Don't Miss
Home / Fulltext Opinions / Supreme Court of Virginia / COMMONWEALTH v. DALTON, JR.

COMMONWEALTH v. DALTON, JR.



NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Supreme Court of Virginia.


COMMONWEALTH

v.

DALTON, JR.


January 14, 2000

Record No. 990764

COMMONWEALTH OF VIRGINIA

v.

PAUL MICHAEL DALTON, JR.

FROM THE COURT OF APPEALS OF VIRGINIA

OPINION BY SENIOR JUSTICE ROSCOE B. STEPHENSON,
JR.

PRESENT: Carrico, C.J., Compton, Lacy, Hassell,
Koontz, and Kinser, JJ., and Stephenson, Senior Justice


The dispositive issue in this appeal is whether
the Court of Appeals erred in holding that the trial court erred
in refusing to grant an accessory-after-the-fact jury
instruction.

I

Paul Michael Dalton, Jr., was tried by a jury
in the Circuit Court of Pittsylvania County upon an indictment
charging the murder of Aubrey Clark Adkins. The jury found Dalton
guilty of first-degree murder and fixed his punishment at 20
years’ imprisonment. The trial court entered judgment in
accordance with the verdict.

At trial, although Dalton had not been charged
with being an accessory after the fact to murder, he requested an
accessory-after-the-fact jury instruction, asserting that the
instruction was supported by the evidence. The trial court
refused to grant the instruction, concluding that the crime of
being an accessory after the fact was not a lesser-included
offense of the crime of murder.

A panel of the Court of Appeals reversed
Dalton’s conviction and remanded the case for a new trial. Dalton
v. Commonwealth, 27 Va. App. 381, 499 S.E.2d 22 (1998).
Subsequently, the Court granted the Commonwealth’s petition for a
rehearing en banc. Upon rehearing, the Court of
Appeals again reversed the judgment and remanded the case for
further proceedings. Dalton v. Commonwealth, 29 Va.
App. 316, 512 S.E.2d 142 (1999) (en banc). The
Court held that a defendant, who has not been charged with the
crime of being an accessory after the fact to a charged offense,
has a right to an accessory-after-the-fact jury instruction if it
is supported by the evidence. Id. at 327-28, 512 S.E.2d at
147. We awarded the Commonwealth this appeal.

II

On December 17, 1995, Aubrey Adkins’ body was
found in a shallow grave in a wooded area approximately
two-tenths of a mile from the nearest State road. Adkins had been
killed by a gunshot wound to his right upper chest. He also had
been shot in his left side "just above the belt" after
his heart had stopped beating.

Ronald Cassady, Matthew Cassady, and Jimmy Cook
testified that Dalton confessed to having killed Adkins during
the week of December 12, 1995. Ronald Cassady testified that
Dalton told him that, "when [Adkins] come down the road,
[he] was laying in the road and jumped up when [Adkins] stopped
and [he] shot [Adkins]."

Matthew Cassady testified that Dalton told him
that "he met . . . [Adkins] on his grandma’s
road" and that "somehow he got in the car or something
and he shot [Adkins]." Matthew also testified that Dalton
said he killed Adkins "because [Adkins] raped his
sister."

Jimmy Cook testified that, after Dalton drafted
a note confessing to the murder, Dalton explained his reasons for
the note. According to Cook, Dalton "said he wanted to write
a note . . . because he said he done it all by himself,
and he didn’t want to get his sister or [his sister's
boyfriend] . . . blamed for something they didn’t
do."

A note written and signed by Dalton was
introduced into evidence. In the note, Dalton stated that he
"did in fact kill [Adkins] . . . and [his sister] and [her boyfriend] did not have inthing [sic] to do with
it."

At trial, Dalton denied shooting Adkins. Dalton
testified that, on December 12, 1995, he and his sister’s
boyfriend were sitting in the woods watching his sister attempt
to buy marijuana from Adkins. According to Dalton, after his
sister exited Adkins’ car, he saw his sister’s boyfriend approach
Adkins and shoot him twice. Dalton stated that the boyfriend
"shot [Adkins] one time through the passenger side door,
. . . reloaded, . . . walked around and
. . . opened the driver’s side door[,] and shot
[Adkins] again."

