Present: All the Justices
CARDELL LAMONT AVENT
v. Record No. 090537 OPINION BY JUSTICE DONALD W. LEMONS
January 15, 2010
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Cardell Lamont Avent (“Avent”) was convicted by a jury on
charges of first-degree murder in violation of Code § 18.2-32
and use of a firearm in the commission of a felony in
violation of Code § 18.2-53.1. In this appeal, we consider
multiple assignments of error arising from these convictions.
I. FACTS AND PROCEEDINGS BELOW 1
On August 17, 2005, police officers in Brunswick County,
Virginia, responded to a call for a “welfare check” on William
David Thomas, Jr. (“William”), whom the caller had not seen in
several days. Upon arriving on William’s property, Major Brian
Roberts (“Major Roberts”) testified at trial that he detected a
“very strong odor, like a dead carcass.” Once inside William’s
residence, Major Roberts saw blood stains throughout the house:
“in the bathtub,” “in . . . the victim’s bedroom upstairs,” and
“on the steps.” When William’s body was not located inside his
1
Avent was tried separately from Meloni Thomas
(“Thomas”), who was also charged and convicted for her
participation in the crimes. See Thomas v. Commonwealth, 279
Va. ___, ___ S.E.2d ___ (2010) (this day decided). Neither
Avent nor Thomas testified at the other’s trial. As a result,
the evidentiary records in the two trials are inconsistent.
residence, the deputies searched the curtilage of his property.
The search led the officers to a “chicken coop” that had a
“wood door” with “a cinderblock on the ground against it.”
Once deputies removed the cinderblock and opened the door,
there was a “completely overwhelming,” “unbelievable odor.”
Immediately inside the chicken coop, officers encountered
“a black fender well” and “blue plastic foam insulation.” Upon
removing those items, “a head of a human being was exposed, and
flies just swarmed.” Major Roberts testified to finding a
“very, very badly decomposed body.” He described the head,
later identified through dental records as William’s, as having
“[p]art of the face almost looked like it melted off or rotted
off.”
Captain Kent Washburn 2 (“Captain Washburn”) also testified
to the presence of blood throughout the house, on walls, the
bathtub, and floors. In the bucket for the well outside
William’s home, Captain Washburn discovered a “soiled shirt
that appeared to have stained blood on it, and there was a hole
in the chest area.” Officers also recovered a comforter, a
sheet to a bed, and gun parts from the well. The bed in
2
Captain Kent Washburn was referred to in the Thomas and
Avent records as both “Captain Washburn” and “Lieutenant
Washburn.” For the purpose of consistency, we will refer to
him as “Captain Washburn” in both this opinion and in Thomas
v. Commonwealth, 279 Va. ___, ___ S.E.2d ___ (2010) (this day
decided).
2
William’s bedroom had no sheets on it, and there were “ammonia
and bleach bottles” in his bedroom. A piece of the gun had
“gr[a]y duct tape” on it and the name “Winchester.”
After receiving a “Crime Solver’s tip,” Major Roberts and
Captain Washburn traveled to the Navajo County Jail in
Kayenta, Arizona, where they encountered Avent and Thomas,
daughter of decedent William; both Avent and Thomas were
“people of interest in this murder case.” During their time
together, Major Roberts observed no injuries on Avent.
Captain Washburn interviewed Avent and testified that Avent’s
demeanor during the interviews was “[v]ery calm; no signs of
being nervous or upset; showed no emotion; no signs of crying;
and basically, did not ask anything about the Thomas family.”
Over two days of interviews, Captain Washburn advised
Avent of his Miranda rights and had Avent sign a written
Miranda waiver. Captain Washburn obtained “three written
statements” from Avent, one in Avent’s own handwriting, the
other two in question-and-answer format transcribed by Captain
Washburn, which detailed Avent’s involvement in William’s
death. Avent signed each page of his statements. Captain
Washburn made an audio recording of the last statement Avent
3
gave on the first day of interrogation in Arizona. During the
trial the audio recording was played for the jury. 3
Prior to trial, Avent made a motion to suppress the
statements he gave in Arizona to Captain Washburn and Major
Roberts on the grounds that the statements were made
involuntarily. Major Roberts, Captain Washburn, and Avent
each testified at the hearing on the motion to suppress.
Major Roberts testified that Avent was neither threatened
nor offered leniency in exchange for his cooperation. Captain
Washburn testified that the interrogation lasted “roughly
three and a half hours, four hours. It was on and off, after
[Avent] had been given breaks” to use the restroom and to have
something to drink. Avent was fed dinner and never complained
of discomfort.
Major Roberts was only present for the “initial meeting,”
in which Avent was given Miranda warnings and made his first
verbal statement. Major Roberts “got disgusted” with the
“lies” Avent told the officers during the first interview and
so Major Roberts “got up and walked out and went back to
interview” Thomas.
