NICOLAS REYES V COMMONWEALTH OF VIRGINIA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Agee
Argued at Alexandria, Virginia
NICOLAS REYES
MEMORANDUM OPINION * BY
v. Record No. 0360-01-4 JUDGE G. STEVEN AGEE
JULY 30, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
John E. Kloch, Judge
Lana M. Manitta (Mark J. Petrovich; Martin,
Arif, Petrovich & Walsh, on brief), for
appellant.
Eugene Murphy, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Nicolas Reyes (Reyes) was convicted by an Alexandria
Circuit Court jury of first degree murder and the use of a
firearm in the commission of a murder. He was sentenced to
serve a term of imprisonment of forty-seven years. On appeal,
Reyes argues that the trial court erred by denying his proffered
jury instruction on voluntary manslaughter. For the following
reason, we affirm the decision of the trial court.
I. BACKGROUND
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, only those facts necessary to a disposition of this
appeal are recited.
On the night of April 30, 1991, Bartolo Reyes (Bartolo)
suffered fatal gunshot wounds. Reyes, Bartolo's live-in
boyfriend, fled the Commonwealth shortly thereafter. He was not
found until arrested in Miami, Florida on July 18, 2000.
Jose and Sonya Cruz lived in a house with Reyes and
Bartolo. The Cruzes occupied one bedroom, Reyes and Bartolo the
other. However, on the night Bartolo was shot, she and her
infant son were permitted, at her request, to stay with the
Cruzes in their bedroom. After the lights were turned off,
Reyes entered the room.
According to the Cruzes, Reyes opened the bedroom door,
turned on the lights, entered the room with a gun in his hand
and stated, "I'm going to kill you." Reyes directed his words
to the bed where Bartolo was lying with her son. Bartolo rose
and asked Reyes, "What's wrong with you?" As Bartolo proceeded
towards Reyes, with nothing in her hands, Reyes fired the gun.
Bartolo fell to the ground and Reyes fired the gun again,
shooting Bartolo in the head. The Cruzes further testified that
no struggle occurred between Reyes and Bartolo.
Reyes, however, testified that he and Bartolo had problems
in their relationship and that she had previously threatened him
with a gun. The night of her death, though, they were getting
along. After Bartolo went to bed in the Cruzes' room, another
- 2 -
occupant of the house told Reyes that she was calling him from
that room. Reyes said he then entered the Cruzes' room and
asked Bartolo what she was doing in that room. According to
Reyes' testimony, Bartolo then jumped out of the bed and said
that she was going to kill him. They struggled, she tripped on
the edge of the bed and fell, and the gun went off. He
testified that they both then fell to the floor and the other
shot went off.
Reyes contends that he never had the gun in his hand and
that the incident was an accident.
At the close of evidence, the trial court instructed the
jury on first and second degree murder, malice, self-defense and
accidental killing. Although requested by Reyes, the trial
court did not instruct the jury on voluntary manslaughter
reasoning that no evidence showed Reyes acted in the heat of
passion or during mutual combat.
II. ANALYSIS
Reyes alleges on appeal that the trial judge erred in
refusing his proffered jury instruction on voluntary
manslaughter. He contends an instruction on the offense of
voluntary manslaughter, a lesser-included offense of murder, is
supported by the evidence in the case. As such, he argues the
trial court should have instructed the jury on the lesser
offense and its failure to do so constitutes reversible error.
We disagree.
- 3 -
In Turner v. Commonwealth, 23 Va. App. 270, 476 S.E.2d 504
(1996), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997), the trial court
instructed the jury on first and second degree murder but
refused to instruct it on voluntary manslaughter. Turner was
convicted of first degree murder. He appealed to this Court
alleging the trial court erred in refusing to instruct the jury
on voluntary manslaughter and that such an error required a new
trial. We disagreed, holding that where the jury is instructed
on first degree murder and second degree murder, the jury
rejects second degree murder when the defendant is convicted of
first degree murder. Such a verdict "compels the conclusion
that [the jury] would never have reached a voluntary
manslaughter verdict." Id. at 277, 476 S.E.2d at 508
(citations omitted). We deemed any error in refusing to give
the instruction to be harmless. "[B]y rejecting the
lesser-included offense of second degree murder, [the jury]
necessarily rejected the factual basis upon which it might have
rendered a verdict on the lesser-included offense of voluntary
manslaughter." Id. at 278, 476 S.E.2d at 508 (footnote
omitted).
