Smith v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judge Annunziata, Senior Judge Duff and
Retired Judge Kulp *
Argued at Alexandria, Virginia

REGINA E. SMITH, S/K/A
REGINA ELIZABETH SMITH
OPINION BY
v. Record No. 0486-99-2 JUDGE CHARLES H. DUFF
AUGUST 1, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY
Arthur W. Sinclair, Judge Designate

John M. Williamson for appellant.

Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

A jury convicted appellant of first degree murder, abduction

and use of a firearm in the commission of murder. On appeal,

appellant contends the trial court committed reversible error by

(1) denying her proffered instruction regarding the elements of

the felony murder rule, (2) overruling her exceptions to the

Commonwealth's proffered instructions nine through twelve, (3)

ruling that if the evidence was sufficient to find that she was a

part of the abduction then she was responsible for everything

which occurred during the abduction, and (4) finding sufficient

*
Retired Judge James E. Kulp took part in the consideration
of this case by designation pursuant to Code § 17.1-400,
recodifying Code § 17-116.01.
evidence to support the conviction of use of a firearm in the

commission of a felony. We disagree and affirm the convictions.

BACKGROUND

Appellant, Sean Harris, William Harris, and the victim were

neighbors and all used illegal narcotics. The victim accused

appellant of taking cocaine from Sean Harris' room. The victim,

along with Sean and William Harris, went to appellant's room to

confront her. During a heated conversation, appellant hit the

victim and he fell to the floor. Appellant then instructed Sean

Harris, William Harris, Chilief Brisbon and Taryl Barnes to beat

the victim. The victim was moved to another room and beaten, as

appellant had instructed. Appellant entered the room after the

victim was bound and gagged. Barnes said, "Just take the [victim]

somewhere and leave him, don't kill him." Appellant next said,

"Get rid of him" and, according to Sean Harris, appellant made a

motion with her index finger across her throat in a slicing

fashion. William Harris testified that appellant's gesture was a

sweeping arm motion. Sean and William Harris testified that

appellant's words, along with her hand motion, meant that she

wanted the victim killed. Sean Harris, William Harris and Brisbon

put the victim in the trunk of a car, drove to a remote location

where Sean Harris shot the victim. Sean Harris testified that

appellant was "the boss" and he was carrying out her order to kill

the victim.

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 ABDUCTION AND FELONY MURDER ANALYSIS

Appellant argues that the evidence failed to prove that she

was sufficiently implicated in the abduction to support criminal

responsibility for the attendant acts, including the murder.

Pursuant to Code § 18.2-32, felony murder is a killing "in

the commission of, or attempt to commit, arson, rape, forcible

sodomy, inanimate or animate object sexual penetration, robbery,

burglary or abduction, except as provided in § 18.2-31 . . . ."

The crime of abduction requires proof of an asportation or

detention by force, intimidation or deception. See Scott v.

Commonwealth, 228 Va. 519, 526, 323 S.E.2d 572, 576 (1984).

"Abduction is a continuing offense." Berkeley v. Commonwealth, 19

Va. App. 279, 286, 451 S.E.2d 41, 44 (1994) (citation omitted).

An accessory before the fact is an individual who must "know

or have reason to know of the principal's criminal intention and

must intend to encourage, incite, or aid the principal's

commission of the crime." McGhee v. Commonwealth, 221 Va. 422,

427, 270 S.E.2d 729, 732 (1980) (citation omitted). "The amount

of incitement or encouragement to commit the crime is irrelevant

if the encouragement in fact induces the principal to commit the

offense." Id. at 427, 270 S.E.2d at 732-33 (citation omitted).

"A principal in the second degree is one not the perpetrator,

but present, aiding and abetting the act done, or keeping watch or

guard at some convenient distance." Rollston v. Commonwealth, 11

Va. App. 535, 539, 399 S.E.2d 823, 825 (1991) (citation omitted).

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"As for what constitutes 'aiding and abetting,' . . . [i]t must be

shown that the defendant procured, encouraged, countenanced, or

approved commission of the crime." Id. (citation omitted).

The evidence proved that after the victim accused appellant

of stealing cocaine, appellant hit the victim and knocked him to

the ground. Appellant then instructed the other men to move the

victim from her room and beat him. After the victim was severely

beaten, appellant saw that he was bound and gagged. The

Commonwealth's evidence was sufficient to prove that appellant was

either an accessory before the fact or a principal in the second

degree to the abduction.

Appellant also argues that the killing was not an act

directly calculated to further the abduction and that it was not

necessitated by the abduction.

"The Supreme Court of Virginia has adopted the res gestae

theory in applying the felony murder statute." Montague v.

