Johnson v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Baker, Barrow * , Benton,
Koontz, Willis, Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia

LEVON JOHNSON
OPINION BY
v. Record No. 0408-93-1 JUDGE JAMES W. BENTON, JR.
JULY 5, 1995
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Kenneth N. Whitehurst, Jr., Judge

Melinda R. Glaubke, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.

Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Levon Johnson was convicted in a jury trial of attempted

unlawful wounding and use of a firearm in the commission of

attempted malicious wounding. Johnson contends the firearm

conviction must be reversed because the trial judge in response

to a question from the jury, failed to inform the jury of the

applicable law. In an unpublished opinion, a panel of this

Court, with one judge dissenting, held that Johnson had not

properly preserved the issue for appeal and affirmed the

convictions. See Johnson v. Commonwealth, No. 0408-93-1 (Va. Ct.

App. Nov. 1, 1994). The Court granted a rehearing en banc. For

*
Judge Bernard G. Barrow participated in the hearing and
decision of this case and joined in the opinion prior to his
death.
the reasons that follow, we reverse Johnson's conviction for use

of the firearm.

I.

Johnson was indicted on charges of attempted malicious

wounding in violation of Code §§ 18.2-26 and 18.2-51, and use of

a firearm in the attempted commission of malicious wounding in

violation of Code § 18.2-53.1. At the conclusion of the

evidence, the trial judge instructed the jury regarding the

elements of attempted malicious wounding, attempted unlawful

wounding, and attempted assault and battery. The trial judge

also instructed the jury as follows on the elements of the crime

of use of a firearm in the attempted commission of malicious

wounding:
1. That the defendant used a firearm; and

2. That the use was while committing or
attempting to commit malicious wounding.

During its deliberations, the jury sent the following

written inquiry to the trial judge: "If the defendant is guilty

of attempted unlawful wounding, can he also be guilty of use of a

firearm in the commission of a felony? The instructions provided

to us do not address this." After the trial judge read the

inquiry to counsel, the following exchange occurred:
JUDGE: I think it's obvious the answer to
that is, yes, they can find him guilty of use
of a firearm in the commission of a felony as
well as an unlawful wounding. That's a
felony charge.

Do you-all have anything further on that?

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PROSECUTOR: No, Your Honor. It sounds
logical.

DEFENSE COUNSEL: Well, in [Code §]
18.2-53.1, it is a statute. It just says
malicious.

* * * * * * *

PROSECUTOR: It says malicious wounding as
defined in [Code §] 18.2-51. If we were to
read that in the non-inclusive, then we would
have to exclude aggravated malicious
wounding. So, therefore, the Commonwealth's
opinion is that malicious is encompassed in
all of [Code §] 18.2-51 because otherwise, if
the court were to find as a fact that
unlawful wounding is excluded, it would also
have to find that aggravated malicious
wounding is excluded.
* * * * * * *

DEFENSE COUNSEL: No. Aggravated malicious
wounding is specifically mentioned [Code §]
18.2-53.1. It says, As defined in [Code §]
18.2-51.2, aggravated malicious wounding as
defined.

JUDGE: It would seem to me it does not fall
within the statute. It has to be while
attempting murder, rape, robbery, burglary or
malicious wounding as defined in [Code §]
18.2-51. It does not include unlawful
wounding.

PROSECUTOR: This is the first time that I
ever come across anything like that because
we have -- that would affect it also, Your
Honor.

DEFENSE COUNSEL: But I also think that
that's probably the reason that the
instruction is worded the way it is. It
specifically says . . . the delineated
felony.

PROSECUTOR: I would still maintain that
malicious wounding as defined in [Code §]
18.2-51 also includes unlawful.

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 * * * * * * *

JUDGE: [W]e have two separate charges here;
and I think rather than answering this
question yes or no I should tell the jury
that we have two separate charges, one of
which is malicious wounding and one of which
is use of a firearm in the commission of a
felony, and they have to make a decision on
each one individually; and they can make that
decision either way they please.

* * * * * * *

DEFENSE COUNSEL: Well, the only thing -- if
that's what you're going to tell them, but
that the instructions stand as they are?
JUDGE: Oh, yeah. I'm not going to change
the instructions.

DEFENSE COUNSEL: I mean the elements of the
offense stand as they are stated in the
instructions.

JUDGE: Um-hum.

After the jury was assembled in the courtroom, the judge

instructed the jury as follows:
Ladies and gentlemen, you've submitted a
question that reads: If the defendant is
guilty of attempted unlawful wounding, can he
also be guilty of use of a firearm in the
commission of a felony? And the answer to
that I'm afraid is going to be up to you.

