Present: Hassell, C.J., Keenan, Koontz, Lemons, Goodwyn, and
Millette, JJ., and Carrico, S.J.
JERRY LYNN COOPER, a/k/a
GERALD LYNN COOPER
Record No. 080919
SENIOR JUSTICE HARRY L. CARRICO
February 27, 2009
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Tried by a jury in the Circuit Court of Alleghany County on
a charge of possession of cocaine with intent to distribute in
violation of Code § 18.2-248(C), the defendant, Jerry Lynn
Cooper, also known as Gerald Lynn Cooper, was convicted and his
sentence was fixed at ten years in the penitentiary and a fine
The circuit court upheld the conviction and
imposed the ten-year penitentiary sentence but suspended the
In an unpublished order, the Court of Appeals affirmed the
We granted Cooper an appeal to consider this single
assignment of error: “That the ruling by the Court of Appeals
that [Cooper’s] proposed jury instruction concerning alibi was
not required is erroneous.”
Finding that the Court of Appeals’
ruling was erroneous, we will reverse its judgment.
The Commonwealth’s evidence showed that in late 2004,
Angela Tucker became a paid informant for the Alleghany
Highlands Drug Task Force of the Virginia State Police.
“never had any charges or pending charges” against her but was
“concerned about the drug problem in [her] area” of the
Commonwealth and thought she “could help with that.”
paid $100.00 for each drug purchase she made for the police, and
at the time she testified at Cooper’s trial, she had made sixty
At 3:22 p.m. on April 5, 2006, Tucker told Special Agent
Eddie Philpot of the Virginia State Police, who was attached to
the Alleghany Highlands Drug Task Force, that she might “be able
to purchase some crack cocaine” from Cooper, who happened to be
Special Agent Philpot, accompanied by Detective
Winfred Smith of the Bath County Sheriff’s Office, who was also
a member of the Alleghany Highlands Drug Task Force, gave Tucker
money for the purchase of drugs.
After searching her, the
officers installed “body wire” on her “that broadcasts through a
frequency through a listening post” placed on the rear seat of
the police vehicle.
Special Agent Philpot and Detective Smith then drove Tucker
to a location in the City of Covington near Cooper’s residence.
Tucker left the car, walked to the residence, and found Cooper
She asked him “if he knew where to get any drugs from,
He replied, “yeah,” but said he had to make a call
to Boomie, a local “coke dealer.”
Boomie “never called back.”
He talked to Boomie, but
At that point, Jap, a friend of
Cooper’s, “come up” and “gave [Cooper] a ride.”
left, Tucker gave him a “hundred dollar bill” she had been given
by Special Agent Philpot and Detective Smith.
Cooper could not get the drugs from Boomie but secured them
from Van, who had “a reputation for selling drugs . . . in
Cooper returned to Tucker in about ten minutes and
“gave [her] the drugs.”
It was then 4:26 p.m.
and Tucker immediately turned the drugs over to Detective Smith,
who was sitting with Special Agent Philpot in their police
vehicle nearby and from which they had been observing Tucker’s
movements and listening to her conversations.
the drugs proved to be cocaine.
In defense, Cooper denied that he had sold drugs to Tucker
and offered an alibi.
He testified and presented testimony from
other witnesses that between 3:22 p.m. and 4:26 p.m. on April 5,
2006, he was at work participating in the construction of a pool
house at a site in Clifton Forge, a town located some distance
Cooper’s employer and two of his co-workers
stated that his work schedule was 8:00 a.m. to 4:30 p.m. daily
and that he worked until 4:30 p.m. on April 5, 2006.
who shares her home with Cooper testified that he left for work
at 8:00 a.m. on April 5, 2006, and that he was not there when
she returned home from a meeting about 4:15 p.m., but arrived
before she left for work at 9:00 p.m.
