Present: All the Justices
FRANK CLIFTON KING, JR.
OPINION BY
v. Record No. 012730 JUSTICE LAWRENCE L. KOONTZ, JR.
November 1, 2002
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals of
Virginia properly determined that the defendant’s failure to
object to a subsequent jury instruction operated as a waiver of
the issue of an alleged fatal variance between the charge in the
indictment and the evidence at trial previously raised by the
defendant’s motion to strike the evidence. For the reasons that
follow, we conclude that the Court of Appeals erred in holding
that the defendant waived that issue for purposes of appeal.
BACKGROUND
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to it all reasonable
inferences fairly deducible therefrom. Dowden v. Commonwealth,
260 Va. 459, 461, 536 S.E.2d 437, 438 (2000). In March 2000,
Frank Clifton King, Jr. (King), then age 17, was living with
Donald Lee King, his uncle, in the City of Richmond. King and
Antonio E. Harris (Harris) formulated a plan to rob Donald Lee
King. Daniel Bailey (Bailey), a friend of Donald Lee King, was
visiting the elder King at his home at about 8:00 p.m. on March
3, 2000, when Harris came through the front door brandishing two
handguns. Harris instructed both men to get down on the floor
and demanded money. King entered the room from his bedroom with
a shotgun in his hand. He stood over his uncle and then twice
fired the shotgun at him. The elder King was killed as a
result. Bailey escaped through the front door although Harris
fired several shots and wounded him. King also fired the
shotgun once through a window at the fleeing Bailey.
On March 9, 2000, a petition was filed in the City of
Richmond Juvenile and Domestic Relations District Court alleging
that King “did on or about 3/3/00, unlawfully, feloniously and
maliciously shoot/discharge a firearm within or at an occupied
dwelling house in violation of section 18.2-279 of the 1950 Code
of Virginia as amended.” On May 1, 2000, after King was
certified to be tried as an adult, the grand jury of the Circuit
Court of the City of Richmond returned an indictment against
King charging that he “did feloniously, unlawfully and
maliciously shoot at or throw a missile at or against an
occupied building or dwelling house located at 1220 N. 36th
Street, thereby putting the lives of the occupants in peril.
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Virginia Code Section §18.2-279.” 1 No explanation for the
variation in the description of the offense in the juvenile
petition and the subsequent indictment appears in the record.
At the trial, the evidence showed, as has been recounted
above, that King only discharged the shotgun while within the
house. Accordingly, at the conclusion of all the evidence,
King’s counsel moved to strike the evidence regarding a
violation of Code § 18.2-279, arguing as follows:
I move to strike Indictment No. 00F-1804, which is the
charge of feloniously, unlawfully, and maliciously
shooting at, or throwing a missile at or against an
occupied building or dwelling house at 1220 North 36th
Street.
The Commonwealth has not proved that, Judge. The
language specific to the indictment contemplates
throwing a missile at or shooting a missile at a
dwelling. That language contemplates further,
shooting from outside into a dwelling. The
Commonwealth has not proved that. It hasn’t met the
language that they set out in the indictment.
The trial court denied the motion. Thereafter, the trial
court gave the following instruction without objection from
King:
The defendant is charged with the crime of
shooting within an occupied dwelling. The
Commonwealth must prove beyond a reasonable doubt each
of the following elements of that crime:
1
King was indicted for additional crimes arising from the
robbery and murder of his uncle and was convicted of those
crimes. Those convictions are not at issue in this appeal.
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(1) That the defendant shot within a building
occupied by Donald Lee King and Danny Bailey; and
(2) That the life or lives of such person may
have been put in peril; and
(3) That the act was done with malice.
(Emphasis added).
An instruction providing the form of the verdict, also
given without objection from King, permitted the jury to find
King “guilty of maliciously shooting within an occupied
dwelling, as charged in the indictment.” (Emphasis added).
King was convicted and sentenced to a term of ten years, with
five years suspended.
King filed an appeal in the Court of Appeals asserting that
the trial court had erred in failing to grant his motion to
strike the evidence. An appeal was granted and, following oral
argument, a three-judge panel of the Court of Appeals in an
unpublished opinion affirmed King’s conviction. King v.
Commonwealth, Record No. 2578-00-2 (November 13, 2001).
