COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Norfolk, Virginia
ALEX THOMAS HUNT
OPINION BY
v. Record No. 1932-96-1 JUDGE SAM W. COLEMAN III
AUGUST 12, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
E. Everett Bagnell, Judge
H. Woodrow Crook, Jr. (Johnnie E. Mizelle;
Crook & Edwards, on briefs), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
The defendant, Alex Thomas Hunt, was convicted by a jury of
first degree murder. On appeal, he contends that the trial court
erred by refusing to remove a juror during the trial, by failing
to instruct the jury on second degree murder and voluntary
manslaughter, and by misapplying the Virginia Sentencing
Guidelines. For the reasons that follow, we affirm the
defendant's conviction.
I. DISQUALIFICATION OF JUROR
On the second day of trial, a juror was observed smiling and
nodding to a member of the victim's family. Upon defense
counsel's request, the trial judge asked the jurors if anyone
knew or had a familiar relationship with members of the
appellant's family, the victim's family, or anyone in the
courtroom that would affect his or her ability to be fair and
impartial. None of the jurors responded.
The following day, one juror sent a note to the judge
stating that there were "some people in this courtroom [she] used
to work with." Upon questioning, this juror responded that she
had seen a person in the courtroom with whom she had worked
several years earlier. She told the judge that although she
believed that the person was a member of the victim's family, her
ability to decide the case fairly would not be affected by her
prior association with the family member.
On appeal, we defer to the trial court's decision whether to
retain or exclude individual venire members. See Satcher v.
Commonwealth, 244 Va. 220, 236, 421 S.E.2d 821, 831 (1992), cert.
denied, 507 U.S. 933 (1993).
The standard to be applied by the trial
court in determining whether to retain a
venireman on the jury panel is whether his
answers during voir dire examination indicate
to the court something that "would prevent or
substantially impair the performance of his
duties as a juror in accordance with his
instructions and his oath."
Id. (citations omitted). The same standard applies when a
juror's impartiality is challenged mid-trial. We will reverse
the trial court's decision only for an abuse of discretion.
In view of the juror's responses to the judge's questions
and the juror's assurance that her prior association at work with
the victim's family member would not affect her impartiality, the
trial judge did not err by refusing to remove the juror.
- 2 -
II. JURY INSTRUCTIONS
"When the denial of jury instructions is challenged on
appeal, the court must determine . . . [whether] the instructions
cover all issues which the evidence fairly raises." Lea v.
Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479 (1993).
"We are bound by the principle that the accused is entitled, on
request, to have the jury instructed on a lesser included offense
that is supported by more than a 'scintilla of evidence' in the
record." Bunn v. Commonwealth, 21 Va. App. 593, 599, 466 S.E.2d
744, 746 (1996). Thus, where credible evidence exists that would
support giving the jury an instruction on a particular theory of
the case, the trial court's failure to give the instruction
constitutes reversible error. McClung v. Commonwealth, 215 Va.
654, 657, 212 S.E.2d 401, 403 (1975); Martin v. Commonwealth, 13
Va. App. 524, 528, 414 S.E.2d 401, 403 (1992) (en banc).
"In determining whether to instruct the jury on a
lesser-included offense, the evidence must be viewed in the light
most favorable to the accused's theory of the case." Lea, 16 Va.
App. at 305, 429 S.E.2d at 480. To justify the trial court's
refusal to instruct on second degree murder or voluntary
manslaughter, every version of the evidence must prove, to the
exclusion of any other theory, that the defendant wilfully,
intentionally, and with premeditation killed the victim or that
he aided and abetted the murderers, knowing that one of them
intended to kill the victim. If any version of the evidence
- 3 -
would support a finding that the defendant acted with malice in
killing the victim, but that he did not have the premeditated
intent to kill his victim or that he was not aiding or abetting
the murderers knowing that they intended to kill the victim, then
he would be entitled to a second degree murder instruction and
possibly a voluntary manslaughter instruction. Regardless of the
defendant's actions and participation prior to the beating and
the murder, under every version of the evidence, after blows were
exchanged the defendant joined with the two murderers beating,
choking, and striking the victim knowing that they intended to
kill him, and the defendant then either threw or aided and
abetted the others in throwing the victim in the river.
