                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Senior Judge Hodges
Argued at Richmond, Virginia


MARVIN GEORGE MAY
                                         MEMORANDUM OPINION * BY
v.   Record No. 0140-01-2                JUDGE WILLIAM H. HODGES
                                              JULY 23, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Thomas N. Nance, Judge

          John B. Boatwright, III (Boatwright & Linka,
          on briefs), for appellant.

          Robert H. Anderson, III, Senior Assistant
          Attorney General (Randolph A. Beales,
          Attorney General, on brief), for appellee.


     Marvin George May, appellant, appeals two aggravated

malicious wounding convictions, one malicious wounding conviction,

and three convictions for use of a firearm in the commission of

those felonies.   Appellant presents three issues on appeal:   (1)

whether the trial court erred by refusing to instruct the jury on

the lesser-included offense of unlawful wounding with regard to

the two aggravated malicious wounding offenses;1 (2) whether the

trial court erred by failing to inform the jury that any sentence


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       The trial court gave an instruction with the
lesser-included offense of unlawful wounding for the malicious
wounding count.
the jury imposed was presumed to run consecutively; and (3)

whether the trial court erred by denying his motion for a new

trial based on after-discovered evidence and perjured testimony of

a Commonwealth's witness.    Finding the trial court committed no

error, we affirm the judgment of conviction.

                               BACKGROUND

        In the early morning hours of April 16, 2000, a close friend

of appellant's, Luther Tyler, was shot and later died.     Appellant

was grieving the loss of his friend and was angry.     Appellant

called another friend, Lamonte Pollard.     Pollard understood that

some people from the Highland Park area of Richmond were

responsible for Tyler's death.    Appellant asked Pollard to

accompany him to shoot up that neighborhood.     Pollard declined to

join appellant.

        Later the same day, appellant arrived at a car rental

business with Dwayne Hill and Walter Green.      The three rented a

white Thunderbird, under appellant's name.     As they were leaving,

appellant said, "Let's go.    Let's go do it."   Appellant was seen

that day riding in the Thunderbird.

        That afternoon, fourteen-year-old Antonio Young left a store

in Highland Park.    He heard gunshots and began to run.   He

attempted to go over some bushes but a bullet struck him in the

back.    Young suffered permanent paralysis as a result of the

gunshot wound.    Young did not know Tyler or anything about Tyler's

murder.
                                 - 2 -
       Twenty-one-year-old Dante Wallace was leaving the same store

when he heard gunshots.   A bullet struck Wallace in the back, and

he too suffered permanent paralysis.    Wallace identified the white

Thunderbird as the car with the shooters, but could not identify

who shot him.    Latoya Cherry was with Wallace.   She heard the

gunshots, saw more than one shooter in the white Thunderbird and

identified Hill from a photographic lineup as one of the shooters.

Like Young, Wallace had no connection to Tyler or Tyler's murder.

       Stanley Davis was parked on the street when he heard

gunshots.    Bullets hit his windshield, and he attempted to exit

the car.    He then heard a shotgun, and he was hit twice in the

leg.   Davis identified appellant as one of the shooters, though he

could not identify who shot him.

       Richmond Police Detective Ray Williams testified he recovered

several 9mm empty shell casings and five 12-gauge shotgun shells

from the street and sidewalk in the surrounding area.    Williams

later recovered a Tech 9 semi-automatic firearm and a Remington

12-gauge pump shotgun.    John Wilmer, a firearms expert, testified

the spent shells and casings had been fired from those weapons.

Donald Nutall testified Hill and two other men, one of whom Nutall

was "relatively sure" was appellant, asked him to help clean and

strip several weapons.    Among those weapons were the Tech 9 and

the shotgun.

       Several witnesses testified to various statements appellant

made concerning the shootings.    Appellant accused a friend of
                                 - 3 -
Tyler's named Alvin of being a "fake thug" and "paper thug"

because Alvin would not do anything to avenge Tyler's murder.

