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CONNELL v. COMMONWEALTH




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CONNELL

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Senior Judge Overton

Argued at Richmond, Virginia

Record No. 1121-02-2

KEVIN ALEXANDER CONNELL

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]BY
JUDGE NELSON T. OVERTON

OCTOBER 14, 2003

FROM THE CIRCUIT COURT OF HENRICO COUNTY

Gary A. Hicks, Judge

Christian L. Connell (K. Reed Mayo; Christian L. Connell, P.C.;

Hunton & Williams, on briefs), for appellant.

Steven A. Witmer, Assistant Attorney General (Jerry W. Kilgore,

Attorney General, on brief), for appellee.

Kevin A. Connell (appellant) was convicted by a jury of second
degree murder and the

use of a firearm in the commission of murder.[2]
Appellant contends the trial court erred in

refusing his proposed jury instructions on imperfect
self-defense and regarding passion or

prejudice, and in granting the Commonwealth’s instruction on
excusable homicide.[3] Finding
no

error, we affirm appellant’s convictions.

Facts

The Commonwealth’s evidence proved that on the evening of
January 6, 1998, Jon Lord,

Jeffrey Krupnicka, and Judith Weissler went to the Playing
Field, a bar and pool hall. Appellant

sat at a table shared by Lord, Krupnicka, and Weissler. Lord,
Krupnicka, and Weissler did not

know appellant and did not invite him to join them. Appellant
insulted Lord and Krupnicka,

implying that they were homosexuals. An argument ensued, during
which Lord threw

appellant’s cigarettes on the floor. After the argument,
appellant left the Playing Field.

Lord, Krupnicka, and Weissler left the bar at about 1:30 a.m.
and drove to the parking lot

of the Hyatt Hotel to retrieve Lord’s and Weissler’s cars.
Appellant drove up in his vehicle. As

he walked toward the group, he was carrying a shotgun and a nine
millimeter pistol.

Appellant walked toward Lord, lowering the shotgun and
threatening to kill him. Lord

lunged forward and grabbed the barrel of the shotgun. Appellant
fired the gun three times. As

appellant and Lord continued to struggle, appellant shot Lord
with the pistol three times. At no

time did Weissler hear Lord threaten to kill appellant.

Appellant drove away in his vehicle, with Krupnicka pursuing in
his car. Krupnicka used

his cellular telephone to call "911" to get help for
Lord. Appellant fired a shot in Krupnicka’s

direction as Krupnicka continued to chase him.

Eventually, the police apprehended appellant when he stopped his
vehicle in his

driveway. Appellant told an officer on the scene, "I shot
the son-of-a-bitch. I guess I am in a lot

of trouble." Appellant subsequently told an acquaintance
that he "blew the mother fucker away"

and that Lord "was a redneck and deserved it."

Testifying in his own behalf, appellant stated that his initial
encounter with Lord,

Krupnicka, and Weissler at the Playing Field was friendly.
However, they eventually exchanged

angry words.

Appellant left the bar and went to his nearby home. There he
obtained a shotgun and a

hunting rifle and loaded them. A handgun already was in his
vehicle. Appellant returned to the

Playing Field, watched Lord, Krupnicka, and Weissler leave the
pool hall, and followed them to

the Hyatt parking lot. Appellant said he intended only to scare
Lord and Krupnicka, not kill

anyone.

Carrying the shotgun and with the pistol tucked into his pants,
appellant testified that he

approached the group and demanded an apology for their earlier
disagreement. Lord came

forward despite appellant’s warning for him to stay back. Using
the shotgun, appellant fired two

warning shots over Lord’s head. Because Lord continued to move
toward him, appellant turned

to run back to his vehicle. Appellant tossed away the shotgun as
Lord grabbed at him. A

struggle then occurred between appellant and Lord, during which
Lord lifted appellant into the

air and threatened to kill him. Appellant panicked, pulled out
the pistol, and shot Lord in the

side. Appellant then shot Lord in the leg because Lord continued
to hold onto him. Lord fell to

the ground on top of appellant. As appellant got up, Lord pinned
appellant’s wrist to the ground.