Avent described himself during the interrogation as
“calm” and “comfortable.” Avent further testified that he had
3
Neither the transcript of the audio recording nor the
recording itself were made a part of the record in this
4
been given food and an opportunity to sleep, and he was given
his Miranda rights. He testified that while he understood the
rights, he did not waive those rights until after his
interrogation. Avent said he was “scared” after Major Roberts
“got so mad that he slammed his hand down on the table and
told me . . . if I didn’t cooperate with him . . . that they
were going to charge my ass with capital murder and that’s a
life or death sentence.”
Avent testified that the officers never touched him, and
he did not feel threatened or scared by Captain Washburn. On
a number of occasions during the hearing, Avent responded that
he understood what was occurring during the interrogation. At
the conclusion of the testimony, the trial court denied the
motion to suppress, finding that there was “no threat of a
murder charge, no threat of physical harm, [and] no promises
of leniency.” Further, the trial court found that Avent was
“a man of at least average intelligence,” Avent himself said
“he was comfortable [during the interrogation],” and Avent
“never complained about his comfort or any physical
discomforts.”
Avent also made a Batson motion, arguing that the
Commonwealth’s exercise of all five of its peremptory strikes
on African-American potential jurors was racially motivated in
appeal.
5
violation of Batson v. Kentucky, 476 U.S. 79, 89 (1986).
Avent is African-American. In particular, Avent challenged
two of the strikes exercised by the Commonwealth: Frema
Draughn (“Draughn”) and Chiquita Easter (“Easter”).
The Commonwealth gave two reasons for the strike of
Draughn. The first was that her son was “recently stopped in
a traffic stop and had marijuana,” but he was not charged.
The second was that both Draughn and her father had an
affiliation with Saint Paul’s College, and the Commonwealth
noted that there was “friction” between the Commonwealth and
the college because the Commonwealth “tr[ies] to prosecute
some of [its] students” and its “chief of security was
recently arrested for sex crimes.” However, during voir dire,
Draughn indicated that while her father had worked with “Saint
Paul’s security,” he was “currently deceased.” Avent argued
that Draughn’s son’s alleged marijuana possession had nothing
to do with her, and he noted that the affiliation with the
college was a “positive rather than negative.”
The Commonwealth also cited two reasons for its strike of
Easter. First, during voir dire “she appeared to be
sleeping.” Second, she “has been sued multiple times in civil
matters, owes money,” and she indicated on her intake form
that she had a disability, but the Commonwealth was unclear of
what that disability was.
6
The trial court denied Avent’s Batson motion, holding
that all five strikes were made for “facially valid race-
neutral reasons” and Avent failed to demonstrate that the
Commonwealth’s race-neutral reasons were “mere [pretext] and
not supported by the evidence.” The trial court then
impaneled the jury, and began the trial.
At trial, Captain Washburn read Avent’s written
statements into evidence. In Avent’s hand-written statement,
Avent stated that he, Thomas and her three children went to
William’s house so Thomas could “get her checks.” Thomas
entered William’s house “[t]hrough a window on the porch. She
moved the storm door and went inside through a window.” His
narrative continued:
[Thomas] went in the house to get her
checks. I heard arguing, so I went in the
house. Next thing I know, I was hit. I falled
[sic] down on the floor while still being hit.
I, Cardell, looked up and it was her father.
He then put his hands around my neck and
started choking me. I was afraid for my life.
I started wiggling trying to get away.
He stopped and went upstairs. I followed
behind him slow to see what he was doing. When
I got upstairs, I was hit with a board a few
times. Once again, I was afraid for my life,
so I turned my head away, at the same time,
pulled out the gun and shot it one time; not
noticing where I was shooting at, I just wanted
him to stop hitting me. I turned back around,
and he was running towards me still, so I took
the gun and only hit once. He was still
fighting me, so I kept on hitting him until he
stopped. [Thomas] then came upstairs.
7
I was scared, so we dragged him outside to
the shed. I then went to the car to check on
the kids. After I checked on the kids, I went
to see what [Thomas] was doing. She was
cleaning up. I wiped off a few things, I can’t
remember what they are, and then we left. Got
to North Carolina, she gave her checks to John,
and we came to Arizona.
In response to Captain Washburn’s questions, Avent
estimated that the altercation with William occurred “between
August 7th and the 11th of 2005” at “around 1:00 P.M. or 2:00
P.M.” Avent said that he followed William upstairs because he
“was mad, because [William] had choked [him].” Avent “wanted
to tell [William] that [William] was wrong for hitting [Avent]
and tell him why [Avent] was down the[re], but [William] kept
hitting [Avent].” When Avent got upstairs, William “swung a
board at [Avent] and kept on swinging.” Avent told Captain
Washburn that he was “bleeding somewhere on [his] head” as a
result of the fighting with William.
Avent stated that he hit William in the face three to
five times with the barrel of a sawed-off shotgun. After he
stopped hitting William, Avent “was leaning up against the
wall and [his] head was hurting.” Avent acknowledged that he
assisted Thomas in removing William’s body from the house,
stating that he “was tired and help[ed] her drag the best I
could, but [Thomas] did most of the dragging.”