Tonelle Hicks expressed her disapproval for the Highland Park

shootings, to which appellant responded that it didn't matter if a

three-year-old child had been shot, "their family needed to feel

like his family felt."    Appellant also got upset when he learned

that Green was bragging about the incident and made a telephone

call telling Green he was going to get them all "locked up."

Pollard testified appellant admitted he shot a young kid who was

trying to go over a fence.

     At trial, appellant denied any involvement with the shootings

and presented evidence of an alibi.   Several witnesses testified

to appellant's whereabouts throughout the majority of the day.

Appellant's mother asked appellant about a dirty shirt he was

wearing, and appellant indicated it was dirty from wiping tears

from his face.

     In rebuttal, the Commonwealth recalled Detective Williams,

who testified, based on his thirty years of experience as a police

officer, that whenever someone fires a weapon, a residue of black

soot gets on his or her hands, regardless of the type of weapon

involved.   The more the weapon is fired, the more black soot will

be left behind.

     During deliberations on sentencing, the jury asked whether

any sentences given to appellant would run concurrently or

consecutively.    The trial court answered that the jury was to fix
                                 - 4 -
punishment as to each charge as it felt just under the

circumstances and that it was not to concern itself with what

happens to the sentences later.

     Appellant filed a motion for a new trial based on

after-discovered evidence and perjured testimony at trial.   The

trial court held a hearing on the motion after trial and before

sentencing.   At the hearing, Cleon Mauer and Wilmer testified that

Williams' testimony was incorrect in that a visible residue from

firing a weapon does not come back onto the shooter's firing hand

and clothing.   However, the experts both testified that residue

does remain on the muzzle, and Wilmer confirmed that at least one

type of residue would be gray or black in color and visible when

transferred to a fiber or fabric.

     Attorney Lee Kilduff also testified at the motion hearing.

She stated she spoke to Davis during an unrelated criminal

proceeding in which Davis was a victim testifying against her

client.   Kilduff asked Davis what had occurred at appellant's

preliminary hearing.   Davis responded he did not testify at the

preliminary hearing because he did not see anything due to his

back being turned.   Davis testified at the motion hearing and

explained he meant that he did not see who shot him because his

back was turned when he got shot.

     Harvey Churchwell testified in a separate trial against

appellant's codefendant, Green.   At Green's trial, Churchwell

recounted that appellant drove Hill and Churchwell to Highland
                               - 5 -
Park.    Churchwell saw Hill shooting but did not see appellant

firing because Churchwell crouched down in the car.    Churchwell's

account of the events differed in detail from Davis' testimony at

appellant's trial.

        Finally, Hicks wrote a letter to appellant in which she

indicated she had to testify against appellant because of recorded

conversations between herself and appellant and the authorities'

knowledge that she had information about the shootings.    She wrote

that she feared being prosecuted if she withheld information or

perjured herself at trial.    Her letter did not state she testified

falsely, and she testified at the hearing that she testified

truthfully at the trial and no one influenced her testimony.

                                ANALYSIS

                     Unlawful Wounding Instruction

        There are "well-established legal principles that jury

instructions are proper only if supported by the evidence, and

that more than a scintilla of evidence is necessary to support a

lesser-included offense instruction requested by the defendant."

Commonwealth v. Donkor, 256 Va. 443, 445, 507 S.E.2d 75, 76

(1998).    Appellant sought an instruction on unlawful wounding

based on the possibility that the jury could reject the

presumption of malice from the use of a deadly weapon.    To support

a finding of unlawful wounding, the jury would have to conclude

that appellant acted in the heat of passion or in the absence of

malice.
                                 - 6 -
            Malice inheres in the intentional doing of a
            wrongful act without legal justification or
            excuse. Malice is not confined to ill will,
            but includes any action flowing from a
            wicked or corrupt motive, done with an evil
            mind or wrongful intention, where the act
            has been attended with such circumstances as
            to carry in it the plain indication of a
            heart deliberately bent on mischief.

