COURT OF APPEALS OF VIRGINIA Present: Chief Judge Felton, Judges Kelsey and Chafin Argued at Richmond, Virginia

GREY ALEXANDER FERRELL OPINION BY v. Record No. 2379-11-2 J UDGE D. ARTHUR KELSEY JUNE 18, 2013 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF LOUISA COUNTY Timothy K. Sanner, Judge Graven W. Craig (Graven W. Craig, PLLC, on briefs), for appellant. David M. Uberman, Assistant A ttorney General (Kenneth T. Cuccinelli, II, Attorney Gene ral, on brief), for appellee.

A jury convicted Grey Alexander Ferrell of malicious wounding and use of a firearm during the commission of a felony, finding he committed the crimes as a principal in the second degree. At trial, Ferrell sought to admit into evidence an acquittal order from a separate case against the alleged principal in the first degree. The trial court held the order inadmissible as a matter of law. We agree and affirm Ferrell’s convictions.

I. In May 2010, Ferrell attended a party on the sh ores of Lake Anna. While there, Ferrell argued with William Luck, one of the hosts of th e party. Ferrell was asked twice to leave the party, but he refused to go. Ferrell then a nnounced he was going to call his brother and was overheard to repeatedly say, “click, click, boom.” App. at 137. After the phone call, Ferrell left the party and met up with his brother. Approximately 30 to 45 minutes after Ferrell left , he and his brother returned to the party in a dark blue sedan. Luck approached the vehicle to see who was inside. Multiple gunshotsPUBLISHED- 2 - came from the driver’s side of the vehicle, striking Luck two times. Luck heard someone yell out of the car window, “Who’s the bitch now?” I d. at 175. One of the w itnesses saw Ferrell in

the vehicle before it drove off. Later, police investigators collected six .40 caliber shell casings at the scene of the shooting. The investigators also found the dark blue sedan at Ferrell ’s family home and

discovered a similar .40 caliber she ll casing in the back seat of th e vehicle. Forensic analysis showed that all seven shell casings were “fired in the same firearm.” Id. at 193. A grand jury indicted Ferrell and his brot her for malicious wounding of Luck and for use of a firearm during a felony. At th e brothers’ request, the trial cour t ordered separate trials. The

trial of Ferrell’s brother occurred first and resulted in a jury verdict of not guilty. Ferrell’s trial came six months later and resulted in a jury verdict of guilty. At Ferrell’s trial, the Commonwealth accuse d him of being a principal in the second degree. Ferrell argued he could not be found guilty as a principal in the second degree because his brother, the alleged principa l in the first degree, had been acquitted by a different jury. Ferrell sought to admit into evidence his brother’ s acquittal order to prove this point. The trial court held an acquittal order was no more admissi ble than a conviction orde r. Ferrell’s guilt or innocence, the court reasoned, had to be determined by the evidence at Ferrell’s trial and decided by Ferrell’s jury, not determined by the eviden ce at his brother’s tr ial and decided by his brother’s jury. The trial court, therefore, refused to admit the acquittal order into evidence.

II. We begin by noting what we are not called upon to decide. Ferrell does not contend the evidence (with or without his brother’s acquittal order) was factually in sufficient to prove he acted as a principal in the second degree. Instead, Ferrell argues onl y that the trial court erred by- 3 - refusing to admit into evidence his brother’s acqu ittal order. For several reasons, we find this argument unpersuasive. 1 As early as 1776, “the common law of Engla nd” was “considered as in full force” in Virginia, “until the same shall be altered by the legislativ e power of this colony.” 9 Statutes at Large of Virginia 127 (W. Hening ed. 1821) (repub lishing the Ordinances of Convention, May 1776). Virginia still recognizes by statute that the “common law of England, insofar as it is not repugnant to the principles of the Bill of Ri ghts and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.” Code § 1-200; see Satterwhite v. Co mmonwealth, 56 Va. App. 557, 560, 695 S.E.2d 555, 556-57 (2010). To be sure, “[t]his principle is older than the Commonwealth itself.” Taylor v. Commonwealth, 58 Va . App. 435, 443-44, 710 S.E.2d 518, 522 (2011) (citing W. Hamilton Bryson, Virginia Civil Procedure 47 (3d ed. 1997) (tracing Virginia’s adoption of the common law to the royal instructions to th e Virginia Company, which planted the colony at Jamestown)). In felony cases, English common law historically segregated parties to felonies into one of four distinct categories:

 principals in the first degree who actually perpetrated the offense;

 principals in the second degree, pres ent at the scene of the crime, who aided or abetted its commission;

 accessories before the fact, not presen t at the scene of the crime, who aided or abetted its commission; and

