Present: All the Justices
CHRISTOPHER ALLEN BURLILE
OPINION BY
v. Record No. 002003 JUSTICE LAWRENCE L. KOONTZ, JR.
April 20, 2001
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals
erred in holding the trial court, the Circuit Court for the City
of Richmond, properly refused to instruct the jury that in order
to convict a defendant of capital murder in “[t]he willful,
deliberate, and premeditated killing of more than one person
within a three-year period” in violation of Code § 18.2-31(8),
it is necessary that the jury find the defendant was a principal
in the first degree, or “triggerman,” in each killing at issue.
BACKGROUND
Because our review is limited to a single, narrow issue, a
succinct statement of the facts surrounding the charged crimes
in this case, presented in the light most favorable to the
Commonwealth as the party prevailing below, will suffice.
Fishback v. Commonwealth, 260 Va. 104, 108, 532 S.E.2d 629, 630
(2000). For reasons that will become apparent, the procedural
background will be related in some detail.
On December 1, 1997, Christopher Allen Burlile was indicted
on two capital murder charges for the killing of Richard Harris,
Jr. and Chakeisha Carter. The indictments, F-97-3771 and F-97-
3772, charged that the killings of Harris and Carter were part
of the same act or transaction in violation of Code § 18.2-
31(7). On July 6, 1998, the Commonwealth obtained two
additional indictments charging Burlile with capital murder
arising from the same killings in violation of Code § 18.2-
31(8):
F-98-2676 . . . On or about October 15, 1997, in
the City of Richmond, CHRISTOPHER ALLEN BURLILE did
feloniously, unlawfully, willfully, deliberately and
with premeditation kill and murder one Chakeisha
Carter and within a three (3) year period, did kill
and murder another, namely: Richard Harris Jr.
F-98-2677 . . . On or about October 14, 1997, in
the City of Richmond, CHRISTOPHER ALLEN BURLILE did
feloniously, unlawfully, willfully, deliberately and
with premeditation kill and murder one Richard Harris
[Jr.] and within a three (3) year period, did kill and
murder another, namely: Chakeisha Carter.
At trial, the evidence established that Dawn Harper,
Harris’s girlfriend, saw Burlile shoot Harris with a shotgun on
the evening of October 14, 1997. Harris died as a result of his
wounds. Harper testified that Burlile was accompanied by
another man at the time of the shooting.
Later that night, Burlile and an accomplice broke into the
Carter home. Chakeisha Carter was shot with a shotgun and died
as a result of her wounds. Shotgun shells recovered at the
scene matched the shells recovered at the Harris murder scene.
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Chakeisha’s mother, Charlene Carter, and Chakeisha’s
brother, Shea Carter, were also wounded by shotgun blasts during
the break-in at the Carter home. Charlene Carter testified that
she did not know who shot her daughter, but identified Burlile
as the assailant who fired the shots that wounded her and Shea.
Shea did not see who fired the shots that injured him and his
mother or the shot that killed his sister, but testified that he
heard two unfamiliar voices in the home prior to the shootings.
At the conclusion of the evidence in the guilt-
determination phase of a bifurcated trial, Burlile requested
that the trial court give his instruction A, which directed the
jury that “[t]o find the defendant guilty of capital murder, you
must find that he was the triggerman in two murders.” Although
the instruction failed to identify the theory of capital murder
to which Burlile intended it to apply, the context of the
colloquy between the trial court, counsel for Burlile, and
counsel for the Commonwealth makes clear that the instruction
was addressed to the charges of capital murder in violation of
Code § 18.2-31(8) only.
The Commonwealth objected to instruction A, asserting that
Code § 18.2-31(8) required only that the defendant have
committed a murder within three years of the killing for which a
conviction for capital murder was sought. Burlile’s counsel
responded, “Judge, it’s our position that the reasoning or logic
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of the case law requires another instance of capital murder,
only the triggerman can be guilty of capital murder.”
The trial court refused Burlile’s instruction A and instead
gave Commonwealth’s instruction 28, which provides that:
To find the defendant guilty of capital murder,
you must find that he was the triggerman in at least
one of the murders. In the second murder, you may
find that he was the triggerman or a princip[al] in
the second degree.
Burlile objected to this instruction “[i]n view of the
instruction earlier that we offered that was refused.”
Prior to jury deliberation and upon the joint motion of the
Commonwealth and Burlile’s counsel, the trial court “combined
for one transaction” indictments F-98-2676 and F-98-2677 to
charge Burlile with “the capital murder of Chakeisha Carter and
Richard Harris, Jr.” in violation of Code § 18.2-31(8).