8
Avent described the shotgun as an old, two-foot long,
single-barrel Winchester with gray duct tape on it. When
asked about the gun’s whereabouts, Avent answered that he
“threw some pieces in the wood[]s while we were riding down
the road. I threw them out of the car window, somewhere in
North Carolina.” Avent also threw away a black hooded-type
jacket that he was wearing during the assault.
In the statements recorded by Captain Washburn, Avent
asserted that Thomas had placed the gun parts, bed sheet,
comforter, and towels in the well, Thomas put William’s body
in the shed and covered him up with the black fender well, and
Thomas closed the shed door and put a brick behind the door.
Avent stated that he had “never shot [the gun] until that day
at [William’s] house.”
During the interviews, which took place approximately two
weeks after William’s body was recovered, Captain Washburn
photographed portions of Avent’s body that Avent identified as
being injured. Captain Washburn was not able to “see any
visible injury” either on Avent’s head where he contended he
bled after being hit by a board, or on his neck where he
claimed William had choked him. Captain Washburn did observe
a “bruise on [Avent’s] left arm and also a mark on his left
leg,” both of which were the size of a dime or smaller. Avent
said the injuries to his arm and leg came from “the struggle.”
9
Captain Washburn recovered various pieces of wood around the
crime scene, including one in the well, which were “only . . .
small pieces of wood,” about “the size of two fingers put
together.”
Other people saw Avent shortly after the incident. John
Bass (“Bass”) testified that he met Avent and Thomas at a fast
food restaurant in Roanoke Rapids, North Carolina on the day
in question in response to Thomas’ request that he cash a
check for her. Bass got within “15, 20” feet of Avent and he
did not notice any visible signs of injury or anything that
suggested that he was injured. Tami Rose saw Avent in Arizona
on approximately August 14th. She did not notice any injury
to Avent.
Lieutenant Reeder Nez (“Lt. Nez”) of the Department of
Criminal Investigation for the Navajo Nation, in Kayenta,
Arizona, testified that Kayenta, Arizona, is “really a remote
area” located on the Navajo reservation. On September 1, Lt.
Nez went to a residence in Arizona where he found Avent. Lt.
Nez testified that Avent neither seemed injured nor emotional
in any way.
Crime scene investigators testified about the state of
William’s house. Special Agent Thomas Embry was responsible
for the exterior crime scene. He testified that the distance
from William’s house to where the body was discovered was 123
10
feet. Forensic scientist James Bullock testified that the
wood and metal pieces recovered from the scene of the crime
came from the shotgun admitted into evidence.
A forensic expert, Marjorie E. Harris, testified that “a
blood source [underwent forcible] events in the threshold of
[William’s] bedroom, and [blood flew] out into the hallway.”
She observed “so much [blood] that it actually drained through
the holes in the floor.” There was blood spatter indicating
trauma both while the victim was upright, and while he was
supine. She concluded that the blood patterns in William’s
room were consistent “with one sequence of events where the
injury begins in the northeast corner with the blood source
high. The blood source is mobile, travels, ends up in the
threshold of the door, is now low, and then is consequently
moved out of the bedroom . . . across the hallway, down the
steps.”
Dr. Bill Gormley (“Dr. Gormley”), Assistant Chief Medical
Examiner, testified that the cause of William’s death “was
certified as blunt force injury to the head.” William’s skull
had “comminuted fractures of the . . . facial skeleton [and]
rare small metallic foreign bodies.” William had sustained a
fracture of the right radius, and his chest contained multiple
small fragments of metal. Dr. Gormley testified that William
was missing portions of his skull due to the extensive
11
fractures and decomposition, and William’s lower mandible was
dramatically displaced. Dr. Gormley concluded that the
shotgun wound or wounds were not necessarily lethal, but
rather William died from the blunt force trauma to his skull.
At the close of the Commonwealth’s evidence, Avent made a
motion to strike on three separate grounds: (i) Avent acted in
self-defense as a matter of law, (ii) the Commonwealth failed
to prove sufficient evidence of premeditation, and (iii) the
Commonwealth failed to prove murder and therefore the trial
court should reduce the homicide charge to voluntary
manslaughter and strike the use of a firearm charge. The
trial court denied the motion to strike on all three grounds.
Regarding Avent’s claim of self-defense, the trial court
stated that “[o]nce the defendant pursued the decedent up the
stairs, he lost the defense of justifiable homicide.”
Likewise, the trial court ruled the defense of excusable
homicide unavailable because of Avent’s failure to retreat
from the place of the attack. The trial court noted “[i]t was
at the very door where the defendant had the opportunity to
extricate himself from the difficulty where the deadly force
used by the defendant took place.” Accordingly, the trial
court denied Avent’s motion to strike on the basis of self-
defense.
12
With regard to Avent’s contention that the Commonwealth
failed to prove premeditation, the trial court noted that in
this case, Avent inflicted a nonfatal wound on William, and
“thereafter inflicted multiple blunt force trauma sufficient
to . . . cause [William’s] death.” Accordingly, the trial
court concluded that the Commonwealth established a prima
facie case of premeditation.
