[Copyrighted Material Omitted]
Paul D. Clement (Craig S. Cooley; Bancroft PLLC; Craig S. Cooley, P.L.C., Richmond, on briefs), for appellant.
Leah A. Darron, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: PETTY, BEALES and CHAFIN
[63 Va.App. 97] A jury convicted George Wesley Huguely, V, of second-degree murder and grand larceny, in violation of Code §§ 18.2-32 and 18.2-95. Before this Court, Huguely now appeals only his second-degree murder conviction. This Court [63 Va.App. 98] granted the following assignments of error raised in Huguely's petition for appeal:
I. The circuit court violated Mr. Huguely's right to counsel under the Sixth Amendment and the Virginia Constitution by forcing him to proceed with trial in the absence of his retained counsel of choice.
II. The circuit court violated Mr. Huguely's right to a trial by a fair and impartial jury under the Sixth Amendment and Virginia Constitution by:
A. Refusing to allow the defense to ask questions during voir dire that were directly relevant to whether prospective jurors could remain impartial.
B. Refusing to strike for cause a number of jurors whose answers during voir dire raised serious doubts about their ability to remain impartial.
III. The circuit court did not adequately instruct the jury about the meaning of " malice" under Virginia law.
For the following reasons, we affirm Huguely's conviction for second-degree murder.
A. THE EVENTS OF MAY 2-3, 2010
On the night of Sunday, May 2, 2010, at about twenty minutes before midnight, Huguely walked the short distance [63 Va.App. 99] from his apartment building on 14th Street in Charlottesville to another apartment building, also on 14th Street, where Huguely's former girlfriend, Yeardley Love, resided. Huguely and Love were both nearing graduation from the University of Virginia, and both played lacrosse there. They had dated " [o]n and off" since their first year at the university, according to the trial testimony of Caitlin Whiteley, one of Love's roommates. The record establishes a tumultuous relationship between Huguely and Love that deteriorated acrimoniously during the spring semester of 2010. Whiteley testified that, " towards the end of the [academic] year," the relationship " was off, mainly."
Love did not invite Huguely to her apartment on the night of May 2. In fact, Whiteley testified that Love was asleep in her bedroom when Whiteley left the apartment at about 10:50 p.m. Huguely arrived just under an hour later. After entering Love's apartment, which was apparently unlocked, Huguely kicked open Love's locked bedroom door. No one else witnessed what occurred next. However, Anna Lehmman, a resident of the apartment directly below Love's, testified that she heard a " very, very loud" sound from above at about 11:50 p.m. Lehmann explained that it sounded like " slamming the trunk [of a car], that that's how loud it was, if you really slammed it." Moments later, Lehmann heard footsteps descending the stairs of the apartment building and then observed a man (later identified as Huguely) walk away outside.
Whiteley returned to the apartment shortly after 2:15 a.m. on Monday, May 3, 2010. Whiteley went to Love's bedroom to check on her— not noticing at first the hole in the bedroom door (that Huguely had created when he kicked in the bedroom door). According to Whiteley, Love was positioned " face down in her pillow" and " her hair was all messed up." Whiteley moved Love's hair to the side, but Love made no response. Whiteley saw blood stains on Love's sheets and pillow case. [63 Va.App. 100] Then Whiteley noticed that one of Love's eyes was very badly damaged and that there were many cuts to Love's face. Whiteley called out for Philippe Oudshoorn, a friend who had accompanied Whiteley back to the apartment, and they dialed 911.
Finding no signs of a pulse from Love, Oudshoorn followed the emergency operator's instructions to move Love to the floor and attempt CPR. Police officers arrived moments later, followed by the paramedics, who arrived at 2:26 a.m. The paramedics spent twenty-five minutes trying to resuscitate Love. During that entire time, however, Love never showed any signs of life. The medical examiner's autopsy report that followed Love's death concluded that the cause of death was blunt force injury to Love's head.
Whiteley testified that she told the police about Love's relationship with Huguely, specifically mentioning prior incidents when Huguely had either acted violently or threatened Love with violence. For example, Whiteley was aware of an incident on February 27, 2010 in Huguely's bedroom where Love was seen struggling to free herself from Huguely— whose arms were wrapped around Love's neck so tightly that Love was being choked. Several witnesses saw Love— in a panicked state and holding her throat— run out of Huguely's apartment. Whiteley testified that, when Love came home to their apartment, Love was " hysterical" and " was
crying and visibly shaken and upset." Whiteley had never seen Love like that before.
