Buchanan v. Commonwealth (1989)

Further, we hold the evidence in this case of Porter's "deliberate, premeditated and wilful" murder of Officer Reaves was "`so clear and uncontroverted that a trial court could properly refuse to instruct on the lesser included offenses.'" Buchanan, 238 Va. at 409 , 384 S.E.2d at 769 (citation omitted).

He suggests that his prior sentence was based on a sentencing guidelines calculation that is no longer accurate and that his having been “sentenc[ed] on overstated, higher-than- proper guidelines” resulted in “a violation of his constitutional right to ‘fundamental fairness’ under the Fourteenth Amendment.” In the case of multiple convictions and punishments for “the same offense” in violation of the constitutional prohibition against double jeopardy, “the excess conviction[…

He suggests that his prior sentence was based on a sentencing guidelines calculation that is no longer accurate and that his having been “sentenc[ed] on overstated, higher-than-proper guidelines” resulted in “a violation of his constitutional right to ‘fundamental fairness’ under the Fourteenth Amendment.” -7- In the case of multiple convictions and punishments for “the same offense” in violation of the constitutional prohibition against double jeopardy, “the excess convicti…

“This - 20 - is so because the relative ease of seating an impartial jury negates the existence of the ‘widespread prejudice’ which a criminal defendant must show to justify a change in venue.” Buchanan v. Commonwealth, 238 Va. 389, 407 , 384 S.E.2d 757, 767 (1989) (quoting Pope v. Commonwealth, 234 Va. 114, 120 , 360 S.E.2d 352, 356 (1987)).

In Buchanan v. Commonwealth, 238 Va. 389, 414-15 (1989), the appellant was convicted of four counts of first- degree murder and one count of capital murder for the killing of four people.

In Buchanan v. Commonwealth, 238 Va. 389, 414-15 (1989), the appellant was convicted of four counts of first- degree murder and one count of capital murder for the killing of four people.

Finally, “to be relevant, a question to a prospective juror must necessarily disclose or clearly lead to the disclosure of opinion or prejudice.” Buchanan v. Commonwealth, 238 Va. 389, 402 (1989).

See Buchanan v. Commonwealth, 238 Va. 389, 401 , 384 S.E.2d 757, 764 (1989) (“Further, trial courts are not required to allow counsel to ask questions which are so ambiguous as to render the answers meaningless.”).

Absent circumstances supporting such a ruling, “the Commonwealth is free to charge the commission of a single offense in several different ways in -6- order to meet the contingencies of proof.” Buchanan v. Commonwealth, 238 Va. 389, 397 , 384 S.E.2d 757, 762 (1989).

Thus, where a defendant is convicted in a single trial of two crimes constituting the “same offense,” the “proper remedy is to vacate both the conviction and sentence of the lesser ... offense while leaving in place the conviction and sentence on the greater offense.” Buchanan v. Commonwealth, 238 Va. 389, 415 , 384 S.E.2d 757, 772 (1989).

As the Commonwealth acknowledges, the remedy for such an error is "to vacate both the conviction and sentence of the lesser included offense while leaving in place the conviction and sentence on the greater offense." Buchanan v. Commonwealth, 238 Va. 389, 415 , 384 S.E.2d 757, 772 (1989).

Mason v. Commonwealth, 217 Va. 321, 323-24 , 228 S.E.2d 683, 684 (1976); Smith v. Commonwealth, 17 Va.App. 37, 41 , 434 S.E.2d 914, 916 (1993). *780 In the ordinary case, “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” United States v. Armstrong, 517 U.S. 456, 464 , 116 …

As a general proposition, “[t]he manner in which jury selection is conducted is within the discretion and control of the trial court, guided by statute 1 and rule of court.” Buchanan v. Commonwealth, 238 Va. 389, 400 , 384 S.E.2d 757, 764 (1989).

“The Commonwealth is free to indict an individual for as many separate crimes as the Commonwealth, in good faith, thinks it can prove.” Buchanan v. Commonwealth, 238 Va. 389, 397 (1989).

“Trial courts must afford a party a ‘full and fair’ opportunity to ascertain whether prospective jurors ‘stand indifferent in the cause.’” Buchanan v. Commonwealth, 238 Va. 389, 401 (1989) (quoting LeVasseur v. Commonwealth, 225 Va. 564, 581 (1984)).

“The manner in which jury selection is conducted is within the discretion and control of the trial court, guided by statute and rule of court.” Buchanan v. Commonwealth, 238 Va. 389, 400 (1989); see Code § 8.01-358.