Dalton further testified that, after the
shooting, he helped the boyfriend place Adkins’ body in the trunk
of Adkins’ car and accompanied the boyfriend as he drove Adkins’
car to a remote location in the woods. Dalton stated that, at
some point, his sister’s boyfriend took money and some marijuana
from Adkins’ body and divided it among himself, Dalton, and
Dalton’s sister. "A couple of days later," Dalton
helped the boyfriend carry Adkins’ body from the trunk of the car
to a location in the woods where the boyfriend buried it. Dalton
said he wrote his confession note because he "didn’t want
[his sister] to go to jail."

III

The Due Process Clauses of the Constitution of
the United States and the Constitution of Virginia mandate that
an accused be given proper notification of the charges against
him. U.S. Const. amend. XIV; Va. Const. art. 1, ? 8. Code
? 19.2-220 provides, in pertinent part, that an indictment
shall be "a plain, concise and definite written statement,
(1) naming the accused, (2) describing the offense charged, (3)
identifying the county, city or town in which the accused
committed the offense, and (4) reciting that the accused
committed the offense on or about a certain date." An
indictment, to be sufficient, must give an accused notice of the
nature and character of the charged offense so the accused can
make his defense. Satcher v. Commonwealth, 244 Va.
220, 231, 421 S.E.2d 821, 828 (1992), cert. denied,
507 U.S. 933 (1993).

It is firmly established, therefore, that an
accused cannot be convicted of a crime that has not been charged,
unless the crime is a lesser-included offense of the crime
charged. Thus, neither the Commonwealth nor an accused is
entitled to a jury instruction on an offense not charged, unless
the offense is a lesser-included offense of the charged offense.

An offense is not a lesser-included offense of
a charged offense unless all its elements are included in the
offense charged. Stated differently, an offense is not a
lesser-included offense if it contains an element that the
charged offense does not contain. Jones v. Commonwealth,
218 Va. 757, 759, 240 S.E.2d 658, 660, cert. denied,
435 U.S. 909 (1978).

There are three elements to the crime of being
an accessory after the fact to a felony. First, the felony must
be complete. Second, the accused must know that the felon is
guilty. Third, the accused must receive, relieve, comfort, or
assist the felon. It is essential that the accused, at the time
he assists or comforts the felon, has notice, direct or implied,
that the felon committed the crime. Manley v. Commonwealth,
222 Va. 642, 645, 283 S.E.2d 207, 208 (1981); Wren v. Commonwealth,
67 Va. (26 Gratt.) 952, 956 (1875).

While convicting an accused of being an
accessory after the fact requires proof that the accused provided
assistance to a person with knowledge that the person was guilty
of a completed felony, no such proof is required to convict an
accused of murder. Thus, the crime of being an accessory after
the fact contains an element that the crime of murder, the
charged offense in the present case, does not contain. Therefore,
the crime of being an accessory after the fact is not a
lesser-included offense of the crime of murder.

The Court of Appeals acknowledged, and the
parties agree, that the crime of being an accessory after the
fact is not a lesser-included offense of murder. Dalton,
29 Va. App. at 325, 512 S.E.2d at 146. Nevertheless, relying upon
Code ? 19.2-286 and Rule 3A:17(c), the Court held that the
evidence was sufficient to entitle Dalton to an
accessory-after-the-fact jury instruction. Id. at 328, 512
S.E.2d at 148.

Code ? 19.2-286 provides the following:

On an indictment for felony the jury may find
the accused not guilty of the felony but guilty of an attempt to
commit such felony, or of being an accessory thereto; and a
general verdict of not guilty, upon such indictment, shall be a
bar to a subsequent prosecution for an attempt to commit such
felony, or of being an accessory thereto.

Code ? 19.2-286 was formerly Code
? 19.1-254. Former Code ? 19.1-254, as it existed
prior to its repeal in 1975, provided that "[o]n an
indictment for felony the jury may find the accused not guilty of
the felony but guilty of an attempt to commit such felony, or
of being an accessory after the fact
." (Emphasis added.)
In 1975, when Title 19.2 of the Code replaced Title 19.1, the
statute was changed by substituting the term "accessory
thereto" for the term "accessory after the fact."

In deleting the modifier, "after the
fact," the General Assembly indicated its intention to
eliminate accessories after the fact from the application of Code
? 19.2-286. By limiting the statute’s application to
accessories before the fact, any conflict between the statute and
the notification requirements of due process was avoided.