Viewing the evidence in the light most favorable to the
defendant's claim that the trial court should have instructed on
second degree murder and voluntary manslaughter, the evidence
proved that Truvelle Faulk and Lance Holland, unbeknownst to the
defendant, robbed and abducted the victim from a local 7-Eleven
store. Faulk and Holland took the victim's car and placed the
victim in the trunk. They then drove the car to Holland's home,
where the defendant was waiting for a ride to his girlfriend's
house. Although Faulk said that the defendant drove the car
after they picked him up, the defendant denied driving and
testified that Faulk drove the car. As the three men drove
around looking for drugs, Faulk and Holland disclosed to the
defendant for the first time that they had robbed a man and had
- 4 -
him in the trunk of the car. Because the defendant did not
believe them, they opened the trunk and showed the victim to the
defendant.
As they were driving to the defendant's girlfriend's home,
Holland announced that he wanted to kill the victim. Faulk
suggested that they beat the victim but not kill him. Both Faulk
and the defendant testified that the defendant, at that time,
repeatedly tried to convince Faulk and Holland not to kill anyone
and to let the victim go. The defendant further testified that,
once Faulk and Holland began talking about killing the victim, he
asked them to take him home. Instead, they drove to a deserted
area that Faulk suggested and let the victim out of the trunk.
Faulk testified that when the victim got out of the trunk,
the victim struck the defendant, causing the defendant to fall
back against the car. In response, the defendant hit the victim
on the side of the head with a rock. Had the defendant killed
the victim at that time or continued to engage in combat with him
until the victim was killed, the trial judge would have been
required to instruct the jury on second degree murder and on
voluntary manslaughter. However, under any theory that required
giving a homicide instruction, the evidence proved that at that
time all three men began beating the victim, punching and kicking
him repeatedly. One of the men then took a yellow cord from the
trunk of the car and put it around the victim's neck. Another
used an umbrella found in the car to beat the victim. Faulk
- 5 -
testified that all three men took turns holding the cord and
beating the victim with the umbrella handle. Faulk testified
that after they stopped beating the victim, he and the defendant
carried the victim to a nearby railroad trestle and pushed him
into the river.
When the defendant was initially questioned by police, he
denied being with Faulk and Holland when the murder had occurred.
He later told the police that Faulk and Holland had picked him
up in the victim's car, that they told him that they had the
victim in the trunk, and that Holland had said he wanted to kill
the victim. The defendant told the police that he repeatedly
urged Faulk and Holland to let the victim go, but they drove to a
remote area and told him they were going to kill the victim with
or without his help. At that point, according to the defendant,
they began to beat the victim. The defendant admitted to the
deputy that he kicked the victim a few times. He testified that
as Faulk and Holland were throwing the victim into the river, he
was turning the car around.
Charles Ennis testified that he saw the defendant the day
after the killing and that the defendant had an injured hand.
The defendant initially told Ennis that he had been in a fight at
the 7-Eleven store and hurt his hand, but he later told Ennis
that he, Faulk, and Holland had killed a man and that he had hurt
his hand by hitting the victim.
The defendant testified that when Holland and Faulk began
- 6 -
talking about killing the victim, he told them to take him home.
Instead, they drove to a remote location, let the man out of the
trunk and told him he could go. The defendant testified that the
victim started walking away when Holland and Faulk tackled him
and began beating him. According to the defendant, he did not
participate in the beating or in throwing the victim into the
river. Although the defendant denied any participation
whatsoever, his version of the facts is not that which we
consider here to support a second degree murder or voluntary
manslaughter instruction.
"[A]n instruction on murder in the second degree should not
be given unless it [is] warranted by the evidence before the
jury." Wooden v. Commonwealth, 208 Va. 629, 634, 159 S.E.2d 623,
627 (1968). Similarly, an involuntary manslaughter instruction
must be warranted by the evidence. The instructions must be
supported by more than a mere scintilla of evidence, which is an
issue to be resolved based on the facts of each case. See
Buchanan v. Commonwealth, 238 Va. 389, 409, 384 S.E.2d 757, 769
(1989); Brandau v. Commonwealth, 16 Va. App. 408, 411-12, 430
S.E.2d 563, 565 (1993).