In Buchanan v. Commonwealth, 238 Va. 389, 414-15 (1989), the appellant was convicted of four counts of first- degree murder and one count of capital murder for the killing of four people.

An instruction must be supported by more than a scintilla of evidence.” Woolridge v. Commonwealth, 29 Va. App. 339, 348 (1999) (emphasis added) (quoting Hatcher v. Commonwealth, 218 Va. 811, 813-14 (1978)); see Buchanan v. (2) he made known his desire for peace by word or act; and (3) he reasonably feared, under the circumstances as they appeared to him, that he was in imminent danger of being killed or that he was in imminent danger of great bodily harm; and (4) he used no …

“However, it is within the trial court’s sound discretion to decide when a defendant has had such an opportunity.” Buchanan v. Commonwealth, 238 Va. 389, 401 (1989) (quoting LeVasseur, 225 Va. at 581 ).

A defendant is entitled to an instruction regarding his theory of the case “when such an instruction is supported by some appreciable evidence.” Harris v. Commonwealth, 134 Va. 688, 695 (1922). “[T]he evidence asserted in support of such an instruction ‘must amount to more than a scintilla.’” Buchanan v. Commonwealth, 238 Va. 389, 409 (1989) (quoting Justus v. Commonwealth, 222 Va. 667, 678 (1981)).

“When reviewing a trial court’s refusal to give a proffered jury instruction, we view the evidence in the light most favorable to the proponent of the instruction.” Williams v. Commonwealth, 64 Va. App. 240, 244 (2015) (quoting Commonwealth v. Vaughn, 263 Va. 31, 33 (2002)). “[T]he evidence asserted in support of such an instruction ‘must amount to more than a scintilla.’” Buchanan v. Commonwealth, 238 Va. 389, 409 (1989) (quoting Justus v. Commonwealth, 222 Va. 667, 678 (19…

That same “right” of counsel to ask questions is repeated in Code § 19.2-262.01. -8- generally not reverse a trial court’s decision to limit or disallow certain questions from defense counsel.” Thomas v. Commonwealth, 279 Va. 131, 163 (2010) (quoting Buchanan v. Commonwealth, 238 Va. 389, 401 (1989)).

The Commonwealth may “charge the commission of a single offense in several different ways in order to meet the contingencies of proof.” Andrews v. Commonwealth, 280 Va. 231 , 286 (2010) (quoting Buchanan v. Commonwealth, 238 Va. 389, 397 (1989)). -5-

All the trial court must do is to “afford a party a ‘full and fair’ opportunity to ascertain whether prospective jurors ‘stand indifferent in the cause,’” and “it is within the trial court’s sound discretion to decide when a defendant has had such an opportunity.” Thomas v. Commonwealth, 279 Va. 131, 162-63 (2010) (quoting Buchanan v. Commonwealth, 238 Va. 389, 401 (1989)).

Buchanan v. Commonwealth, 238 Va. 389, 401 (1989). 3 In relevant part, Model Jury Instruction 2.100 provides that proof beyond a reasonable doubt “does not require proof beyond all possible doubt, nor is the Commonwealth required to disprove every conceivable circumstance of innocence.” - 14 - Likewise, the expert-witness question (“If you hear two expert witnesses testify in [c]ourt and they give contradictory opinions[,] is there anyone who would automatically not feel com…

Undeniably, a prosecutor is “free to indict an individual for as many separate crimes as the Commonwealth, in good faith, thinks it can prove.” Andrews, 280 Va. at 268 (quoting Buchanan v. Commonwealth, 238 Va. 389, 397 (1989)).

Ease of seating an impartial jury is an essential factor for determining whether a defendant can receive a fair trial because “the relative ease of seating an impartial jury negates the existence of the ‘widespread prejudice’ which a criminal defendant must show to justify a change in venue.” Id. (quoting Buchanan v. Commonwealth, 238 Va. 389, 407 (1989)).

All the trial court must do is to “afford a party a ‘full and fair’ opportunity to ascertain whether prospective jurors ‘stand indifferent in the cause,’” and “it is within the trial court’s sound discretion to decide when a defendant has had such an opportunity.” Thomas, 279 Va. at 162-63 , 688 S.E.2d at 237 -38 (quoting Buchanan v. Commonwealth, 238 Va. 389, 401 , 384 S.E.2d 757, 764 (1989)).

