COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bray and Bumgardner
Argued at Norfolk, Virginia
GREGORY MAZYCK, S/K/A
GREGORY A. MAZYCK
MEMORANDUM OPINION * BY
v. Record No. 2169-97-1 JUDGE RICHARD S. BRAY
JULY 21, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John E. Clarkson, Judge
Harry Dennis Harmon, Jr., for appellant.
Thomas D. Bagwell, Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
A jury convicted Gregory A. Mazyck (defendant) for first
degree murder and conspiracy to commit robbery. On appeal,
defendant complains that the trial court erroneously refused to
instruct the jury on the offense of accessory after the fact. We
disagree and affirm the convictions.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to
disposition of the appeal. "'In determining whether to instruct
the jury on a lesser-included offense, the evidence must be
viewed in the light most favorable to the accused's theory of the
case.'" Hunt v. Commonwealth, 25 Va. App. 395, 400, 488 S.E.2d
672, 674 (1997) (citation omitted).
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
At trial, the Commonwealth established that defendant,
together with several armed co-conspirators, entered the
residence of James H. Robinson, III, intending to commit robbery.
Once inside, a struggle ensued between a perpetrator and Elijah
Thornton, III, a guest in the home. As a result, several of the
assailants, including defendant, fired weapons, mortally wounding
Thornton.
Defendant testified that he had been "drinking," "getting
high," and "riding around" with friends immediately prior to the
offenses. He recalled that he "kind of doz[ed] off" and was
awakened by three companions "coming into the car," "yelling" and
"panicking." When defendant inquired, "what was going on," one
among the group, Joseph Williams, answered, "the guy was grabbing
for the gun, and he almost took the gun from Shy [co-conspirator
Shawn Johnson], so he just fired." Defendant did not understand
Williams' response but, "nervous and scared," "just sat there
. . . and shut up." The men subsequently abandoned the vehicle,
and defendant later gave Timothy Hines, also a perpetrator, "cab
money home."
At the conclusion of the evidence, defendant proposed two
jury instructions embracing the offense of accessory after the
fact, though he had not been indicted for such crime, both of
which were refused by the court. On appeal, defendant argues
that accessory after the fact is a lesser-included offense
supported by the evidence.
"We are bound by the principle that the
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accused is entitled, on request, to have the
jury instructed on a lesser included offense
that is supported by more than a 'scintilla
of evidence' in the record." Thus, where
credible evidence exists that would support
giving the jury an instruction on a
particular theory of the case, the trial
court's failure to give the instruction
constitutes reversible error.
Hunt, 25 Va. App. at 399-400, 488 S.E.2d at 674 (citations
omitted). Therefore, assuming, without deciding, that defendant
was entitled to the instruction in issue as a lesser-included
offense, or otherwise, see Code § 19.2-286; Rule 3A:17(c),
credible evidence must support such culpability. 1
"The definition of an accessory after the fact is one of
ancient origin . . . [requiring that:] '1. The felony must be
completed; 2. [Defendant] must know that the felon is guilty;
3. [Defendant] must receive, relieve, comfort or assist him.'"
Manley v. Commonwealth, 222 Va. 642, 644-45, 283 S.E.2d 207, 208
(1981) (quoting Wren v. Commonwealth, 67 Va. (26 Gratt.) 952, 956
(1875)). Defendant testified that he was sleeping when the men
returned to the vehicle and did not comprehend Williams' comment
that "the guy . . . almost took the gun from Shy, so he just
1
A panel of this Court recently concluded in Dalton v.
Commonwealth, 27 Va. App. 381, 391, 499 S.E.2d 22, 27 (1998),
that "[a]lthough the crime of being an 'accessory after the fact'
is technically not a lesser-included offense of any other crime,
. . . a criminal defendant is entitled to an instruction on this
crime, if such an instruction is warranted by the evidence, based
upon the jury's statutory power under Code § 19.2-286." Dalton
will be further considered en banc but, because we find the
instant evidence insufficient to support the instruction, the
instant decision need not await its resolution.
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fired." Rather than make inquiry, he elected to "shut up."
Thus, defendant was involved with the principal actors following
the offenses without knowledge of the predicate felony or their
participation in it and, therefore, could not have been an
accessory after the fact.
Accordingly, the court properly refused to instruct the jury
on the offense, and we affirm the convictions.
Affirmed.
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