concert of action instruction in Virginia

2016The Supreme Court applied the concert of action principle to the actions of co-defendants involved in the beating of two victims in Spradlin v. Commonwealth, 195 Va. 523 , 79 S.E.2d 443 (1954).

2016The Supreme Court applied the concert of action principle to the actions of co-defendants involved in the beating of two victims in Spradlin v. Commonwealth, 195 Va. 523 , 79 S.E.2d 443 (1954).

2019See Rollston v. Commonwealth, 11 Va. App. 535, 543 (1991) (“[E]veryone connected with carrying out a common design to commit a criminal act is . . . bound by the act of any member of the combination, perpetrated in the prosecution of the common design.

2019See Rollston v. Commonwealth, 11 Va. App. 535, 543 (1991) (“[E]veryone connected with carrying out a common design to commit a criminal act is . . . bound by the act of any member of the combination, perpetrated in the prosecution of the common design.

2005See Hurd v. Commonwealth, 159 Va. 880, 890 , 165 S.E. 536, 540 (1932) (finding that defendant did not act in concert with shooter, and thus, cannot be said to have “aided or abetted in the commission of the crime”); Boggs v. Commonwealth, 153 Va. 828, 835-36 , 149 S.E. 445, 447 (1929) (integrating “aiding and abetting” and “concert of action” principles to support defendant’s conviction of murder as principal in the second degree where no direct evidence on which of the two present actually fired the fatal shot); Brown v. Commonwealth, 130 Va. 733, 737 , 107 S.E. 809, 811 (1921) (upholding def

2005See Hurd v. Commonwealth, 159 Va. 880, 890 , 165 S.E. 536, 540 (1932) (finding that defendant did not act in concert with shooter, and thus, cannot be said to have “aided or abetted in the commission of the crime”); Boggs v. Commonwealth, 153 Va. 828, 835-36 , 149 S.E. 445, 447 (1929) (integrating “aiding and abetting” and “concert of action” principles to support defendant’s conviction of murder as principal in the second degree where no direct evidence on which of the two present actually fired the fatal shot); Brown v. Commonwealth, 130 Va. 733, 737 , 107 S.E. 809, 811 (1921) (upholding def

1991Later cases, Westry v. Commonwealth, 206 Va. 508, 514 , 144 S.E.2d 427, 431 (1965), Blevins v. Commonwealth, 209 Va. 622 , 627 n.2, 166 S.E.2d 325 , 329 n.2 (1969), Carter v. Commonwealth, 232 Va. 122, 125 , 348 S.E.2d 265, 267 (1986), as well as the concert of action instruction in this case, cite only the first sentence, leaving out the explanation that the concert of action must be to consummate a wrongful act. 2 Contrary to Rollston’s argument, the concert of action instruction can be used in cases other than felony murder.

1991Later cases, Westry v. Commonwealth, 206 Va. 508, 514 , 144 S.E.2d 427, 431 (1965), Blevins v. Commonwealth, 209 Va. 622 , 627 n.2, 166 S.E.2d 325 , 329 n.2 (1969), Carter v. Commonwealth, 232 Va. 122, 125 , 348 S.E.2d 265, 267 (1986), as well as the concert of action instruction in this case, cite only the first sentence, leaving out the explanation that the concert of action must be to consummate a wrongful act. 2 Contrary to Rollston’s argument, the concert of action instruction can be used in cases other than felony murder.

2005We have described the concert of action doctrine as a “species of accomplice liability.” Davis v. Commonwealth, 36 Va. App. 291, 295 , 549 S.E.2d 631, 633 (2001).

2005We have described the concert of action doctrine as a “species of accomplice liability.” Davis v. Commonwealth, 36 Va. App. 291, 295 , 549 S.E.2d 631, 633 (2001).

1991Later cases, Westry v. Commonwealth, 206 Va. 508, 514 , 144 S.E.2d 427, 431 (1965), Blevins v. Commonwealth, 209 Va. 622 , 627 n.2, 166 S.E.2d 325 , 329 n.2 (1969), Carter v. Commonwealth, 232 Va. 122, 125 , 348 S.E.2d 265, 267 (1986), as well as the concert of action instruction in this case, cite only the first sentence, leaving out the explanation that the concert of action must be to consummate a wrongful act. 2 Contrary to Rollston’s argument, the concert of action instruction can be used in cases other than felony murder.

1991Later cases, Westry v. Commonwealth, 206 Va. 508, 514 , 144 S.E.2d 427, 431 (1965), Blevins v. Commonwealth, 209 Va. 622 , 627 n.2, 166 S.E.2d 325 , 329 n.2 (1969), Carter v. Commonwealth, 232 Va. 122, 125 , 348 S.E.2d 265, 267 (1986), as well as the concert of action instruction in this case, cite only the first sentence, leaving out the explanation that the concert of action must be to consummate a wrongful act. 2 Contrary to Rollston’s argument, the concert of action instruction can be used in cases other than felony murder.

2026See McMorris, 276 Va. at 505–06. - 13 - Geter testified that he planned to shoot Roberts first “just in case,” because both he and Keene believed Roberts was armed.

