COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia
ENDDY OMAR CATEDRAL
MEMORANDUM OPINION * BY
v. Record No. 2441-97-2 JUDGE DONALD W. LEMONS
FEBRUARY 9, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
John F. Daffron, Jr., Judge
David B. Hargett (Joseph D. Morrissey;
Morrissey, Hershner & Jacobs, on brief), for
appellant.
Ruth Morken McKeaney, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Enddy Omar Catedral was convicted of robbery, use of a
firearm in the commission of a robbery, five counts of abduction,
and three counts of use of a firearm in the commission of
abduction. On appeal, Catedral argues that the trial court erred
in refusing to give his proposed jury instruction on abduction
and in denying his motion to voir dire a juror following the
verdict. Because we hold that the trial court committed no
error, we affirm.
BACKGROUND
On April 16, 1996, at approximately 10:30 p.m., Edward Lee
Parker, Jr., an employee of Arby's restaurant in the County of
Chesterfield, was emptying trash behind the building. Parker
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
heard footsteps behind him and felt a gun being placed in the
middle of his back. He heard a voice, identified as Enddy Omar
Catedral, appellant, ask "How many people are inside?" Parker
stated that Catedral then placed the gun at the back of his head.
Parker replied that there were three employees and a manager.
Catedral told him to turn around, and Parker saw a second person,
identified as Michael Sandy, carrying a shotgun. Both men were
dressed in dark clothing with their faces covered.
Catedral held the gun to Parker's head as Parker opened the
door, and the men walked into the back of the restaurant behind
him. Once inside, Catedral went to the manager's office and
pointed the gun at the manager, Phil Gammon. Gammon stated that
he was "counting the money for the night" when he saw Parker
enter the building with a person holding a pistol to Parker's
head. Gammon walked to the door of his office, and Catedral
pointed the pistol at Gammon's head, told him to look at the
floor, and to sit back at the desk. Catedral tossed a black bag
onto a table in the office and told Gammon to put the money into
it.
Sandy walked around the restaurant confronting the other
employees. Sandy stopped Monica Moore in the front of the store
and Vanessa Mavilla while she was working on the back line
slicer. Sandy approached Melissa Watson as she cleaned the
floor. Sandy gathered Moore, Mavilla, Watson, and Parker outside
of Gammon's office. Catedral and Sandy ordered the four
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employees into a walk-in refrigerator at gunpoint. A few moments
later, when Gammon was finished putting the money in the bag,
Catedral emptied the safe and took money from inside the desk.
Catedral then ordered Gammon into the walk-in refrigerator. As
he walked in, Catedral remarked to Sandy "make sure he doesn't
get out." The door, while not locked, was closed behind the
employees and the manager. The employees and Gammon waited in
the back room of the refrigerator for about five minutes before
exiting into an empty store.
On July 15, 1996, Catedral was indicted on five counts of
abduction, one count of robbery, one count of using a firearm in
the commission of a robbery and five counts of use of a firearm
in the commission of abduction. On October 31, 1996, he was
convicted in a jury trial of all charges, except two counts of
using of a firearm in the commission of abduction. Catedral
appeals, arguing that the trial court erred in refusing his
proffered jury instruction on abduction and in failing to voir
dire a juror following the verdict.
JURY INSTRUCTION
Upon review of jury instructions given or refused at trial,
an appellate court is charged with seeing that "the law has been
clearly stated and the instructions cover all issues which the
evidence fairly raises." Darnell v. Commonwealth, 6 Va. App.
485, 488, 370 S.E.2d 717, 719 (1988) (citations omitted). The
evidence relied upon to support a proffered instruction must
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amount to "more than a scintilla." Morse v. Commonwealth, 17 Va.
App. 627, 633, 440 S.E.2d 145, 149 (1994) (citations omitted).
"An instruction that is not supported by the evidence, however,
is properly refused." Lea v. Commonwealth, 16 Va. App. 300, 304,
429 S.E.2d 477, 479-80 (1993) (citations omitted).
A proper jury instruction is one which "informs the jury as
to the essential elements of the offense." Darnell, 6 Va. App.
at 488-89, 370 S.E.2d at 719 (citations omitted). Where more
than one jury instruction correctly defines the law, the trial
court is not in error for refusing multiple jury instructions
that touch upon the same legal principle. See Cirios v.