Williams v. Commonwealth, 13 Va. App. 393, 398, 412 S.E.2d 202,

205 (1991).   "'Malice and heat of passion are mutually

exclusive; malice excludes passion, and passion presupposes the

absence of malice.' . . . 'Heat of passion is determined by the

nature and degree of the provocation and may be founded upon

rage, fear, or a combination of both.'"     Canipe v. Commonwealth,

25 Va. App. 629, 643, 491 S.E.2d 747, 753 (1997) (citations

omitted).

     Appellant presented an alibi defense.     Thus, his theory of

the case did not support the lesser-included offense instruction

of unlawful wounding.   Further, the Commonwealth's evidence

proved that appellant planned and enlisted the assistance of

others to go into the Highland Park neighborhood to shoot

innocent people to avenge the death of his friend Tyler.    No

evidence suggested Young or Wallace had any connection to

appellant, Tyler or Tyler's murder.     No evidence suggested

Wallace or Young provoked the attack in any way.    The

Commonwealth's evidence negated any notion that appellant acted

in the heat of passion or without malice.    Therefore, there was


                                - 7 -
not even a scintilla of evidence to support the unlawful

wounding instruction.

     Further, that the jury could reject evidence does not

qualify as evidentiary support for a defendant's lesser-included

offense instruction.    Donkor, 256 Va. at 446-47, 507 S.E.2d at

76 (citing LeVasseur v. Commonwealth, 225 Va. 564, 304 S.E.2d

644 (1983)).   The court must look to the evidence in the case to

find support for the offered instruction.   Accordingly, the

trial court did not err by refusing to instruct the jury on

unlawful wounding as a lesser-included offense of aggravated

malicious wounding.

        Jury Question on Consecutive/Concurrent Sentences

     "The choice of sentencing procedures is a matter for

legislative determination."    Duncan v. Commonwealth, 2 Va. App.

342, 344, 343 S.E.2d 392, 393 (1986) (citation omitted).    In a

jury trial, the jury ascertains "within the limits prescribed by

law, the term of confinement in the penitentiary or in jail and

the amount of fine . . . ."   Code § 19.2-295.

          "[T]he punishment fixed by the jury is not
          final or absolute, since its finding on the
          proper punishment is subject to suspension
          by the trial judge, in whole or in part, on
          the basis of any mitigating facts that the
          convicted defendant can marshal. The
          verdict of the jury is the fixing of maximum
          punishment which may be served. Under such
          practice, the convicted defendant is
          entitled to 'two decisions' on the sentence,
          one by the jury and the other by the trial
          judge in the exercise of his statutory right
          to suspend . . . . This procedure makes the
                              - 8 -
             jury's finding little more than an advisory
             opinion or first-step decision."

Duncan, 2 Va. App. at 345, 343 S.E.2d at 394 (quoting Vines v.

Muncy, 553 F.2d 342, 349 (4th Cir. 1977)).        After the jury fixes

the maximum sentence, the legislature provides the trial judge

with the discretionary authority to suspend or modify that

sentence.     See id.   "When any person is convicted of two or more

offenses, and sentenced to confinement, such sentences shall not

run concurrently, unless expressly ordered by the court."          Code

§ 19.2-308.    The trial court exercises this authority at its

discretion.     Moore v. Commonwealth, 27 Va. App. 192, 200, 497

S.E.2d 908, 911 (1998).

     When the jury asked whether the sentences it fixed would

run concurrently or consecutively, the jury had no evidence

before it as to how or whether the trial judge would modify the

sentences.    Further, the jury had not yet communicated to the

trial judge what sentences it intended to impose.       Therefore, it

is reasonable to conclude that the trial judge did not know

whether he would modify the recommended sentences by running the

sentences concurrently or otherwise suspending the sentences.

