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CATEDRAL v. COMMONWEALTH OF VA


CATEDRAL

v.

COMMONWEALTH OF VA

(unpublished)


FEBRUARY 9, 1999
Record No.
2441-97-2

ENDDY OMAR CATEDRAL

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF
CHESTERFIELD COUNTY

John F.
Daffron, Jr., Judge

Argued at
Richmond, Virginia

Present:
Judges Elder, Lemons and Senior Judge Cole

MEMORANDUM
OPINION
[1] BY JUDGE DONALD W. LEMONS
David B.
Hargett (Joseph D. Morrissey; Morrissey, Hershner & Jacobs,
on brief), for appellant.

Ruth Morken
McKeaney, Assistant Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.


Enddy Omar Catedral was
convicted of robbery, use of a firearm in the commission of a
robbery, five counts of abduction, and three counts of use of a
firearm in the commission of abduction. On appeal, Catedral
argues that the trial court erred in refusing to give his
proposed jury instruction on abduction and in denying his motion
to voir dire a juror following the verdict. Because we hold that
the trial court committed no error, we affirm.

BACKGROUND

On April 16, 1996, at
approximately 10:30 p.m., Edward Lee Parker, Jr., an employee of
Arby’s restaurant in the County of Chesterfield, was emptying
trash behind the building. Parker heard footsteps behind him and
felt a gun being placed in the middle of his back. He heard a
voice, identified as Enddy Omar Catedral, appellant, ask
"How many people are inside?" Parker stated that
Catedral then placed the gun at the back of his head. Parker
replied that there were three employees and a manager. Catedral
told him to turn around, and Parker saw a second person,
identified as Michael Sandy, carrying a shotgun. Both men were
dressed in dark clothing with their faces covered.

Catedral held the gun to
Parker’s head as Parker opened the door, and the men walked into
the back of the restaurant behind him. Once inside, Catedral went
to the manager’s office and pointed the gun at the manager, Phil
Gammon. Gammon stated that he was "counting the money for
the night" when he saw Parker enter the building with a
person holding a pistol to Parker’s head. Gammon walked to the
door of his office, and Catedral pointed the pistol at Gammon’s
head, told him to look at the floor, and to sit back at the desk.
Catedral tossed a black bag onto a table in the office and told
Gammon to put the money into it.

Sandy walked around the
restaurant confronting the other employees. Sandy stopped Monica
Moore in the front of the store and Vanessa Mavilla while she was
working on the back line slicer. Sandy approached Melissa Watson
as she cleaned the floor. Sandy gathered Moore, Mavilla, Watson,
and Parker outside of Gammon’s office. Catedral and Sandy ordered
the four employees into a walk-in refrigerator at gunpoint. A few
moments later, when Gammon was finished putting the money in the
bag, Catedral emptied the safe and took money from inside the
desk. Catedral then ordered Gammon into the walk-in refrigerator.
As he walked in, Catedral remarked to Sandy "make sure he
doesn’t get out." The door, while not locked, was closed
behind the employees and the manager. The employees and Gammon
waited in the back room of the refrigerator for about five
minutes before exiting into an empty store.

On July 15, 1996, Catedral
was indicted on five counts of abduction, one count of robbery,
one count of using a firearm in the commission of a robbery and
five counts of use of a firearm in the commission of abduction.
On October 31, 1996, he was convicted in a jury trial of all
charges, except two counts of using of a firearm in the
commission of abduction. Catedral appeals, arguing that the trial
court erred in refusing his proffered jury instruction on
abduction and in failing to voir dire a juror following the
verdict.

JURY INSTRUCTION

Upon review of jury
instructions given or refused at trial, an appellate court is
charged with seeing that "the law has been clearly stated
and 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) (citations omitted). The evidence
relied upon to support a proffered instruction must amount to
"more than a scintilla." Morse v. Commonwealth,
17 Va. App. 627, 633, 440 S.E.2d 145, 149 (1994) (citations
omitted). "An instruction that is not supported by the
evidence, however, is properly refused." Lea v.
Commonwealth
, 16 Va. App. 300, 304, 429 S.E.2d 477, 479-80
(1993) (citations omitted).

