                  COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Annunziata
Argued at Norfolk, Virginia


ELLIOTT JEROME HAWTHORNE
                                        MEMORANDUM OPINION * BY
v.        Record No. 1455-98-1          JUDGE RICHARD S. BRAY
                                            JUNE 29, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                  Everett A. Martin, Jr., Judge

          J. Barry McCracken (Cook & McCracken, on
          brief), for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General,
          on brief), for appellee.


     Elliott Jerome Hawthorne (defendant) was convicted by a

jury of first-degree murder.   On appeal, defendant contends that

the trial court erroneously (1) overruled his Batson challenge

to the Commonwealth’s peremptory strikes of African-Americans

from the venire, (2) instructed the jury on “concert of action,”

(3) refused instructions on self-defense and voluntary

manslaughter, and (4) coerced the jury into a verdict.    We

disagree and affirm the conviction.




    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

     The pertinent evidence is substantially uncontroverted.

David Defoe and Sherri Peterson shared an apartment in the Ocean

View area of Norfolk with Frank Pritzer.    On the morning of the

offense, Defoe and Pritzer walked “around the corner” to the

apartment of defendant’s brother, Keith Hawthorne, to purchase

cocaine.   Pritzer soon returned and advised Peterson “that

[Defoe] had broke into [the] house.”     Minutes later, Peterson

“heard a gunshot” and “saw [Defoe] running down the street” with

“an armful of things,” “look[ing] scared.”    Arriving at the

apartment, Defoe instructed Peterson “to meet him on 14th Bay[]

[a]nd . . . took off running.”    Before Peterson could rendezvous

with Defoe, however, Keith Hawthorne, appearing “mad,” “stopped

by . . . looking for [Defoe],” prompting Peterson to wait until

“it was okay to go to where [Defoe] was without anybody

following.”

     After “about 20 minutes,” Peterson proceeded to an

apartment at 14th Bay and “went straight to the bedroom [where

Defoe] had all of the things he had stolen kind of spread out on

the bed . . . [including] three guns, a bag of weed,” “some

crack,” and “a camcorder.”   After “both did a hit of crack,”

they heard “banging” on the front door and voices “telling us to


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open up.”   Defoe “grabbed the crack,” the pistol that “had a

clip in it,” “ran into the bathroom and jumped in the bathtub

behind the shower curtain.”      Meanwhile, Peterson concealed the

spoils and “jumped on the loveseat trying to pretend like [she]

was asleep.”   Moments later, three men, Keith Hawthorne, Dee

Washington, and defendant, “kicked . . . open” the entry and

bedroom doors of the apartment, each brandishing a firearm.

“They . . . pointed their guns at [Peterson], told [her] to get

up and open the closet door.”     When “they saw [Defoe] wasn’t in

the closet they went directly to the bathroom door, . . . kicked

[it] open [and] told [Peterson] to go.”

     Peterson moved into the living room area and immediately

heard someone direct Defoe “to put the gun down,” followed by

“some gunshots.”   Keith Hawthorne then “ran out of the bedroom,

. . . out the back door, around to the bathroom window,” and

Peterson heard “more gunshots.”     Hawthorne returned to the

bathroom, “more gunshots” sounded, and he and Washington “ran

out the front door,” leaving defendant alone in the bathroom

with Defoe.    Defoe then declared to defendant, “I’m talking to

you man to man.    Look at me.   I’m bleeding,” followed by two

additional gunshots, and defendant fled from the apartment.

     Investigator Jeffrey Allen Diener “[s]urveyed the [crime]

scene” on the morning of the offense and noted that a “force on

the [front] door [had] pulled the locked parts out.”     Diener


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observed a “.25 caliber pistol . . . over by the window of the

bathroom on the floor.”   “The firearm had been fired[,] . . .

[but] [f]or whatever reason[,] the weapon did not function

properly . . . and eject the empty shell as it’s supposed to.”

Eight “9 millimeter shell casing[s]” were recovered from the

bathroom, and “[t]here were two holes in the screen [of the

bathroom window] . . . in the direction of travel . . . from the

outside to the inside.”   Defoe’s body was in the bathtub,

riddled with ten gunshot wounds at divers sites, fired from no

fewer than two weapons.