2024“The United States Supreme Court has repeatedly stated that harmless error analysis is appropriate in the context of improper jury instructions.” Conley v. Commonwealth, 74 Va. App. 658 , 684 (2022) (quoting Kil v. Commonwealth, 12 Va. App. 802, 812 (1991)).

2024“As a general rule, the matter of granting and denying instructions . . . rest[s] in the sound discretion of the trial court.” Dandridge v. Commonwealth, 72 Va. App. 669 , 679 (2021) (alterations in original) (quoting Lienau v. Commonwealth, 69 Va. App. 254, 263 (2018)).

2005See Hurd v. Commonwealth, 159 Va. 880, 890 , 165 S.E. 536, 540 (1932) (finding that defendant did not act in concert with shooter, and thus, cannot be said to have “aided or abetted in the commission of the crime”); Boggs v. Commonwealth, 153 Va. 828, 835-36 , 149 S.E. 445, 447 (1929) (integrating “aiding and abetting” and “concert of action” principles to support defendant’s conviction of murder as principal in the second degree where no direct evidence on which of the two present actually fired the fatal shot); Brown v. Commonwealth, 130 Va. 733, 737 , 107 S.E. 809, 811 (1921) (upholding def

2005See Hurd v. Commonwealth, 159 Va. 880, 890 , 165 S.E. 536, 540 (1932) (finding that defendant did not act in concert with shooter, and thus, cannot be said to have “aided or abetted in the commission of the crime”); Boggs v. Commonwealth, 153 Va. 828, 835-36 , 149 S.E. 445, 447 (1929) (integrating “aiding and abetting” and “concert of action” principles to support defendant’s conviction of murder as principal in the second degree where no direct evidence on which of the two present actually fired the fatal shot); Brown v. Commonwealth, 130 Va. 733, 737 , 107 S.E. 809, 811 (1921) (upholding def

2005See Hurd v. Commonwealth, 159 Va. 880, 890 , 165 S.E. 536, 540 (1932) (finding that defendant did not act in concert with shooter, and thus, cannot be said to have “aided or abetted in the commission of the crime”); Boggs v. Commonwealth, 153 Va. 828, 835-36 , 149 S.E. 445, 447 (1929) (integrating “aiding and abetting” and “concert of action” principles to support defendant’s conviction of murder as principal in the second degree where no direct evidence on which of the two present actually fired the fatal shot); Brown v. Commonwealth, 130 Va. 733, 737 , 107 S.E. 809, 811 (1921) (upholding def

2005See Hurd v. Commonwealth, 159 Va. 880, 890 , 165 S.E. 536, 540 (1932) (finding that defendant did not act in concert with shooter, and thus, cannot be said to have “aided or abetted in the commission of the crime”); Boggs v. Commonwealth, 153 Va. 828, 835-36 , 149 S.E. 445, 447 (1929) (integrating “aiding and abetting” and “concert of action” principles to support defendant’s conviction of murder as principal in the second degree where no direct evidence on which of the two present actually fired the fatal shot); Brown v. Commonwealth, 130 Va. 733, 737 , 107 S.E. 809, 811 (1921) (upholding def

2005See, e.g., Whited v. Commonwealth, 174 Va. 528, 533 , 6 S.E.2d 647, 649 (1940) (stating that concert of action “must be based upon a conspiracy”); Ascher, 12 Va. App. at 1127-28 , 408 S.E.2d at 920 (“The concert of action instruction, like Instruction 33, was then given to address the liability of the conspirators if the jury found a conspiracy existed.” (emphasis in original)).

2005See, e.g., Whited v. Commonwealth, 174 Va. 528, 533 , 6 S.E.2d 647, 649 (1940) (stating that concert of action “must be based upon a conspiracy”); Ascher, 12 Va. App. at 1127-28 , 408 S.E.2d at 920 (“The concert of action instruction, like Instruction 33, was then given to address the liability of the conspirators if the jury found a conspiracy existed.” (emphasis in original)).

2005See, e.g., Whited v. Commonwealth, 174 Va. 528, 533 , 6 S.E.2d 647, 649 (1940) (stating that concert of action “must be based upon a conspiracy”); Ascher, 12 Va. App. at 1127-28 , 408 S.E.2d at 920 (“The concert of action instruction, like Instruction 33, was then given to address the liability of the conspirators if the jury found a conspiracy existed.” (emphasis in original)).

2005See, e.g., Whited v. Commonwealth, 174 Va. 528, 533 , 6 S.E.2d 647, 649 (1940) (stating that concert of action “must be based upon a conspiracy”); Ascher, 12 Va. App. at 1127-28 , 408 S.E.2d at 920 (“The concert of action instruction, like Instruction 33, was then given to address the liability of the conspirators if the jury found a conspiracy existed.” (emphasis in original)).

