Willis v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Richmond, Virginia

DION RANDOLPH WILLIS
OPINION BY
v. Record No. 2970-00-2 JUDGE RUDOLPH BUMGARDNER, III
DECEMBER 18, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge

Gregory W. Franklin, Assistant Public
Defender (Office of the Public Defender, on
briefs), for appellant.

Susan M. Harris, Assistant Attorney General
(Randolph A. Beales, Acting Attorney General,
on brief), for appellee.

A jury convicted Dion Randolph Willis of first degree

murder and use of a firearm in the commission of a felony. On

appeal, he contends the trial court (1) violated his statutory

right to a speedy trial and (2) erred in refusing to instruct on

second degree murder and voluntary manslaughter. Finding no

error, we affirm.

The defendant contends the trial court violated his

statutory right to a speedy trial when it tried him more than

five months after a preliminary hearing by the juvenile and

domestic relations district court. The proceedings against the

defendant, a juvenile, began with his detention on juvenile

petitions charging murder and use of a firearm in the commission
of a felony. The juvenile court found probable cause and

transferred the charges to the circuit court where a grand jury

indicted. However, the defendant filed a motion entitled

"Motion to Clarify Jurisdiction" asserting the circuit court

lacked jurisdiction under Code § 16.1-271. 1 That section

provides that conviction as an adult in circuit court precludes

a juvenile court from exercising jurisdiction over the juvenile

for subsequent offenses. See Broadnax v. Commonwealth, 24 Va.

App. 808, 485 S.E.2d 666 (1997). In this case, the circuit

court had convicted the defendant as an adult of maiming in

1998.

Code § 16.1-269.6(C) 2 directs the circuit court to enter an

order divesting the juvenile court of jurisdiction over future

criminal acts upon convicting a juvenile as an adult. The order

1
Code § 16.1-271, entitled "Subsequent offenses by
juvenile," provides in part:

The trial . . . of a juvenile as an
adult . . . shall preclude the juvenile
court from taking jurisdiction of such
juvenile for subsequent offenses committed
by that juvenile.
Any juvenile who is tried and convicted
in a circuit court as an adult . . . shall
be considered and treated as an adult in any
criminal proceeding resulting from any
alleged future criminal acts . . . .
2
Once a juvenile is convicted as an adult, Code
§ 16.1-269.6(C) mandates "that the circuit court shall issue an
order terminating the juvenile court's jurisdiction over that
juvenile with respect to any [of his] future criminal acts
. . . ."

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of conviction in 1998 omitted that required provision, so the

trial court entered an order nunc pro tunc to August 11, 1998,

terminating jurisdiction by the juvenile court over the

defendant. In a separate order, the circuit court remanded the

charges pending against the defendant to the general district

court for an expedited preliminary hearing.

Warrants charging murder and use of a firearm were issued.

The general district court held a preliminary hearing and

certified both charges on May 25, 2000, and a grand jury

returned new indictments. The trial commenced within five

months of that preliminary hearing but more than five months

after the preliminary hearing on the juvenile petitions. The

defendant was in custody continuously. The trial court

overruled the defendant's motion to dismiss the indictments for

violating his right to a speedy trial under Code § 19.2-243, and

a jury convicted him of the charges.

Under Code § 16.1-271, once a juvenile is tried and

convicted as an adult, the juvenile court is precluded from

taking jurisdiction over the defendant regarding any alleged

future criminal acts. This directive is mandatory. Broadnax,

24 Va. App. at 815, 485 S.E.2d at 669. The juvenile court never

wielded jurisdiction over the defendant, and the circuit court

could derive no jurisdiction from it.

The lack of jurisdiction in the juvenile court under Code

§ 16.1-271 is not dependent upon entry of an order as mandated

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in Code § 16.1-269.6(C). The failure to include the provision

in the 1998 order was properly corrected by an order nunc pro

tunc. A circuit court has no discretion over the matter, and

the action of the trial court accomplished a ministerial duty

that corrected a clerical oversight. Harris v. Commonwealth,

222 Va. 205, 209, 279 S.E.2d 395, 398 (1981). The order entered

nunc pro tunc properly corrected the record of the earlier

proceeding.

The first indictments were without effect because the

juvenile court lacked authority to certify the charges made in

the original petitions. The criminal warrants heard in the

general district court supplanted the original charges, and the

indictments returned on their certification supplanted the

earlier indictments. Brooks v. Peyton, 210 Va. 318, 322, 171

S.E.2d 243, 246 (1969). The speedy trial period commenced with

the preliminary hearing on the second indictments. Code

§ 19.2-243. The defendant’s jury trial on September 18, 2000

commenced within the statutory period.