Indictments F-97-3771 and F-97-3772 similarly were “combined for
one transaction” to charge Burlile with “the capital murder of
Chakeisha Carter and Richard Harris, Jr.” in violation of Code
§ 18.2-31(7). The jury found Burlile guilty of each combined
capital murder charge and, in the subsequent penalty-
determination phase of the trial, recommended a sentence of life
imprisonment for each combined capital murder charge. On
January 7, 1999, the trial court sentenced Burlile in accord
with the jury’s recommendation.
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Burlile filed a petition for appeal in the Court of
Appeals, presenting three questions for review. Two of the
issues raised related to the admission of evidence concerning
Burlile’s activities as a drug dealer and the trial court’s
refusal to require the Commonwealth to present for an in camera
review elements of the police investigation file that Burlile
contended might contain exculpatory evidence. The remaining
issue addressed the trial court’s failure to give instruction A.
Burlile did not directly appeal his conviction for capital
murder in violation of Code § 18.2-31(7).
By order entered September 28, 1999, a panel of the Court
of Appeals awarded Burlile an appeal, framing the sole issue to
be addressed as follows:
Whether the trial court erred in instructing the
jury “[t]o find the defendant guilty of capital
murder, you must find that he was the triggerman in at
least one of the murders. In the second murder, you
may find that he was the triggerman or a princip[al]
in the second degree.”
In his opening brief in the Court of Appeals, Burlile
asserted that the language of Code § 18.2-31(8) was ambiguous
and should be construed strictly against the Commonwealth.
Asserting the rationale of Harward v. Commonwealth, 229 Va. 363,
367, 330 S.E.2d 89, 91 (1985), Burlile contended that “[t]he
willful, deliberate, and premeditated killing of more than one
person within a three-year period” defining capital murder under
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Code § 18.2-31(8) should be interpreted as requiring that each
killing qualify individually as a capital murder. Applying that
interpretation, Burlile, citing Harrison v. Commonwealth, 220
Va. 188, 191, 257 S.E.2d 777, 779 (1979), argued that since
“only the triggerman can be convicted for capital murder . . .
[Burlile] must be the triggerman for both murders” in order to
be found guilty under Code § 18.2-31(8).
Stating that it was addressing “the narrow issue raised in
this appeal . . . whether Code § 18.2-31(8) requires proof that
the defendant was the triggerman in the two killings alleged,”
the Court of Appeals rejected Burlile’s assertion and affirmed
his conviction. Burlile v. Commonwealth, 32 Va. App. 796, 800,
531 S.E.2d 26, 28 (2000). In reaching this conclusion, the
Court of Appeals relied upon Graham v. Commonwealth, 250 Va.
487, 492, 464 S.E.2d 128, 130, cert. denied, 516 U.S. 997
(1995), and held, in a construction similar to our construction
of Code § 18.2-31(7) in that case, that Code § 18.2-31(8) should
be construed as requiring “proof that the defendant was the
triggerman ‘in the principal murder charged’ and at least an
accomplice in another killing within a three-year period.”
Burlile, 32 Va. App. at 802, 531 S.E.2d at 29.
Although Burlile had not presented argument addressing the
issue, the Court of Appeals then went on to note that
“[a]lthough the jury instruction [28], as given, failed to
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include the exact language from Graham [that the defendant must
be the triggerman in the principal murder charged], any error
would be harmless.” The Court reasoned that this was so because
“[t]he jury’s verdict form clearly identified the principal
murder charged to be that of Richard Harris and the second
murder within three-years to be that of Chakeisha Carter,” and
credible evidence in the record supported a finding that Burlile
“was the triggerman in the killing of Harris.” Id. In a
footnote, the Court quoted the “verdict form” as stating that
Burlile “did kill Richard Harris, Jr., and, within a three-year
period, did kill Chakeisha Carter.” Id. at 802 n.3, 531 S.E.2d
at 29 n.3.
Burlile filed a petition for appeal in this Court for
review of the judgment of the Court of Appeals, reasserting the
evidentiary and discovery issues for which an appeal had been
denied in the Court of Appeals, and making the following
assignment of error with respect to the issue for which an
appeal had been granted below:
The Circuit Court erred in not granting a jury
instruction requiring the defendant to be a principal
in the first degree in both homicides in order for the
murder of two or more persons in a three-year period
to be capital murder.