You have two separate charges. You have
the instructions that are before the court.
You have the two separate charges, and it's
up to you to make that decision on each of
the charges.

I will send you back with that thought.
You have two separate charges, and it's up to
you-all to make that decision.

The jury returned a verdict finding Johnson guilty of

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attempted unlawful wounding and guilty of use of a firearm in the

commission of a felony "as charged in the indictment." At

Johnson's sentencing hearing, defense counsel made a motion to

set aside the verdict on the ground that the trial judge failed

to correctly state the law when responding to the jury's inquiry.

She argued that the judge should have instructed the jury that

Johnson could not be convicted of the firearm charge if the jury

found him guilty of attempted unlawful wounding, rather than

attempted malicious wounding as charged in the indictment. The

trial judge denied the motion.
II.

Code § 8.01-384(A) reads in pertinent part as follows:
Formal exceptions to rulings or orders of the
court shall be unnecessary; but for all
purposes for which an exception has
heretofore been necessary, it shall be
sufficient that a party, at the time the
ruling or order of the court is made or
sought, makes known to the court the action
which he desires the court to take or his
objections to the action of the court and his
grounds therefor; . . . . No party, after
having made an objection or motion known to
the court, shall be required to make such
objection or motion again in order to
preserve his right to appeal, challenge, or
move for reconsideration of, a ruling, order,
or action of the court. No party shall be
deemed to have agreed to, or acquiesced in,
any written order of a trial court so as to
forfeit his right to contest such order on
appeal except by express written agreement in
his endorsement of the order. Arguments made
at trial via written pleading, memorandum,
recital of objections in a final order, oral
argument reduced to transcript, or agreed
written statements of facts shall, unless
expressly withdrawn or waived, be deemed
preserved therein for assertion on appeal.

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 The primary function of the contemporaneous objection rule

"is to alert the trial judge to possible error so that the judge

may consider the issue intelligently and take any corrective

actions necessary to avoid unnecessary appeals, reversals and

mistrials." Martin v. Commonwealth, 13 Va. App. 524, 530, 414

S.E.2d 401, 404 (1992) (citing Campbell v. Commonwealth, 12 Va.

App. 476, 480, 405 S.E.2d 1, 2 (1991) (en banc)).

After reading the inquiry, the trial judge stated "it's

obvious the answer to that is, yes, they can find him guilty of

use of a firearm in the commission of . . . unlawful wounding."

Defense counsel responded, "Well, in 18.2-53.1 . . . [i]t just

says malicious." In the discussion that followed, defense

counsel never waivered from that position. The trial judge,

however, ruled against her. "Requiring [defense counsel] to

'object' after this refusal would, in effect, recreate the

requirement of noting an exception to a final adverse ruling of

the trial judge. As we stated in Martinez v. Commonwealth, 10
Va. App. 664, 668, 395 S.E.2d 467, 470 (1990), aff'd as modified,
241 Va. 557, 403 S.E.2d 358 (1991), 'the requirement for an

exception [has been] eliminated.'" Martin, 13 Va. App. at 530,

414 S.E.2d at 404. Thus, this issue was properly preserved for

appeal.

III.

Even if we were to assume that Johnson's counsel failed to

make a timely objection, the failure to make a timely objection

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will not bar consideration on appeal if good cause exists or if

the ends of justice require consideration of the issue. Rule

5A:18. See Davis v. Commonwealth, 17 Va. App. 666, 673-74, 440

S.E.2d 426, 431 (1994); Campbell v. Commonwealth, 14 Va. App.

988, 989-90, 421 S.E.2d 652, 653 (1992) (en banc), aff'd in part,

246 Va. 174, 431 S.E.2d 648 (1993). The Supreme Court of

Virginia has recently and unequivocally reaffirmed the principle

"that, when 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." Jimenez v. Commonwealth, 241

Va. 244, 250, 402 S.E.2d 678, 681 (1991). That principle applies

even when an objection has not been stated. See id. at 245-46,

402 S.E.2d at 678. The trial judge's "imperative duty [to

properly instruct the jury] . . . is one which can neither be

evaded nor surrendered." Williams v. Lynchburg Traction & Light

Co., 142 Va. 425, 432, 128 S.E. 732, 734 (1925).