Commonwealth, 7 Va. App. 292, 303-04, 373 S.E.2d 164, 170 (1988)
(citing Tuggle v. Commonwealth, 228 Va. 493, 508, 323 S.E.2d 539,
548 (1984), vacated on other grounds, 471 U.S. 1096 (1985)). An
appellate court must review a trial court's refusal to give an
instruction "in the light most favorable" to the defendant.
Brandau v. Commonwealth, 16 Va. App. 408, 412, 430 S.E.2d 563,
565 (1993).
On appeal, Catedral states that the acts of abduction were
extremely close in time and distance to the robbery. He also
contends that the "force and intimidation employed in the
abduction were not separate and apart from the restraint inherent
in the commission of the robbery." Therefore, Catedral argues
that the jury could have reasonably found that he was not guilty
of any acts of abduction which were not inherent in the
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commission of the robbery. Catedral contends that when there is
a robbery of numerous persons in a large space, it is necessary
to gather the persons present into one area where they can easily
be watched.
Catedral requested that the jury be instructed:
One accused of abduction by detention and
another crime involving restraint of the
victim, both growing out of a continuing
course of conduct, is subject upon conviction
to separate penalties for separate offenses
only when the detention committed in the act
of abduction is separate and apart from, and
not merely incidental to, the restraint
employed in the commission of the other
crime.
The trial court instead offered the following instruction
for each abduction charge:
The defendant is charged with the crime of
abduction. Abduction and kidnapping are the
same crime. The Commonwealth must prove
beyond a reasonable doubt each of the
following elements of the crime: Number 1,
that the defendant by force or intimidation
did seize or detain [the five persons
allegedly placed inside the walk-in
refrigerator]. And Number 2, that the
defendant did so with the intent to deprive
[the five persons placed inside the walk-in
refrigerator] of [his or her] personal
liberty. And Number 3, that the defendant
acted without legal justification or excuse.
The sole issue on appeal with respect to the jury
instruction is whether more than a "mere scintilla" of evidence
existed to support a jury finding that the act of placing the
employees in the walk-in refrigerator was incidental to the
robbery of Arby's restaurant, and not separate and apart from the
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restraint necessary to commit the robbery.
"[T]o constitute [an] abduction, separate and apart from a
robbery, the victim's detention must be greater than the
restraint that is intrinsic in a robbery." Cardwell v.
Commonwealth, 248 Va. 501, 511, 450 S.E.2d 146, 152 (1994). Even
if the purpose of the abduction is in furtherance of the robbery
in allowing the defendant to make an effective escape, an act of
abduction is not considered inherent in the crime of robbery.
See Phoung v. Commonwealth, 15 Va. App. 457, 462, 424 S.E.2d 712,
715 (1992).
In Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d 711
(1985), the defendant appealed his conviction of abduction with
intent to defile following his convictions for rape and forcible
sodomy, arguing that any detention of the victim arose out of the
restraint necessary to commit the other crimes. He argued that
he could not be punished for both rape and abduction with intent
to defile because "such conduct constitutes the same
offense . . . ." Id. at 313, 337 S.E.2d at 713. The
Supreme Court of Virginia affirmed his
conviction for abduction, holding, one
accused of abduction . . . and another crime
involving restraint of the victim, both
growing out of a continuing course of
conduct, is subject upon conviction to
separate penalties for separate offenses only
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when the detention committed in the act of
abduction is separate and apart from, and not
merely incidental to, the restraint employed
in the commission of the other crime.
Id. at 314, 337 S.E.2d at 713-14.
In Brown, the defendant approached a woman in a parking lot
and asked for a ride. She refused, and entered her car. The
defendant opened her car door, hit her on the head, and pushed
her into the passenger seat as he entered the car. The defendant
threatened that he would "cut" her if she attempted to get out of
the car, and he drove to a remote area where he raped her and
commited acts of sodomy. See id. at 312, 337 S.E.2d at 712. The
defendant argued that the act of driving her to the remote area
was inherent in the commission of the rape and sodomy and that it
was not punishable as a separate offense. The Court disagreed
and held,
[t]he evidence in the record before us shows
that the detention underlying the abduction
conviction was not the kind of restraint that
is inherent in the act of rape. Abduction
was established as a fact once the
Commonwealth proved that Brown had deprived
his victim of her liberty by physical
assaults and threats of violence.
