Even though appellant agued self-defense to the jury, his assignment of error on appeal – that “the Commonwealth’s evidence failed to exclude the reasonable hypothesis of innocence that [he] possessed a reasonable apprehension of imminent bodily harm or death and acted in justifiable self-defense” – is procedurally barred because he did not present this argument in his motions to strike.
Brown spent the night making threatening phone calls to appellant, then appeared at his house. Brown was about 20 to 25 feet from appellant when appellant shot him three times.
At the close of the commonwealth’s case and again at the close of his own case, appellant moved to strike the evidence. He argued “that the evidence was insufficient to support the charge of first-degree murder and ‘ask[ed] the Court not to allow the evidence to go forward.’ The trial court denied the motions.”
The jury was instructed on first- and second-degree murder, voluntary manslaughter and self-defense. The jury found appellant guilty of manslaughter. The court imposed the jury’s 18-month prison sentence.
Appellant challenges the trial court’s failure to grant his motion to strike the voluntary manslaughter charge. “He specifically suggests that ‘the Commonwealth’s evidence failed to exclude the reasonable hypothesis of innocence that [he] possessed a reasonable apprehension of imminent bodily harm or death and acted in justifiable self-defense.’ The Commonwealth contends that the appellant failed to preserve his assignment of error for appeal.”
Rule 5A:18 provides that to preserve a trial court ruling for appeal, a contemporaneous objection must be “stated with reasonable certainty” so that the trial court and opposing counsel have “a fair opportunity to address the challenge or prevent error. …
“In the instant case, in his two motions to strike in the trial court, the appellant did not present the argument raised in his assignment of error before this Court. At the end of the Commonwealth’s case, the appellant made a motion to strike the charges based on insufficient evidence. His entire argument regarding the murder charge consisted of the following:
“‘At a minimum I would further expand on my motion that at this juncture I don’t think there is any evidence whatsoever to consider raising the charge from second degree murder to first degree murder. As they’re allowed, they charged a generic murder, if you will, as allowed by the code. But this is the point in time when the Court can. So an ancillary part of my motion is to restrict the [C]ommonwealth from this point forward and only go forward on second degree murder or less.’
“The Commonwealth responded that witness testimony had included sufficient evidence of premeditation. The trial court agreed and denied the motion to strike.
“After the appellant presented evidence, he renewed his motion to strike. At that time, the appellant asked the trial court to ‘allow no more than … second degree murder to go to this jury.’ He argued that there was ‘no evidence of premeditation.’ The appellant also stated that ‘obviously, fundamentally, [he was] asking the [c]ourt not to allow the evidence to go forward.’ In response, the Commonwealth reiterated witness testimony that the appellant shot Brown before he entered the yard. The trial court again denied the motion.
“The appellant did not argue in either of his motions to strike, as he does on appeal, that the Commonwealth ‘failed to exclude the reasonable hypothesis of innocence that [he] possessed a reasonable apprehension of imminent bodily harm or death and acted in justifiable self-defense.’…
“Consequently, the appellant’s motions to strike did not give the trial court an opportunity to evaluate the current challenge relating to the Commonwealth’s alleged failure to disprove self-defense. Nor did the motions provide the prosecution the opportunity to respond to the current argument. …
“At trial, defense counsel understandably focused on the reduction of the first-degree murder charge to a lesser offense. Nevertheless, the appellant was required to argue his theory regarding self-defense in the context of the sufficiency of the evidence to the trial court in order to preserve the issue for appeal pursuant to Rule 5A:18.
“Certainly, the appellant presented his theory that he acted in self-defense and made that argument to the jury. However, arguments to the jury do not preserve a specific legal challenge to the sufficiency of the evidence for appellate review because the issue must be presented to the trial judge, not the jury.”
O’Neal v. Commonwealth, Record No. 1168-19-1, Oct. 13, 2020. CAV (Decker) from Hampton City Cir. Ct. (Gaten) Charles E. Haden for appellant, Timothy J. Huffstutter for appellee. VLW 020-7-183, 7 pp. Unpublished.