1 Ferrell’s petition for appeal initially rais ed a sufficiency challenge, but he did not include it as an assignment of erro r in his opening brief on appeal. We thus assume he “made an affirmative, strategic decision to abandon those issues” and hold he thereby “waived” this challenge “as a basis for reversing his convic tions.” Andrews v. Commonwealth, 280 Va. 231, 253, 699 S.E.2d 237, 249 (2010).- 4 -  accessories after the fact who rendere d assistance after the crime was complete. 4 William Blackstone, Commentaries on the Laws of England *34-35 (1753). 2 Virginia courts have recognized these distinctions, for various purposes, since our earliest days. See, e.g., Commonwealth v. Posey, 8 Va . (4 Call.) 109, 116-17 (1787) (distinguishing between “the accessory” and “the principal” regard ing the benefit of cler gy); see also Thomas v. Commonwealth, 279 Va. 131, 156-58, 688 S.E.2d 220, 234-35 (2010) (explaining the relationship between first-degree and second-de gree principals); Rasn ick v. Commonwealth, 4 Va. (2 Va. Cas.) 356, 358-59 (1823) (analyzing th e difference between pr incipals, accessories, and “principals in the second degree”); Wade v. Commonwealth, 56 Va. App. 689, 693-95, 696 S.E.2d 258, 259-61 (2010) (discussing the distinc tion between principals and accessories at common law in the context of misdemeanors).

These distinctions were relevant to dete rmine interlocking criminal liability. Under English common law, “an accessory could not be c onvicted without the prior conviction of the principal offender.” Standefer v. United States , 447 U.S. 10, 15 (1980) (citing 1 Sir Matthew Hale, Pleas of the Crown 623-24 (1800)). But this “procedural bar applied only to the prosecution of accessories in felony cases.” Id. at 15-16 (em phasis added). It did not apply to accused felons prosecuted as principals in the second degree. Under common law, “a principal in the second degree could be convicted notwith standing the prior acquitt al of the first-degree principal.” Id. at 16 (citing King v. Tayl or & Shaw, 1 Leach. 360, 168 Eng. Rep. 283 (1785);

2 In contrast, “all parties to a misdemeanor, wh atever their roles, were principals” under the common law. Standefer v. United States , 447 U.S. 10, 15 (1980); see also Wade v. Commonwealth, 56 Va. App. 689, 693, 696 S.E.2d 258, 260 (2010) (“[A]t common law, in misdemeanors, there are no accessories, all concer ned being principals.” (citation omitted)); Blackstone, supra , at *36 (“[T]he law . . . does not descend to distinguish the different shades of guilt in petty misdemeanors.”).- 5 - Queen v. Wallis, 1 Salk. 334, 91 Eng. Rep. 294 (K.B. 1703)); see also Hale, supra , at 437 (explaining that principals in the second degree may be “arraigne d, and receive their judgment” even if the first-degree principal “neither appears, nor be outlawed”); Wayne R. LaFave, Substantive Criminal Law § 13.1(d)(3), at 333 (2 d ed. 2003) (noting that, at common law, “the principal in the second degree could be convicted notwithstan ding the prior acquittal of the principal in the first degree”). 3 Courts applying these common la w principles have held the “acquittal inures solely” to the benefit of the accused principal in the first degree and does “not affect the question of the guilt or innocence” of principals in the second degree. State v. Phillips, 24 Mo. 475, 482 (1857). The guilt of a principal in the second degree s hould “be determined uninfluenced by the verdict rendered for or against any other pa rty to the indictment.” Id. In other words, when “a principal in the first degree and a principa l in the second degree in the same offense have separate trials, the judgment against one, whether of conviction or of acquittal, has no bearing upon a judgment against the other.” State v. Peel, 111 So. 2d 728, 735 (Fla. Dist. Ct. App. 1959); see also People v. Kief, 27 N.E. 556, 557-58 (N.Y. 1891) (holdi ng it “quite immaterial” whether another principal had “been acquitted or not” because “at most it would only prove that being tried first, for some reason, [the first-degree principal] escaped conviction at the jury’s hands”). Like many other states, Virginia has followed these common-law principles except where they have been superseded by statute. For example, in Mitchell v. Commonwealth, 74 Va. (33 Gratt.) 845 (1880), a defendant was found guilty of murder as “a prin cipal in the second degree,” even though it was conceded that those alleged to be principals in the first degree had earlier

3 The only arguable exception to this principle ap pears to be limited to a charge of treason as a principal in the second degree. See Hale, supra , at 612-13 (“[T]hose who did actually commit the very fact of treason, should be first- tried before those that are principals in the second degree, because otherwise . . . the principa ls in the second degree might be convicted, and yet the principals in the first degree ma y be acquitted, which would be absurd.”).- 6 - been acquitted. Id. at 870. Mitchell held that the defendant’s guilt or innocence “cannot be affected by the result which has taken place” in the other defendants’ cases. Id. Although there may have been “insufficient evidence” in the other trials, Mitchell explained, “there was

sufficient” evidence in that trial to prove the defendant’s culp ability as a principal in the second degree. Id. Ferrell contends an earlier case, May bush v. Commonwealth, 70 Va. (29 Gratt.) 857 (1878), casts doubt on Virginia’s commitment to these common law principles. We think just the opposite. Maybush held that a defendant’s prior conviction for suborning perjury could not stand if the perjurer himself was later acquitted. Maybush, however, treate d suborning perjury as “accessorial in its nature,” even though it was argu ably “an offense separate and distinct” from perjury. Mundy v. Commonwealth, 161 Va. 1049, 1061, 171 S.E. 691, 695 (1933) (citation and internal quotation marks omitted). 4 When the General Assembly later codified suborning perjury as a freestanding crime, the “former rule requir ing prior conviction of a principal before an

4 At trial, Ferrell’s counsel understood Ma ybush this way, but apparently either thought Ferrell was prosecuted as a mere “accessory” inst ead of a principal in the second degree or mistakenly believed an accessory under common law was no different from a principal in the second degree. App. at 201-03, 214. It was an u nderstandable mistake, however, given that principals in the second degree were “formerly ca lled accessories at the fact” by some jurists. Mundy, 161 Va. at 1061, 171 S.E. at 695 (citation omitted); see also Rasnick, 4 Va. (2 Va. Cas.) at 358-59 (explaining that “persons present aiding and abetting” were previously “considered only as an accessory to the fact,” but “are now taken as principals”) ; Matters of the Crown Happening at Salop, 1 Plowden 97, 99-100, 75 Eng. Rep. 152, 157-58 (1761) (“[T]he Law anciently was, that those who were present a nd abetting were not Prin cipals, but Accessaries [sic]. . . . But of late Time the Law has been held contrary in this Point, for they are taken to be Principals by all Sages of the Law.”); Rollin M. Perkins & Ronald N. Boyce, Criminal Law 722 (3d ed. 1982) (“At a relatively early time the part y who was originally cons idered an accessory at the fact, ceased to be classed in the accessorial group and was labeled a principal. To distinguish him from the actual perp etrator of the crime he was called a principal in the second degree.” (footnote omitted)). In any event, the trial co urt correctly framed the issue as whether the acquittal of the “principal in the first degree e ssentially bars conviction of the principal in the second degree[.]” App. at 213.- 7 - accessory ha[d] no application.” Mundy, 161 Va . at 1061-62, 171 S.E. at 695 (citing former Code § 4494 (1930), now codified as Code § 18.2-436). Years later, the General Assembly expressl y superseded the English common law rule governing accessories by providing that an “acce ssory, either before or after the fact, may, whether the principal felon be convicted or not, or be amenable to just ice or not, be indicted, tried, convicted and punished . . . .” Code § 18.2-21. The treatment of accessories, for preclusion purposes, now parallels the common law rule traditionally applicable only to principals in the second degree. The historic common law rule governing prin cipals in the second degree stands on the same footing as the modern doctrine of collate ral estoppel. The United States Supreme Court faced just this situation in Standefer. There, like here, a jury found a de fendant guilty of being a principal in the second degree after a different jury had acquitted th e alleged principal in the first degree. Standefer held that collateral estoppel di d not apply in this contex t for several reasons. To begin with, the state cannot appeal an ac quittal — thus permitting juries “to acquit out of compassion or compromise or because of ‘t heir assumption of a power which they had no right to exercise, but to which they were disposed through lenity .’” Standefer, 447 U.S. at 22 (citation omitted). “Central to this holding was a recognition that juries may return inconsistent verdicts based on compassion or the exercise of lenity.” United Stat es v. Harris, 701 F.2d 1095, 1104 (4th Cir. 1983). This reality undermines the equitable basis of collateral estoppel. In addition, the “application of nonmutual estopp el in criminal cases is also complicated by the existence of rules of evid ence and exclusion unique to our criminal law.” Standefer, 447 U.S. at 23. It is, after all, frequently true in criminal cases that evidence inadmissible against one defendant is admissible agains t another. The exclusionary rule, for example, may bar th e Government from introducing evidence against one defendant because that evidence was obtained- 8 - in violation of his constitutiona l rights. And the suppression of that evidence may result in an acquittal. The same evidence, however, may be admissible agains t other parties to the crime “whose rights were [not] violated.” Id. at 23-24 (citation omitted); see also Waters v. Commonwealth, 43 Va. App. 636, 643, 600 S.E.2d 918, 921 (2004) (“It is well settled that a j udgment of acquittal or conviction does not operate as res judicata in the prosecution of another defenda nt, even though the same transaction is involved.” (citation and internal quotation marks omitted)); Kief, 27 N.E. at 557-58 (holding that evidence of an “acquittal would not prove this defendant’s innocence of the charge in the indictment” because “[a]t most it would only prov e that being tried first, for some reason, she escaped conviction at the jury’s hands”). In short, under established common law princi ples, the order acquit ting Ferrell’s brother had no legal relevance to Ferrell’s guilt or innocence. 5 The differing results in the separate trials

could have been the result of len ity by the jury toward the brother, a different retelling of facts by key witnesses, 6 dissimilar strategic decisions of counsel , disparate evidentiary rulings, divergent arguments of counsel, or, for that matter, an honest disagreement between the two juries about the persuasive force of the totality of the evidence. There being no estoppel bar to the juries r eaching different conclusions (so long as the guilty verdict rests on sufficient evidence), it w ould be wholly inappropriate for one jury to

5 See, e.g., State v. Whitt, 18 S.E. 715, 716 (N.C. 1893) (holding that “[w]hat another jury had done as to [the other principal] wa s inadmissible for or against one charged as a principal” (citation omitted)); Steely v. Commonwealth, 116 S. W. 714, 716 (Ky. 1909) (explaining that, because “the acquitta l of [the principal] did not ent itle [the aider and abettor] to a discharge, proof of [the principal’s] acquittal was incompetent for any purpose”).

6 The Commonwealth points out that the record in Ferrell ’s case does not include a complete transcript of one of the key witnesses, and thus, we cannot be sure she testified at Ferrell’s trial exactly as she di d in his brother’s trial. We appreciate the point but need not address it in any detail. Even if her testimony were exactly the sa me in both trials, the acquittal order in the trial of Ferrell’s br other would still be legally i rrelevant in Ferrell’s trial.- 9 - receive the advisory opinion of the other on the ul timate issue in the case. As the trial court succinctly put it, the evidence of an acquittal of the principal in the fi rst degree is no more

relevant than the evidence of a conviction. The guilt or innocence of the principal in the second degree must rise or fall entirely on the evidence presented at his own trial.

III. Finding no error in the trial co urt’s decision to exclude from evidence the acquittal order entered in the trial of Ferrell’s brother, we affirm Ferrell’s convictions for malicious wounding and use of a firearm during the commission of a felony.

Affirmed.