By order dated December 1, 2000, we awarded Burlile an appeal
limited to the issue raised in this assignment of error.
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DISCUSSION
Before addressing the issue raised by Burlile’s assignment
of error, we are compelled by the particular circumstances of
this case to clarify the procedural posture that limits our
review to that issue. This is necessary in order to avoid the
appearance that our resolution of this appeal has a broader
scope than is intended.
Rule 5:17(c), in relevant part, states that “[w]here appeal
is taken from a judgment of the Court of Appeals, only
assignments of error relating to questions presented in, or to
actions taken by, the Court of Appeals may be included in the
petition for appeal to this Court.” Moreover, Rule 5:25 permits
us to consider as reversible error only a ruling of the trial
court for which an “objection was stated with reasonable
certainty at the time of the ruling.”
In awarding an appeal to Burlile, the Court of Appeals
chose to depart from the question presented by Burlile regarding
the refusal of instruction A, and to consider instead the
efficacy of instruction 28. As a result, the Court of Appeals,
without argument on the issue by Burlile, necessarily also
considered the issue whether it was error that instruction 28
did not require the jury to find that Burlile was the triggerman
in the “principal murder charged” while identifying that murder
as the killing of Harris. The Court of Appeals reasoned that
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any error resulting from this deficiency was harmless because
the “verdict form” clearly identified Harris as the principal
murder victim with language that Burlile “did kill Richard
Harris, Jr., and, within a three year period, did kill Chakeisha
Carter . . . .” However, the form the Court of Appeals
references in its opinion is not the verdict form used by the
jury in the guilt-determination phase of the trial, but, rather,
the form used by the jury in the sentencing phase to render its
recommendation on punishment. The verdict form used in the
guilt-determination phase simply stated: “We, the jury, find
[Burlile] guilty of the capital murder of Chakeisha Carter and
Richard Harris, Jr.”
In the opening brief filed in this Court, apparently
drawing on the willingness of the Court of Appeals to examine
the issue, for the first time Burlile asserts error based upon
the contention that “[u]nder the instructions given in this
case, Burlile could be convicted of capital murder if some
jurors believed he shot Harris but not Carter and other jurors
believed he shot Carter but not Harris.” During oral argument
in this Court, however, appellate counsel for Burlile properly
conceded that no objection to the failure of instruction 28 to
require the jury to find that Burlile was the triggerman in the
“principal murder charged” or to identify Harris as the victim
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of that murder was raised in the trial court, nor did Burlile
proffer an instruction that would have addressed this issue.
By addressing his assignment of error to the denial of
instruction A, which was the “question [originally] presented in
. . . the Court of Appeals,” Burlile has limited his appeal to
that issue and has not brought before this Court the “actions
taken by[] the Court of Appeals” in addressing the alleged
deficiency of instruction 28. Accordingly, we express no
opinion on the view taken by the Court of Appeals that any error
regarding instruction 28 would have been harmless.
Moreover, as he did at trial and in the Court of Appeals,
Burlile limits his argument in this appeal to the application of
instruction A to the charges under Code § 18.2-31(8).
Accordingly, Burlile’s conviction for the “combined” capital
murder under the provisions of Code § 18.2-31(7) and how the
instructions given or refused might relate to that offense are
also not at issue in this appeal.
Similarly, by joining in the motion to “combine” the
indictments under each theory of capital murder into a single
charge, Burlile has waived any objection that might arise from
that unorthodox procedure and any resulting confusion as to
which victim’s death was the “principal murder charged.” Nor
are we concerned with the question whether the legislature would
have intended for subsections (7) and (8) of Code § 18.2-31 to
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be mutually exclusive theories of capital murder, although it is
self-evident that the killing of more than one person as part of
the same act or transaction would of necessity also constitute
the killing of more than one person within a three-year period.
The foregoing discussion explains why our review is limited
to a narrow issue in this case. We now turn to that issue which
is whether when a defendant is charged with capital murder in
“[t]he willful, deliberate, and premeditated killing of more
than one person within a three-year period” in violation of Code
§ 18.2-31(8), the jury should be instructed that it must find
the defendant was a principal in the first degree, or
“triggerman,” in each killing at issue. That issue was fairly
raised by Burlile’s instruction A and the assignment of error
with respect to it.