     At the conclusion of trial, defendant was convicted of

first-degree murder, and this appeal followed.

                          I.   Batson Challenge

     Defendant first contends that the Commonwealth exercised

peremptory strikes to remove two African-American venirepersons,

Ms. Flyth and Ms. Wilkins, for discriminatory purposes, contrary

to the mandate of Batson v. Kentucky, 476 U.S. 79 (1986).

     “Batson dictates that purposeful discrimination based upon

race in selecting jurors violates the Equal Protection Clause.

Once an accused makes a prima facie showing of such

discrimination, a prosecutor must furnish a reasonable

explanation in rebuttal, showing that the reason for the

peremptory strike was race neutral.”    Kasi v. Commonwealth, 256

Va. 407, 421, 508 S.E.2d 57, 65 (1998).   “A ‘trial court’s


                                - 4 -
decision on the ultimate question of discriminatory intent

represents a finding of fact of the sort accorded great

deference on appeal,’ which should be disturbed only if ‘clearly

erroneous.’”   Barksdale v. Commonwealth, 17 Va. App. 456, 460,

438 S.E.2d 761, 763 (1993) (en banc) (citations omitted).     “Age,

education, employment, and demeanor during voir dire may

constitute race-neutral explanations for a peremptory strike.”

Goodson v. Commonwealth, 22 Va. App. 61, 81, 467 S.E.2d 848, 858

(1996) (citation omitted).

     Here, in response to defendant’s challenge, the prosecutor

explained that she thought Ms. Flyth “was white . . . .    [But,]

[m]ore importantly, . . . she’s the youngest person on the panel

and [the Commonwealth] ha[s] had problems in the past with young

jurors not wanting to listen to the arguments of older jurors.”

The prosecutor added that she had removed Ms. Wilkins, age

twenty-four, for the “[s]ame type of reasons,” noting that her

employment in “telemarketing” differentiated her from another

venireperson of similar age but “in a management position.”

     Assuming, without deciding, that defendant made a prima

facie showing of purposeful discrimination, the record supports

the trial court’s determination that the Commonwealth offered “a

race-neutral reason for the strikes.”   With regard to Ms. Flyth,

defense counsel agreed “to give the Commonwealth the benefit of

the doubt . . . simply because [the prosecutor] clearly made a


                               - 5 -
mistake,” thereby conceding the issue.         See Johnson v.

Commonwealth, 26 Va. App. 674, 683, 496 S.E.2d 143, 147 (1998).

The prosecutor attributed the Wilkins strike to age and

employment, considerations clearly race-neutral and undisputed

by defendant.

                         II.   Jury Instructions

        Defendant next complains that the trial court erroneously

instructed the jury on “concert of action,” while refusing to

instruct on self-defense and voluntary manslaughter.

A.   Concert of Action

        It is “well established that ‘a defendant is entitled to

have the jury instructed only on those theories of the case that

are supported by the evidence,’ and a trial court errs when it

refuses such an instruction that is supported by ‘more than a

scintilla’ of evidence.”       Dalton v. Commonwealth, 29 Va. App.

316, 323-24, 512 S.E.2d 142, 145 (1999) (en banc) (citations

omitted).    “On appeal, when the issue is a refused jury

instruction, we view the evidence in the light most favorable to

the proponent of the instruction.”         Lynn v. Commonwealth, 27 Va.

App. 336, 344, 499 S.E.2d 1, 4-5 (1998), aff’d, 257 Va. 239, 514

S.E.2d 147 (1999) (citation omitted).

        Over defendant’s objection, the trial court instructed the

jury:

             If there is concert of action with the
             resulting crime one of its incidental

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          probable consequences, then whether such
          crime was originally contemplated or not,
          all who participate in any way in bringing
          it about are equally answerable and bound by
          the acts of every other person connected
          with the consummation of such resulting
          crime.

1 Model Jury Instructions, Criminal, No. 3.160 (1998 Repl. Ed.).

“Concerted action is defined as ‘action that has been planned,

arranged, adjusted, agreed on and settled between parties acting

together pursuant to some design or scheme.’”   Rollston v.