Appellant then shot Lord again, striking him in the left
shoulder.

Lord died from a gunshot wound he received in his side.

Analysis

I.

Before we consider whether the trial court erred in instructing
the jury, we must

determine whether it was proper to permit appellant to
supplement the appellate record with the

refused instructions after this Court had rendered a decision on
the petition for appeal pursuant to

Code ? 17.1-407(C).

Pursuant to Rule 5A:7(a)(2), "the record on appeal from the
trial court" includes "each

instruction marked ‘given’ or ‘refused’ and initialed by the
judge." The clerk of the trial court is

directed to prepare the record on appeal "as soon as
possible after notice of appeal is filed." Rule

5A:10(a). The clerk shall "retain the record for 21 days
after the notice of appeal has been filed"

or, if the notice of appeal indicates a transcript or statement
of facts will be filed, for 21 days

following the filing of the transcript or statement of facts.
Rule 5A:10(d). These periods of

retention provide the parties with the opportunity to examine
the record on appeal as prepared by

the clerk and to raise any objection regarding the contents of
the record before the trial court.

See Rule 5A:7(b) (stating that "[i]f disagreement arises as
to the contents of any part of the

record, the matter shall be submitted to and decided by the
trial court").

This Court and the Supreme Court of Virginia have held
consistently that the burden is

upon the appellant to ensure that the record on appeal is
properly compiled to permit full

consideration of the questions presented on appeal. See Justis
v. Young, 202 Va. 631, 632, 119

S.E.2d 255, 256-57 (1961); Jenkins v. Winchester Dep’t of Soc.
Servs., 12 Va. App. 1178, 1185,

409 S.E.2d 16, 20 (1991). Indeed, had appellant in this case
exercised his responsibility of

examining the record before it was transmitted to this Court, he
would have discovered the

absence of the refused jury instructions and brought the matter
before the trial court for

correction of the record on appeal pursuant to Rule 5A:7(b).
Following such a procedure serves

the interest of judicial economy, both in the trial court and in
this Court.

Nonetheless, there exists a mechanism for correction of
omissions in the record on appeal

after it has been received by this Court. Code ? 8.01-675.4
allows this Court to "award a writ of

certiorari to the clerk of the trial court and have brought
before it, when part of a record is

omitted, the whole or any part of such record." We have
applied Code ? 8.01-675.4 in

appropriate cases to enlarge the record on appeal and permit
full consideration of the issues

raised on appeal. See, e.g., Watkins v. Commonwealth, 26 Va.
App. 335, 342-43, 494 S.E.2d

859, 862 (1998); Crumble v. Commonwealth, 2 Va. App. 231, 233,
343 S.E.2d 359, 360 (1986).

Code ? 8.01-675.4 contains no language limiting this Court’s
power to act only before a decision

on the petition for appeal has been rendered pursuant to Code ?
17.1-407(C).

We find the present case appropriate for the application of Code
? 8.01-675.4. The items

omitted from the record on appeal are documents specifically
required to be included in the

record by Rule 5A:7(a)(2). Without these materials, this Court
is unable to consider one of the

issues raised in the petition for appeal and granted review.
Other than appellant’s failure to

inspect the record before it was transmitted to this Court, no
fault in the omission of the refused

jury instructions is readily attributable to appellant.
Therefore, we will consider the refused jury

instructions in our determination of this appeal.

II.

The trial court refused appellant’s Instruction F, on imperfect
self-defense, which stated:

If you find that Kevin Connell was the aggressor but began the

conflict without malice, and

1) that it appeared to Kevin Connell and he believed it to be

necessary to kill Jon Lord in order to save himself from death
or

great bodily harm; and

2) Kevin Connell’s belief was reasonable in that the
circumstances

as they then appeared to him were sufficient to create such a
belief

in the mind of a reasonable person;

then you should find Kevin Connell not guilty of murder, but of

voluntary manslaughter.