Although the Commonwealth had not asserted any procedural bar in
arguing against King’s appeal, the Court of Appeals, invoking
its Rule 5A:18, 2 determined that King had waived his objection to
2
In pertinent part, Rule 5A:18, applicable in the Court of
Appeals, provides: “No ruling of the trial court . . . will be
considered as a basis for reversal unless the objection was
stated together with the grounds therefor at the time of the
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the trial court’s refusal to strike the evidence by his failure
to object to the jury instruction that varied from the language
of the indictment. The Court reasoned that by failing to object
to this instruction, King permitted the language of the
instruction to become “the law of the case,” and that the “ends
of justice” did not require the Court to overlook King’s failure
to object “because no miscarriage of justice occurred.” Id.,
slip op. at 5-7. Accordingly, the Court of Appeals did not
reach the merits of King’s contention that the evidence adduced
at trial was insufficient to sustain his conviction under the
wording of the indictment. We awarded King this appeal, limited
to the waiver issue.
DISCUSSION
King contends that under Code § 8.01-384(A) his objection
to the trial court’s refusal to strike the evidence was
sufficient to preserve for appeal the issue whether the evidence
was insufficient to prove a violation of Code § 18.2-279 as
specifically charged in the indictment. Thus, he further
contends that the Court of Appeals erred in holding that his
failure to object to the jury instruction that varied from the
ruling, except . . . to enable the Court of Appeals to attain
the ends of justice.”
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language of the indictment acted as a waiver of his prior
objection.
In 1992, Code § 8.01-384(A) was amended to provide, 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 . . . . Arguments made
at trial via . . . 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.
(Emphasis added).
Unquestionably, at the conclusion of the evidence King made
“known to the court the action which he desire[d] the court to
take [and] his objections to the action of the court and his
grounds therefor” by asserting in his motion to strike the
evidence that the evidence presented by the Commonwealth was
fatally at variance with the offense described in the
indictment. The Commonwealth does not assert that King
expressly withdrew or affirmatively waived his objection. Thus,
it is clear that for purposes of appellate review King has
preserved his objection to the trial court’s denial of his
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motion to strike the evidence, unless the application of an
implied waiver is appropriate under the circumstances of this
case.
Like the waiver of any legal right, the waiver referenced
in Code § 8.01-384(A) “will be implied only upon clear and
unmistakable proof of the intention to waive such right for the
essence of waiver is voluntary choice.” Chawla v.
BurgerBusters, Inc., 255 Va. 616, 623, 499 S.E.2d 829, 833
(1998). In Chawla, the appellee also argued that the failure to
object to a jury instruction was a waiver of a prior objection
on the same issue. Applying Code § 8.01-384(A), we rejected
this argument, finding no support in the record for the
conclusion that the appellant “abandoned or evidenced an intent
to abandon the [prior] objection.” Id.
The same rationale applies to the circumstances of this
case with equal, if not greater, force considering the gravity
of applying an implied waiver in a criminal trial. The
undeniable purpose of Code § 8.01-384(A) is to relieve counsel
of the burden of making repeated further objections to each
subsequent action of the trial court that applies or implements
a prior ruling to which an objection has already been noted. In
this regard, the statute and the contemporaneous objection rule
contained in Rule 5A:18, applicable in the Court of Appeals, and
in Rule 5:25, applicable in this Court, are entirely consistent.
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The Commonwealth’s reliance on Fisher v. Commonwealth, 236
Va. 403, 417, 374 S.E.2d 46, 54 (1988), cert. denied, 490 U.S.
1028 (1989), and Spitzli v. Minson, 231 Va. 12, 19, 341 S.E.2d
170, 174 (1986), cases which pre-date the 1992 amendment of Code
§ 8.01-384(A), for the principle that the failure to object to
instructions that are contrary to a position taken previously on
an issue in a trial invites error and, thus, bars consideration
of the issue on appeal is misplaced. While the doctrine of
invited error remains good law, it simply has no application
where, as here, the record shows that a party clearly objected
to a specific ruling of the trial court to which error is
assigned on appeal, even if the party failed to object to
instructions applying or implementing the trial court’s prior
ruling. See, e.g., Wright v. Norfolk and Western Railway Co.,
245 Va. 160, 170, 427 S.E.2d 724, 729 (1993) (distinguishing
Spitzli).
Although the parties have briefed the issue whether the
trial court erred in failing to grant King’s motion to strike,
we express no opinion on that aspect of the case because the
Court of Appeals did not reach that issue. Rather, we will
remand the case to that Court in order to afford it the
opportunity to review the issue upon which the appeal was
originally awarded therein.
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CONCLUSION
For these reasons, the judgment of the Court of Appeals
will be reversed, and the case will be remanded for further
proceedings consistent with the views expressed in this opinion.
Reversed and remanded.
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