Finally, the trial court found Avent’s motion to strike
the charges of first- and second-degree murder unavailing.
The trial court noted that malice may be presumed by the use
of a deadly weapon, and in this case Avent had used the
shotgun both as a firearm and a bludgeon. Accordingly, the
trial court denied Avent’s motion to strike.
Prior to the presentation of defendant’s case-in-chief,
Avent proffered testimony regarding his state of mind during
the altercation that led to William’s death. Avent sought to
testify about the effect that statements made by William to
Thomas had on Avent’s state of mind at the time of the
incident. Avent contended that prior to the altercation,
Thomas told him that William “didn’t like black people, that he
didn’t approve of her dating black men, and he didn’t approve
of her kids being . . . of mixed races.” Avent asserted that
he was present when William told Thomas that Avent was not
13
allowed on his property because William “didn’t like [Avent or]
the color of [his] skin.”
The trial court found Avent’s proffered testimony
inadmissible for several reasons. First, the court determined
it was hearsay because it was being offered to prove William’s
alleged racism. Second, it was inadmissible because it was
irrelevant: William’s “views on race relations [we]re not an
issue” in the case and were therefore collateral. Finally,
there would be no opportunity to cross-examine William — and
likely no opportunity to cross-examine Thomas — regarding the
statements. Additional argument followed the trial court’s
ruling, after which the trial court commented that William’s
statements were “so removed in time and so irrelevant to this
case that the Court believes they have no probative value.”
Avent then testified on his own behalf. Avent testified
that he had smoked an entire six-inch “blunt” of marijuana and
consumed a 32-ounce bottle of Colt 45 beer approximately “30,
35 minutes before” he arrived at William’s house. Avent stated
that he was “pretty much high” when he arrived at William’s
house, and he was intoxicated during the assault.
Avent testified that he and Thomas, along with Thomas’
three sons, had gone to William’s house to get Thomas’ checks.
Thomas entered the house and was inside for “10 or 15 minutes”
when Avent heard “arguing” and a “loud bang noise.” Avent
14
claimed that he retrieved the shotgun from the trunk of the car
and brought the gun into the house concealed in his pants in
response to the “loud banging noise,” and because he was
“paranoid” and “scared” as a result of “smoking [marijuana] and
drinking [alcohol]” Avent testified that he went into “the
house to get [Thomas] out of the house before she get herself
into any trouble or whatever.” Avent stated that he did not
plan on killing, assaulting, or injuring William when he
entered the house.
According to Avent, William attacked him and struck him
multiple times in the face with “his fist and his hand” once
Avent entered from the outside into the kitchen. Avent also
asserted that William said, “Nigger, what are you doing in my
house?” while he was striking Avent. Avent claimed that
William hit Avent three times “at the most” and choked him as
well. Avent stated that William’s attack “put fear in [him].
[He] was scared and [he] was mad” because he felt William was
“really going to hurt” him, and because he thought William was
attacking him “just because of the color of [his] skin.”
When the choking ceased, William “got up and he said, ‘I
got something for you.’ ” William then “turned around . . .
and started going towards the stairs and up the stairs.” Avent
testified that he “had a good idea that [William] was going to
get a gun.” Avent followed William “upstairs behind him to
15
stop him and tell him I wasn’t there to fight him” because he
was aware that Thomas’ sons were in the car and Avent “wasn’t
going to go out to the car and put the kids’ life on the line.”
Avent claimed that once Avent got upstairs, William “hit
[him] in the back of [his] head . . . [w]ith a board” which
caused bleeding from “the back left of [his] head.” Avent
testified that he “got madder and madder” because he “was
telling [William] the whole time” William was hitting him that
Avent “wasn’t there to fight him.” In addition to the injury
to his head, Avent stated that he suffered injuries “on both of
[his] arms . . . as far as knots and swelling” and “knots and
swelling and a bruise on [his] left leg, too.”
Avent testified that he was “holding up [his] arms” to
protect himself from William, and finally drew the shotgun
because he “just got so mad that [William] kept on hitting” him
and because he “was scared of [William] possibly taking [his]
life and hurting” him. Avent stated that when he fired the
shotgun at William, William was “30 feet” away from Avent.
Avent was unable to answer whether William was “moving towards”
him or away from him when Avent shot him. Avent asserted that
he “just pulled out the gun, turned [his] head away and shot”
the gun.
After Avent shot William, a fight ensued. Avent testified
that William “still came towards” Avent and William “was
16
swinging.” Avent testified that he “got madder and madder, so
I hit him back hard one time. He fell down on the floor, and I
just continued to hit him” with the barrel of the gun. William
fell after Avent hit him one time, and Avent stated “I think he
lost or he dropped the board as soon as he fell and hit the
floor” and he never regained possession of the board. Avent
testified that while William was on the ground, Avent “was
bending over,” striking him with the shotgun. Avent stated
that after he stopped hitting William, Avent “had got
overheated and blacked out, and [he] fell to the floor.”