Id. at 314, 337 S.E.2d at 713.
In Phoung, 15 Va. App. 457, 424 S.E.2d 712, the defendant
was convicted of statutory burglary, two counts of abduction, two
counts of robbery, and two counts of using a firearm while
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committing robbery. He appealed, arguing in part that his
convictions for abduction and robbery violated the double
jeopardy prohibition against multiple punishments for the same
offense.
In Phoung, the defendant and three codefendants entered the
victim’s house, held a gun to her head, tied her up and told her
to remain silent. Two of the men went upstairs and bound her
daughter to her bed. While the victims were tied up, the men
stole various items of personal property. On appeal, Phoung
argued that “the detention of the victims merely assisted in the
completion of the robbery and was not separate and apart from the
restraint inherent in the act of robbery” and that he may not be
punished for both offenses. Id. at 461, 424 S.E.2d at 714.
We affirmed the defendant's two convictions for abduction,
holding that "[t]he evidence established that the detention of
the victims was separate and distinct from the restraint inherent
in the act of robbery." Id. at 462, 424 S.E.2d at 715. In
looking at the elements of each offense, we reasoned, "[s]imply
stated, the asportation of a victim from one room to another and
the binding of another victim's hands and feet together are not
acts inherent in the crime of robbery." Id.
In the case now before us, Catedral argues that the act of
placing five employees in a walk-in refrigerator was inherent in
the commission of the robbery. We disagree. Each act of placing
the five people in a walk-in refrigerator was not inherent in the
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commission of the robbery.
In refusing Catedral's instruction, the trial judge stated,
Well, I think if it is subject to
interpretation and turns on a factual
determination, then it does become an issue
for the jury, but in this case, the only
evidence, at least at this point, is that the
employees were directed against their will
into another area where they were confined.
That on the face of it is abduction. . . .
But I think when they're transported to
another area or they are seized, then I don’t
think that under the testimony that it’s a
factual issue and I think that's the
threshold determination; could the jury under
the evidence that they have heard determine
that this was part of the same offense. . . .
They were taken to another area and locked in
there. I think that's seizure and abduction.
* * * * * * *
[T]hey were taken against their will,
intimidation and a show of force, namely
weapons, and said, go into that area. I
think that is a sufficient factual basis
for the court to rule, and I make that
ruling as a matter of law that it's not
susceptible to interpretation by the jury,
the fact finders . . . .
The court's instruction on abduction clearly stated the law
related to that offense. Because we agree with the trial court
that the act of placing the employees into the walk-in
refrigerator was not incidental to the robbery and that not even
a scintilla of evidence tended to prove otherwise, we hold that
it was not error for the court to refuse Catedral's instruction.
POLLING OF THE JUROR
Following the jury verdict, Catedral requested that the jury
be polled. During the court's poll of the jury, one of the
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jurors 1 expressed that she "had doubts" with the other jurors'
decision. The following colloquoy took place:
THE COURT: Well, what you need to tell me
is if you've reached a decision in the
verdict that you found the defendant guilty
beyond a reasonable doubt in each of the ten
verdicts that I read that were guilty
verdicts.
JUROR: Each of the ten?
THE COURT: Yes. You've returned 12
verdicts. On ten of them, the defendant was
found guilty. On two [use of a firearm]
charges, the verdict was not guilty . . . .
So the question that I ask you, . . . are
these ten guilty verdicts, is this among
others your decision on each of the ten?
JUROR: Except for one.
THE COURT: So these are not all unanimous
verdicts? Well, that's an awkward matter,
but I need to know whether or not the
verdicts were unanimous. Now, what you're
telling me is they were not all unanimous.
You didn't vote for a finding of guilt in
each of the ten guilty verdicts?
JUROR: I voted in the end. Yes.
THE COURT: All right. Well, was your
decision, your thought process, that you
found under the evidence that the
Commonwealth had proved to you the guilt of
the accused in these ten cases?
JUROR: I just have reservation on one part,
but I went along. I said yes.
THE COURT: I read you an instruction.
JUROR: Yes, I know.
1
The court finds it unnecessary to identify this juror by
name, as the identity of the juror is readily available to both
parties and their attorneys through a review of the record.
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THE COURT: The instruction said it's not
guilt beyond all doubt. It's guilt beyond
all reasonable doubt. Now, the question that
I asked you is do you have a reasonable doubt
as to the guilt of the accused in any of the
ten convictions.
