John Lester Scott v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Frank and Senior Judge Overton
Argued by teleconference
JOHN LESTER SCOTT
MEMORANDUM OPINION* BY
v. 	Record No. 0831-04-1 	JUDGE NELSON T. OVERTON
MARCH 29, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Jerome James, Judge
James O. Broccoletti (Zoby & Broccoletti, P.C., on brief), for
appellant.
Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
A jury found John Lester Scott guilty of first-degree murder, as well as other crimes. On
appeal, Scott challenges only his murder conviction and claims his short-form indictment, patterned
after the language of Code § 19.2-221, charged him with second-degree, but not first-degree,
murder. Scott contends the holding of the Supreme Court of the United States in Apprendi v. New
Jersey, 530 U.S. 466 (2000), required the indictment to charge all the elements of the offense.
Because the indictment did not specifically state all the elements of first-degree murder, Scott
maintains, the trial court erred in refusing to amend the charge to second-degree murder.
In Walshaw v. Commonwealth, 44 Va. App. 103, 113, 603 S.E.2d 633, 638 (2004), this
Court rejected arguments identical to those advanced by Scott in this case and found the statutory
short-form indictment “clearly charged first-degree murder.” This Court further concluded that
Apprendi did not require a murder indictment to state the killing was done with malice or
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

-2-
premeditation in order to constitute a valid first-degree indictment under Virginia law, which
requires proof of both elements of the offense for conviction. Id.
Because our decision in Walshaw governs this case, we reject Scott’s claim that the trial
court erred in refusing to amend the indictment to charge second-degree murder. Accordingly,
appellant’s conviction in affirmed.
Affirmed.