Brown v. Commonwealth

Justice Stephenson

dissenting.

For more than a century, the law as expressed in Instruction A was relied upon without question. Cantrell, decided in 1985, was the Court’s first departure from this established law. Cantrell essentially repudiated law relied upon by this Court as recently as 1984. See Bishop v. Commonwealth, 227 Va. 164, 169 , 313 S.E.2d 390, 393 (1984).

The instruction was given in those rare cases when the evidence was wholly circumstantial. Thus, countless juries have been instructed in accordance with Instruction A, i.e., that when the evidence is wholly circumstantial, “[t]he chain of necessary circumstances must be unbroken . . . [and] must all concur to form an unbroken chain which links the defendant to the crime” (emphasis added).

What were those “necessary circumstances”? They were “motive, time, place, means and conduct.” Bishop, 227 Va. at 169 , 313 S.E.2d at 393 .

The majority seems to confuse elements of a crime with those circumstances necessary to prove criminal agency when the evidence is wholly circumstantial. Obviously, none of the necessary circumstances, i.e., motive, time, place, means, and conduct, is an element of a crime. Each, however, must be proved in a wholly circumstantial evidence case to establish that the accused was the perpetrator of the crime.

*223 The majority speaks of reconciling an alleged conflict between our long-established circumstantial evidence rule and the equally long-established principle that motive is not an element of the crime of murder. No conflict, however, has ever existed between these two ancient principles. Rather, in a wholly circumstantial evidence case, proof of all five necessary circumstances, including motive, was required to establish criminal agency. In cases where there is some direct evidence, however, neither motive nor any other necessary circumstance need be proved.

The majority, reaffirming Cantrell, says motive no longer is a necessary circumstance. What necessary circumstance will the majority eliminate tomorrow? Will it be time, place, means, or conduct? Indeed, will it be that, eventually, the majority will eliminate the need to prove any of these circumstances?

I ask these rhetorical questions because the majority reasons that only if motive is proved “must [it] concur with the circumstantial evidence of other inculpatory circumstances — time, place, means, and conduct — in identifying the accused as the criminal agent.” I construe this to mean that only those circumstances that are proved need to concur. Thus, if none is proved, a concurrence of circumstances is not required.

Although the majority implies that proof of all the listed circumstances is not necessary, we said a mere five years ago:

We are guided by familiar principles. Where the evidence is entirely circumstantial, all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and must exclude every reasonable hypothesis of innocence. The chain of necessary circumstances must be unbroken. The circumstances of motive, time, place, means, and conduct must all concur to form an unbroken chain which links the defendant to the crime beyond a reasonable doubt.

Bishop, 227 Va. at 169 , 313 S.E.2d at 393 (emphasis added).

For the reasons stated herein and in my dissent in Cantrell, I again dissent today.