Huguely wrote Love a letter apologizing for the way he treated her on February 27, 2010. This letter was admitted into evidence at Huguely's trial and states, in pertinent part, " Yeardley, I cannot describe how sorry I am for what happened this past weekend. I am horrified with the way I behaved and treated you. I'm scared to know that I can get that drunk to that point where I cannot control the way I behave or act." Huguely's letter to Love also states, " I'm horrified to think that I was using physical force to keep you in my room. I'm so sorry." The letter concludes, " I'm so [63 Va.App. 101] sorry again and hope to talk with you when you feel you can. I can assure you though that I will never act as I did that Saturday night. I'm sorry again!! Love, George."
Despite the sentiments Huguely expressed in this letter, his relationship with Love continued to deteriorate as the spring semester of 2010 progressed. Notably, following a heated argument between Love and Huguely that occurred on April 27, 2010, the two engaged in a series of angrily worded emails, copies of which were received into the trial evidence. In particular, on April 30, 2010, he emailed her, stating:
That is so so f* * *ed up on so many levels. I should have killed you. I'm still in utter disbelief at everything that has happened recently and how u handle this.
Based on the testimony of several of his teammates from the men's lacrosse team, Huguely had been drinking alcohol heavily the majority of the day of May 2, 2010— since at least 9:30 a.m. Huguely was noticeably intoxicated at a reception following the lacrosse team's annual golf tournament that afternoon. Dinner at a restaurant with Huguely's father and two lacrosse teammates was cut short because of Huguely's drunken behavior. According to one of those teammates, William Thompson, " [I]t just got to the point where we just wanted to get out of there, out of the public." Huguely urinated in public outside of the restaurant. Huguely's roommate, Kevin Carroll, testified that Huguely was drunk when Huguely returned to their apartment at 10:30 p.m.
Carroll and another lacrosse teammate, Kenneth Clausen, left the apartment at about 11:40 p.m. and were gone for about fifteen or twenty minutes. Huguely was not there when they returned. Huguely came back at about 12:15 a.m. Clausen testified, " I looked at him for a bit. I noticed there was a change in his demeanor, kind of a blank stare on his face." Huguely then lied about where he had been— claiming he had been drinking with a lacrosse teammate who Carroll and Clausen knew was studying at the time. Clausen testified:
I said, George, what's wrong with you? He looked at me and said, nothing. He said that there was nothing wrong. [63 Va.App. 102] I asked him— I continued to look at him and observe him. I asked him two more times. I said, George, what's wrong with you? Got no response.
Huguely was at his apartment when the police arrived at 7:30 a.m. on Monday, May 3. During an interview with two detectives at the police station that morning, Huguely admitted going to Love's apartment the night before because he was " so pissed" that she would not talk to him and kicking a hole in the bedroom door to gain access to her bedroom— but he denied killing her. Huguely also admitted taking Love's laptop computer as " collateral" and later throwing the computer in a dumpster.
B. HUGUELY'S TRIAL
A grand jury returned a six-count indictment charging Huguely with, inter alia, first-degree murder under Code § 18.2-32 and robbery under Code § 18.2-58. By this
time, the case had received considerable attention in the media, in the Charlottesville area, and at the University of Virginia. The prospective jurors were directed to complete a nine-page questionnaire that addressed, among other topics, the prospective jurors' exposure to opinions in the case through the media and through family, friends, and co-workers. Voir dire of the prospective jurors spanned the first three days of the trial. Huguely's trial ended up lasting over two weeks— from February [63 Va.App. 103] 6, 2012 until February 22, 2012. From the beginning of the Commonwealth's case on February 8, 2012 until the conclusion of the trial, nearly sixty witnesses were examined.
Huguely was represented by two defense attorneys— Rhonda Quagliana, Esq., and Francis McQ. Lawrence, Esq., both of whom were privately retained by Mr. Huguely. Neither Ms. Quagliana nor Mr. Lawrence was designated as lead counsel, although each attorney assumed different responsibilities during the trial. In particular, it was Ms. Quagliana's responsibility to examine two medical experts, Jan Leestma, M.D. and Ronald Uscinski, M.D., whose testimony was offered to contradict the Commonwealth's theory that Love's death was caused by blunt force trauma to the head. As a matter of trial strategy, Ms. Quagliana and Mr. Lawrence decided that this expert testimony would be more effective if Dr. Leestma and Dr. Uscinski testified in succession, one after the other.