At the conclusion of the evidence, Cooper proffered
Instruction A, which was refused by the circuit court.
upon 2 Virginia Model Jury Instructions – Criminal, No. 52.100,
at 52-3 (repl. ed. 2008), the proffered instruction read as
The defendant relies upon the defense that he was not
present at the time and place the alleged offense was
committed. If, after consideration of all the evidence,
you have a reasonable doubt that the defendant was present
at the time and place the alleged offense was committed,
you shall find him not guilty.
The circuit court refused the instruction on the ground it
was not required because other instructions were granted on
presumption of innocence, reasonable doubt, and the elements of
The Court of Appeals held that because the circuit
court had granted the other instructions, a “separate
instruction on alibi was neither necessary nor required, and the
trial judge did not abuse his discretion in refusing to give
[Cooper’s] alibi jury instruction.”
As a general rule, the matter of granting and denying
instructions does rest in the sound discretion of the trial
See Daniels v. Commonwealth, 275 Va. 460, 466, 657
S.E.2d 84, 87 (2008); Stockton v. Commonwealth, 227 Va. 124,
145, 314 S.E.2d 371, 384 (1984).
“Our ‘sole responsibility in
reviewing [jury instructions] is to see that the law has been
clearly stated and that the instructions cover all issues which
the evidence fairly raises.’ ”
Molina v. Commonwealth, 272 Va.
666, 671, 636 S.E.2d 470, 473 (2006) (quoting Swisher v.
Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)).
deciding whether a particular instruction is appropriate, we
view the facts in the light most favorable to the proponent of
See Commonwealth v. Cary, 271 Va. 87, 91, 623
S.E.2d 906, 907 (2006).
We have visited the appropriateness of alibi instructions
in several previous cases starting with Thompson v.
Commonwealth, 88 Va. 45, 13 S.E. 304 (1891), and find that we
have expressed a variety of views in the law on the subject.
Thompson, involving a charge of robbery, this Court held that it
was not error to instruct a jury that “the burden of proving the
alibi rests upon [the accused]” after the accused had been
granted an instruction telling the jury that the Commonwealth
“must prove everything essential to the establishment of the
charge in the indictment to the exclusion of a reasonable
Id. at 47, 13 S.E. at 305.
In Draper v. Commonwealth, 132 Va. 648, 111 S.E. 471
(1922), a prosecution for conspiracy to commit murder, the
Commonwealth sought and received over defense objection an
instruction including a statement that “where the accused relies
upon or attempts to prove an alibi in his defense, the burden of
proving the alibi rests upon him.”
Id. at 660-61, 111 S.E. at
This Court held that while the statement would constitute
reversible error standing alone, it did not prejudice the
defendant because of the language in the remaining portion of
the instruction and in other instructions that were given on
presumption of innocence and reasonable doubt.
S.E. at 476.
Id. at 665, 111
Two paragraphs from an early encyclopedia of law
are quoted approvingly in our opinion and are worthy of note.
The first reads as follows:
In 2 Am. & Eng. Enc. (2nd Ed.), page 53, it is said:
“Alibi is regarded by some courts as an affirmative
defense, but the better doctrine seems to be that it is not
a defense in the accurate meaning of the term, but a mere
fact shown in rebuttal of the State’s evidence; and,
consequently, the evidence introduced to support it should
be left to the jury, uninfluenced by any charge from the
court tending to place it upon a different footing from
other evidence in the case.”
Id. at 661, 111 S.E. at 475.
The second paragraph is from page
56 of the encyclopedia and reads as follows:
“The true doctrine seems to be that where the State
has established a prima facie case and the defendant relies
upon the defense of alibi, the burden is upon him to prove
it, not beyond a reasonable doubt, nor by a preponderance
of the evidence, but by such evidence, and to such a degree
of certainty, as will, when the whole evidence is
considered, create and leave in the mind of the jury a
reasonable doubt as to the guilt of the accused.”
Id. at 663, 111 S.E. at 476.
In Fenner v. Commonwealth, 152 Va. 1014, 148 S.E. 821
(1929), involving a charge of robbery, an instruction was
granted containing the same language that was found
objectionable in Draper, i.e., “where the accused relies upon or
attempts to prove an alibi in his defense, the burden of proving
the alibi rests upon him.”