The trial court also refused Instruction D, which would have
permitted the jury to find appellant

guilty of voluntary manslaughter if it

appeared to Kevin Connell and he believed it to be necessary to

kill Jon Lord in order to save himself from death or great
bodily

harm; and Kevin Connell’s belief was reasonable in that the

circumstances as they appeared to him at the time were
sufficient

to create such belief in the mind of a reasonable person . . . .

Connell argues that his proposed instructions would have
mitigated the malice necessary

for a murder conviction to manslaughter. In addition to
authority from other states, appellant

relies upon Hash v. Commonwealth, 88 Va. 172, 13 S.E. 398
(1891), to support his argument

that imperfect self-defense is recognized Virginia law.[4]

In Connell I, this Court considered proposed instructions and
supporting arguments

virtually identical to those offered here. Rejecting appellant’s
contentions that the trial court

erred in refusing instructions on imperfect self-defense, we
stated:

If we interpret the discussion of "imperfect defense"
in

Hash for the proposition that one can provoke a confrontation
and

still avail himself or herself of the defense of justifiable
homicide,

such holding was overruled by Jackson v. Commonwealth, 98 Va.

845, 36 S.E. 487 (1900). However, if we interpret Hash to hold

that one may avail himself or herself of "imperfect
defense" if he

or she provoked the attack without felonious intent, such
holding

merely is the law of voluntary manslaughter as it currently
stands

in the Commonwealth. Further, the trial court instructed the
jury

on voluntary manslaughter, heat of passion, and the distinction

between murder and manslaughter.

Connell I, 34 Va. App. at 439, 542 S.E.2d at 54.

The Supreme Court of Virginia refused appellant’s petition for
appeal from this Court’s

adverse rulings in Connell I. Except under limited circumstances
inapplicable here, the Virginia

Supreme Court’s "refusal of a petition for appeal
constitutes a decision on the merits." Sheets v.

Castle, 263 Va. 407, 411, 559 S.E.2d 616, 619 (2002).

The Commonwealth contends that the doctrine of res judicata bars
our reconsideration of

this claim.

"The bar of res judicata precludes relitigation of
the same

cause of action, or any part thereof, which could have been

litigated between the same parties and their privies." Res
judicata

requires that four elements be present: "(1) identity of
the remedies

sought; (2) identity of the cause of action; (3) identity of the

parties; and (4) identity of the quality of the persons for or
against

whom the claim is made."

Morgan v. Commonwealth, 28 Va. App. 645, 647, 507 S.E.2d 665,
666 (1998) (citations

omitted). Moreover, as the party seeking to assert res
judicata
, the Commonwealth must

demonstrate that the prior decision is final.

Generally, a judgment is final for the purposes of res
judicata

when "nothing more is necessary to settle the rights of the
parties

or the extent of those rights." 8B Michie’s Jurisprudence,
Former

Adjudication or Res Judicata ? 13 (1994). Furthermore, the

[Commonwealth] must prove by a preponderance of the evidence

that the issue previously raised was decided on the merits.
Fodi’s v.

Rutherford, 26 Va. App. 446, 449, 495 S.E.2d 503, 505 (1998).

Rusty’s Welding Service, Inc. v. Gibson, 29 Va. App. 119, 128,
510 S.E.2d 255, 259 (1999) (en

banc).

Appellant’s present convictions were obtained following this
Court’s decision to reverse

and remand the original convictions. The parties to this appeal,
the remedy sought, and the cause

of action all are the same as in Connell I. The Virginia Supreme
Court refused to review our

decision regarding appellant’s proposed instructions on
imperfect self-defense. Accordingly, our

decision in Connell I is a final decision on the merits.

Therefore, we find that under the present circumstances, the
doctrine of res judicata bars

our reconsideration of this claim.

III.

Appellant contends the trial court erred in refusing Instruction
B stating, "You must not

base your verdict in any way upon passion, prejudice, sympathy,
bias, guesswork, or speculation.

