COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
SHARELLE GRACE DUKE MERRITT
MEMORANDUM OPINION * BY
v. Record No. 1524-97-1 JUDGE JOSEPH E. BAKER
JUNE 30, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
William L. Wellons, Judge
Joseph M. Teefey, Jr., Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Robert H. Anderson, III, Assistant Attorney
General (Mark L. Earley, Attorney General;
John K. Byrum, Jr., Assistant Attorney
General, on brief), for appellee.
Sharelle Grace Duke Merritt (appellant) appeals from her
jury trial convictions, approved by the Mecklenburg County
Circuit Court (trial court), for second-degree murder and use of
a firearm in the commission of murder. She contends the trial
court erroneously held the evidence sufficient to support the
jury's finding that she shot the victim intentionally rather than
accidentally. In addition, she claims the trial court wrongfully
instructed the jury that it could consider a witness' prior
consistent statements as substantive evidence. For the reasons
that follow, we affirm appellant's convictions.
The record shows that on December 20, 1995, appellant shot
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Roy Lee Gregory (victim) at his home in Mecklenburg County.
Marcus Coles, who was playing cards with appellant and victim at
victim's kitchen table, witnessed some of the events. Appellant
and victim were drinking and argued over whether victim was
appellant's natural father. According to Coles, at about
4:00 p.m., appellant retrieved a .410 single-barrel shotgun and
one shell from the closet. She sat down on the couch and
repeatedly loaded and unloaded the shell while saying, "I will
shoot him." Appellant chambered the bullet again, closed the
barrel, and pulled the hammer back. Coles, fearing for his
safety, moved away from the table but saw appellant point the gun
in victim's direction. He then heard the gun discharge and
appellant exclaim, "Oh my God." Coles saw victim bleeding from
the nose, mouth and left side of his head. Coles and appellant
both fled.
Sheriff's Deputies Wilson and Claiborne responded to the
scene, where they found victim bleeding. Appellant returned to
the scene a few minutes later and said, "It was an accident and I
didn't mean to do it." Police retrieved the weapon, which Coles
had discarded away from the scene, and found it to be
operational.
Victim was hospitalized and died about a month later from a
series of infections resulting from the wound. An autopsy showed
a seven-inch scar on the left side of victim's head from surgery
on the shotgun wound. Still present in victim's head at the time
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of autopsy were three shotgun pellets.
Appellant's firearms expert, James Pickelman, testified
victim was shot with number six lead shot which would come from a
shell containing one-hundred-fifty-five pellets per shell. Such
a shot would create a circular pattern, with some "fliers"
deviating from the pattern, the width of which would grow as the
distance from the target increased.
Investigator Wesley Simmons, who examined the shot pattern
on the wall behind victim, found several "cast-off" shots
separated from the main circular shot pattern.
At trial, appellant attempted to impeach Coles with portions
of his statement to police and his testimony at appellant's
preliminary hearing. Over appellant's hearsay objection, on
re-direct, the Commonwealth sought to rehabilitate Coles with
previous consistent statements. The Court overruled the
objection and admitted the prior consistent statements for that
limited purpose. Appellant did not ask the court to instruct the
jury that it could consider the prior statements only for such
limited purpose and not as substantive evidence.
After the jury had retired to consider its verdict, it
returned to the courtroom and made the following inquiries:
THE COURT: Ladies and gentlemen, I
understand that you have a question to be
addressed to the Court. Who would like to
address the question?
A JUROR: We would -- was the
preliminary hearing entered in as evidence?
THE COURT: Only to the extent that the
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statements were read to you in open court.
A JUROR: Okay.
THE COURT: The transcript itself was not
admitted in evidence.
A JUROR: So, we cannot go over that?
THE COURT: You will have to rely on the
evidence that's been presented to you through
the testimony which was presented.
A JUROR: Okay. No further questions
then. That's all.
The trial court did not consult counsel before making these
statements to the jury. However, appellant raised no objection
contemporaneously or during the remainder of the jury's
deliberations.
More than two months after trial, appellant moved for a
mistrial, asserting the trial court erroneously instructed the
jury it could consider preliminary hearing testimony as
substantive evidence. The court overruled the motion.
Sufficiency of the Evidence to Prove Intent
Appellant contends the evidence was insufficient to prove
she acted with the requisite intent to commit second-degree
murder.
In reviewing a challenge to the sufficiency of the evidence,
we view the evidence and any reasonable inferences in the light
most favorable to the Commonwealth. See, e.g., Traverso v.
Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
It is within the province of the jury to judge the credibility of
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the witnesses, see, e.g., Mullis v. Commonwealth, 3 Va. App. 564,
571, 351 S.E.2d 919, 923 (1987), and "[t]he jury's verdict will
not be disturbed on appeal unless it is plainly wrong or without
evidence to support it." Traverso, 6 Va. App. at 176, 366 S.E.2d
at 721. Whether appellant "acted with the requisite mental state
is an essential question for the jury." Darnell v. Commonwealth,
6 Va. App. 485, 492, 370 S.E.2d 717, 720-21 (1988). "The fact
finder may infer that a person intends the immediate, direct, and
necessary consequences of his voluntary acts." Bell v.
Commonwealth, 11 Va. App. 530, 533, 399 S.E.2d 450, 452 (1991).