Rule 3A:17(c) reads as follows:

The accused may be found not guilty of an
offense charged but guilty of an offense, or of an attempt to
commit any offense, that is substantially charged or necessarily
included in the charge against the accused. When the offense
charged is a felony, the accused may be found not guilty thereof,
but guilty of being an accessory after the fact to that felony.

We interpret the last sentence of Rule 3A:17(c)
to mean that, even if the accused is acquitted of a felony, he
may be found guilty of the separate, misdemeanor crime of being
an accessory after the fact. The rule merely reiterates the
proposition that the crime of being an accessory after the fact
contains an element that the felony does not contain. Therefore,
it is not a lesser-included offense, and an acquittal of the
felony does not preclude a trial on the misdemeanor.

IV

Therefore, we hold that, before a defendant can
be tried and convicted of being an accessory after the fact, he
must be charged with that offense. Unless such a charge is
specifically made, neither the Commonwealth nor an accused is
entitled to an accessory-after-the-fact instruction.

In the present case, Dalton was not charged
with being an accessory after the fact to murder. Therefore, the
trial court correctly refused to grant the
accessory-after-the-fact instruction, and the Court of Appeals
erred in reversing the trial court’s judgment. Accordingly, we
will reverse the judgment of the Court of Appeals and remand the
case to the Court of Appeals with directions for it to remand the
case to the trial court for reinstatement of its judgment.

Reversed and remanded.

 


JUSTICE KOONTZ, with whom JUSTICE LACY joins,
dissenting.

I respectfully dissent. The issue whether the
trial court erred in refusing to grant an accessory
after-the-fact jury instruction in this case is properly analyzed
in the context of the undisputed circumstances in which the issue
arose at the murder trial of Paul Michael Dalton, Jr. Contrary to
the conclusion reached by the majority here, in my view, those
circumstances dictate the conclusion reached by the Court of
Appeals that the trial court erred.

Dalton was tried by a jury upon an indictment
charging him with the murder of Aubrey Clark Adkins. During the
trial, Dalton presented evidence which if believed by the jury
established that he was not guilty of the murder but, rather,
that he was guilty of the crime of being an accessory after the
fact to the murder. Dalton requested an accessory after-the-fact
instruction and the trial court refused to grant it, reasoning
that the crime of being an accessory after-the-fact is not a
lesser-included offense of the crime of murder. Significantly,
the trial court did not determine that the requested instruction
was unsupported by credible evidence. Under those circumstances,
Dalton was denied a jury instruction on his theory of the case,
which was supported by credible evidence. "It is immaterial
that the jury could have reached contrary conclusions. If a
proffered instruction finds any support in credible evidence, its
refusal is reversible error." McClung v. Commonwealth,
215 Va. 654, 657, 212 S.E.2d 290, 293 (1975); see also
Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267,
280 (1986).

Nevertheless, the majority employs a different
analysis to reach the legal conclusion that the instruction was
properly refused. First, based upon well established principles
of constitutional and statutory law, the majority notes that
"[a]n indictment, to be sufficient, must give an accused
notice of the nature and character of the offense charged"
and that "an accused cannot be convicted of a crime that has
not been charged, unless the crime is a lesser-included offense
of the crime charged." Upon this rationale, the majority
then concludes that "neither the Commonwealth nor an accused
is entitled to a jury instruction on an offense not charged,
unless the offense is a lesser-included offense of the charged
offense." I agree that the Commonwealth may not effectively
ambush the accused with an instruction that would effectively
permit the jury to convict an accused for a separate crime not
charged in the indictment. However, here Dalton requested the
instruction and, thus, his due process rights were not
implicated. Rather, without the requested instruction, Dalton was
required to run a virtual gauntlet in which the jury would not
weigh the evidence that supported his guilt of being an accessory
after the fact in conjunction with the evidence that supported
his guilt of murder in fixing Dalton’s criminal
responsibility. Under such circumstances, the jury’s search
for the truth was materially hampered and that is inconsistent
with Dalton’s right to a fair trial.