As in Turner, the jury in the case at bar convicted Reyes
of first degree murder. In doing so, it found Reyes acted with
malice and premeditation, necessary elements of first degree
murder. By contrast, voluntary manslaughter involves the
unlawful killing of another without malice or premeditation.
- 4 -
See Moxley v. Commonwealth, 195 Va. 151, 157, 77 S.E.2d 389, 393
(1953). The jury would have convicted Reyes of second degree
murder if it did not find premeditation; it would have acquitted
if it did not find malice. Pursuant to our holding in Turner,
therefore, any error by the trial court in refusing to give the
requested instruction is harmless beyond a reasonable doubt
because the jury necessarily rejected the factual basis of
killing without malice or premeditation upon which a voluntary
manslaughter verdict could have been returned.
Therefore, assuming without deciding, that the trial court
erred in refusing to instruct the jury on voluntary
manslaughter, Turner mandates that such error was harmless. The
judgment of the trial court is therefore affirmed.
Affirmed.
- 5 -
Benton, J., dissenting.
In Turner v. Commonwealth, 23 Va. App. 270, 275, 476 S.E.2d
504, 507 (1996), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997), where
the jury convicted the defendant of first degree murder, this
Court and the Supreme Court held that the trial judge erred in
refusing to instruct the jury on voluntary manslaughter. In
view of the facts of that case, however, both courts ruled that
the error was harmless. Id.
The issue whether Reyes acted maliciously and with
premeditation was disputed in this case. Unlike in Turner,
where the opinion notes the evidence proved the defendant armed
himself, sought to find the victim, and continuously pursued and
shot the victim, 23 Va. App. at 273-74, 476 S.E.2d at 506, the
evidence in this case was sufficient to prove Reyes was unarmed.
See Blondel v. Hayes, 241 Va. 467, 469, 403 S.E.2d 340, 341
(1991) (holding that evidence must be viewed in the light most
favorable to the proponent of the instruction). The evidence
further proved that Reyes and Bartolo argued and that after the
argument Bartolo went into a bedroom, which was not theirs.
When Reyes entered the bedroom and asked Bartolo why she was in
that bedroom, Bartolo jumped from the bed, threatened to kill
Reyes, and struggled with him. Bartolo had a gun. During the
course of the struggle, the gun discharged twice killing
Bartolo.
- 6 -
Although the evidence could have
supported a finding of non-malicious
homicide, the trial judge only instructed
the jury on degrees of homicide that
involved malice. A jury's decision to
select culpability from one of the malicious
homicides on which it was instructed does
not manifest beyond a reasonable doubt that
the jury would not have found a
non-malicious killing if properly
instructed. . . . [T]he jury's rejection of
one theory of the case does not necessarily
indicate that it would have rejected another
theory of the case that was supported by
evidence.
In failing to instruct the jury that it
could convict Turner of a homicide of a
lesser grade than first or second degree
murder, the trial judge misdirected the jury
by limiting the jury's options to a finding
of a malicious killing or a not guilty
verdict.
Turner, 23 Va. App. at 281, 476 S.E.2d at 510 (Benton, J.,
dissenting) (citations omitted).
In short, the jury might have decided to convict Reyes of
murder because the Commonwealth proved he intentionally killed
Bartolo without a reasonable belief that he was acting in
self-defense. Because the jury was improperly instructed, it
could have reached that decision despite clear proof that Reyes
killed Bartolo upon sudden passion brought on by mutual combat.
In the absence of an instruction that a homicide also was
committed under the latter circumstances, the jury was precluded
from finding Reyes guilty of the lesser offense of voluntary
manslaughter. The error, therefore, was not harmless.
- 7 -
For these reasons and the reasons more fully stated in
Turner, 23 Va. App. at 279-86, 476 S.E.2d at 508-12 (Benton, J.,
dissenting), I would reverse the convictions and remand for a
new trial.
- 8 -