The Code of Virginia contains no statute by which a

defendant may be convicted of use of a firearm in the commission

of unlawful wounding. Cf. Code § 18.2-53.1. "[A] violation [of

Code § 18.2-53.1] occurs only when a firearm is used with respect

to the [statutorily] specified felonies." Bundy v. Commonwealth,

220 Va. 485, 488, 259 S.E.2d 826, 828 (1979).

The jury's inquiry manifested its concern about an obvious

void in the instructions. In order to discharge its function

properly, the jury requested guidance because the instructions

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were deficient regarding the requirements of the law. The jury's

inquiry unambiguously informed the trial judge that it was not

properly instructed. By failing to respond, "No," to the jury's

inquiry, the trial judge failed to instruct the jury properly.

As a consequence, the jury returned a verdict that is contrary to

Code § 18.2-53.1, and "[t]he jury convicted [Johnson] of the non-

existent offense." Bundy, 220 Va. at 488, 359 S.E.2d at 828.

For these reasons, we reverse the judgment of conviction for

the firearm offense and dismiss the indictment.
Reversed.

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MOON, C.J., concurring in part, dissenting in part.

I concur in the result reached by the majority; however I

disagree with the statement that "the issue was properly

preserved for appeal." Counsel properly raised the same issue in

the trial court he now raises on appeal when the jury asked its

question. However, when the trial court ultimately responded to

that question, defense counsel agreed with the judge's answer.

This was not the proper way to preserve an issue for appeal.
Notwithstanding counsel's agreement with the court's

actions, the Supreme Court's ruling in Jimenez v. Commonwealth,

241 Va. 244, 250-51, 402 S.E.2d 678, 681 (1991), requires, in my

opinion, reversal of the conviction.

Jimenez held that "when a principle of law is vital to a

defendant in a criminal case, a trial court has an affirmative

duty to instruct the jury about the matter," Id. at 250, 402

S.E.2d at 681, even when no objection is made. Id. at 245-46,

402 S.E.2d at 678.

The jury asked:
"If the defendant is guilty of attempted unlawful
wounding, can he also be guilty of use of a firearm in
the commission of a felony? The instructions provided
do not address this."

I believe that the jury should have been told categorically

that if the defendant was found guilty of attempted unlawful

wounding, he could not be found guilty of use of a firearm in the

commission of a felony. The jury was told in effect that it

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could bring back conflicting verdicts. This the jury had the

power to do, Wolfe v. Commonwealth, 6 Va. App. 640, 649-50, 371

S.E.2d 314, 319 (1988), but not the right or duty to do. The

court's answer had the effect of inviting the jury to indulge in

jury nullification, which is not countenanced in the law of the

Commonwealth. See Poyner v. Commonwealth, 229 Va. 401, 329

S.E.2d 815 (1985).

As I interpret the jury's question, it probably had already

determined the defendant was not guilty of attempted malicious

wounding, but guilty only of unlawful wounding. In such a case,

it was the jury's clear duty upon being properly instructed to

find the defendant not guilty of use of a firearm in the

commission of a felony.
Because it appears probable that if the jury's question had

been answered directly, and in the negative according to the law,

the defendant would not have been convicted of the felony firearm

charge, I believe a direct and negative answer to the jury's

question was "vital to [the] defendant," and for that reason good

cause exists for not applying the bar of Rule 5A:18.

I would reverse.

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WILLIS, J., with whom Baker and Bray, J.J., join, dissenting.

The trial court gave no erroneous instruction. At issue

here is not the correctness of the trial court's response to the

jury's question, but rather the manner in which the trial court

answered that question.

The trial court told the jury that they had instructions

defining the two separate charges on trial and that they were to

apply the evidence and determine whether either charge had been

proven. The trial court instructed the jury that they were to

make a decision on each charge. This instruction was correct.

It was the duty of the jury to determine the merits of each

charge separately, based upon the evidence and the court's

instructions with respect to each charge. The instruction

required by the majority opinion would have put the trial court

in the position of participating improperly in the guilt-

determination process.
When, after discussion with counsel, the trial court

announced the response that it intended to give, defense counsel

asserted no disagreement. Indeed, her response suggests

acquiescence. Thus, counsel failed to preserve this issue for

appeal. Rule 5A:18.

I perceive no reason to invoke the "ends of justice"

exception of Rule 5A:18. Johnson deliberately fired a handgun at

a security guard who was attempting to apprehend him lawfully.

The evidence of those circumstances would have supported a

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conviction of attempted malicious wounding. A mere inconsistency

in the jury's verdicts does not render the verdicts invalid. See

Wolfe v. Commonwealth, 6 Va. App. 640, 647, 371 S.E.2d 314, 318

(1988).

I would affirm the judgment of the trial court.

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