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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