Turner v. Commonwealth
In Turner v. Commonwealth, 23 Va. App. 270, 476 S.E.2d 504 (1996), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997), the Court addressed the issue of harmless error in the context of a trial court's refusal to instruct a jury on voluntary manslaughter where the jury ultimately convicted the defendant of first degree murder.
The Court concluded that where the reviewing court is able to determine that the trial court's error in failing to instruct the jury could not have affected the verdict, that error is harmless.
Such a determination can be made where it is evident from the verdict that the jury would have necessarily rejected the lesser-included offense on which it was not instructed. 23 Va. App. at 276, 476 S.E.2d at 507.
In finding that the trial court's failure to instruct the jury on voluntary manslaughter constituted harmless error, we explained:
In convicting appellant of first degree murder, the jury rejected the lesser-included offense of second degree murder.
In so doing, the jury found beyond a reasonable doubt that appellant acted not only maliciously, but also willfully, deliberately, and premeditatedly.
Homicide committed pursuant to a preconceived plan is not voluntary manslaughter; premeditation and reasonable provocation cannot co-exist.
The verdict reached by the jury here compels the conclusion that it would never have reached a voluntary manslaughter verdict.
Therefore, we conclude that the jury in this case, by rejecting the lesser-included offense of second degree murder, necessarily rejected the factual basis upon which it might have rendered a verdict on the lesser-included offense of voluntary manslaughter. 23 Va. App. at 277-78, 476 S.E.2d at 508