Next, we consider whether the trial court erred in refusing

to instruct on second degree murder and voluntary manslaughter.

We view the evidence in the light most favorable to the

defendant's theory of the case. Hunt v. Commonwealth, 25 Va.

App. 395, 400, 488 S.E.2d 672, 674 (1997). Only the

Commonwealth presented evidence.

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 The defendant and the victim got into a scuffle over a

bracelet during a party in an apartment. The victim choked the

defendant and threatened to kill him. Two companions eventually

broke up the unarmed fight. After they did so, the victim made

no more threats, did not go after the defendant, and went into

the kitchen. As the defendant left the apartment, he said that

he would be back and, "I'm going to kill him." One witness said

the defendant was mad and "was like watch. You know what I'm

saying. Boom, like that. You know what I'm saying?" The

defendant went outside the building, retrieved a gun from a

trashcan, and returned. He shot the victim five times.

"The difference between murder in the first and second

degree depends upon the intent of the accused at the time of the

killing. Every malicious homicide is murder. If in addition

the killing be wilful, deliberate, and premeditated, it is

murder in the first degree." Pannill v. Commonwealth, 185 Va.

244, 255, 38 S.E.2d 457, 463 (1946) (citation omitted).

The record contains no evidence that the defendant acted

other than with premeditation and a deliberate intent to kill.

Friends broke up an unarmed tussle between the defendant and the

victim. The defendant announced that he would return and kill

the victim. He left, and once outside the apartment, he

retrieved a gun and returned. The defendant went to the kitchen

and shot the victim repeatedly. No evidence suggests the victim

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was armed or had threatened the defendant immediately before the

shooting.

A "defendant is not entitled to a lesser degree instruction

solely because the case is one of murder." Clark v.

Commonwealth, 220 Va. 201, 209, 257 S.E.2d 784, 789 (1979)

(citation omitted). A second degree murder instruction is only

appropriate where evidence supports it, and that evidence "must

amount to more than a scintilla." Justus v. Commonwealth, 222

Va. 667, 678, 283 S.E.2d 905, 911 (1981) (citing Hatcher v.

Commonwealth, 218 Va. 811, 814, 241 S.E.2d 756, 758 (1978)).

Heat of passion can reduce a homicide to voluntary

manslaughter.

"Malice aforethought" implies a mind under
the sway of reason, whereas "passion" whilst
it does not imply a dethronement of reason,
yet is the furor brevis, which renders a man
deaf to the voice of reason; so that,
although the act was intentional of death,
it was not the result of malignity of heart,
but imputable to human infirmity. Passion
and malice are, therefore, inconsistent
motive powers, and hence an act which
proceeds from the one, cannot also proceed
from the other.

Hannah v. Commonwealth, 153 Va. 863, 870, 149 S.E. 419, 421

(1929).

The defendant announced his intention to return and kill

the victim. He left, armed, and returned to consummate his

stated intention. His actions were those of a rational person

whose mind was under the control of reason. He announced his

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intention and then proceeded to accomplish it. The evidence

reflects he had time to think; it does not indicate he felt

provoked, shot without thinking, or killed in anger. No

evidence suggests the defendant was reasonably provoked or acted

in the heat of passion. Barrett v. Commonwealth, 231 Va. 102,

105-06, 341 S.E.2d 190, 192 (1986).

We conclude the trial court properly refused to instruct on

second degree murder and voluntary manslaughter. The

uncontroverted evidence shows the defendant intended to kill,

prepared to do so, and acted on his pronouncement. His conduct

shows willful, deliberate, and premeditated action under the

control of reason. A witness characterized the defendant as

"mad" as was the defendant in Buchanan v. Commonwealth, 238 Va.

389, 384 S.E.2d 757 (1989). As in that case, the evidence

showing the murder "'to have been deliberate, premeditated and

wilful could be so clear and uncontroverted that a trial court

could properly refuse to instruct on the lesser included

offenses.'" Id. at 409, 384 S.E.2d at 769 (quoting Painter v.

Commonwealth, 210 Va. 360, 366, 171 S.E.2d 166, 171 (1969)).

We conclude the trial court did not deny the defendant a

speedy trial or err in instructing the jury. Accordingly, we

affirm the defendant's convictions.

Affirmed.

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