Avent asserted that he was dazed for a “split-second,” and
when he regained consciousness, he helped Thomas remove
William’s body from the house because he was scared. He also
took the board William used to hit him because he was scared
and “wanted to get rid of the evidence that was there.” Avent
and Thomas were cleaning up the scene for approximately “30
minutes” and they then left together, first for North Carolina
and then Arizona.
Avent conceded that he had not been truthful when he told
investigators that he had never fired the shotgun prior to that
time, stating that he “simply forgot.” Avent added that during
his interrogation, Major Roberts had threatened him with a
capital murder charge if he did not cooperate and as a result
Avent was scared and “in like a shock state or zone.” Avent
17
also contended that most of his injuries had healed by the time
the officers interviewed him in Arizona.
On cross-examination, Avent conceded that on the audio
recording, the final question asked was whether Avent “had
anything else at all to say about what had happened.” Despite
that opportunity, Avent admitted that during the interrogation
he made no mention of the loud banging noise, his use of drugs
or alcohol, William’s use of a racial slur, the threat Major
Roberts allegedly made to him, or Avent’s disposal of the board
he alleged William had used to attack him. On several
occasions in his testimony, Avent responded that there were a
number of things he and Captain Washburn had discussed that
were not in his written statements.
At the close of all the evidence, Avent renewed his motion
to strike on the following grounds: (i) the Commonwealth’s
case should be struck on the grounds of self-defense, (ii) his
intoxication negated the element of premeditation and therefore
the charge of first-degree murder should be struck, and (iii)
the Commonwealth’s evidence only supported a conviction of
voluntary manslaughter and therefore the use of a firearm in
the commission of a felony should be struck. The trial court
denied Avent’s renewed motion to strike.
The trial court held that Avent was not entitled to a
defense based on justifiable self-defense because Avent
18
followed William upstairs after the initial altercation had
ended. Nor was Avent entitled to a defense based on excusable
self-defense because he failed to “retreat as far as he safely
could under the circumstances,” he did not make a “good-faith
attempt to abandon the fight,” and he “used more force than was
reasonably necessary to protect himself from the threat of
harm.”
The trial court found that Avent’s voluntary intoxication
was not sufficient “to render him incapable of premeditation”
and accordingly denied Avent’s motion to strike on that basis.
The trial court further noted that “the facts taken in the
light most favorable to the Commonwealth have not changed
significantly” from the time of Avent’s previous motion to
strike the charges of first- and second-degree murder,
therefore “they are still proper charges for the trier of fact
to consider.” Accordingly, the trial court denied Avent’s
motion to strike on that basis.
Avent proffered the following jury instruction on
justifiable self-defense:
If you believe that the defendant was without
fault in provoking or bringing on the
difficulty, and if you further believe that the
defendant reasonably feared, under the
circumstances as they appeared to him, that he
was in danger of being killed or that he was in
danger of great bodily harm, then the killing
was in self defense, and you shall find the
defendant not guilty.
19
The trial court refused to give this instruction, holding that
the “evidence does not exist to grant the instruction as a
matter of law” because “the defendant used more force than was
reasonably necessary to protect himself from threat and harm.”
The trial court also noted that Avent’s statements about being
angry “lead[] into manslaughter, but also to a great extent,
vitiate[] self-defense.”
Among other instructions, the trial court gave the jury
instructions on first-degree murder, second-degree murder, and
voluntary manslaughter. The jury was also given an
instruction on voluntary intoxication: if Avent was “so
greatly intoxicated by the voluntary use of alcohol and drugs
that he was incapable of deliberating or premeditating, then
you cannot find him guilty of murder in the first degree.”
The jury found Avent guilty of first-degree murder and use of
a firearm in the commission of murder.
During the penalty phase, Avent objected to the following
argument made by the prosecutor:
The cruelty and the brutality of that murder
has to be punished, and what does he deserve as
punishment for that? He deserves to spend
every day of the rest of his natural life in
prison.
Now, the second thing that I’d ask that
you consider, not only as punishment for him,
but the second thing is to look at the danger
he would pose if he wasn’t in prison because if
20
you do anything else less than life, anything
less, then one day he’s going to walk out of
that prison cell, and he’s going to come back
in this society.
Avent moved for a mistrial based on “improper and
inappropriate” argument. The trial court denied Avent’s motion
for a mistrial, and overruled his objection on the ground that
“the Commonwealth ought to be able to argue restraint.” The
jury recommended a sentence of life imprisonment plus three
years.
Following his conviction, Avent made a motion for a new
trial based on after-discovered evidence. At a hearing on the
motion, Deborah Burkett (“Burkett”), a social work supervisor
with the Brunswick County Department of Social Services,
testified that “10, 12 years ago” a “child protective service
complaint” was received regarding the victim, William. The
complaint was initially filed by “somebody within the community
who [William’s wife] had gone to.”