To advise the jury that the court had the discretion to modify

the sentences would cause the jury to speculate as to what

action the trial court might take.        Such speculation would

deprive appellant and the Commonwealth of a fair trial.        See



                                  - 9 -
Fishback v. Commonwealth, 260 Va. 104, 113, 532 S.E.2d 629, 633

(2000).

     In Fishback, the Virginia Supreme Court discussed the

underlying principles that previously guided trial courts not to

instruct a non-capital jury about parole eligibility.       The Court

noted that

             "the assessment of punishment is a function
             of the judicial branch of government, while
             the administration of such punishment is a
             responsibility of the executive department.
             The aim of the rule in Virginia is to
             preserve, as effectively as possible, the
             separation of those functions during the
             process when the jury is fixing the penalty,
             in full recognition of the fact that the
             average juror is aware that some type of
             further consideration will usually be given
             to the sentence imposed."

Id. at 112, 532 S.E.2d at 632 (citation omitted).     The Court

determined that, because parole had been abolished and geriatric

release was determined upon a mathematical calculation, and thus

the jury could determine a sentence without speculation, a

defendant is entitled to an instruction on those specific

matters affecting early release.    However, "'at the time a jury

assesses punishment it does not, and cannot, have a factual

basis upon which to factor the provisions for good behavior

credit into its determination of an appropriate sentence in a

given case.    Rather, such an effort would be an exercise in pure

speculation."     Id. at 116, 532 S.E.2d at 634.   Therefore, the

Court directed that the jury should not be instructed on the

                                - 10 -
possibility of early release based on earned good behavior

credits.   Id.

     Appellant's case does not involve the different roles of

the judicial and executive branches with regard to sentencing.

However, the same principles apply.      To instruct the jury that

the trial judge could run the sentences concurrently would cause

the jury to speculate what action the trial judge would take.

With no evidence as to what action the trial judge would take in

modifying the jury's sentences, to instruct on the possibility

of running the sentences concurrently would taint the jury

process of fixing punishment.    Therefore, the trial court did

not err by refusing to instruct the jury on Code § 19.2-308 and

the trial court's ability to modify the jury's sentences.

                       Motion for new trial

           "Motions for new trials based on
           after-discovered evidence are addressed to
           the sound discretion of the trial judge, are
           not looked upon with favor, are considered
           with special care and caution, and are
           awarded with great reluctance . . . . The
           applicant bears the burden to establish that
           the evidence (1) appears to have been
           discovered subsequent to trial; (2) could
           not have been secured for use at the trial
           in the exercise of reasonable diligence by
           the movant; (3) is not merely cumulative,
           corroborative or collateral; and (4) is
           material, and such as should produce
           opposite results on the merits at another
           trial."

Hopkins v. Commonwealth, 20 Va. App. 242, 249, 456 S.E.2d 147,

150 (1995) (en banc) (citation omitted).

                                - 11 -
       Appellant first contends the trial court erred by failing

to grant a new trial based on Williams' alleged perjured

testimony concerning gunshot residue.    Mauer and Wilmer did not

testify that Williams lied, but that he was incorrect.    Both

experts indicated that a dark residue does not come back on the

hands of the person firing the weapon.   They indicated that

gunshot residue shoots out the barrel in the same direction as

the bullet.   However, Wilmer testified that a dark residue would

be left on the weapon that could be transferred from the muzzle

to a tissue and presumably an article of clothing.   Thus, the

record does not support the conclusion that Williams offered

perjured testimony.

       Additionally, appellant's shirt was not analyzed for any

gunshot residue and no evidence indicated that residue was on

appellant's shirt.    Appellant's mother testified she saw

appellant's shirt was dirty before the shootings took place.

Further, appellant failed to attempt to rebut Williams'

testimony though Wilmer was still available to testify after

Williams testified.   Therefore, appellant did not exercise due

diligence in presenting the evidence and the record does not

show that the evidence was material such that it would affect

the outcome of the trial.