A proper jury instruction
is one which "informs the jury as to the essential elements
of the offense." Darnell, 6 Va. App. at 488-89, 370
S.E.2d at 719 (citations omitted). Where more than one jury
instruction correctly defines the law, the trial court is not in
error for refusing multiple jury instructions that touch upon the
same legal principle. See Cirios v. Commonwealth, 7
Va. App. 292, 303-04, 373 S.E.2d 164, 170 (1988) (citing Tuggle
v. Commonwealth
, 228 Va. 493, 508, 323 S.E.2d 539, 548
(1984), vacated on other grounds, 471 U.S. 1096 (1985)).
An appellate court must review a trial court’s refusal to give an
instruction "in the light most favorable" to the
defendant. Brandau v. Commonwealth, 16 Va. App. 408, 412,
430 S.E.2d 563, 565 (1993).

On appeal, Catedral states
that the acts of abduction were extremely close in time and
distance to the robbery. He also contends that the "force
and intimidation employed in the abduction were not separate and
apart from the restraint inherent in the commission of the
robbery." Therefore, Catedral argues that the jury could
have reasonably found that he was not guilty of any acts of
abduction which were not inherent in the commission of the
robbery. Catedral contends that when there is a robbery of
numerous persons in a large space, it is necessary to gather the
persons present into one area where they can easily be watched.

Catedral requested that
the jury be instructed:

One accused of
abduction by detention and another crime involving restraint
of the victim, both growing out of a continuing course of
conduct, is subject upon conviction to separate penalties for
separate offenses only when the detention committed in the
act of abduction is separate and apart from, and not merely
incidental to, the restraint employed in the commission of
the other crime.

The trial court instead
offered the following instruction for each abduction charge:

The defendant is
charged with the crime of abduction. Abduction and kidnapping
are the same crime. The Commonwealth must prove beyond a
reasonable doubt each of the following elements of the crime:
Number 1, that the defendant by force or intimidation did
seize or detain [the five persons allegedly placed inside the
walk-in refrigerator]. And Number 2, that the defendant did
so with the intent to deprive [the five persons placed inside
the walk-in refrigerator] of [his or her] personal liberty.
And Number 3, that the defendant acted without legal
justification or excuse.

The sole issue on appeal
with respect to the jury instruction is whether more than a
"mere scintilla" of evidence existed to support a jury
finding that the act of placing the employees in the walk-in
refrigerator was incidental to the robbery of Arby’s restaurant,
and not separate and apart from the restraint necessary to commit
the robbery.

"[T]o constitute [an] abduction, separate and apart from a robbery, the victim’s
detention must be greater than the restraint that is intrinsic in
a robbery." Cardwell v. Commonwealth, 248 Va. 501,
511, 450 S.E.2d 146, 152 (1994). Even if the purpose of the
abduction is in furtherance of the robbery in allowing the
defendant to make an effective escape, an act of abduction is not
considered inherent in the crime of robbery. See Phoung
v. Commonwealth
, 15 Va. App. 457, 462, 424 S.E.2d 712, 715
(1992).

In Brown v.
Commonwealth
, 230 Va. 310, 337 S.E.2d 711 (1985), the
defendant appealed his conviction of abduction with intent to
defile following his convictions for rape and forcible sodomy,
arguing that any detention of the victim arose out of the
restraint necessary to commit the other crimes. He argued that he
could not be punished for both rape and abduction with intent to
defile because "such conduct constitutes the same

offense
. . . ." Id. at 313, 337 S.E.2d at
713. The Supreme Court of Virginia affirmed his conviction
for abduction, holding, one accused of abduction
. . . and another crime involving restraint of the
victim, both growing out of a continuing course of conduct,
is subject upon conviction to separate penalties for separate
offenses only when the detention committed in the act of
abduction is separate and apart from, and not merely
incidental to, the restraint employed in the commission of
the other crime.

Id. at 314, 337
S.E.2d at 713-14.

In Brown, the
defendant approached a woman in a parking lot and asked for a
ride. She refused, and entered her car. The defendant opened her
car door, hit her on the head, and pushed her into the passenger
seat as he entered the car. The defendant threatened that he
would "cut" her if she attempted to get out of the car,
and he drove to a remote area where he raped her and commited
acts of sodomy. See id. at 312, 337 S.E.2d at 712.
The defendant argued that the act of driving her to the remote
area was inherent in the commission of the rape and sodomy and
that it was not punishable as a separate offense. The Court
disagreed and held,

[t]he evidence in the
record before us shows that the detention underlying the
abduction conviction was not the kind of restraint that is
inherent in the act of rape. Abduction was established as a
fact once the Commonwealth proved that Brown had deprived his
victim of her liberty by physical assaults and threats of
violence.