Your verdict must be based solely upon the evidence and
instructions of the court."

"If 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).

At the beginning of the trial, the trial judge instructed the
jury that its verdict must be

based solely on the evidence and instructions of law. Thus,
appellant’s proposed instruction

regarding passion and prejudice was merely repetitious of other
instructions provided to the jury.

In addition, absent exigent circumstances, it is not necessary
to instruct the jury that the

verdict must not be based upon passion, prejudice, or sympathy.
See Barnes v. Commonwealth,

190 Va. 732, 739, 58 S.E.2d 12, 16 (1950). We do not find that
the presence of the victim’s

family members in the courtroom created exigent circumstances
requiring the instruction offered

by appellant.[5]Accordingly,
the trial court did not err in refusing it.

IV.

The trial court granted Commonwealth’s Instruction 15, and
rejected appellant’s proposed

instruction on excusable self-defense. Unlike Instruction 15,
appellant’s proposed instruction did

not require the jury to find that he had "made known his
desire for peace by word or act" in order

to conclude that he acted in self-defense.

"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).

Considering an excusable self-defense instruction identical in
all pertinent parts to

Instruction 15, the Supreme Court of Virginia found the
instruction under review to be "a finding

instruction setting forth the elements of excusable
homicide." Perricllia v. Commonwealth, 229

Va. 85, 93, 326 S.E.2d 679 (1985). See also Smith v.
Commonwealth, 17 Va. App. 68, 71, 435

S.E.2d 414, 416 (1993) (including within its definition of
excusable homicide the requirement

that the accused announce his desire for peace).

Instruction 15 correctly stated the law governing excusable
self-defense, while appellant’s

proposed instruction did not. Accordingly, the trial court did
not err in granting Instruction 15

and in refusing appellant’s proposed instruction.

Conclusion

For the foregoing reasons, appellant’s convictions are affirmed.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.

 

[2]Appellant
previously was tried and convicted of second degree murder and the use of a

firearm in the commission of murder. He appealed his convictions
to this Court, which rejected

his claims that he was entitled to jury instructions on
imperfect self-defense and mutual combat.

However, this Court reversed appellant’s convictions, ruling
that the trial court should have

granted a jury instruction on excusable homicide. See Connell v.
Commonwealth, 34 Va. App.

429, 542 S.E.2d 49 (2001) (Connell I). Appellant’s convictions
in the current appeal resulted

from appellant’s retrial following remand of the case from this
Court.

 

[3]Upon review of
appellant’s petition for appeal pursuant to Code ? 17.1-407(C), this

Court denied appellant’s challenge to the refused imperfect
self-defense instructions because the

refused instructions were not a part of the record on appeal. We
subsequently granted appellant’s

petition for a writ of certiorari, and the refused jury
instructions have been transmitted to this

Court. In granting in part the present appeal, a panel of this
Court directed the parties to address

the propriety of permitting a party to supplement the appellate
record after this Court has issued,

pursuant to Code ? 17.1-407(C), a decision on the petition for
appeal.

 

[4]Appellant also
relies upon Bausell v. Commonwealth, 165 Va. 669, 181 S.E. 453

(1935), a case not cited by the parties or this Court in Connell
I. Despite appellant’s assertion of

additional authority for his position, our consideration of this
claim, which has been decided

previously on the merits, is barred by the doctrine of res
judicata
, as discussed below.

 

[5]For the first
time on appeal, appellant contends the trial court erred in refusing

Instruction B due to the speculative nature of the testimony of
the Commonwealth’s expert on

gunshot residue. This is a distinct argument from that advanced
in the trial court. "The Court of

Appeals will not consider an argument on appeal which was not
presented to the trial court."

Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488
(1998). See Rule 5A:18.

Accordingly, Rule 5A:18 bars our consideration of appellant’s
new argument on appeal.

Moreover, the record does not reflect any reason to invoke the
good cause or ends of justice

exceptions to Rule 5A:18.


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