       Next, appellant maintains he was entitled to a new trial

based on attorney Kilduff's testimony about Davis' statement to

her.   However, there was no inconsistency in Davis' statement to
                               - 12 -
Kilduff and his testimony at trial.   Davis testified at trial

that while he saw appellant with a firearm at the scene, his

back was turned when he was shot and so he did not know who shot

him.   At the hearing, Davis explained that his statement to

Kilduff merely referred to the fact that he did not testify at

the preliminary hearing because he did not see who shot him.

Kilduff's testimony, therefore, would not have changed the

outcome of appellant's case and, as such, was not material.

       Appellant also argues he was entitled to a new trial based

on Churchwell's testimony at Green's trial.   Churchwell

testified at Green's trial that he rode to the crime scene with

appellant and Hill.   Churchwell stated he initially saw Hill

firing a shotgun but Churchwell did not continue to watch the

events because he ducked down in the car.   According to the

transcript excerpt, Churchwell did not see appellant exit the

car or fire a weapon.   Nevertheless, Churchwell's testimony

placed appellant at the scene of the crime and implicated

appellant as an active participant in the offenses.   Though

Churchwell's testimony varied from Davis' in the details of how

the events unfolded, nothing in Churchwell's testimony suggested

the new evidence would have impeached Davis or affected the

outcome of the trial.   Further, appellant was in the car with

Churchwell and, thus, appellant knew Churchwell was a potential

witness.   Therefore, appellant could have secured Churchwell's

presence at trial with the exercise of due diligence and the
                              - 13 -
testimony was not material such that it would have altered the

outcome of the trial.

     Finally, appellant argues he should have been granted a new

trial based on Hicks' letter.    In the letter, Hicks claimed she

testified against appellant because the prosecution was aware

she had information about the case and she feared being

prosecuted herself.   Nothing in the letter, or her testimony at

the hearing, indicates she testified falsely at trial or that

she was unduly pressured to testify falsely.   The content of her

letter was collateral and not likely to produce a different

result at trial.   Therefore, the trial court did not err by

denying appellant's motion for a new trial based on any of the

grounds stated in support of the motion.

     Accordingly, the judgment of the trial court is affirmed.

                                                    Affirmed.




                                - 14 -
Benton, J., concurring.

     I substantially concur in the opinion and in the judgment

affirming the convictions.   I write separately because I

disagree with several of the majority's conclusions.

                                I.

     During the penalty phase of the trial, the jury asked

"[t]he question . . . would sentences be served concurrent."

Over the objection of May's defense attorney, the trial judge

responded as follows:

           Very intelligent question. However, my
           instruction to you is that on each of these
           charges within the limits given to you by
           the Court, you are to set a sentence that
           you feel is just under the circumstances.
           You're not to concern yourselves with what
           might happen later.

I believe May correctly contends that the judge's response was

unsuited to the inquiry.

     "The General Assembly, in carrying out its appropriate

legislative function, has established a system for the

ascertainment of punishment for those who have been convicted of

crimes."   Duncan v. Commonwealth, 2 Va. App. 342, 344, 343

S.E.2d 392, 393 (1989).

           Within the limits prescribed by law, the
           term of confinement in the state
           correctional facility or in jail and the
           amount of fine, if any, of a person
           convicted of a criminal offense, shall be
           ascertained by the jury, or by the court in
           cases tried without a jury.
Code § 19.2-295.   Thus, by this statute, "when the court sits

without a jury, the trial judge tries the issue of guilt and

fixes the penalty; when the accused demands a jury, the jury

performs both functions."   Huggins v. Commonwealth, 213 Va. 327,

328, 191 S.E.2d 734, 736 (1972).

      The Supreme Court has "acknowledge[d] that . . . 'truth in

sentencing' is a goal to be desired in the judicial process."

Fishback v. Commonwealth, 260 Va. 104, 113, 532 S.E.2d 629, 632

(2000).   To achieve this goal, judges must be attentive to the

jury's inquiries concerning its punishment function.

