After a morning in which defense attorney Fran Lawrence presented the rest of the witnesses that Rhonda Quagliana did NOT prepare, Judge Hogshire called everyone back at 1 PM. Some prosecution rebuttal witnesses — 5 college-age people, presumably friends of Love and Huguely — were recognized to return tomorrow. Best information is that the defense will call two medical witnesses, probably on the cause of death issues already discussed. These are witnesses that Rhonda Quagliana has been working with from the very beginning. At the end of the proceedings, Judge Hogshire made it pretty clear that the case will go forward tomorrow. The implication is that Fran Lawrence had better to be ready to present the medical witnesses, and that if Rhonda Quagliana is still sick, that’s just too bad.
There was also extended discussion on jury instructions. And as I have said before, I think that the jury instructions here will absolutely baffle the jury. This is true for a number of reasons:
- The jury instructions in the Model Jury Instructions book are at least confusing, and in my view wrong, on the question of how the burden of proof is to be allocated in a murder case, under decisions of the U.S. Supreme Court and the Virginia Supreme Court.
- Under the best of circumstances, the jury instruction on malice is confusing. In virtually every murder case except the easiest ones, the jury comes back with a question, asking the judge to amplify on the “malice” instruction. And all the judge can do is to say, “Sorry, I’ve told you all I can tell you. Do the best you can.”
- Huguely is charged under two different theories of murder — felony murder and premeditated murder. If the jury finds that the murder was premeditated, the decisions are easy. If the jury finds that the killing was in the commission of a robbery, the decisions are easy. If the jury does NOT find either of those, things are really confusing.
- The jury is apparently going to be told that they must be unanimous as to each of the indictments. So if 6 jurors think that the killing was intentional but not premeditated (the form of second-degree murder that is a lesser-included offense of the first-degree murder indictment) and 6 jurors think that the killing was unintentional but not premeditated (part of the findings necessary for a verdict of second-degree murder under the felony homicide indictment) then you have 12 jurors agreeing that he should be found guilty of second-degree murder, but not unanimous as to either indictment.
One key question will be addressed in a jury instruction on robbery. The question is this — must the jury decide that the evidence establishes beyond a reasonable doubt that he formed the intent to steal her laptop before or at the same time as when he was using violence against her? If he took the computer only as an afterthought, can he be found guilty of robbery? At this point, the only evidence in front of the jury is his statement that he took it as what defense counsel called an afterthought. Of course, the jury doesn’t have to believe the statement, at least if there is any other evidence or inference on the point. But I don’t know of any other evidence on this point, so I think the jury would have to speculate to get to a conclusion that Huguely formed an intent to steal from her before or during the time of their fight. The case law on this point is pretty clear.
Robbery is “the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.” Jones v. Commonwealth, 172 Va. 615, 618, 1 S.E.2d 300, 301 (1939).
The principal elements of robbery, a crime against the person of the victim, are the taking, the intent to steal, and the violence (or intimidation). Definitionally, there is a temporal correlation among these elements. The violence must occur before or at the time of the taking. The intent to steal and the taking must coexist. And the offense is not robbery unless the animus furandi [Latin for “the intention to steal”] was conceived before or at the time the violence was committed.
for theft by violence or intimidation to constitute robbery, the intent to steal must exist at the time of the violence or intimidation. See Branch v. Commonwealth, 225 Va. 91, 95–96, 300 S.E.2d 758, 759–60 (1983). This was the issue addressed by the jury’s question, an issue raised by the evidence. If Shepperson killed White intending to steal his property, the theft was robbery. If Shepperson killed White only for a purpose unrelated to theft, and as an afterthought decided to steal his property, the theft was larceny.
Where the defense is that the killing was an accident, the defendant is not required to prove this fact. The burden is on the Commonwealth to prove beyond a reasonable doubt that the killing was not accidental. If after considering all the evidence you have a reasonable doubt whether the killing was accidental or intentional, then you shall find the defendant not guilty.
So suppose the defense has raised enough of a question in the minds of the jury that they say to themselves, “We think that there is a reasonable chance that this was accidental.” That means that even though they may seem pretty sure, they don’t consider the evidence sufficient to eliminate that reasonable chance. If the Commonwealth cannot eliminate every reasonable theory of innocence, the jury must regard that fact as unproven.
So what about intoxication? It is said that intoxication can be a defense to premeditation. The jury instruction on point reads as follows:
If you find that the defendant was so greatly intoxicated by the voluntary use of alcohol that he was incapable of deliberating or premeditating, then you cannot find him guilty of murder in the first degree.
Voluntary intoxication is not a defense to second-degree murder or to manslaughter.
The instruction implies that it is up to the defense to show that Huguely was so drunk that he was not capable of deliberating or premeditating, but because the proof goes to negate an affirmative burden of the Commonwealth, it might seem that the proper allocation of the burden of proof would be to say something like:
If evidence that the defendant voluntarily used alcohol to such a great degree that you have a reasonable doubt about whether he was capable of deliberating or premeditating, then you cannot find him guilty of murder in the first degree.
And leave it at that. My understanding is that the judge intends to give the standard Model Jury Instruction, which I don’t think properly allocates the burden of proof.
Similarly, the jury instructions on “malice” are confusing. Here is what they will be told on malice:
Malice is that state of mind which results in the intentional doing of a wrongful act to another without legal excuse or justification, at a time when the mind of the actor is under the control of reason. Malice may result from any unlawful or unjustifiable motive including anger, hatred or revenge. Malice may be inferred from any deliberate willful and cruel act against another, however sudden.
Heat of passion excludes malice when that heat of passion arises from provocation that reasonably produces an emotional state of mind such as hot blood, rage, anger, resentment, terror or fear so as to demonstrate an absence of deliberate design to kill, or to cause one to act on impulse without conscious reflection. Heat of passion must be determined from circumstances as they appeared to defendant but those circumstances must be such as would have aroused heat of passion in a reasonable person.
If a person acts upon reflection or deliberation, or after his passion has cooled or there has been a reasonable time or opportunity for cooling, then the act is not attributable to heat of passion.
Got that? I didn’t think so.
If the jury gets the case in the late afternoon tomorrow, it could be a long evening.
Go to WVIR’s website for the detailed breakdown of the testimony.