Commonwealth, 31 Va. App. 187, 190, 522 S.E.2d 379, 381 (1999)

(citation omitted). "Under the res gestae theory, the felony

murder doctrine applies when the 'initial felony and the homicide

[are] parts of one continuous transaction, and [are] closely

related in point of time, place, and causal connection.'" Id. at

190-91, 522 S.E.2d at 381 (citation omitted). "In establishing

this relationship, sufficient evidence must be presented from

which the fact finder can conclude that the killing and the

[underlying felony] were 'interdependent objects of a common

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criminal design.'" Tibbs v. Commonwealth, 31 Va. App. 687, 706,

525 S.E.2d 579, 588 (2000) (citation omitted).

After the victim was bound and gagged, appellant made a hand

motion and said, "Get rid of him." The victim was immediately

placed in the trunk of a car, taken to a remote location and shot.

Sean and William Harris testified that they interpreted

appellant's words and hand motion as meaning she wanted them to

kill the victim. Sean Harris also testified that appellant was

"the boss" and that he was carrying out her order to kill the

victim. The evidence was sufficient to prove that the res gestae

of the abduction included the killing because the abduction and

homicide were parts of one continuous transaction and were

interdependent objects of a common criminal design.

THE JURY INSTRUCTIONS

Appellant objected to instructions nine through twelve, the

felony murder instruction, an instruction concerning a killing in

the commission of abduction, a concert of action instruction and

an instruction on malice, all of which tracked the Virginia Model

Jury Instructions. Appellant argues that the trial court erred in

giving the felony murder instructions without also giving an

instruction on the definition of causal connection, which she

proffered in instruction A.

Proffered instruction A provided in pertinent part:

The acts causing death must be so
closely related to the abduction in time,

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 place, and causal connection as to make it a
part of the same criminal enterprise.
"Causal connection" means that the act
or acts causing death must have been
directly calculated to further the abduction
or necessitated by the commission of the
abduction. Any degree of causation is
sufficient.

Instruction nine provided in pertinent part, "[t]hat the

killing occurred in the commission of abduction." Instruction ten

provided in pertinent part, "[t]hat the killing occurs in the

commission of abduction if the victim has been abducted and

thereafter detained until the act causing death occurs."

Instruction twelve provided in pertinent part, "[a]ll participants

in the initial felony may be found guilty of the murder of the

victim so long as the homicide was so closely related to the

felony in time, place and causal connection as to make it part of

the same criminal act."

"A reviewing court's responsibility in reviewing jury

instructions is 'to see that the law has been clearly stated and

that 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) (citation omitted). "If the principles set

forth in a proposed instruction are fully and fairly covered in

other instructions that have been granted, a trial court does not

abuse its discretion in refusing to grant a repetitious

instruction." Joseph v. Commonwealth, 249 Va. 78, 90, 452 S.E.2d

862, 870 (1995).

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 The first sentence of paragraph two in proffered instruction

A is language quoted from King v. Commonwealth, 6 Va. App. 351,

359, 368 S.E.2d 704, 708 (1988) (holding that there was no causal

connection between the death and the underlying felony when the

death was from circumstances coincident to the felony). The

second sentence of paragraph two in proffered instruction A is

language quoted from Berkeley, 19 Va. App. at 285, 451 S.E.2d at

44 (holding that the homicide stemmed from the commission of an

abduction, was a part of one continuous transaction, closely

related in time, place and causal connection, and occurred within

the res gestae of the abduction).

"A statement made in the course of a judicial decision is not

necessarily proper language for a jury instruction." Yeager v.

Commonwealth, 16 Va. App. 761, 766, 433 S.E.2d 248, 250 (1993)

(citation omitted).

"[T]he felony-murder statute applies where the killing is so

closely related to the felony in time, place and causal connection

as to make it a part of the same criminal enterprise." Haskell v.

Commonwealth, 218 Va. 1033, 1044, 243 S.E.2d 477, 483 (1978).

"Causal connection" means that the underlying felony must relate

to the murder "as to make it a part of the same criminal

enterprise" and this is established when the underlying felony and

homicide are "interdependent objects of a common criminal design."

Tibbs, 31 Va. App. at 705-06, 525 S.E.2d at 588 (citation

omitted). Instructions nine, ten and twelve clearly defined the

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issue of causal connection, and the trial court did not err in

denying appellant's proffered instruction A and overruling her

exceptions to jury instructions nine through twelve.

USE OF A FIREARM CONVICTION

Appellant contends the evidence was insufficient to support

her conviction of use of a firearm in the commission of murder.

Appellant concedes that she did not preserve this issue at

trial. Appellant argues that if her murder conviction is

reversed, then fundamental fairness requires that her firearm

conviction also be reversed. Because we affirm appellant's

murder conviction, this argument is without merit.

Based upon the foregoing, appellant's convictions are

affirmed.

Affirmed.

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