Even when viewed in the light most favorable to the
defendant, the evidence does not support giving an instruction
for second degree murder or voluntary manslaughter. Had the jury
believed the defendant's version of events in its entirety, the
only verdict they could have reached would have been not guilty.
- 7 -
If the jury had believed the Commonwealth's witnesses in their
entirety, the only verdict they could have returned was guilty of
first degree murder. See Wooden, 208 Va. at 634-35, 159 S.E.2d
at 627; Frye v. Commonwealth, 231 Va. 370, 388-89, 345 S.E.2d
267, 280-81 (1986). However, in determining whether the
defendant is entitled to a jury instruction, we must review all
the evidence and determine whether a version of the facts exists
that the jury could have believed which would support a finding
that the defendant participated in the homicide but that his
participation did not rise to the level of a wilful, premeditated
killing of the victim.
Although the evidence could support a finding that the
defendant did not participate in the robbery and initially tried
to convince Faulk and Holland not to kill the victim, the
uncontradicted evidence proved that after the victim struck the
defendant he assisted Faulk and Holland in beating the victim
knowing that one of them intended to kill the victim. The
defendant may have been entitled to a second degree murder or
voluntary manslaughter instruction had his initial response
killed the victim; nevertheless, when the defendant joined Faulk
and Holland in striking and kicking the victim, choking him with
a cord, and striking him with an umbrella, knowing that Faulk or
Holland intended to kill him, the only theory supported by that
evidence is that the defendant aided and abetted first degree
murder. Furthermore, assuming that Faulk and Holland were the
- 8 -
two who threw the victim into the river, and that the defendant
knew or thought that the victim was alive at the time, the
defendant was still an accomplice in the beating and aided and
abetted in the final act of murder by readying the car to flee
the murder scene. Thus, as a matter of law the defendant became
a principal in the second degree to first degree murder because
he was present, he knew the others intended to kill the victim
and he aided, abetted, and encouraged their commission of the
crime. See Wooden, 208 Va. at 634-35, 159 S.E.2d at 627;
Pugliese v. Commonwealth, 16 Va. App. 82, 93, 428 S.E.2d 16, 24
(1993); Rollston v. Commonwealth, 11 Va. App. 535, 539, 399
S.E.2d 823, 825 (1991) ("When the alleged accomplice is actually
present and performs overt acts of assistance or encouragement,
he has communicated to the perpetrator his willingness to have
the crime proceed and has demonstrated that he shares the
criminal intent of the perpetrator.") (quoting R. Groot, Criminal
Offenses and Defenses in Virginia 183 (1984)). Once the
defendant struck the victim and the other two men joined in, the
only conclusion the fact finder could draw is that the defendant
was assisting in the premeditated murder of the victim. Whether
the defendant personally formed an intent to kill the victim or
initially acted in the heat of passion when he struck the victim
is irrelevant. The uncontradicted evidence proved that he
assisted the other two men, who intended to kill the victim, in
beating and choking him and in throwing him into the river.
- 9 -
Thus, the trial court did not err by refusing to instruct the
jury on second degree murder and voluntary manslaughter.
III. SENTENCING GUIDELINES
Finally, we address the defendant's contention that the
trial court misapplied the Virginia Sentencing Guidelines when
sentencing him to life in prison.
The sentencing guidelines are not binding on the trial
judge. Belcher v. Commonwealth, 17 Va. App. 44, 45, 435 S.E.2d
160, 161 (1993). Rather, they are a tool designed to assist the
judge in fixing an appropriate punishment. Id. It is
well-settled that "[i]f the sentence was within the range set by
the Legislature [for the crime with which the defendant was
convicted], an appellate court will not interfere with the
judgment." Hudson v. Commonwealth, 10 Va. App. 158, 160-61, 390
S.E.2d 509, 510 (1990). Moreover, Code § 19.2-298.01(F) states:
"The failure to follow any or all the provisions of [the
sentencing guidelines] or the failure to follow any or all the
provisions of this section in the prescribed manner shall not be
reviewable on appeal or the basis of any other post-conviction
relief."
Thus, we will not interfere with the trial court's judgment
fixing sentence.
Accordingly, we affirm the defendant's conviction for first
degree murder.
Affirmed.
- 10 -