Id. at 1018, 148 S.E. at 822.
Court criticized the granting of the instruction, stating that
“[i]t is strange that prosecuting attorneys continue to ask for
this instruction and trial courts continue to give it.”
However, the Court held that the instruction could not have
misled the jury because other instructions told the jury it
could not convict unless it believed the defendant guilty to the
exclusion of every reasonable doubt.
Id. at 1021, 111 S.E. at
In Mullins v. Commonwealth, 174 Va. 472, 5 S.E.2d 499
(1939), a prosecution for attempted rape, a refused instruction
stated as follows:
The court instructs the jury that the evidence introduced
by the defendant, that he was not at the scene of the
alleged crime, need not have been such as to establish this
as a fact, to entitle him to an acquittal; but if its
effect has been such as to bring you to that state of mind
that you have any reasonable doubt of his presence there,
it is as much your duty to find him not guilty in this
case, as it would be if you were convinced he was not there
or was otherwise not guilty.
Id. at 475, 5 S.E.2d at 500.
Reversing for the trial court’s
failure to grant the instruction, we said:
“It is patent that
the instruction is a correct statement of the law and that the
testimony referred to required it to be given to the jury.
it was not given is prejudicial error.”
In Noblett v. Commonwealth, 194 Va. 241, 72 S.E.2d 241
(1952), where the defendant was charged with indecent exposure,
we held that “[i]n so far as the decision in Mullins . . .
approves the form of the instruction [on alibi], it is
Id. at 248, 72 S.E.2d at 245.
We said, “we now
adhere to the same view” we took in Draper and Fenner, when we
approved the statement from page 56 of the early encyclopedia of
law concerning alibi principles.
Reversing on other grounds, we
said that “at a new trial the defendant will be entitled to an
instruction on alibi which conforms to the principles which we
have here stated.”
In Johnson v. Commonwealth, 210 Va. 16, 168 S.E.2d 97
(1969), a statutory burglary case, we said that “in order to
require the giving of an instruction on alibi there must be
evidence that the accused was elsewhere than at the scene of the
crime at the exact time or for the entire period during which it
was or could have been committed.”
Id. at 20, 168 S.E.2d at
We held that an alibi instruction was properly refused
“the evidence offered in support of the defendant’s
claim of alibi is so lacking in the required proof of his
absence from the scene at the time of the commission of the
crime that the trial court properly refused to grant the
In Minor v. Commonwealth, 213 Va. 278, 191 S.E.2d 825
(1972), the defendant, charged with feloniously and knowingly
receiving money from the earnings of a female engaged in
prostitution, was denied an alibi instruction worded in the
language approved in Mullins but disapproved in Noblett.
said that “a separate instruction on alibi was neither necessary
nor required” because “the jury was fully and completely
instructed on presumption of innocence and reasonable doubt” and
was further told that “ ‘if there is any reasonable doubt that
the accused did knowingly receive such money . . .’ or if they
had any reasonable doubt of the defendant’s guilt of the crime
charged against her ‘on the whole case,’ they should acquit
Id. at 281, 191 S.E.2d at 827.
We stated further that
“to the extent that Mullins and Noblett are in conflict with
this holding, they are expressly overruled.”
In Crabbe v. Commonwealth, 221 Va. 419, 270 S.E.2d 727
(1980), the defendant, on trial for three robberies, was denied
an alibi instruction similar to the one approved in Mullins and
disapproved in Noblett.
We upheld the denial.
Citing Minor, we
“[w]e reaffirm the rule that, when the jury is
properly instructed on the presumption of innocence and
reasonable doubt, ‘a separate instruction on alibi [is] neither
necessary nor required.’ ”
Id. at 421, 270 S.E.2d at 728.
“Moreover,” we said, “the jurors were told in each of three
instructions . . . that, in order to convict, they were required
to find that Crabbe ‘was present, aiding and abetting [his
accomplice] in the commission of such [crimes].’ ”
Finally, in Bassett v. Commonwealth, 222 Va. 844, 284
S.E.2d 844 (1981), where the death penalty was imposed for
murder during the commission of robbery, the trial court granted
Instruction 2, an alibi instruction in the exact same wording as
Instruction A, involved here.