           [T]o perform its responsibility a jury is
           required to consider a broad range of
           punishment in terms of years of confinement
           statutorily established by the legislature.
           . . . [W]ithin the permissible range of
           punishment a jury is required to determine a
           specific term of confinement that it
           considers to be an appropriate punishment
           under all the circumstances revealed by the
           evidence in the case. A jury should not be
           required to perform this critical and
           difficult responsibility without the benefit
           of all significant and appropriate
           information that would avoid the necessity
           that it speculate or act upon misconceptions
           concerning the effect of its decision.
           Surely a properly informed jury ensures a
           fair trial both to the defendant and the
           Commonwealth.

                The question then becomes how a jury is
           to be instructed so that it is properly
           informed and can render a fair trial to both
           parties . . . .

Id.




                                - 16 -
     This jury's inquiry clearly indicated the jury understood

that sentences may be concurrent and obviously was considering

how to factor that circumstance in weighing the punishment to be

ascertained.   The answer to the jury's inquiry is found in the

provisions of Code § 19.2-308 ("[w]hen any person is convicted

of two or more offenses, and sentenced to confinement, such

sentences shall not run concurrently, unless expressly ordered

by the court") and Code § 19.2-303 ("After conviction . . . with

. . . jury, the court may suspend imposition of sentence or

suspend the sentence in whole or part.").   A brief response

grounded in those statutes would have been sufficient to explain

the applicable law and to fully address the inquiry.

     "It is axiomatic that '[i]t belongs to the [trial] court to

instruct the jury as to the law, whenever they require

instruction, or either of the parties request it to be given.'"

Fishback, 260 Va. at 117, 532 S.E.2d at 635.   Here, however, the

trial judge left the jury to speculate as the jury sought to

weigh the broad range of punishment available to it.   A brief,

accurate response about the statutes would have addressed the

jury's concern and negated any "speculation by the jury [, which

the Supreme Court has deemed] inconsistent with a fair trial

both to the defendant and the Commonwealth."   Id.

     The record reflects, however, that the error was harmless.

"Under the harmless error doctrine, the judgment of the court

below will be affirmed whenever we can say that the error
                               - 17 -
complained of could not have affected the result."     Rhoades v.

Painter, 234 Va. 20, 24, 360 S.E.2d 174, 176 (1987).    The jury

returned verdicts ascertaining May's punishment to be the

maximum sentence on each offense, including two life sentences.

The verdicts reflect that the jury intended to eliminate the

possibility that May would be released from prison.    I cannot

say that if the trial judge had given a response concerning the

applicable law, the jury would have reached a different verdict.

Furthermore, the trial judge had the discretion to suspend any

portions of the sentences and did not do so.

                                 II.

     Although I agree that the trial judge did not err in

refusing the motion for a new trial, I discern no basis to

conclude that the motion was deficient because of a lack of due

diligence by May's attorney.    The record reflects that the trial

judge did not find that May's attorney was not diligent.

Indeed, his findings included the following:

             This case was fairly tried. I think you did
             a good job in it. You were prepared and the
             Commonwealth was also. It was fairly heard
             by a jury and they made their decision.

Denying the motion for a new trial, the judge found that the

evidence "would not have made any difference" in the outcome of

the trial.

     In order to prevail on a motion for a new trial based on

after-discovered evidence, the moving party must establish

                                 - 18 -
several necessary conditions, including "that [the

after-discovered evidence] is material, and such as would

produce opposite results at trial."      Payne v. Commonwealth, 233

Va. 460, 472, 357 S.E.2d 500, 507 (1987).     Of greatest concern

is the testimony of both forensic firearms examiners that the

police officer gave incorrect testimony on rebuttal about the

amount and visibility of residue that deposits on a person who

fires an automatic gun.   I believe the trial judge correctly

found, however, that given the quantity and quality of the other

evidence, the fact finder's weighing of the after-discovered

evidence, as disclosed by the forensic experts, would not have

produced an opposite result at another trial.

     For these reasons, I concur in affirming the convictions.




                                - 19 -
