A Charlottesville man is attempting to have six unlawful discharge convictions dismissed, arguing that a judge and counsel erred by giving incorrect jury instructions during his trial.
In March 2020, Timothy Lamont Miles, 31, was found not guilty by a jury of attempted capital murder of a city policeman in 2018. However, that same jury did find him guilty of six counts of unlawfully shooting in an occupied dwelling during the same incident.
Miles was charged for the shooting of Charlottesville Police Cpl. Chris Huber. As Huber stood in Miles’ kitchen in a home on Hardy Drive on Sept. 8, 2018, testimony showed Miles fired six shots from a bright-orange 9mm semi-automatic in the officer’s direction, hitting him once in the protective vest.
Huber fired five shots at Miles, striking him once in the abdomen and once in the pelvis.
Miles testified he was hiding in the home, which was occupied by a friend and her children, in order to escape someone who was trying to kill him.
According to trial testimony, Miles had been drinking that night – his blood alcohol content was estimated to be near .22 – and he did not follow orders from Huber to get on the ground, but turned his left shoulder toward the policeman. That’s when Huber drew his weapon. Shots rang out when Huber saw Miles’ brightly-colored pistol. No one, including Huber, Miles, or other police officers, could determine who fired first. Body camera footage also could not determine who fired first.
Prosecutors argued that Miles wanted to kill Huber while the defense insisted that was never his intent.
In the end, the jury acquitted Miles of the attempted capital murder charge. For the remaining charges, the jury recommended a total sentence of 12 years; five years on one count of unlawful discharge in a building, two years on each of two other counts and one year on each of three other counts.
However, in the months following his trial, Miles had a change in court-appointed counsel and filed a motion for dismissal of his adjudications or for the entry of a new trial. That motion was denied in December 2020 by a different judge that oversaw Miles’ trial.
Now, Norman Lamson, Miles’ court-appointed counsel since after the trial, has filed a motion on his client’s behalf to dismiss Miles’ six convictions.
The argument for dismissal centers on the standards a crime must meet to be considered an “unlawful discharge,” namely that the accused must commit the first two acts of “malicious discharge.”
According to Miles’ motion, these standards are: discharging in an occupied building; so as to endanger others; and the action must be done without malice, but while still under the mental state known as “criminal negligence.” Malice, in Virginia criminal cases, is typically defined as doing a wrongful act intentionally, or without just cause or excuse, or as a result of ill will.
In the motion, Lamson contends that the court did not instruct the jury of the meaning of criminal negligence, instead instructing the jury that malice must just be absent in order for the “unlawful” standard to be met and that the jury must affirmatively find that the “act was done unlawfully and not maliciously.”
It is not enough for there to be the mere absence of malice without regard to any other mental state, Lamson argues.
“His Honor’s announced ruling that ‘unlawful’ is simply the first two elements of malicious discharge and the absence of malice contradicts not only his implied ruling in offering said instruction but the position of both the Commonwealth and the defendant at trial,” the motion reads.
Lamson further argues that Miles’ trial counsel and Senior-Assistant Charlottesville Commonwealth’s Attorney Nina-Alice Antony sought a definition unlawful that meant heat of passion, which led to “not merely one of failure of the court to give instruction but also mis-instruction as to the requisite mental state for unlawful discharge.”
In effort to bolster his arguments, Lamson presents several hypothetical situations.
“If an armed man sees another in the process of stabbing his wife to death, and pulls out a gun and shoots, disabling the aggressor, the first element has been met (the defendant shot the aggressor), and the second element has been met (the shooting was with intent to maim, etc.), there is reasonable doubt as to malice, but it is neither unlawful wounding either, for there is no ‘heat of passion,” Lamson writes. “There is simply no crime. There has to be some mental element, short of malice, in addition to the first two elements to make it ‘unlawful wounding,’ and that element is heat of passion.”
Lamson further argues that, under the judge’s interpretation, someone who shoots at an intruder then they would be guilty of unlawful discharge because they shot in a building occupied by others, endangering lives while also in the absence of malice.
“The point of the legislature creating a crime of ‘unlawful discharge’ is to account for the case where the accused has some mental state, not as culpable as malice, but not of pure innocence either, so that he is deserving of some punishment, but not as much punishment as if he acted with malice,” Lamson writes.
The mental state must always be “criminal negligence,” Lamson argues, as “unlawful discharge” differs from a murder prosecution where lesser charges, such as voluntary manslaughter, are an option.
“‘Unlawful discharge’ in the sense of ‘heat of passion discharge’ is not only not lesser included, but a non-existent offense,” Lamson writes. “Thus, this case isn’t a mere error in failing to give instruction the court should give to fulfill due process, but also a mis-instruction as to the type of mental state that must be proven to make out ‘unlawful discharge.’”
Miles’ motion requests that the court find that it cannot determine beyond a reasonable doubt that the errors in jury instruction did not prejudice him and so the six malicious discharge indictments should be dismissed.
The commonwealth has not yet responded to Miles’ motion, but a related hearing is set for Oct. 26 in Charlottesville Circuit Court.
Besides attempted capital murder and the shooting charges, Miles was charged with being a felon in possession of a gun. That charge is still pending, though a three-day jury trial is set to begin Monday, according to online court records. It remains to be seen if the trial will be continued in light of Miles’ recent motion to reconsider.