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Eaton v. Commonwealth9/21/1990
doubt as to his guilt on the capital murder charge. The trial court refused both instructions, ruling that there was no foundation for either in the evidence.
"A defendant is entitled to have the jury instructed only on those theories of the case that are supported by evidence." Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280 (1986). More than a scintilla of evidence must be present to support an instruction. Id.
Eaton contends, based upon his testimony, that there was sufficient evidence in the record to support his theory that he was a principal in the second degree. He points, specifically, to his testimony in which he stated that Trooper Hines instructed him to
return to the Ford and wait for another trooper to arrive. On brief, Eaton argues that by following the trooper's instructions, he purposefully distracted Hines, giving McDonald the opportunity to shoot the trooper.
There is no evidence in the record to support this theory. Eaton never testified that he was attempting to distract Trooper Hines, nor was any other evidence introduced to indicate such an attempt. Because the evidence fails to support defendant's proposed Instructions B and C, the trial court correctly denied them.
Eaton also proffered Instruction D, which would have instructed the jury to find Eaton guilty of second degree felony murder if it believed Trooper Hines was killed during the continuing larceny of Marston's car. The trial court, however, denied the instruction because it was "an incorrect statement of the law," and there was insufficient evidence to support it.
Eaton contends that Instruction D was proper "because of the continuing larceny of the Marston vehicle in which a murder occurred without Eaton being the triggerman." We disagree.
The felony murder statute, Code § 18.2-33, defines the crime as "the killing of one accidentally, contrary to the intention of the parties, while in the prosecution of some felonious act...." (Emphasis added.) Clearly, no evidence was introduced to indicate that Trooper, Hines was killed "accidentally." Therefore, Instruction D was unsupported by any evidence, and the trial court properly refused the instruction.
IX. JURY INSTRUCTIONS - PENALTY PHASE
Eaton proffered six jury instructions, A through F, at the penalty phase of the trial. The trial court refused all six. Eaton assigns error to each refusal.
Instructions A, D, E, and F were all variations on Instruction 1, proffered by the Commonwealth, and approved by the trial court. That instruction, tailored to the aggravating factor of "future dangerousness," stated:
You have convicted Dennis Wayne Eaton of an offense which may be punished by death. You must decide whether Dennis Wayne Eaton shall be sentenced to death or to life imprisonment. Before the penalty can be fixed at death, the Commonwealth must prove beyond a reasonable doubt that, after consideration of his history and background, there is a
probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society.
If you find from all the evidence, unanimously, that the Commonwealth has proven beyond a reasonable doubt that, after consideration of his history and background, there is a probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society, then you may fix the punishment of Dennis Wayne Eaton at death or if you believe from all
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