Alan Kenneth Abraham v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Willis and Annunziata
Argued at Alexandria, Virginia
ALAN KENNETH ABRAHAM
OPINION BY
v. 	Record No. 2272-98-4 	JUDGE JERE M. H. WILLIS, JR.
MARCH 21, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Frank A. Hoss, Jr., Judge
William A. Boge (Anthony J. Corizzi;
William A. Boge, P.C., on brief), for
appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from his convictions of robbery, in violation of
Code § 18.2-58; abduction, in violation of Code § 18.2-48;
carjacking, in violation of Code § 18.2-58.1; and capital
murder, in violation of Code § 18.2-31, Alan Kenneth Abraham
contends (1) that the evidence was insufficient to support the
convictions, (2) that the trial court erred in refusing to
instruct the jury on voluntary manslaughter, (3) that the trial
court erred in refusing a proffered jury instruction on
voluntary intoxication, and (4) that the trial court erred in
denying his motion to exclude certain witnesses summoned by the
Commonwealth in violation of Code § 19.2-267. 	Finding no error,
we affirm the judgment of the trial court.

I. 	Facts
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." 	Martin v. Commonwealth,
4 Va. App. 438, 443, 404 S.E.2d 384, 387 (1991).
In May 1997, Abraham and the victim, Joe Allen, lived in
the home of Val Ensor. 	Allen was a drug dealer and had sold
drugs to Abraham. 	For several days prior to the murder, Allen
had demanded money owed him by Abraham and Abraham had made
excuses for not paying. 	On May 20, 1997, Abraham drove to a
credit union, ostensibly to get the money. 	Allen followed in
his own vehicle.
In fact, Abraham had no account at the credit union. 	While
Allen waited in the parking lot, Abraham entered the back seat
of Allen's car. 	He began striking Allen with a metal rod.
Witnesses attempted to stop the attack, but Abraham pushed Allen
into the passenger seat of the car, jumped into the front seat,
and drove away. 	A few minutes later, he pulled into a
cul-de-sac and parked the car in front of some townhouses.
One of the townhouse residents saw Abraham get out of the
car and walk away. 	Allen attempted unsuccessfully to exit the
vehicle. 	The resident approached the vehicle, but Abraham
returned and said he was taking Allen to the hospital. 	The
resident testified that Abraham wore a red vest, which belonged
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to Allen. 	As Abraham drove away, another resident saw him again
striking Allen with the metal rod.
Robert Ray, who had observed the beating in the cul-de-sac,
followed Abraham. 	Abraham drove to another courtyard, where he
got out of the car, grabbed something from the back seat, and
ran away. 	Allen was taken to the hospital, where he
subsequently died as a result of the beating.
After running from the car, Abraham broke into a home and
stole some clothing. 	He abandoned Allen's vest in a shed and
hid his own clothes under a deck. 	Abraham then called a friend
to pick him up and take him to Ronald Cameron's house. 	That
night, unbeknownst to Cameron, Abraham slept in Cameron's
recreational vehicle. 	The next day, Abraham returned home,
where he was arrested.
The jury convicted Abraham of robbery, carjacking,
abduction, and capital murder, and he was sentenced to life
imprisonment for the murder, plus sixty years suspended for the
other crimes.
II. 	Sufficiency of the Evidence (Robbery,
Carjacking, Abduction)
Abraham contends that the evidence was insufficient to
support his convictions of robbery, carjacking, and abduction.
He argues that the Commonwealth failed to prove that he had the
requisite intent to commit these crimes.
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"A conviction for robbery requires proof beyond a
reasonable doubt that the defendant . . . took property from the
victim by force, threats, or violence, and that the intent to
steal co-existed with the act of force." 	Pugliese v.
Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993). 	A
conviction for abduction in connection with a robbery requires
proof of a detention "greater than the restraint that is
intrinsic in a robbery." 	Cardwell v. Commonwealth, 248 Va. 501,
511, 450 S.E.2d 146, 152 (1994). 	"[T]he carjacking provision is
. . . confined by the same limitations which apply to robbery.
Thus, the requisite violence or intimidation must precede or be
concomitant with the taking." 	Bell v. Commonwealth, 21 Va. App.
693, 701, 467 S.E.2d 289, 293 (1996).
"Intent in fact is the purpose formed in a person's mind,
which may be shown by the circumstances surrounding the offense,
including the person's conduct and his statements." 	Nobles v.
Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977).
"Intent may, and often must, be proven by circumstantial
evidence and the reasonable inferences to be drawn from proven
facts are within the province of the trier of fact." 	Fleming v.
Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180, 183 (1991).
Abraham beat Allen and thereafter took Allen's vest. 	He
knew that Allen wore the vest when conducting drug deals and
that it often contained drugs or cash. 	Abraham took Allen's car
after beating and subduing Allen. 	The scope and duration of
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Allen's detention clearly exceeded what was necessary to commit
the robbery of his personal property and the theft of his car.