Second-degree murder does not require proof of a specific
intent to kill. See Rhodes v. Commonwealth, 238 Va. 480, 486,
384 S.E.2d 95, 98 (1989). It requires proof only of "'a
malicious purpose to do the deceased a serious personal injury or
hurt.'" Id. (quoting Dock's Case, 62 Va. (21 Gratt.) 909, 913
(1872)). Intent or purpose "may, and most often must, be proven
by circumstantial evidence," Fleming v. Commonwealth, 13 Va. App.
349, 353, 412 S.E.2d 180, 183 (1991), including the statements
and conduct of the accused. See Nobles v. Commonwealth, 218 Va.
548, 551, 238 S.E.2d 808, 810 (1977).
Here, Commonwealth's witness Coles testified that, during an
argument between appellant and victim, appellant retrieved a
shotgun and shell from a nearby closet and sat on the couch while
she repeatedly loaded and unloaded the weapon. She was pointing
the gun in victim's direction and saying, "I will shoot him."
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Appellant chambered the bullet again, closed the barrel, pulled
back the hammer, and discharged the gun, shooting appellant in
the head.
Appellant contends that Coles' testimony did not prove
appellant aimed the gun or purposefully pulled the trigger and
that the forensic evidence of the shot pattern on the kitchen
wall and cabinets proved, in fact, she did not aim the gun. We
disagree.
The jury heard Coles' testimony and appellant's attempts at
impeachment and nevertheless accepted his testimony that
appellant pointed the shotgun at victim. Evidence that the gun
was in good operating condition after the shooting belied
appellant's claim that the gun discharged accidentally. See
Compton v. Commonwealth, 219 Va. 716, 730-31, 250 S.E.2d 749, 758
(1979). In addition, the shot-pattern evidence did not prove
appellant lacked intent. Although multiple shotgun pellets hit
the cabinet and walls, enough pellets hit victim's head to
require surgery leaving a seven-inch scar. The evidence is
sufficient to support the finding that appellant intended to
shoot victim, and the jury was entitled to conclude that the only
reasonable hypothesis flowing from all the evidence, viewed in
the light most favorable to the Commonwealth, was that appellant
acted with the requisite intent. See Cody v. Commonwealth,
180 Va. 449, 454-55, 23 S.E.2d 122, 124 (1942) (upholding
first-degree murder conviction of accused who argued with his
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wife over bringing gun into house, said anyone who crossed the
threshold to the bedroom "[was] going to get it," and shot his
wife when she approached that threshold, despite conflicting
evidence of whether he actually aimed gun).
Jury's Inquiries
Appellant asserts the trial court's responses to the jury's
inquiries constituted an instruction to the jury that Coles'
prior inconsistent and consistent testimony could be considered
as "substantive evidence." We disagree. However, even if we
agreed with appellant's assertion, we will not notice the issue
on appeal because appellant failed to request a limiting
instruction or timely to assign the trial court's responses as
error. See Smith v. Commonwealth, 217 Va. 9, 9 n.*, 225 S.E.2d
194, 194 n.* (1976); Rule 5A:18. For the first time, more than
two months after the trial had been concluded with his
conviction, using the foregoing assertion as a ground, appellant
moved for a mistrial and here assigns as error the trial court's
denial of that motion.
"Generally, evidence admissible for one purpose, but
inadmissible for another, should be accompanied by a limiting
instruction to the jury." Hanson v. Commonwealth, 14 Va. App.
173, 183, 416 S.E.2d 14, 20 (1992). However, a party entitled to
a limiting instruction "waive[s] [her] right [to such an
instruction] by not requesting it." Crider v. Commonwealth, 206
Va. 574, 578, 145 S.E.2d 222, 225 (1965). The Virginia Supreme
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Court repeatedly has held that an accused who "wishes to take
advantage on appeal of some incident he regards as objectionable
enough to warrant a mistrial . . . must make his motion timely or
else be deemed to have waived his objection. Making a timely
motion for mistrial means making the motion 'when the
objectionable words were spoken.'" Yeatts v. Commonwealth, 242
Va. 121, 137, 410 S.E.2d 254, 264 (1991) (quoting Reid v.
Baumgardner, 217 Va. 769, 774, 232 S.E.2d 778, 781 (1977))
(citations omitted).
Appellant relies on Mason v. Commonwealth, 7 Va. App. 339,
373 S.E.2d 603 (1988), to justify her failure to make timely
objections. Although we excused the failure of the accused to
object to the trial court's response to a jury question in Mason,
the response of the trial court in that case provided the jury
with an incomplete definition of an essential element of the
offense. See id. at 345-47, 373 S.E.2d at 606-07; see also
Jimenez v. Commonwealth, 241 Va. 244, 245-46, 250, 402 S.E.2d
678, 678, 681 (1991) (holding that trial court has "affirmative
duty properly to instruct a jury" on principles of law "vital" to
case and that failure of accused to object does not bar
consideration of issue on appeal); Johnson v. Commonwealth, 20
Va. App. 547, 458 S.E.2d 599 (1995) (en banc) (applying Jimenez
ruling to reverse conviction where trial court failed, in
response to question from jury, to fill "obvious void in
instructions," thereby permitting jury to convict accused of a
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nonexistent offense). In this case, by contrast, appellant makes
no claim that the jury was improperly instructed on an element of
the offense. Rather, her objection relates only to a rule of
evidence. Under these facts, we find no reason to excuse her
failure timely to object or move for mistrial.
For these reasons, we affirm appellant's convictions.
Affirmed.
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Sharelle Grace Duke Merritt v. Commonwealth
Combined Opinion