JUROR: I don't have any doubt.
THE COURT: Ma'am?
JUROR: I don't have any doubt.
THE COURT: So it is your statement now that
individually, not that you went along with
it, but that individually you had determined
that the Commonwealth has proved to your
reasonable satisfaction the guilt of the
accused beyond a reasonable doubt?
JUROR: Yes.
After the other eleven jurors each stated that these were
his or her verdicts, Catedral's counsel asked the court to voir
dire the juror who had expressed concerns. Catedral's counsel
requested that this additional questioning take place outside the
presence of the other jurors. The court refused his request, but
allowed counsel to tell the court what questions he would like to
ask the juror. Catedral's counsel requested that the court ask
whether the juror "felt pressured into giving a guilty verdict"
and whether the juror felt pressured to give the answer in front
of the other jurors. The court conducted the following
additional colloquoy with the juror:
THE COURT: Frequently Courts will give
instructions, advise all the jurors something
like this, that if you can do so, it’s your
duty to reach a decision. Now, that's a
practical response because if there is not a
unanimous verdict, then one possibility is
that the case will have to be retried, which
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means we'll get 12 others to come in and sit
on the jury. Now, we're not going to get a
wiser, more thoughtful, more insightful jury
than those of you sitting here now. So
that's why I read what the law is and
practically should be.
If you can reach a verdict, it's your duty to
do so if you can do so without giving up any
firmly held beliefs. You do not make a
decision just to go along. You do not make a
decision just because you were pressured.
I'm sure it's awkward for you to make your
comments that you have now, and you shouldn't
be pressured in the jury room or in the
courtroom. You should not give up your
honest opinion as to the evidence solely
because of the opinions of your fellow jurors
or simply for the purpose of returning a
verdict.
. . . [I]f there's a difference in
opinion . . . then it's appropriate to
re-examine your views . . . and if you choose
to reconsider your decision, then that's your
right to do so.
I emphasize foremost that you don't make a
decision just to go along. But it's proper
and appropriate to listen to the other
jurors, consider their points of view,
consider whether or not you need to make a
different response.
Now, I've said a couple of times you should
not be pressured in the jury room. You
should not be pressured in the courtroom to
make a decision. Now, I think I need to ask
you for the court record just one more time
if you agree with all the verdicts. . . . I'm
neither trying to get you to go along nor
trying to change your mind. I'm trying to
ask you a question so it will be clear on the
court what your decision is. And the
question again is do you agree on each of the
ten guilty verdicts that the evidence has
proved to you beyond a reasonable doubt the
guilt of the accused?
JUROR: I agree.
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THE COURT: You agree with that?
JUROR: Yes.
"A trial court has discretionary authority to ask
appropriate neutral questions to clarify matters of confusion in
a juror's response to a poll." Carver v. Commonwealth, 17 Va.
App. 7, 10, 434 S.E.2d 916, 918 (1993) (citations omitted). In
Carver, defendant was convicted of grand larceny. Following his
conviction, defendant's counsel asked to poll the jury. During
the poll, one juror stated that his belief was contrary to the
verdict rendered and "indicated a clear disregard of the court's
preliminary instructions and an improper basis for her vote of
guilty." Id. at 10, 434 S.E.2d at 918. We reversed the
defendant's conviction and remanded for a new trial, holding that
the juror's responses were not based upon confusion of the jury
process, but rather, on the juror's stated belief that the
defendant was innocent. See id. at 10, 434 S.E.2d at 918.
In the case before us, the juror's responses in the initial
poll and the court's subsequent communication with her did not
indicate that she believed that Catedral was innocent. Here, the
juror's responses revealed a full understanding of both the
court's preliminary instructions and the standard of proof that
the Commonwealth was required to meet. A review of this record
reveals that the juror affirmed her verdicts eight times in
response to the court's questions. The court did not err in
refusing to allow Catedral's counsel to conduct an individual
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voir dire outside the presence of the jury.
CONCLUSION
Based upon the foregoing, we hold that the trial court
neither erred in refusing Catedral's proffered instruction on
abduction, nor in refusing to allow Catedral's counsel to voir
dire a juror outside the presence of the other jurors after the
jury had returned its verdicts. Therefore, we affirm his
convictions.
Affirmed.
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