Abraham continued to attack Allen after committing the robbery,
after abducting Allen, and after taking the car.
Thus, the record supports the jury's finding that Abraham
acted with the requisite intent in committing robbery,
abduction, and carjacking.
III. 	Sufficiency of the Evidence (Capital Murder)
Abraham next contends that the evidence was insufficient to
support his conviction of capital murder. 	He argues that he was
not properly convicted of any predicate offense that would
sustain the conviction. 	Code § 18.2-31 states, in relevant
part:
The following offenses shall constitute
capital murder, punishable as a Class 1
felony:
* 	* 	* 	* 	* 	* 	*
4. 	The willful, deliberate, and
premeditated killing of any person in the
commission of robbery or attempted robbery
. . . .
Id. 	Abraham was convicted of both abduction and robbery, and we
affirm those convictions. 	Thus, because he was guilty of the
requisite predicate offenses, the evidence was sufficient to
support the capital murder conviction.
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IV. 	Voluntary Manslaughter Instruction
Abraham contends that the trial court erred in refusing to
instruct the jury on the elements of voluntary manslaughter. 	He
argues that such an instruction was warranted because he
initially attacked Allen only after Allen threatened him.
However, Abraham continued to attack and beat Allen long after
the initial blows, after he took Allen's property, after he
abducted Allen, and after his attack rendered Allen helpless.
The evidence was insufficient to raise an issue whether Abraham
was provoked by passion, not malice, into killing Allen. 	See
Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958).
V. 	Voluntary Intoxication Instruction
Abraham contends that he was entitled to a jury instruction
on voluntary intoxication, because he had used cocaine prior to
the attack. 	He argues that the evidence was sufficient to show
that "'he was so intoxicated as to render him incapable of any
willful, deliberate and premeditated act[s].'" 	Waye v.
Commonwealth, 219 Va. 683, 698, 251 S.E.2d 202, 211, cert.
denied, 442 U.S. 924 (1979). 	The evidence disclosed that
Abraham consumed cocaine before and after the attack. 	The
evidence showed clearly, however, that he was not so intoxicated
that he could not form the requisite intent to commit the
crimes.
Abraham was able to operate a vehicle before and after the
attack. 	He spoke coherently with the victim before the attack.
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He spoke coherently with witnesses during and after the attack.
He was able to sneak into the victim's car, to evade attempts by
witnesses to stop the attack, and to hide from authorities after
the attack. 	His testimony at trial showed that he was aware of
the events that occurred before, during, and after the attack.
"All of these actions suggest that he was fully in command of
his faculties and acted with deliberation. 	Nothing in the
evidence suggests that he was so intoxicated as to be unable to
form the requisite intent to commit premeditated murder." 	Lilly
v. Commonwealth, 255 Va. 558, 579, 499 S.E.2d 522, 536-37, rev'd
on other grounds, 527 U.S. 116 (1999).
VI. 	Motion to Exclude Commonwealth's Witnesses
Abraham contends that the trial court erred in allowing
certain of the Commonwealth's witnesses to testify. 	He argues
that the Commonwealth summoned these witnesses, but then failed
to file their names and addresses with the clerk as required by
statute, thus denying him required notification that they would
testify.
Code § 19.2-267, which permits the issuance of summonses by
the Commonwealth's Attorney, requires that the prosecutor "shall
at the time of issuance, file with the clerk of court the names
and addresses of such witnesses." 	Code § 19.2-267. 	Abraham
argues that violation of this statute bars the witness'
testimony. 	The statute provides no such remedy.
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"While violations of state procedural
statutes are viewed with disfavor . . .
neither the Virginia Supreme Court nor the
legislature has adopted an exclusionary rule
for such violations . . . where no
deprivation of the defendant's
constitutional rights occurred."
West v. Commonwealth, 16 Va. App. 679, 692, 432 S.E.2d 730, 738
(1993) (citations omitted). 	Further,
[n]othing in Code § 19.2-267 prohibits
the Commonwealth's witnesses from testifying
nor is there any suggestion in the statute
that such a remedy was intended by the
legislature. 	[Abraham]'s substantive rights
were not affected by the Commonwealth's
failure to file the information at the time
of the issuance of the summons.
Caccioppo v. Commonwealth, 20 Va. App. 534, 538, 458 S.E.2d 592,
594 (1995).
Abraham failed to show prejudice from the lack of
notification. 	At trial, his counsel stated, "[t]here have been
a number of witnesses we had anticipated were going to testify
for the Commonwealth for which return of service of subpoena has
not been placed in the file." 	(Emphasis added). 	Thus, the
trial court did not abuse its discretion by refusing to bar the
witnesses' testimony.
The judgment of the trial court is affirmed.
Affirmed.
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