Nothing in this opinion should be construed as detracting from the settled law under which the Commonwealth can " 'charge the commission of a single offense in several different ways in order to meet the contingencies of proof.' ” Andrews, 280 Va. at 286, 699 S.E.2d at 268 (quoting Buchanan v. Commonwealth, 238 Va. 389, 397 , 384 S.E.2d 757, 762 (1989)). 6 .

This also would have involved hearsay. “ ‘[Ejxperts in criminal cases must testify on the basis of their own personal observations or on the basis of evidence adduced at trial.’ ” Wright v. Commonwealth, 245 Va. 177, 197 , 427 S.E.2d 379, 392 (1993) (quoting Buchanan v. Commonwealth, 238 Va. 389, 416 , 384 S.E.2d 757, 773 (1989)). *229 In Simpson v. Commonwealth, 227 Va. 557, 566 , 318 S.E.2d 386, 391 (1984), we noted that Code § 8.01-401.1, which permits “an expert to base …

Id.; see also Wright v. Commonwealth, 245 Va. 177, 197 , 427 S.E.2d 379, 392 (1993); Buchanan v. Commonwealth, 238 Va. 389, 416 , 384 S.E.2d 757, 773 (1989); Charles E.

Buchanan v. Commonwealth, 238 Va. 389, 401 , 384 S.E.2d 757, 764 (1989).

Citing Wansley v. Commonwealth, 210 Va. 462, 468-69 , 171 S.E.2d 678, 683 (1970), Pritchett further argues that his is a case in which pretrial publicity “involves such a probability that prejudice will result that it is deemed inherently lacking in due process.” However, “the mere showing of extensive publicity or general knowledge of a crime or of the accused, including his criminal record, is not enough to justify a change of venue.” Buchanan v. Commonwealth, 238 Va. 389,…

Here, however, we agree with the Commonwealth’s concession, and note that “where, in a single trial, a defendant is convicted of a lesser included offense and the greater offense, the proper remedy is to vacate both the conviction and sentence of the lesser included offense while leaving in place the conviction and sentence on the greater offense.” Buchanan v. Commonwealth, 238 Va. 389, 415 , 384 S.E.2d 757, 772 (1989) (quoting Brown v. Commonwealth, 222 Va. 111, 116 , 279 S…

The indictment was amended from "or" to "and/or." Previously, we considered a similar claim of defective indictment based upon the use of the disjunctive, "or." In Buchanan v. Commonwealth, 238 Va. 389, 398 , 384 S.E.2d 757, 763 (1989), cert. denied, 493 U.S. 1063 , 110 S.Ct. 880 , 107 L.Ed.2d 963 (1990), the defendant was charged with capital murder based upon the killing of more than one person as a part of the same act or transaction.

The amendment permitted the Commonwealth to satisfy its burden of proof with either of two specific alternatives. “[T]he Commonwealth is free to charge the commission of a single offense in several different ways in order to meet the contingencies of proof.” Buchanan v. Commonwealth, 238 Va. 389, 397 , 384 S.E.2d 757, 762 (1989).

See Green, 266 Va. at 107 , 580 S.E.2d at 849 ; Spencer, 240 Va. at 84, 393 S.E.2d at 613; Buchanan v. Commonwealth, 238 Va. 389, 405 , 384 S.E.2d 757, 767 (1989); O’Dell, 234 Va. at 690 , 364 S.E.2d at 501 . (4) refusing the defendant’s request to use a juror questionnaire.

These seven questions were “an invitation to a rambling discourse on a broad range of emotions.” Buchanan v. Commonwealth, 238 Va. 389, 402 , 384 S.E.2d 757, 765 (1989).

The presumption is not overcome simply because there is widespread knowledge of the case as “[j]urors need not be ignorant of the *249 crime.” Id. (citing Irvin v. Dowd, 366 U.S. 717, 722 , 81 S.Ct. 1639, 1642 , 6 L.Ed.2d 751 (1961); Buchanan v. Commonwealth, 238 Va. 389, 406 , 384 S.E.2d 757, 767 (1989)).