Burkett testified that there was a letter indicating that
William “had abused his wife and that social services assisted
her in moving to federal housing.” There was also “a complaint
being made of [William] being accused of beating his toddler
boys with switches.” Record of this complaint had been
“expunged from [the] agency” having “surpassed the timeframe to
be retained.” Apart from that complaint, William’s wife on
21
“numerous later occasions [] presented [William] as being a
very loving, caring, father/husband.” Burkett testified that
she had not heard of any reputation in the community for
violence on the part of William.
The Commonwealth conceded at the hearing that it had not
discovered this information until after the trial and after it
had exercised due diligence. Additionally, the Commonwealth
admitted that the evidence was not cumulative or collateral
because “there was no other evidence of any reputation of
violence or prior acts of violence.”
At the conclusion of the hearing, the trial court
determined that the proffered after-discovered evidence “almost
certainly would not have produced an opposite result at trial.”
The trial court reached this result in part because it had
decided that “the defendant could not avail himself of a self-
defense instruction.” Additionally, the trial court expressed
doubt that the evidence would be admissible.
Avent timely filed his notice of appeal, and the Court of
Appeals, per curiam, denied by unpublished order his petition
for appeal. Avent v. Commonwealth, Record No. 2941-07-2
(October 21, 2008). A three-judge panel affirmed the denial of
Avent’s appeal. Avent v. Commonwealth, Record No. 2941-07-2
(February 26, 2009). Avent timely filed his notice of appeal
22
and we awarded an appeal on the following ten assignments of
error:
1. The Court erred in refusing to grant the defense
counsel’s Motion to Suppress his statements on the
grounds that they were not voluntary.
2. The Court erred when it denied defense counsel’s
Baston [sic] motion.
3. The Court erred by refusing to allow in evidence of
the defendant’s state of mind as it pertained to the
defenses of voluntary manslaughter and self-defense.
4. The Court erred in refusing to grant the defense
counsel’s Motion to Strike on the basis that the
defendant acted in self-defense.
5. The Court erred in refusing to grant the defense
counsel’s self-defense jury instruction.
6. The Court erred in failing to find the defendant
guilty of voluntary manslaughter, and in failing to
thus, acquit him of use of a firearm.
7. The Court erred in failing to grant defense
counsel’s motion for a mistrial on the basis of
improper argument at the penalty phase by the
Commonwealth.
8. The Court erred by denying the defense counsel’s
motion for a new trial based on after-discovered
evidence.
9. The defendant should have been acquitted of first
degree murder as the element of premeditation was
negated by intoxication.
10. The Court erred when it found that there was
sufficient evidence to find that the defendant
premeditated, as to support a conviction for first
degree murder.
II. ANALYSIS
A. PRE-TRIAL ISSUES
1. Motion to Suppress
Avent argues that it was error for the trial court to
deny his motion to suppress the statements he made to the
officers in Arizona because the statements were obtained in a
23
manner that “arguably falls under coercive police activity due
to the duration of time that [Avent] was held and questioned,
and the threatening remarks that were made to him.”
a. Standard of Review
“The standard of review for determining whether a
defendant’s confession was voluntary is well-established . . .
Voluntariness is a question of law, subject to independent
appellate review.” Midkiff v. Commonwealth, 250 Va. 262, 268-
69, 462 S.E.2d 112, 116 (1995.) “Subsidiary factual
questions, however, are entitled to a presumption of
correctness.” Id. at 268, 462 S.E.2d at 116 (citations
omitted).
b. Analysis
“If the suspect’s will has been overborne and his capacity
for self-determination critically impaired, the confession is
considered involuntary and its use is unconstitutional.” Id.
(citation and quotation marks omitted).
The test to be applied in determining
voluntariness is whether the statement is
the ‘product of an essentially free and
unconstrained choice by its maker,’ or
whether the maker’s will ‘has been overborne
and his capacity for self-determination
critically impaired.’ Schneckloth v.
Bustamonte, 412 U.S. 218, 225 (1973). In
determining whether a defendant’s will has
been overborne, courts look to ‘the totality
of all the surrounding circumstances,’ id.
at 226, including the defendant’s background
and experience and the conduct of the
24
police, Correll v. Commonwealth, 232 Va.
454, 464, 352 S.E.2d 352, 357 (1987).
Midkiff, 250 Va. at 268, 462 S.E.2d at 116 (quoting Burket v.
Commonwealth, 248 Va. 596, 611, 450 S.E.2d 124, 132 (1994)).
The record in this case, which includes Avent’s own
testimony, indicates that his will was not overborne and his
capacity for self-determination was not impaired. Avent was
apprised of his Miranda rights by the interrogating officer, he
was given food and an opportunity to sleep, and he described
himself as “calm” and “comfortable” throughout the questioning.
The trial court, acting as the fact-finder, found that
there was “no threat of a murder charge, no threat of physical
harm, [and] no promises of leniency.” Further, the trial court
found Avent to be “a man of at least average intelligence,”
thereby capable of understanding the nature of his
interrogation, a fact to which Avent agreed in his testimony.
