Opinion
Record No. 0408-93-1
Decided: November 1, 1994
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, Kenneth N. Whitehurst, Jr., Judge
Affirmed.
Melinda R. Glaubke, Assistant Public Defender (Office of the Public Defender, on briefs), for appellant.
Richard B. Smith, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Benton, Willis and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
On appeal from his jury trial convictions of attempted unlawful wounding and use of a firearm in the commission of attempted malicious wounding, Levon Johnson contends that the trial court erroneously responded to a question from the jury. This issue was not preserved properly before the trial court and, thus, cannot be the basis for a reversal of Johnson's conviction. Rule 5A:18.
Johnson was tried by a jury on charges of attempted malicious wounding and use of a firearm in the commission of, or attempted commission of, malicious wounding.
During its deliberations, the jury submitted to the trial court the following question:
If the defendant is guilty of attempted unlawful wounding, can he also be guilty of use of a firearm in the commission of a felony? After discussion between the court and counsel, the following dialogue occurred:
THE COURT: [W]e have two separate charges here, and I think rather than answering this question yes or no I should tell the jury that we have two separate charges, one of which is malicious wounding and one of which is use of a firearm in the commission of a felony, and they have to make a decision on each one individually, and they can make that decision either way they please. That's my thought. I think you've got two separate charges.
* * * * * * *
DEFENSE COUNSEL: Well, the only thing-if that's what you're going to tell them, but that the instructions stand as they are?
THE COURT: Oh, yeah. I'm not going to change the instructions.
DEFENSE COUNSEL: I mean the elements of the offense stand as they are stated in the instructions.
THE COURT: Um-hum.
The defense counsel neither objected to the foregoing ruling nor suggested any different instruction to the jury. The jury was returned to the courtroom, and the trial court instructed it as follows:
THE COURT: Ladies and gentlemen, you've submitted a question that reads: If the defendant is guilty of attempted unlawful wounding, can he also be guilty of use of a firearm in the commission of a felony? And the answer to that I'm afraid is going to be up to you.
You have two separate charges. You have the instructions that are before the court. You have the two separate charges, and it's up to you to make that decision on each of the charges.
I will send you back with that thought. You have two separate charges, and it's up to you-all to make that decision.
The defense counsel proffered no objection to the foregoing instruction. The jury returned verdicts convicting Johnson of attempted unlawful wounding and of "use of a firearm in the commission of a felony as charged in the indictment." At the sentencing hearing, about two months later, defense counsel objected for the first time to the trial court's answer to the jury's question and moved to set aside the verdict, asserting "[t]he jury should have been instructed when they asked the question that they could not convict Mr. Johnson of the use of a firearm charge if they found him guilty of unlawful wounding — attempted unlawful wounding — . . . instead of attempted malicious wounding."
Objection to a proposed jury instruction must be made when the instruction is tendered. See Smith v. Commonwealth, 165 Va. 776, 781, 182 S.E. 124, 127 (1935). An objection not timely made will not be considered on appeal. See Van Dyke v. Commonwealth, 196 Va. 1039, 1040, 86 S.E.2d 848, 849 (1955) (rev'd on other grounds). See also McReynolds v. Commonwealth, 177 Va. 933, 15 S.E.2d 70 (1941); Martin v. Commonwealth, 184 Va. 1009, 37 S.E.2d 43 (1946). Johnson having failed to object timely to the trial court's proposed answer to the jury's question, we will not entertain his objection on appeal. Rule 5A:18.
We find no reason to invoke the "ends of justice" exception of Rule 5A:18. Johnson deliberately fired a handgun at a security guard who was attempting to apprehend him lawfully. The evidence of those circumstances would have supported a conviction of attempted malicious wounding. A mere inconsistency in the jury's verdicts does not render those verdicts invalid. See Wolfe v. Commonwealth, 6 Va. App. 640, 371 S.E.2d 314 (1988). The judgment of the trial court is affirmed.
Affirmed.
I agree with the majority that trial counsel's objection, which was made two months after the jury was discharged and on the day of sentencing, was not timely. However, Rule 5A:18 provides that the failure to make a timely objection will not bar consideration on appeal if good cause exists or if the ends of justice require consideration of the issue.
The Supreme Court of Virginia has recently and unequivocally reaffirmed the principle "that, when a principal of law is vital to a defendant in a criminal case, a trial court has an affirmative duty properly to instruct a jury about the matter." Jimenez v. Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991). That principle applies even when an objection has not been stated. Id. at 245-46, 402 S.E.2d at 678. The trial judge's "imperative duty [to properly instruct the jury] . . . is one which can neither be evaded nor surrendered." Williams v. Lynchburg Traction Light Co., 142 Va. 425, 432, 128 S.E. 732, 734 (1925).
The Code of Virginia contains no statute by which a defendant may be convicted of use of a firearm in the commission of unlawful wounding. Cf. Code Sec. 18.2-53.1. "[A] violation [of Code Sec. 18.2-53.1] occurs only when a firearm is used with respect to the [statutorily] specified felonies." Bundy v. Commonwealth, 220 Va. 485, 488, 259 S.E.2d 826, 828 (1979).
The record clearly establishes that the jury was concerned about an obvious void in the instructions. In order to discharge its function properly, the jury requested guidance from the judge because the instructions were not clear regarding the requirements of the law. The jury made the following inquiry: "If the defendant is guilty of attempted unlawful wounding, can he also be guilty of use of a firearm in the commission of a felony? The instructions provided to us do not address this." The jury unambiguously informed the trial judge that it was not properly instructed. By failing to respond, "No," to the jury's inquiry, the trial judge failed to instruct the jury properly. As a consequence, the jury returned a verdict that is contrary to Code Sec. 18.2-53.1, and "[t]he jury convicted the defendant of the non-existent offense." Bundy, 220 Va. at 488, 259 S.E.2d at 828.
Thus, I would reverse the judgment of conviction for the firearm offense.