George Lincoln Hopkins, Jr v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Coleman
Argued at Salem, Virginia
GEORGE LINCOLN HOPKINS, JR.
MEMORANDUM OPINION * BY
v. Record No. 0208-02-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 22, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
S. Jane Chitton, Appellate Defender (Public
Defender Commission, on briefs), for
appellant.
Michael T. Judge, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
A jury convicted George Lincoln Hopkins, Jr. (appellant) of
second-degree murder in violation of Code § 18.2-32. The trial
court sentenced appellant to forty years' imprisonment, in
accordance with the jury verdict. On appeal, appellant contends
the trial court erred in its response to a jury question about the
possibility of parole. For the reasons that follow, we affirm.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156,
493 S.E.2d 677, 678 (1997). So viewed the evidence proved that
on the night of March 19, 2001 after an argument, appellant
killed his drinking companion, Larry Bennett. Appellant did not
dispute the killing, but argued only that the Commonwealth could
not prove the premeditation necessary to support a conviction
for first-degree murder.
At trial, neither the Commonwealth nor appellant requested
a jury instruction about the possibility of parole. While the
jury deliberated on the issue of guilt, it sent two questions to
the trial court. The jury questions were: (1) "What is the
sentence for 2nd [sic] degree murder?" and (2) "What is the
possibility of parole for 2nd [sic] degree murder?" After
conferring with both the Commonwealth's Attorney and appellant's
counsel, the trial court instructed the jury that the sentence
for second-degree murder was five to forty years. On the parole
question, the trial court met in chambers with both counsel
before answering the jury. During that meeting, the
Commonwealth's Attorney suggested an instruction, and appellant
agreed. The discussion between counsel was as follows:
COMMONWEALTH: I think [the jury] ought to
be told what the sentencing range for murder
two is—and the parole.
DEFENSE COUNSEL: I don't argue with that.
COURT: Okay. Let's see. What is it—five
to forty?
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COMMONWEALTH: It is five to forty—easy; no
fine. Parole possibility: is eligible for
parole after eighty five percent.
DEFENSE COUNSEL: I agree.
After all the parties agreed to the information to be given to
the jury, the trial court sent the following written answer to
the jury: "Parole has been abolished in Virginia. The
defendant will have to serve at least 85% of any sentence he may
receive." The jury convicted appellant of second-degree murder
and recommended a sentence of forty years.
The sole question presented on appeal is whether the trial
court's answer to the jury question about parole was error. 1
Appellant contends that the trial court had an affirmative duty
to give the jury an answer that comported with the rule set
forth in Fishback v. Commonwealth, 260 Va. 104, 532 S.E.2d 629(2000). The Commonwealth responds that appellant waived any
complaint about the answer the trial court gave when he failed
to object or proffer a correct statement of the law. We agree
with the Commonwealth and hold that appellant's assignment of
error is waived. See Rule 5A:18. The ends of justice do not
compel a different result.
The instant case is indistinguishable from, and therefore
controlled by, Commonwealth v. Jerman, 263 Va. 88, 556 S.E.2d
754 (2002). In Jerman, the instruction complained of was given
1
Appellant never proffered what he believed to be a correct
answer either at trial or on appeal.
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by "agreement of the court, the Commonwealth's attorney, and
counsel for Jerman." Id. at 90, 556 S.E.2d at 755. The Supreme
Court held that Jerman's failure to "state a timely objection to
the circuit court's instruction" barred him from challenging the
instruction on appeal. Id. at 94, 556 S.E.2d at 757. The same
situation presents itself here. Appellant neither objected to
the response the trial court gave the jury nor offered an
alternative response for the trial court to consider. Indeed,
the record shows that appellant agreed with the Commonwealth's
proposed answer, which is the one the trial court adopted.
"[Appellant's] failure to proffer a parole eligibility
instruction and his failure to object to the trial court's
instruction in response to the jury's inquiry mentioned above
precludes us from addressing the merits of this assignment of
error." Cherrix v. Commonwealth, 257 Va. 292, 311, 513 S.E.2d
642, 654 (1999). "[Appellant's] counsel was required to state
any objection to the circuit court's instruction and to ask the
court for any other instruction on the subject that he deemed
necessary." Jerman, 263 Va. at 94, 556 S.E.2d at 757-58.
Appellant failed to make any objection or to offer an
alternative or additional instruction. To the contrary,
appellant affirmatively accepted the answer the trial court
gave. Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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