Code § 18.2-31 defines the offenses involving the willful,
deliberate, and premeditated killing of a person that may be
punished as capital murder. In some instances, the legislature
has determined that the status of a defendant will elevate a
first-degree murder to capital murder. See, e.g., Code § 18.2-
31(3) (murder by a “prisoner confined in a state or local
correctional facility” is capital murder). Similarly, the
legislature has determined that the status of the victim may
warrant elevating a first-degree murder to capital murder. See,
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e.g., Code § 18.2-31(6) (murder of a law-enforcement officer is
capital murder).
In contrast to the “status” focus of those offenses of
capital murder, the legislature has also defined other capital
murder offenses where the language of the particular subsection
“evidences a legislative determination that the described
offense is qualitatively more egregious than an isolated act of
premeditated murder.” Graham, 250 Va. at 491, 464 S.E.2d at
130. “This result is accomplished by the addition of a
gradation crime to the single act of premeditated murder.” Id.;
see, e.g., Code § 18.2-31(1) (murder during the commission of
abduction for pecuniary gain or with intent to defile is capital
murder).
Burlile contends, as he did in the Court of Appeals, that
the language of Code § 18.2-31(8) is ambiguous because the
phrase “willful, deliberate, and premeditated” appears to relate
to both the principal murder charged and the gradation crime on
which the elevation to capital murder is based. Accordingly,
Burlile asserts that this statute must be construed against the
Commonwealth as requiring the defendant to be a principal in the
first degree, or the triggerman, in both the principal murder
charged and the killing that constitutes the gradation crime.
Burlile further asserts that this construction is also
supported by consideration of a distinction that may be drawn
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between the nature of the offense defined under Code § 18.2-
31(8) and other capital murder offenses defined by gradation
crimes. Burlile concedes that when there is a transactional
nexus between the murder charged and the gradation crime, such
as multiple murders as part of the same act or transaction or
where the gradation crime is abduction, robbery, or rape, the
defendant need not be a principal in the first degree with
respect to the gradation crime. He asserts, however, that in
the absence of an unambiguous expression of legislative intent
to the contrary, the gradation crime under Code § 18.2-31(8)
should be one involving the defendant as a principal in the
first degree because there is no requirement that there be a
transactional nexus between the principal murder charged and the
gradation crime. In effect, Burlile’s position is that Code
§ 18.2-31(8) should be viewed as a “status” offense where the
defendant’s status is that of being the principal in the first
degree, or the triggerman, in more than one murder within a
three-year period. We disagree.
In Briley v. Commonwealth, 221 Va. 563, 573, 273 S.E.2d 57,
63 (1980), we held that with respect to capital murder offenses
that included a gradation crime, Code § 18.2-31 does not require
proof that a defendant charged with the capital murder was also
a principal in the first degree to the gradation crime.
Applying the rationale of Briley to Code § 18.2-31(7), we
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subsequently held that the defendant’s culpability for the
gradation crime of that subsection need only be that of “an
accomplice in the murder of an additional person or persons as
part of the same act or transaction.” Graham, 250 Va. at 492,
464 S.E.2d at 130.
With respect to Code § 18.2-31(7), the gradation crime is
the defendant’s killing of more than one person as part of the
same act or transaction. With respect to Code § 18.2-31(8), the
gradation crime is the defendant’s killing of more than one
person within a three-year period. There is nothing ambiguous
in the wording of either of these subsections and in neither
instance does the language suggest a legislative intent that the
defendant must be a principal in the first degree to both the
principal murder charged and the gradation crime that supports
the elevation of that murder to capital murder. To the
contrary, to support the construction given to Code § 18.2-31(8)
by Burlile, we would have to insert language to the effect that
the gradation crime is the defendant’s killing of more than one
person within a three-year period as a principal in the first
degree. Courts are not permitted to add language to a statute
nor are they “permitted to accomplish the same result by
judicial interpretation.” Harbor Cruises, Inc. v. Commonwealth,
217 Va. 458, 461, 230 S.E.2d 248, 250 (1976).
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We hold that Code § 18.2-31(8) does not require proof that
a defendant charged with capital murder, in the premeditated
killing of more than one person within a three-year period, was
a principal in the first degree in each murder referenced in the
indictment. Accordingly, we further hold that the jury need be
instructed only that they must find the defendant was a
principal in the first degree, or triggerman, in the principal
murder charged and that he was at least an accomplice in the
murder of one or more persons other than the victim within a
three-year period. Thus, the trial court did not err in
refusing Burlile’s instruction A.
CONCLUSION
For these reasons, and limiting our review to the issue
preserved below and raised by assignment of error in this
appeal, we will affirm Burlile’s conviction for capital murder
under Code § 18.2-31(8).
Affirmed.
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