Id. at 314, 337
S.E.2d at 713.

In Phoung, 15 Va.
App. 457, 424 S.E.2d 712, the defendant was convicted of
statutory burglary, two counts of abduction, two counts of
robbery, and two counts of using a firearm while committing
robbery. He appealed, arguing in part that his convictions for
abduction and robbery violated the double jeopardy prohibition
against multiple punishments for the same offense.

In Phoung, the
defendant and three codefendants entered the victim?s house, held
a gun to her head, tied her up and told her to remain silent. Two
of the men went upstairs and bound her daughter to her bed. While
the victims were tied up, the men stole various items of personal
property. On appeal, Phoung argued that ?the detention of the
victims merely assisted in the completion of the robbery and was
not separate and apart from the restraint inherent in the act of
robbery? and that he may not be punished for both offenses. Id.
at 461, 424 S.E.2d at 714.

We affirmed the
defendant’s two convictions for abduction, holding that
"[t]he evidence established that the detention of the
victims was separate and distinct from the restraint inherent in
the act of robbery." Id. at 462, 424 S.E.2d at 715.
In looking at the elements of each offense, we reasoned,
"[s]imply stated, the asportation of a victim from one room
to another and the binding of another victim’s hands and feet
together are not acts inherent in the crime of robbery." Id.

In the case now before us,
Catedral argues that the act of placing five employees in a
walk-in refrigerator was inherent in the commission of the
robbery. We disagree. Each act of placing the five people in a
walk-in refrigerator was not inherent in the commission of the
robbery.

In refusing Catedral’s
instruction, the trial judge stated,

Well, I think if it is
subject to interpretation and turns on a factual
determination, then it does become an issue for the jury, but
in this case, the only evidence, at least at this point, is
that the employees were directed against their will into
another area where they were confined. That on the face of it
is abduction. . . .

But I think when
they’re transported to another area or they are seized, then
I don?t think that under the testimony that it?s a factual
issue and I think that’s the threshold determination; could
the jury under the evidence that they have heard determine
that this was part of the same offense. . . . They were taken
to another area and locked in there. I think that’s seizure
and abduction.

* * * * * * *

[T]hey were taken
against their will, intimidation and a show of force, namely
weapons, and said, go into that area. I think that is a
sufficient factual basis for the court to rule, and I make
that ruling as a matter of law that it’s not susceptible to
interpretation by the jury, the fact finders . . . .

The court’s instruction on
abduction clearly stated the law related to that offense. Because
we agree with the trial court that the act of placing the
employees into the walk-in refrigerator was not incidental to the
robbery and that not even a scintilla of evidence tended to prove
otherwise, we hold that it was not error for the court to refuse
Catedral’s instruction. POLLING OF THE JUROR

Following the jury
verdict, Catedral requested that the jury be polled. During the
court’s poll of the jury, one of the jurors
[2] expressed that she
"had doubts" with the other jurors’ decision. The
following colloquoy took place:

THE COURT: Well, what
you need to tell me is if you’ve reached a decision in the
verdict that you found the defendant guilty beyond a
reasonable doubt in each of the ten verdicts that I read that
were guilty verdicts.

JUROR: Each of the
ten?

THE COURT: Yes. You’ve
returned 12 verdicts. On ten of them, the defendant was found
guilty. On two [use of a firearm] charges, the verdict was
not guilty . . . . So the question that I ask you, . . . are
these ten guilty verdicts, is this among others your decision
on each of the ten?

JUROR: Except for one.

THE COURT: So these
are not all unanimous verdicts? Well, that’s an awkward
matter, but I need to know whether or not the verdicts were
unanimous. Now, what you’re telling me is they were not all
unanimous. You didn’t vote for a finding of guilt in each of
the ten guilty verdicts?

JUROR: I voted in the
end. Yes.

THE COURT: All right.
Well, was your decision, your thought process, that you found
under the evidence that the Commonwealth had proved to you
the guilt of the accused in these ten cases?

JUROR: I just have
reservation on one part, but I went along. I said yes.

THE COURT: I read you
an instruction.

JUROR: Yes, I know.

THE COURT: The
instruction said it’s not guilt beyond all doubt. It’s guilt
beyond all reasonable doubt. Now, the question that I asked
you is do you have a reasonable doubt as to the guilt of the
accused in any of the ten convictions.

JUROR: I don’t have
any doubt.

THE COURT: Ma’am?

JUROR: I don’t have
any doubt.