The defendant complained of the
instruction on appeal, “arguing that it confused the jury as to
the standard of proof required to establish an alibi.”
856, 284 S.E.2d at 852.
We disagreed, stating that “[a] jury
objectively reading the instruction complained of could not be
misled, because nowhere does it require proof of alibi beyond a
reasonable doubt or even by a preponderance of the evidence.”
Id. at 857, 284 S.E.2d at 852.
This brings us to the point of decision.
In making our
decision, we first question the efficacy of this Court’s
approval in Draper of the statement that “[a]libi . . . is not a
defense in the accurate meaning of the term, but a mere fact
shown in rebuttal of the State’s evidence.”
S.E. at 475.
We now hold to the contrary.
132 Va. at 661, 111
Dictionary (8th ed. 2004) 79 defines the word “alibi” as “[a]
defense based on the physical impossibility of a defendant’s
guilt by placing the defendant in a location other than the
scene of the crime at the relevant time.”
And the same
dictionary at page 451 defines the word “defense” as “[a]
defendant’s stated reason why the plaintiff or prosecutor has no
valid case; esp., a defendant’s answer, denial, or plea .”
Hence, we will hereafter treat alibi as a
defense in the accurate meaning of the term.
We also question the efficacy of this Court’s approval in
Draper of the further statement that “the evidence introduced to
support [an alibi] should be left to the jury uninfluenced by
any charge from the court tending to place it upon a different
footing from other evidence in the case.”
S.E.2d at 475.
132 Va. at 661, 284
We now hold to the contrary.
Rule 3A:11, which
deals with discovery and inspection in criminal cases, provides
in subparagraph (c)(2) as follows:
(c) Discovery by the Commonwealth.-If the court grants
relief sought by the accused under clause (ii) of
subparagraph (b)(1) or under subparagraph (b)(2) of this
Rule, it shall, upon motion of the Commonwealth, condition
its order by requiring that:
. . . .
(2) The accused disclose whether he intends to
introduce evidence to establish an alibi and, if so, that
the accused disclose the place at which he claims to have
been at the time of the commission of the alleged offense.
Other than insanity or feeblemindedness, Rule 3A:11(c)(3),
alibi is the only defense that must be disclosed pretrial by the
accused in a criminal case.
Thus, subparagraph (c)(2) has
placed alibi on a different footing from other evidence in the
case, and it should be left to the jury in an appropriate
instruction on the subject, in addition to instructions on
presumption of innocence and reasonable doubt.
Furthermore, in view of our changed consideration of the
alibi concept, we question the wisdom of continuing our rule
that the matter of granting or refusing alibi instructions rests
in the sound discretion of the trial court.
Johnson makes clear
that an alibi instruction should be granted when there is
“evidence that the accused was elsewhere than at the scene of
the crime at the exact time or for the entire period during
which it was or could have been committed.”
S.E.2d at 100.
210 Va. at 20, 168
Yet, as a review of our decisions will reveal,
alibi instructions have been granted in some cases and refused
in others when no discernible difference is apparent.
Eliminating judicial discretion will promote uniformity where
uniformity is desirable, and it is desirable in this instance.
Hereafter, the rule will be: grant an alibi instruction when the
evidence described in Johnson is present, refuse when the
evidence is absent.
Cooper’s alibi evidence fully satisfied the Johnson test.
We approved the wording of Instruction A in Bassett, 222 Va. at
856-57 n.2, 284 S.E.2d at 852 n.2, and no reason has been
advanced to require withdrawal of that approval.
the instruction should have been granted.
Because it was
refused, we will reverse the judgment of the Court of Appeals,
vacate Cooper’s conviction, and remand the case to the Court of
Appeals for further remand to the circuit court for a new trial
with the jury instructed on alibi, provided the evidence remains
substantially the same, the instruction is in proper form, and
Cooper requests it.
Reversed and remanded.