Next, the majority concludes that "the
crime of being an accessory after the fact is not a
lesser-included offense of the crime of murder" and that
neither Code ? 19.2-286 nor Rule 3A:17(c) provides
authority for the requested instruction. While I agree that
accessory after the fact is a separate crime and not a
lesser-included offense of the crime of murder, I do not agree
with the majority’s analysis of Code ? 19.2-286 and
Rule 3A:17(c). Specifically, I disagree with the legislative
history analysis employed by the majority to conclude that
"[t]he General Assembly indicated its intention to eliminate
accessories after the fact from the application of Code
? 19.2-286" and the majority’s conclusion that
the last sentence of the rule "merely reiterates the
proposition that the crime of being an accessory after the fact
contains an element that the felony does not contain."

Code ? 19.2-286 in plain language
provides that:

On an indictment for felony the jury may find
the accused not guilty of the felony but guilty of an attempt to
commit such felony, or of being an accessory thereto; and
a general verdict of not guilty, upon such an indictment, shall
be a bar to a subsequent prosecution for an attempt to commit
such felony, or of being an accessory thereto.

(Emphasis added.)

In my view, Code ? 19.2-286 statutorily
entitles the accused, unlike the Commonwealth, to have the jury
instructed on the elements of the separate offense of being an
accessory to the crime of murder where credible evidence
supports that instruction
. And, as previously stated, such
was the circumstance in Dalton’s case when he requested such
an instruction.

Admittedly, as the majority notes, Code
? 19.2-286 was formerly Code ? 19.1-254 and prior to
a 1975 revision the former statute provided that "[o]n
indictment for felony the jury may find the accused not guilty of
the felony but guilty of an attempt to commit such felony, or
of being an accessory after the fact
." (Emphasis added).
The majority states that the change in wording from
"accessory after the fact" to "accessory
thereto" in 1975 represented a legislative determination to
eliminate accessories after the fact from ? 19.2-286. The
legislative history of that change, however, does not support
that conclusion. The change in language occurred as part of a
recodification. Title 19.1 was recodified as Title 19.2. A
long-standing principle of statutory construction is that, unless
specifically noted, there is a presumption that a recodification
does not result in substantive changes in the law. See Waldrop
v. Commonwealth
, 255 Va. 210, 214, 495 S.E.2d 822, 825
(1998). This recodification was accompanied by a Report of the
Code Commission to the Governor and the General Assembly of
Virginia
, Revision of Title 19.1 of the Code of Virginia,
House Document No. 20 (1975). That document included special
comments for those sections which effected substantive changes
and no such comments accompanied the reenacted ? 19.2-286.
The Report cross-referenced former ? 19.2-254 as the source
of the recodified ? 19.2-286, which included accessory
after the fact.

The phrase "accessory thereto"
contained in the recodification is not, by its terms, limited to
an accessory before the fact. The only conclusion which this
inclusive language, the legislative history of the section, and
the principle that recodifications do not make substantive
changes unless noted supports is that ? 19.1-286 includes
accessories before and after the fact.

This interpretation is further supported by the
language and history of Rule 3A:17(c). This rule specifically
stating that when the charged offense is a felony, the accused
may be found "guilty of being an accessory after the fact to
that felony" has remained virtually unchanged since 1971. Of
course in 1971, the language of the Rule, at that time Rule
3A:24, and the language of former ? 19.1-254 were entirely
consistent. In the early 1980s, the Judicial Council undertook a
major review and revision of the Rules of Court. The revision was
undertaken to "ascertain conflicts between existing Rules
and sections of the Code of Virginia." Report of the
Judicial Council to the General Assembly and Supreme Court of
Virginia
, at 72 (1982). While the Report recommended many
areas of change or deletion in the Rules required by legislative
changes, the only change regarding the provision at issue here
was redesignating the relevant rule from Rule 3A:24 to its
current designation of Rule 3A:17(c). A fair inference from this
history is that if the 1975 recodification of former
? 19.1-254 contained the substantive change suggested by
the majority here, the Rules revision committee would have
suggested alteration of language in the rule which was in direct
conflict with the statute as interpreted by the majority today.
No such suggestion was made, in my opinion, because there was no
change or intent to change the substance of ? 19.1-254 when
it was recodified as ? 19.2-286.

For these reasons, I would affirm the judgment
of the Court of Appeals finding that the trial court erred in not
granting Dalton’s requested jury instruction.

Scroll To Top