THE COURT: So it is
your statement now that individually, not that you went along
with it, but that individually you had determined that the
Commonwealth has proved to your reasonable satisfaction the
guilt of the accused beyond a reasonable doubt?

JUROR: Yes.

After the other eleven
jurors each stated that these were his or her verdicts,
Catedral’s counsel asked the court to voir dire the juror who had
expressed concerns. Catedral’s counsel requested that this
additional questioning take place outside the presence of the
other jurors. The court refused his request, but allowed counsel
to tell the court what questions he would like to ask the juror.
Catedral’s counsel requested that the court ask whether the juror
"felt pressured into giving a guilty verdict" and
whether the juror felt pressured to give the answer in front of
the other jurors. The court conducted the following additional
colloquoy with the juror:

THE COURT: Frequently
Courts will give instructions, advise all the jurors
something like this, that if you can do so, it?s your duty to
reach a decision. Now, that’s a practical response because if
there is not a unanimous verdict, then one possibility is
that the case will have to be retried, which means we’ll get
12 others to come in and sit on the jury. Now, we’re not
going to get a wiser, more thoughtful, more insightful jury
than those of you sitting here now. So that’s why I read what
the law is and practically should be.

If you can reach a
verdict, it’s your duty to do so if you can do so without
giving up any firmly held beliefs. You do not make a decision
just to go along. You do not make a decision just because you
were pressured. I’m sure it’s awkward for you to make your
comments that you have now, and you shouldn’t be pressured in
the jury room or in the courtroom. You should not give up
your honest opinion as to the evidence solely because of the
opinions of your fellow jurors or simply for the purpose of
returning a verdict.

. . . [I]f there’s a
difference in opinion . . . then it’s appropriate
to re-examine your views . . . and if you choose to
reconsider your decision, then that’s your right to do so.

I emphasize foremost
that you don’t make a decision just to go along. But it’s
proper and appropriate to listen to the other jurors,
consider their points of view, consider whether or not you
need to make a different response.

Now, I’ve said a
couple of times you should not be pressured in the jury room.
You should not be pressured in the courtroom to make a
decision. Now, I think I need to ask you for the court record
just one more time if you agree with all the verdicts. . . .
I’m neither trying to get you to go along nor trying to
change your mind. I’m trying to ask you a question so it will
be clear on the court what your decision is. And the question
again is do you agree on each of the ten guilty verdicts that
the evidence has proved to you beyond a reasonable doubt the
guilt of the accused?

JUROR: I agree.

THE COURT: You agree
with that?

JUROR: Yes.

"A trial court has
discretionary authority to ask appropriate neutral questions to
clarify matters of confusion in a juror’s response to a
poll." Carver v. Commonwealth, 17 Va. App. 7, 10, 434
S.E.2d 916, 918 (1993) (citations omitted). In Carver,
defendant was convicted of grand larceny. Following his
conviction, defendant’s counsel asked to poll the jury. During
the poll, one juror stated that his belief was contrary to the
verdict rendered and "indicated a clear disregard of the
court’s preliminary instructions and an improper basis for her
vote of guilty." Id. at 10, 434 S.E.2d at 918. We
reversed the defendant’s conviction and remanded for a new trial,
holding that the juror’s responses were not based upon confusion
of the jury process, but rather, on the juror’s stated belief
that the defendant was innocent. See id. at 10, 434
S.E.2d at 918.

In the case before us, the
juror’s responses in the initial poll and the court’s subsequent
communication with her did not indicate that she believed that
Catedral was innocent. Here, the juror’s responses revealed a
full understanding of both the court’s preliminary instructions
and the standard of proof that the Commonwealth was required to
meet. A review of this record reveals that the juror affirmed her
verdicts eight times in response to the court’s questions. The
court did not err in refusing to allow Catedral’s counsel to
conduct an individual voir dire outside the presence of the jury.

CONCLUSION

Based upon the foregoing,
we hold that the trial court neither erred in refusing Catedral’s
proffered instruction on abduction, nor in refusing to allow
Catedral’s counsel to voir dire a juror outside the presence of
the other jurors after the jury had returned its verdicts.
Therefore, we affirm his convictions.

Affirmed.

 

 

FOOTNOTES:

[1] Pursuant to Code
Sect. 17.1-413, recodifying Code Sect. 17-116.010, this
opinion is not designated for publication.

[2] The court finds
it unnecessary to identify this juror by name, as the identity of
the juror is readily available to both parties and their
attorneys through a review of the record.

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