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COURT OF APPEALS OF VIRGINIA

PUBLISHED

Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, Petty, Beales, Alston, McCullough, Huff and Chafin Argued at Richmond, Virginia STEVE WHITT v. Record No. 0885-11-3 OPINION BY JUDGE STEPHEN R. McCULLOUGH MARCH 26, 2013

Present:

COMMONWEALTH OF VIRGINIA UPON REHEARING EN BANC FROM THE CIRCUIT COURT OF BUCHANAN COUNTY Patrick R. Johnson, Judge T. Shea Cook (T. Shea Cook, P.C., on brief), for appellant. Alice T. Armstrong, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

We consider in this appeal whether the appellant, Steve Whitt, failed to comply with the requirements of Rule 5A:12(c)(1) in his petition for appeal, and, if so, whether this failure requires us to dismiss his appeal. We conclude that this Court may entertain Whitt's motion to amend his assignment of error. Therefore, the petition for appeal is properly before us. Turning to the merits of the appeal, we affirm Whitt's convictions. BACKGROUND Appellant, who was a witness in a police investigation, telephoned the police and asked Investigator Mike Thompson to come over to appellant's residence. Thompson went, accompanied by Investigator Eric Breeding. Appellant invited the investigators into his mobile home. Appellant sat on a couch. The two investigators sat on a couch across from him, separated by a coffee table. Appellant soon began acting in a hostile and erratic fashion. He told Investigator Breeding that Breeding was "aggravating him" so Breeding should sit down. App.

at 19. Appellant became increasingly angry, loud, and aggressive. He did not display any indicia of intoxication, such as slurred speech, unsteadiness on his feet, or an odor of alcohol. Gesturing toward Investigator Thompson, appellant said he was going to shoot Thompson. Appellant then gestured toward Investigator Breeding and said he was going to shoot him. Appellant indicated that he had a pistol under his cushion. Investigator Breeding could see part of an object protruding from under the couch cushion. Appellant's hand was dangling about three to four inches away from the object. Neither officer could see at that point what the object was. Appellant urged Breeding to put his hand on his gun. Appellant made a number of threats. Appellant moved his hand away from this object for a brief time, perhaps to reach for a drink. Investigator Thompson took advantage of this opportunity to jump over the coffee table. After a brief struggle, the officers were able to subdue appellant. Appellant never made a gesture toward the partially concealed object before Investigator Thompson jumped over the coffee table. During the struggle, however, his arm was "at the back of the cushion." Officer Thompson testified that appellant was "going for it." App. at 131, 133. After appellant's arrest, police recovered a knife, rather than a gun, under the cushion where appellant had been seated. The knife's blade is approximately nine inches long. Police also recovered a pellet or BB rifle under a couch. No actual firearm was recovered. At trial, appellant testified that he wanted the officers to kill him, but that he could not kill himself because it was against his Baptist religion to commit suicide. He explained that a number of personal tragedies, including the death of his stepmother, a tumor on his right lung, the death of a friend, and the struggles of his father all served as motives for the purported attempt at what is colloquially called a "suicide by cop." After his arrest, however, appellant

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told a guard at the jail that he was not suicidal. In response to questions by the officers, he denied being suicidal. Following a jury trial, appellant was convicted of two counts of attempted capital murder of a law enforcement officer, in violation of Code

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