Criminal: Defendant waived ability to challenge probation condition

Where a man convicted of voluntary manslaughter and maliciously discharging a firearm into an occupied dwelling argued that the period of supervised probation exceeds the allowable time under Code § 19.2-303, but he failed to preserve this objection, and the sentencing order is not void ab initio, this court did not reach this issue.

Background

Following a jury trial, the circuit convicted Jamar Hilliard of voluntary manslaughter and maliciously discharging a firearm into an occupied dwelling.

Prior conviction

Hilliard argues that the circuit court should have admitted C.B.’s 2005 assault and battery conviction because it was relevant to his self-defense claim. This court finds that the circuit court erroneously stated that Hilliard had to know about the prior charge for malicious wounding and subsequent conviction for assault and battery in order for the conviction order to be admissible.

But “[t]he ultimate issue becomes whether such evidence of prior conduct was sufficiently connected in time and circumstances with the homicide as to be likely to characterize the victim’s conduct toward the defendant.” Here, the rejected evidence was stale, as the conviction was entered 17 years before the homicide at issue.

Moreover, C.B. was convicted of a misdemeanor, and Hilliard was not the victim, further supporting the irrelevance of the 17-year-old conviction. Accordingly, the circuit court reached the right result, but for a different reason, in excluding C.B.’s prior conviction order as evidence.

Voir dire

Hilliard proposed the following voir dire question: “Is there anyone who has had to use deadly force to defend themselves or known an immediate family member or close friend who had to use deadly force to defend themselves, and did you agree with their actions, were you able to place yourself in their shoes and see the threat of harm they faced?”

The circuit court did not permit the question on the grounds that it asked the jury “to speculate as to what took place,” that it was inappropriately worded and that the prior question “covers it.” The circuit court was correct when it stated the question was inappropriately worded, containing at least three questions within the one proposed question.

Whether a panelist agreed that the facts and circumstances leading to a panelist’s family member or close friend using self-defense was proper is not an accurate indicator of whether they would be biased in evaluating the facts surrounding Hilliard’s claim of self-defense. The permitted prior question amply, and more succinctly, covered the issue of whether any panelist had bias related to the use of deadly force in self-defense.

Defense

Hilliard argues that it was C.B. that acted with malice and that he returned fire under a “sudden provocation or from passion.” In addition to lying about the first three versions of what transpired in the early hours of July 25, 2022, at trial, Hilliard continued to give inconsistent and contradictory statements from his previous interviews.

Thus, the jury was entitled to reject Hilliard’s testimony that C.B., after chasing and shooting him outside, then retreated inside, positioned herself behind the window before shooting and striking Hilliard in the leg which then provoked Hilliard to fire back. Because there is at least some sufficient evidence to support the jury’s determination that Hilliard acted with a “deliberate mind” in shooting C.B. through the window, this court does not reverse that finding on appeal.

Probation

Hilliard argues that the period of supervised probation exceeds the allowable time under Code § 19.2-303 and accordingly makes the sentencing order void ab initio. This court recently held that, if a circuit court “surpassed the bounds of its statutory authority” by suspending execution of a sentence for “periods beyond the five-year maximum permitted under amended Code § 19.2-306(C),” “such orders would be voidable rather than void ab initio.” Because the sentencing order is not void ab initio, and Hilliard failed to preserve his objection, this court does not reach the issue of whether the circuit court erred in its imposition of supervised probation.

Affirmed.

Concurring opinion

Lorish, J., concurring in the judgment.

Our caselaw requires us to conclude that all probation is an act of mercy and rehabilitative in nature. A sentence to a longer term of probation than the General Assembly authorized therefore cannot be said to be punitive. Thus, a court’s error in imposing a condition to a lawfully suspended sentence is merely voidable, not void ab initio. I write here to urge that our line of caselaw be reconsidered.

Hilliard v. Commonwealth, Record No. 0723-24-1, Oct. 21, 2025. CAV (Frucci). From the Circuit Court of the City of Portsmouth (Ottinger). Samantha Offutt Thames, Senior Appellate Counsel (Virginia Indigent Defense Commission, on briefs), for appellant. Liam A. Curry, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 025-7-294. 26 pp.