On Wednesday, February 15, 2012, the Commonwealth concluded its case-in-chief. The defense's case-in-chief then began that day with Ms. Quagliana's examination of Dr. Leestma— the last witness of the day. However, Ms. Quagliana became very ill due to a stomach virus before the trial proceedings resumed on Thursday, February 16. Ms. Quagliana could not attend court on February 16, and, therefore, she could not examine Dr. Uscinski as the defense had anticipated.
Due to Ms. Quagliana's illness, the trial judge decided to excuse the jury for the entire day on February 16. Mr. Lawrence alone addressed some matters with the trial judge and the prosecutor, including the instructions to be given to the jury, outside the presence of the jury.
On the morning of Friday, February 17, Ms. Quagliana remained too ill to attend court. Mr. Lawrence indicated that the nature of Ms. Quagliana's illness was " a day-to-day thing" and that he was " optimistic" that she would be able to return to court the following day. Mr. Lawrence stated that he was not prepared to examine Dr. Usckinski and also asserted that it would be unfair to Huguely if Dr. Uscinksi's examination proceeded without Ms. Quagliana. The trial judge asked Mr. [63 Va.App. 104] Lawrence, " Now, today what can you accomplish from your perspective?" Mr. Lawrence replied, " Judge, we have other witnesses today that we are prepared to put on. They are all back there waiting and we're ready to go." The trial judge accepted Mr. Lawrence's offer to examine those defense witnesses on the morning of February 17. The trial judge also indicated that, if Ms. Quagliana could not return to court by the afternoon to examine Dr. Uscinski, then the jury would likely need to be excused for the remainder of the day.
Following a short recess, however, Mr. Lawrence actually moved for a continuance until Ms. Quagliana was able to return to court. According to Mr. Lawrence, Huguely did not feel comfortable with the taking of any evidence until Ms. Quagliana returned. Mr. Lawrence acknowledged that " the Commonwealth has pointed out the stress on the people on [the Commonwealth's] side of the courtroom by these delays and we have sympathy for that" problem. However, Mr. Lawrence added, " [W]e haven't looked at the case law on [the issue of] if you have two lawyers, do you have the right to both of them? I think you probably do, so [Huguely] objects to proceeding at all until he has his full defense team." In response, the trial
judge asked Mr. Lawrence, " Well, do you feel competent proceeding this morning? I guess you did or you wouldn't be offering to do it, right?" Mr. Lawrence replied, " That's correct." The trial judge denied the motion for a continuance, commenting that Mr. Lawrence was " about as capable as any lawyer in the town to handle something like this, and I have no doubt that you're capable of handling these witnesses today in competent fashion."
Mr. Lawrence then examined those defense witnesses whom he had initially offered to examine— but not Dr. Uscinski. When the trial judge learned that Ms. Quagliana was unable to return to court at all that day, the trial judge excused the [63 Va.App. 105] jury for the remainder of the day. On the next morning, Saturday, February 18, the trial resumed. Ms. Quagliana was in court, and she examined Dr. Uscinski that morning.
At the conclusion of all of the evidence and closing arguments, the jury found that Huguely was guilty of second-degree murder and grand larceny. The trial judge denied Huguely's motions to set aside the verdict, and Huguely appealed to this Court.
A. ASSIGNMENT OF ERROR I— RIGHT TO COUNSEL
In Assignment of Error I, Huguely argues that the trial judge committed reversible error under the Sixth Amendment of the United States Constitution and under the Virginia Constitution  by denying Huguely's motion for a continuance [63 Va.App. 106] on the morning of Friday, February 17, 2012, when Ms. Quagliana (one of Huguely's two retained attorneys) remained too ill to attend court. Huguely argues that the United States Supreme Court's decision in United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), requires that this Court grant him a new trial.
1. Governing Principles and Standard of Review
The Sixth Amendment states, in pertinent part, " In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense." U.S. Const. amend. VI. " [A]n element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him." Gonzalez-Lopez, 548 U.S. at 144, 126 S.Ct. at 2561. However, the United States Supreme Court has never held that the Sixth Amendment right to a retained counsel of choice is absolute. See id. (recognizing that this right " is circumscribed in several important respects" (internal quotation marks and citation omitted)); see also
Wheat v. United States,
486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988) (" [W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure ...