COURT OF APPEALS OF VIRGINIA 

Present: Judge Annunziata, Senior Judges Cole and Baker*

Argued at Richmond, Virginia 

RUSSELL ERIN GRAY 

 OPINION BY 

v. Record No. 3017-96-2 JUDGE MARVIN F. COLE 

 AUGUST 18, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

John F. Daffron, Jr., Judge 

 Joseph D. Morrissey (Morrissey, Hershner & 

Jacobs, on brief), for appellant. 

 Richard B. Smith, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Appellant, Russell Erin Gray, was tried by a jury upon 

indictments charging him with the murder of Matthew Shuster and 

the use of a firearm in the commission of murder.1 At the 

conclusion of the guilt phase of appellant's bifurcated trial, 

the jury found appellant guilty of involuntary manslaughter of 

Shuster and use of a firearm in the commission of murder of 

Shuster. The jury's sentencing verdict recommended twelve months 

imprisonment for the involuntary manslaughter conviction and 

three years incarceration for the firearm offense. 

 

 *Judge Baker participated in the hearing and decision of 

this case prior to the effective date of his retirement on July 

31, 1998 and thereafter by his designation as senior judge 

pursuant to Code § 17-116.01. 

 1Appellant also was tried upon indictments charging him with 

the malicious wounding of Margaret Keel and the use of a firearm 

in the commission of malicious wounding. The jury acquitted 

appellant of these offenses. 
- 2 - 

 On appeal, appellant contends the trial court erred in 

refusing to instruct the jury, while it was deliberating during 

the sentencing phase, that if it acquitted him of murder, it 

should find him not guilty of the use of a firearm in the 

commission of murder. We disagree and affirm appellant's 

convictions. 

FACTS

 At the guilt phase, the trial court instructed the jury 

that, as to Shuster, it could acquit appellant or find him guilty 

of first degree murder, second degree murder, voluntary 

manslaughter, involuntary manslaughter, or assault and battery. 

Without objection from appellant, the trial court gave 

Instruction 14, which stated as follows: 

 The defendant is charged with the crime 

of using or displaying in a threatening 

manner a firearm while committing the murder 

of Matthew Shuster. The Commonwealth must 

prove beyond a reasonable doubt each of the 

following elements of the crime: 

 (1) That the defendant used a firearm; 

and 

 (2) That the use was while committing 

the murder of Matthew Shuster. 

* * * * * * * 

 If you find the Commonwealth has failed 

to prove beyond a reasonable doubt either 

element of the offense, then you shall find 

the defendant not guilty. 

Upon these instructions, the jury returned inconsistent verdicts 

of guilt for involuntary manslaughter and the use of a firearm in 
- 3 - 

the commission of murder. The trial court denied appellant's 

motion to set aside the verdicts due to their inconsistency. 

 During argument to the jury at the sentencing phase, defense 

counsel told the jury it had made a "tragic error" which it could 

correct by reconsidering its finding of guilt on the firearm 

offense and refusing to sign the verdict form to impose the 

mandatory three-year sentence for that crime. After 

deliberating, the jury foreperson indicated that the jury had 

reached a sentencing verdict as to involuntary manslaughter. 

However, the jury returned unsigned the verdict form on the 

firearm offense because the jury could not reach a unanimous 

decision. The trial court then stated, 

 Is it the decision of the jury that you wish 

to reconsider your verdict on the firearms 

charge? I am going to instruct the jury, if 

you find the defendant guilty of possession 

of [a] firearm, you must impose a three-year 

sentence. 

 I will also tell the jury that until you 

leave the courtroom and you are discharged, 

that you may have the right and I don't say 

this legally, but in an informal way, to 

change your mind on a decision. 

The court advised the jurors that it intended to send them back 

to the jury room to reconsider their verdicts in light of all the 

instructions previously given. The court further stated as 

follows: 

 If it is your decision to unanimously 

find the defendant guilty of use of a firearm 

in the commission of the murder and that is 

your unanimous verdict, then you must impose 

the three-year sentence for that charge. 
- 4 - 

 If it is not your unanimous decision, 

then you should tell me by way of the verdict 

form, either that you find the defendant not 

guilty of that offense, that you cannot come 

to a decision on that offense or that you 

reaffirm your verdict. 

The court advised the jury that it could reconsider its decision 

on guilt or innocence and sent the jury to deliberate. 

 During the subsequent deliberations, defense counsel 

requested the following cautionary instruction: "If you acquit 

the defendant of murder, then you should find him not guilty of 

use of a firearm in the commission of murder." The court refused 

to instruct the jury further. The jury later returned a verdict 

imposing sentences for both convictions. When polled, each juror 

indicated agreement with the verdicts. 

ANALYSIS

 The sole question presented in appellant's petition for 

appeal was whether the trial court erred in refusing appellant's 

proposed cautionary instruction at the sentencing phase. 

Therefore, the trial court's ruling on this issue is the only 

issue properly before this Court. See Rule 5A:12(c) ("[o]nly 

questions presented in the petition for appeal will be noticed by 

the Court of Appeals"). However, we must consider this issue in 

the context of the earlier jury instructions, the guilt phase 

verdicts, and the proceedings during the sentencing phase. 

 As noted above, the jury rendered apparently inconsistent 

verdicts at the conclusion of the guilt phase. A finding that 

appellant was guilty beyond a reasonable doubt of murdering 
- 5 - 

Shuster was a necessary element of the firearm offense, as 

charged under Code § 18.2-53.1. The jury found appellant guilty 

of the lesser offense of involuntary manslaughter. The use of a 

firearm during the commission of involuntary manslaughter is not 

a criminal offense under Code § 18.2-53.1. 

 However, Virginia law regarding inconsistent verdicts is 

well settled. 

 As this Court has held, "[t]he fact that 

verdicts may, on their face, arguably appear 

inconsistent does not provide a basis to 

reverse either conviction on appeal, provided 

the evidence is sufficient to support each 

verdict." Pugliese v. Commonwealth, 16 Va. 

App. 82, 96, 428 S.E.2d 16, 26 (1993) (citing 

United States v. Powell, 469 U.S. 57, 66 

. . . (1984) (emphasis added)). "Jury 

verdicts may appear inconsistent because the 

jury has elected through mistake, compromise, 

or lenity to acquit or to convict of a lesser 

offense for one charged crime that seems in 

conflict with the verdict for another charged 

offense." Pugliese, 16 Va. App. at 96, 428 

S.E.2d at 26. 

Tyler v. Commonwealth, 21 Va. App. 702, 708, 467 S.E.2d 294, 296 

(1996) (footnote omitted). In Powell, the United States Supreme 

Court concluded that "'[t]he most that can be said in such cases 

is that the verdict shows that either in the acquittal or the 

conviction the jury did not speak their real conclusions, but 

that does not show that they were not convinced of the 

defendant's guilt.'" Powell, 469 U.S. at 63 (citation omitted). 

 Where juries reach inconsistent verdicts, it is "unclear whose 

ox has been gored," the government's or the defendant's. Id. at 

65. 
- 6 - 

 Regardless of the jury's underlying conclusions in finding 

appellant guilty of involuntary manslaughter and the use of a 

firearm in the commission of murder, the apparently inconsistent 

verdicts were nonetheless valid.2

 See Wolfe v. Commonwealth, 6 

Va. App. 640, 650, 371 S.E.2d 314, 319-20 (1988) (affirming jury 

verdicts for voluntary manslaughter and use of a firearm in the 

commission of murder). Moreover, the jury was without power to 

change the verdicts rendered at the conclusion of the guilt 

phase. 

 The justifications for allowing inconsistent 

verdicts are not diminished simply because 

the verdicts are entered at the conclusion of 

the guilt phase of a bifurcated trial instead 

of at the end of a unitary proceeding. In 

either a unitary or a bifurcated proceeding, 

mistake, lenity, or compromise may underlie 

the jury's decision. Trial courts lack the 

authority to disturb inconsistent valid 

verdicts rendered at the conclusion of the 

guilt phase because such verdicts are final 

determinations of guilt or innocence. While 

the same jury may subsequently fail to reach 

a unanimous verdict in the punishment phase, 

this failure does not diminish the fact that 

the jury's determinations of guilt became 

final verdicts at the moment they were 

unanimously reached. 

Tyler, 21 Va. App. at 709, 467 S.E.2d at 297. 

 Code § 19.2-295.1 requires a bifurcated proceeding in all 

felony jury trials. The statute divides the trial into two 

distinct phases. First, the jury resolves issues of the 

defendant's guilt or innocence. Then, "upon a finding that the 

 

 2Appellant raises no challenge to the sufficiency of the 

evidence to support the two convictions. 
- 7 - 

defendant is guilty . . . , a separate proceeding limited to the 

ascertainment of punishment shall be held as soon as practicable 

before the same jury." Code § 19.2-295.1. "[A] jury verdict of 

guilty emanating from the guilt phase of a bifurcated trial, 

approved by the trial court, resolves that issue, leaving 

sentence as the sole question remaining to be decided by an 

additional verdict incidental to a 'separate proceeding.'" Daye 

v. Commonwealth, 21 Va. App. 688, 691, 467 S.E.2d 287, 288 (1996) 

(quoting Code § 19.2-295.1). 

 At the sentencing phase of appellant's trial, the jury was 

charged with the responsibility of determining appellant's 

punishment for the offenses of which he had been convicted. See

id. The cautionary instruction requested by appellant during the 

sentencing phase invited the jury to reconsider issues it had 

already conclusively determined in the guilt phase. At the time 

appellant requested the cautionary instruction, despite the trial 

court's comments to the contrary, the jury did not possess the 

authority to revisit the findings of guilt and innocence.3

 See

Tyler, 21 Va. App. at 709, 467 S.E.2d at 297. 

 3In contravention of Tyler, the trial court advised the 

jury, after it returned unsigned the verdict form for the firearm 

offense, that it could reconsider its verdicts as to guilt or 

innocence. However, as the jury did not act upon this advice and 

did not disturb the verdicts regarding appellant's guilt or 

innocence, no harm resulted from this error. See Smoot v. 

Commonwealth, 18 Va. App. 562, 566-68, 445 S.E.2d 688, 691 (1994) 

(although jury instruction omitted essential element of crime, 

error harmless because evidence of such circumstance was 

uncontradicted in the record). 
- 8 - 

 "If an instruction 'is not applicable to the facts and 

circumstances of the case, it should not be given.'" Hubbard v. 

Commonwealth, 243 Va. 1, 16, 413 S.E.2d 875, 883 (1992) (citation 

omitted). At the juncture at which he offered it, appellant's 

proposed instruction was inapplicable to the issues remaining for 

the jury's determination. Therefore, the trial court did not err 

in refusing appellant's proposed instruction during the 

sentencing phase. 

 Appellant contends that, in affirming apparently 

inconsistent verdicts in Wolfe, this Court found significant the 

absence of a defense request for an instruction stating that if 

the jury acquitted the defendant of murder, it should find him 

not guilty of the use of a firearm in the commission of murder. 

See Wolfe, 6 Va. App. at 645, 371 S.E.2d at 316. However, at the 

time Wolfe was decided, Virginia had not adopted the procedures 

contained in Code § 19.2-295.1 concerning bifurcated jury trials 

in felony proceedings. Furthermore, we did not determine in 

Wolfe, and we need not decide here, whether an instruction such 

as the one offered by appellant would be proper prior to the 

jury's resolution of the issue of guilt or innocence. 

 For the foregoing reasons, the trial judge did not err in 

refusing to grant the cautionary instruction requested by 

appellant. Accordingly, appellant's convictions are affirmed. 

 Affirmed.