constitutional error, "'[w]here a reviewing court can find that
the record developed at trial establishes guilt beyond a
reasonable doubt, the interest in fairness has been satisfied
and the judgment should be affirmed.'" Id. at 812, 407 S.E.2d
at 680 (quoting Rose v. Clark, 478 U.S. 570, 579, 106 S. Ct.
3101, 3106, 92 L. Ed. 2d 460 (1986)).
Constitutional error does not affect a verdict and,
therefore, is harmless beyond a reasonable doubt "if a reviewing
court can conclude, without usurping the jury's fact finding
function, that, had the error not occurred, the verdict would
have been the same." Lavinder v. Commonwealth, 12 Va. App.
1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc). Where an
instruction omits an essential element of an offense and no
evidence is introduced to prove that element, the error is not
harmless. Jimenez, 241 Va. at 251, 402 S.E.2d at 681
(characterizing defendant's conviction under these circumstances
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as one for "a non-offense"); Kil, 12 Va. App. at 812, 407 S.E.2d
at 680. Similarly, where the evidence on the omitted element is
disputed and the record does not indicate whether or how the
jury resolved the dispute, the error also is not harmless.
Eubanks v. Commonwealth, 18 Va. App. 537, 541-42, 445 S.E.2d
706, 708-09 (1994).
We are unable to conclude the errors in this case were
harmless beyond a reasonable doubt because the evidence on the
omitted elements was disputed, and we cannot say the jury
resolved these disputes in the Commonwealth's favor. Appellant
claimed he did not intend to harm Lieutenant Bamford, that he
displayed his weapon only for the purpose of discarding it, and
that he did so before he even saw Bamford approaching. Bamford,
by contrast, said appellant engaged in furtive and evasive
behavior, reaching into his waistband and attempting to hide
behind a lamp post, after the face-to-face encounter began.
Bamford said the encounter culminated in appellant's "going for
[his] gun," which prompted Bamford to draw his own weapon and
fire.
The Commonwealth claims appellant's conviction for the
related offense of using a firearm in the commission of
attempted capital murder indicates the jury resolved these
evidentiary disputes against appellant, rendering the errors in
the attempted capital murder instruction harmless. However, we
find it just as likely that the deficiencies in the attempted
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capital murder instruction similarly infected the verdict on the
concomitant firearm offense. Due to the deficiencies in the
attempted capital murder instruction, the jury could have found
appellant guilty of that offense without making findings on the
missing elements and then convicted appellant of the related
firearm charge simply because he displayed a weapon during the
commission of the underlying non-offense. Thus, we cannot
conclude beyond a reasonable doubt that the errors in
Instruction three were harmless.
For these reasons, we reverse appellant's convictions for
attempted capital murder and the concomitant use of a firearm
and remand for a new trial if the Commonwealth be so advised.
B.
PAROLE QUESTION AND RESULTING INSTRUCTION
Appellant concedes he posed no contemporaneous objection to
the trial court's response to the jury's question on parole
eligibility but contends nevertheless that this issue is
properly before us on appeal and requires a remand for
resentencing. The Commonwealth concedes that the holdings in
Fishback v. Commonwealth, 260 Va. 104, 532 S.E.2d 629 (2000),
and Jerman v. Commonwealth, 34 Va. App. 323, 541 S.E.2d 307
(2001), dictate this result, and we agree.
The decision in Fishback provides that a jury's knowledge
of the abolition of parole is materially vital to a defendant at
least in those cases in which the jury specifically inquires
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about its impact. Jerman, 34 Va. App. at 326-28, 541 S.E.2d at
308-09. When a jury inquires about parole, the trial court has
an affirmative duty to instruct the jury on the status of the
law in Virginia as it applies to that specific defendant, and
its failure to do so is error. Id. Thus, appellant's failure
to proffer an instruction on the subject or to object to the
court's deficient response does not prevent our consideration of
the issue on appeal, and we vacate the jury's sentence and
remand for resentencing in accordance with Fishback.
II.
For these reasons, we reverse appellant's convictions for
attempted capital murder and the concomitant use of a firearm
and remand for a new trial if the Commonwealth be so advised.
We affirm the conviction for the offense of possessing a firearm
after having been convicted of a felony, vacate the sentence,
and remand for resentencing on that offense.
Affirmed in part,
reversed in part
and remanded.
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