                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Frank and Senior Judge Overton
Argued by teleconference


JOHN LESTER SCOTT
                                                               MEMORANDUM OPINION* BY
v.     Record No. 0831-04-1                                    JUDGE NELSON T. OVERTON
                                                                    MARCH 29, 2005
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                  Jerome James, Judge

                 James O. Broccoletti (Zoby & Broccoletti, P.C., on brief), for
                 appellant.

                 Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       A jury found John Lester Scott guilty of first-degree murder, as well as other crimes. On

appeal, Scott challenges only his murder conviction and claims his short-form indictment, patterned

after the language of Code § 19.2-221, charged him with second-degree, but not first-degree,

murder. Scott contends the holding of the Supreme Court of the United States in Apprendi v. New

Jersey, 530 U.S. 466 (2000), required the indictment to charge all the elements of the offense.

Because the indictment did not specifically state all the elements of first-degree murder, Scott

maintains, the trial court erred in refusing to amend the charge to second-degree murder.

       In Walshaw v. Commonwealth, 44 Va. App. 103, 113, 603 S.E.2d 633, 638 (2004), this

Court rejected arguments identical to those advanced by Scott in this case and found the statutory

short-form indictment “clearly charged first-degree murder.” This Court further concluded that

Apprendi did not require a murder indictment to state the killing was done with malice or

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
premeditation in order to constitute a valid first-degree indictment under Virginia law, which

requires proof of both elements of the offense for conviction. Id.

       Because our decision in Walshaw governs this case, we reject Scott’s claim that the trial

court erred in refusing to amend the indictment to charge second-degree murder. Accordingly,

appellant’s conviction in affirmed.

                                                                                        Affirmed.




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