Commonwealth, 11 Va. App. 535, 542, 399 S.E.2d 823, 827 (1991)

(citation omitted).   The instruction is “proper to use when any

unlawful enterprise is intended” by the participants.    Id. at

543-44, 399 S.E.2d at 828.

     Here, defendant, his brother, and Washington, brandishing

deadly weapons, forcibly entered the 14th Bay apartment in

search of Defoe, obviously intent upon the recovery of articles

stolen by Defoe from the brother.   Collectively, they engaged in

a murderous assault upon the victim, armed and hidden alone in

the bathroom.   Such conduct, together with other attendant

circumstances, provided ample support for the fact finder to

conclude that the three assailants entered the apartment in

pursuit of an unlawful purpose and prepared for a violent

encounter, clearly justifying a concert of action instruction.




                               - 7 -
B.   Self-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).     Thus, defendant and his

confederates, “clearly the aggressor[s] in the altercation,”

were precluded from reliance “upon self-defense or provocation

. . . induced by [their] own belligerent behavior.”      Huffman v.

Commonwealth, 185 Va. 524, 528, 39 S.E.2d 291, 293 (1946)

(citations omitted).    Accordingly, the trial court correctly

declined to instruct the jury on the principles of self-defense.

C.   Voluntary Manslaughter

      “[A] trial court must instruct the jury on the

lesser-included offense of voluntary manslaughter if the

evidence of heat of passion and reasonable provocation amounts

to ‘more than a scintilla.’”      Turner v. Commonwealth, 23 Va.

App. 270, 275, 476 S.E.2d 504, 507 (1996) (citation omitted),

aff’d, 255 Va. 1, 492 S.E.2d 447 (1997), cert. denied, 118

S. Ct. 1852 (1998).    However,


                                  - 8 -
           where the reviewing court is able to
           determine that the trial court’s error in
           failing to instruct the jury could not have
           affected the verdict, that error is
           harmless. Such a determination can be made
           where it is evident from the verdict that
           the jury would have necessarily rejected the
           lesser-included offense on which it was not
           instructed.

Id. at 276, 476 S.E.2d at 507 (citations omitted).

     “Murder” is the unlawful killing of another with malice.

See Thomas v. Commonwealth, 186 Va. 131, 139, 41 S.E.2d 476, 480

(1947).   “Manslaughter on the other hand, is the unlawful

killing of another without malice.”    Barrett v. Commonwealth,

231 Va. 102, 105, 341 S.E.2d 190, 192 (1986) (citation omitted).

In convicting defendant of first-degree murder, the jury found,

beyond a reasonable doubt, that “the killing was willful,

deliberate and premeditated,” as properly defined in the

instructions.   Thus, “[t]he verdict reached by the jury . . .

compels the conclusion that it would never have reached a

voluntary manslaughter verdict . . . [because it] necessarily

rejected the factual basis upon which it might have rendered a

verdict on the lesser-included offense.”    Turner, 23 Va. App. at

277-78, 476 S.E.2d at 508 (citations omitted).   Under such

circumstances, any error which may have attended refusal of a

voluntary manslaughter instruction was clearly harmless.




                               - 9 -
                          III.   Jury Coercion

         Lastly, the defendant asserts that the trial court

impermissibly coerced the jury into the verdict.    Jury

deliberations began at 2:40 p.m., recessed at 5:35 p.m., and

resumed the following morning, after an “Allen charge” from the

court.    Subsequently, the jury notified the court that all

jurors had “agreed on four criteria for offense.    However, one

jury [sic] did not want to convict the person of the crime of

first-degree murder even though she agreed to all four

criteria.”    The court then admonished the jury that “no Virginia

judge may compel any Virginia juror to convict any defendant of

any criminal offense.    I will remind you though [you] took the

oath to render a true verdict according to the evidence.”

     The jury had been previously instructed, “If you find from

the evidence that the Commonwealth has proved beyond a

reasonable doubt each of the above elements of the offense as

charged, then you shall find the defendant guilty of

first-degree murder.”    The exchange in issue clearly revealed

that the elements of first-degree murder had been proved to the

satisfaction of the entire panel, and the court’s comment only

reminded the jury of earlier instructions, without hint of

coercion or bias.

     Accordingly, we affirm the conviction.

                                                     Affirmed.


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