The trial court did not abuse its discretion in permitting the Commonwealth to cross-examine Dr. Blumberg on appellant's "peaceful" nature, as this testimony was probative of Dr. Blumberg's bias and whether he properly considered it in the formulation of his expert opinion at trial. 4 "The bias of a witness . . . is always a relevant subject of cross-examination." Goins v. Commonwealth, 251 Va. 442, 465 , 470 S.E.2d 114, 129 (1996) (citing Norfolk & Western Railway Co. v. So…

Mr. Jackson personally objects to the amendment, but I have explained to him the basis for the amendment exists, in fact, the indictment already says unlawfully and feloniously." The trial court then ordered the clerk to include in her order language that "corrects all prior orders that erroneously refer to indictment [03] as a misdemeanor charge." "This was not a case of a defendant who had no idea what to expect when he came to court." Buchanan v. Commonwealth, 238 Va. 389…

The court must afford a party a full and fair opportunity to ascertain whether prospective jurors ‘stand indifferent in the cause,’ but the trial judge retains the discretion to determine when the parties have had sufficient opportunity to do so." LeVasseur v. Commonwealth, 225 Va. 564, 581 , 304 S.E.2d 644, 653 (1983), cert. denied, 464 U.S. 1063 (1984); accord Goins v. Commonwealth, 251 Va. 442, 458 , 470 S.E.2d 114, 125 , cert. denied, 519 U.S. 887 (1996); Buchanan v. Com…

Irvin v. Dowd, 366 U.S. 717, 722 (1961); Buchanan v. Commonwealth, 238 Va. 389, 406 , 384 S.E.2d 757, 767 (1989).

As we stated in Buchanan v. Commonwealth, 238 Va. 389, 409 , 384 S.E.2d 757, 769 (1989), cert. denied, 493 U.S. 1063 (1990), “[a] second degree murder instruction is only appropriate where it is supported *352 by the evidence.” Accord Justus v. Commonwealth, 222 Va. 667, 678 , 283 S.E.2d 905, 911 (1981), cert. denied, 445 U.S. 983 (1982); see also Commonwealth v. Donkor, 256 Va. 443, 445 , 507 S.E.2d 75, 76 (1998) (applying the same principle to a proffered instruction for m…

The rule is well settled that an expert in a criminal case may "testify . . . on the basis of evidence adduced at trial." Buchanan v. Commonwealth, 238 Va. 389, 416 , 384 S.E.2d 757, 773 (1989).

In Virginia, the trial court is granted broad, discretionary authority to determine, among other issues, the admissibility of evidence, see Bowman v. Commonwealth, 30 Va. App. 298, 302 , 516 S.E.2d 705, 707 (1999); the order of evidence before it, see Lebedun v. Commonwealth, 27 Va. App. 697, 715 , 501 S.E.2d 427, 436 (1998); how voir dire is conducted, see Buchanan v. Commonwealth, 238 Va. 389, 400 , 384 S.E.2d 757, 764 (1989); whether to grant a continuance to obtain couns…

Cf. Buchanan v. Commonwealth, 238 Va. 389, 397-98 , 384 S.E.2d 757, 762-63 (1989) (upholding indictment drafted in the disjunctive under which accused “was on notice that he had to defend against seven possible groupings of murder victims, any one of which was sufficient to constitute capital murder” and that, under that indictment, “there’s no way [the accused did not] know what [he was] charged with”); Slusher, 196 Va. at 446 , 83 S.E.2d at 722 (holding implicitly that ame…

We have also recog *399 nized that “evidence showing a murder ‘to have been deliberate, premeditated and wilful could be so clear and uncontroverted that a trial court could properly refuse to instruct on the lesser included offenses.’ ” Buchanan v. Commonwealth, 238 Va. 389, 409 , 384 S.E.2d 757, 769 (1989), cert, denied, 493 U.S. 1063 (1990) (quoting Painter v. Commonwealth, 210 Va. 360, 366 , 171 S.E.2d 166, 171 (1969)).

See Strickler v. Commonwealth, 241 Va. 482, 489 , 404 S.E.2d 227, 232 , cert. denied, 502 U.S. 944 (1991); Quesinberry v. Commonwealth, 241 Va. 364, 371 , 402 S.E.2d 218 , 223 *479 (1991), cert. denied, 502 U.S. 834 (1991); Spencer, 240 Va. at 84-85 , 393 S.E.2d at 613 ; Buchanan v. Commonwealth, 238 Va. 389, 405 , 384 S.E.2d 757, 767 (1989), cert. denied, 493 U.S. 1063 (1990). (2) Whether the trial court erred in denying the defendant’s request to mail a questionnaire to th…

Buchanan v. Commonwealth, 238 Va. 389, 409-10 , 384 S.E.2d 757, 769 (1989); Hatcher v. Commonwealth, 218 Va. 811, 813-14 , 241 S.E.2d 756, 758 (1978).