Recognizing as we did in Midkiff that “[a]ll police
interviews of suspects have coercive aspects to them by virtue
of the fact that the interrogating officer is part of a system
which may ultimately charge the suspect with a crime,” 250 Va.
at 269, 462 S.E.2d at 117, nothing in the record before us
requires a reversal of the trial court’s denial of Avent’s
motion to suppress. The trial court properly assessed whether
Avent’s will was overborne under the circumstances, and
25
credited the officers’ testimony — a factual determination to
which we accord deference. Accordingly, the trial court did
not err when it denied Avent’s motion to suppress.
2. Batson Motion
Avent contends the trial court erred when it denied his
Batson motion.
a. Standard of Review
“On appellate review, the trial court’s conclusion
regarding whether reasons given for the strikes are race-
neutral is entitled to great deference, and that determination
will not be reversed on appeal unless it is clearly
erroneous.” Jackson v. Commonwealth, 266 Va. 423, 437, 587
S.E.2d 532, 543 (2003).
b. Analysis
When a defendant raises a challenge based on
Batson, he must make a prima facie showing that
the peremptory strike was made on racial
grounds. At that point, the burden shifts to
the prosecution to produce race-neutral
explanations for striking the juror. The
defendant may then provide reasons why the
prosecution's explanations were pretextual and
the strikes were discriminatory regardless of
the prosecution's stated explanations. Whether
the defendant has carried his burden of proving
purposeful discrimination in the selection of
the jury is then a matter to be decided by the
trial court.
Id. at 436, 587 S.E.2d at 542.
26
In this case, it was incumbent upon Avent to demonstrate
that the reasons advanced by the Commonwealth for striking
these potential jurors “were purely a pretext for
unconstitutional discrimination,” Juniper v. Commonwealth, 271
Va. 362, 407, 626 S.E.2d 383, 412 (2006). On appeal, Avent
only focuses upon two jurors.
The trial court found that the Commonwealth offered
“facially valid race-neutral reasons” for the exercise of its
strikes, and at that point the burden shifted back to Avent.
Avent did not offer any evidence or argument that the
Commonwealth’s proffered rationale behind the two strikes
challenged in this appeal were pretextual. Accordingly, the
trial court was not clearly erroneous in denying Avent’s Batson
motion.
B. GUILT PHASE ISSUES
1. Evidence of Avent’s State of Mind
Avent argues that the trial court erred when it ruled
that certain statements made by William to Thomas, later
relayed to Avent, were inadmissible.
a. Standard of Review
Generally, we review a trial court's
decision to admit or exclude evidence using an
abuse of discretion standard and, on appeal,
will not disturb a trial court's decision to
admit evidence absent a finding of abuse of
that discretion.
27
John Crane, Inc. v. Jones, 274 Va. 581, 590, 650 S.E.2d 851,
855 (2007).
b. Analysis
Avent asserts that his proffered testimony regarding
William’s disapproval of African Americans was “relevant and a
material issue” to his case, namely the impact this
information had on Avent’s “mental state, as to reasonable
provocation, heat of passion, and self-defense claims.” We
disagree with Avent and hold that the trial court did not
abuse its discretion when it excluded Avent’s proffered
testimony. The trial court found that the statements William
made to Thomas were “so removed in time and so irrelevant to
this case that the Court believes they have no probative
value.” “[A] great deal must necessarily be left to the
discretion of the [trial court], in determining whether
evidence is relevant to the issue or not. Evidence is
relevant if it has any logical tendency to prove an issue in a
case.” Id. (Citation and quotation marks omitted).
Regarding Avent’s claim of reasonable provocation, we
have held that “provocation cannot be relied upon to reduce
murder in the second degree to manslaughter, unless the
provocation has so aroused the anger of the assailant as to
temporarily affect his reason and self-control.” Jacobs v.
Commonwealth, 132 Va. 681, 685, 111 S.E. 90, 92 (1922).
28
In this case, the trial court found William’s alleged
statements “so removed in time” as to be irrelevant to the
issue of reasonable provocation. We agree. Accordingly, we
hold that the trial court did not abuse its discretion when it
excluded Avent’s proffered testimony as irrelevant.
2. Motions to Strike
At the conclusion of the presentation of all the
evidence, Avent made several motions to strike. Avent
contends that it was error for the trial court to deny his
motion to strike the Commonwealth’s case on the basis of self-
defense. In the alternative, Avent argues that the trial
court erred when it denied his motion to strike the charge of
first-degree murder on the grounds that his voluntary
intoxication negated the element of premeditation, and his
motion to strike the charges of first- and second-degree
murder on the basis that the evidence only supported a charge
of voluntary manslaughter. Avent further contends that if the
charges of first- and second-degree murder were struck, the
trial court was required to strike the charge of use of a
firearm in the commission of a felony.
a. Standard of Review
We review the trial court’s ruling denying
the motion to strike in accordance with well-
settled principles:
29
When the sufficiency of [the
Commonwealth’s] evidence is challenged
by a motion to strike, the trial court
should resolve any reasonable doubt as
to the sufficiency of the evidence in
the [Commonwealth’s] favor and should
grant the motion only when it is
conclusively apparent that [the
Commonwealth] has proven no cause of
action against defendant, or when it
plainly appears that the trial court
would be compelled to set aside any
verdict found for the [Commonwealth] as
being without evidence to support it.