2001Because of limitations imposed by Commonwealth v. Burns, 240 Va. 171, 173-74 , 395 S.E.2d 456, 457 (1990), however, I concur in the opinion's holding that we are bound by the prior panel's decision, in the case of Harris' codefendants, see Davis v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (July 31, 2001), that the trial judge did not err in giving a concert of action instruction at the re-sentencing proceeding which only involved the issue of punishment. - 9 -

2001Because of limitations imposed by Commonwealth v. Burns, 240 Va. 171, 173-74 , 395 S.E.2d 456, 457 (1990), however, I concur in the opinion's holding that we are bound by the prior panel's decision, in the case of Harris' codefendants, see Davis v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (July 31, 2001), that the trial judge did not err in giving a concert of action instruction at the re-sentencing proceeding which only involved the issue of punishment. - 9 -

2001The record establishes a reasonable likelihood that the jury relied upon the concert of action instruction to the prejudice of Harris' right "to have his . . . punishment determined by the evidence against him and not by what sentence has been imposed . . . against . . . a co-defendant." Walker v. Commonwealth, 212 Va. 289, 291 , 183 S.E.2d 739, 741 (1971).

2001The record establishes a reasonable likelihood that the jury relied upon the concert of action instruction to the prejudice of Harris' right "to have his . . . punishment determined by the evidence against him and not by what sentence has been imposed . . . against . . . a co-defendant." Walker v. Commonwealth, 212 Va. 289, 291 , 183 S.E.2d 739, 741 (1971).

1999Self-defense “‘An instruction is properly refused when it is unsupported by the evidence.’” Wilson v. Commonwealth, 25 Va. App. 263, 274 , 487 S.E.2d 857, 863 (1997) (citation omitted). “[A] person cannot rely upon a plea of self-defense in a case of homicide or assault when he himself was the aggressor and wilfully [sic] brought on, without legal excuse, the necessity for the homicide or assault.” Jordan v. Commonwealth, 219 Va. 852, 855 , 252 S.E.2d 323, 325 (1979); see Sims v. Commonwealth, 134 Va. 736, 760 , 115 S.E. 382, 390 (1922).

1999Self-defense “‘An instruction is properly refused when it is unsupported by the evidence.’” Wilson v. Commonwealth, 25 Va. App. 263, 274 , 487 S.E.2d 857, 863 (1997) (citation omitted). “[A] person cannot rely upon a plea of self-defense in a case of homicide or assault when he himself was the aggressor and wilfully [sic] brought on, without legal excuse, the necessity for the homicide or assault.” Jordan v. Commonwealth, 219 Va. 852, 855 , 252 S.E.2d 323, 325 (1979); see Sims v. Commonwealth, 134 Va. 736, 760 , 115 S.E. 382, 390 (1922).

1999Self-defense “‘An instruction is properly refused when it is unsupported by the evidence.’” Wilson v. Commonwealth, 25 Va. App. 263, 274 , 487 S.E.2d 857, 863 (1997) (citation omitted). “[A] person cannot rely upon a plea of self-defense in a case of homicide or assault when he himself was the aggressor and wilfully [sic] brought on, without legal excuse, the necessity for the homicide or assault.” Jordan v. Commonwealth, 219 Va. 852, 855 , 252 S.E.2d 323, 325 (1979); see Sims v. Commonwealth, 134 Va. 736, 760 , 115 S.E. 382, 390 (1922).

1999Self-defense “‘An instruction is properly refused when it is unsupported by the evidence.’” Wilson v. Commonwealth, 25 Va. App. 263, 274 , 487 S.E.2d 857, 863 (1997) (citation omitted). “[A] person cannot rely upon a plea of self-defense in a case of homicide or assault when he himself was the aggressor and wilfully [sic] brought on, without legal excuse, the necessity for the homicide or assault.” Jordan v. Commonwealth, 219 Va. 852, 855 , 252 S.E.2d 323, 325 (1979); see Sims v. Commonwealth, 134 Va. 736, 760 , 115 S.E. 382, 390 (1922).

1999Self-defense “‘An instruction is properly refused when it is unsupported by the evidence.’” Wilson v. Commonwealth, 25 Va. App. 263, 274 , 487 S.E.2d 857, 863 (1997) (citation omitted). “[A] person cannot rely upon a plea of self-defense in a case of homicide or assault when he himself was the aggressor and wilfully [sic] brought on, without legal excuse, the necessity for the homicide or assault.” Jordan v. Commonwealth, 219 Va. 852, 855 , 252 S.E.2d 323, 325 (1979); see Sims v. Commonwealth, 134 Va. 736, 760 , 115 S.E. 382, 390 (1922).

1999Self-defense “‘An instruction is properly refused when it is unsupported by the evidence.’” Wilson v. Commonwealth, 25 Va. App. 263, 274 , 487 S.E.2d 857, 863 (1997) (citation omitted). “[A] person cannot rely upon a plea of self-defense in a case of homicide or assault when he himself was the aggressor and wilfully [sic] brought on, without legal excuse, the necessity for the homicide or assault.” Jordan v. Commonwealth, 219 Va. 852, 855 , 252 S.E.2d 323, 325 (1979); see Sims v. Commonwealth, 134 Va. 736, 760 , 115 S.E. 382, 390 (1922).