Banks v. Mario Indus., 274 Va. 438, 454-55, 650 S.E.2d 687, 696
(2007) (quoting Saks Fifth Ave., Inc. v. James, Ltd., 272 Va.
177, 188, 630 S.E.2d 304, 311 (2006)).
b. Analysis
i. Self-defense
Avent asserts that it was error to deny his motion to
strike the Commonwealth’s evidence on the grounds that he
acted in self-defense as a matter of law. Viewing the
evidence in the light most favorable to the Commonwealth, the
party opposing the motion to strike at trial, we hold that the
trial court did not err when it denied Avent’s motion to
strike based upon self-defense.
“Killing in self-defense may be either justifiable or
excusable homicide. Justifiable homicide in self-defense
occurs where a person, without any fault on his part in
provoking or bringing on the difficulty, kills another under
30
reasonable apprehension of death or great bodily harm to
himself.” Yarborough v. Commonwealth, 217 Va. 971, 975, 234
S.E.2d 286, 290 (1977) (emphasis added) (quotation marks
omitted).
The trial court correctly held that Avent’s own
statements to the police prohibit him from the benefit of
self-defense as a matter of law. In Avent’s handwritten
account of the events, he stated that William “stopped
[hitting Avent] and went upstairs. [Avent] followed behind
him slow to see what he was doing.” In response to Captain
Washburn’s question, Avent said that he followed William
upstairs because he “was mad, because [William] had choked”
him.
By Avent’s own account, an angry Avent followed William
upstairs in William’s home, following an altercation, and
carrying a sawed-off shotgun. Based on the evidence, Avent
was not “without any fault on his part in provoking or
bringing on the difficulty.” Id. Accordingly, the trial
court did not err when it denied Avent’s motion to strike
based on justifiable self-defense.
The trial court denied Avent’s motion to strike based on
excusable homicide due to Avent’s failure to retreat from the
scene of the altercation and his use of excessive force.
31
Excusable homicide in self-defense occurs where
the accused, although in some fault in the
first instance in provoking or bringing on the
difficulty, when attacked retreats as far as
possible, announces his desire for peace, and
kills his adversary from a reasonably apparent
necessity to preserve his own life or save
himself from great bodily harm.
Id.
As recounted above, rather than exit from the first-floor
of the house to his parked vehicle, Avent followed William
upstairs. Once upstairs, William allegedly hit Avent in the
back of the head with a board. Avent then shot William from a
distance of “30 feet.” Avent testified that William “still
came towards” him and so Avent hit him one time, a blow that
caused William to fall to the floor and lose control of the
board. It was at that point that Avent, on his feet, beat a
prone and unarmed William to the point that William’s skull
was dramatically disfigured, the shotgun was broken into
pieces, and Avent himself was exhausted from the violence of
the attack.
Avent’s own testimony reveals that he did not “retreat[]
as far as possible.” Id. Additionally, when William —
without a weapon and wounded by a shotgun — was on the ground
after a blow from Avent, Avent was not acting out of a
“reasonably apparent necessity to preserve his own life.” Id.
Accordingly, the trial court did not err when it denied
32
Avent’s motion to strike on the basis of excusable homicide in
self-defense.
ii. Voluntary Intoxication
The trial court denied Avent’s motion to strike the
charge of first-degree murder on the basis of his voluntary
intoxication. We hold that the trial court did not err when
it submitted the question of voluntary intoxication to the
jury.
Jury instruction number 12A read:
If you find that the defendant was so
greatly intoxicated by the voluntary use of
alcohol and drugs that he was incapable of
deliberating or premeditating, then you cannot
find him guilty of murder in the first degree.
Voluntary intoxication is not a defense to
murder in the second degree or voluntary
manslaughter.
Viewing the evidence in the light most favorable to the
Commonwealth, there was sufficient evidence to support the
finding that Avent was not “so greatly intoxicated . . . that
he was incapable of deliberating or premeditating.” See
Wright v. Commonwealth, 234 Va. 627, 629, 363 S.E.2d 711, 712
(1988) (“Mere intoxication will not negate premeditation.”)
The facts adduced at trial indicate that Avent provided a
detailed recollection of the chronology of events to the
investigating officers, and again in his trial testimony.
Avent testified to entering Thomas’ house carrying a shotgun
33
“to protect” himself after he “heard a loud banging noise.”
Avent followed Thomas upstairs “telling him the whole time
that I wasn’t there to fight him, I just wanted to get his
daughter and go,” rather than flee from the house because he
“wasn’t going to go out to the car and put the kids’ life on
the line.” Avent also testified that when Thomas assaulted
him, he “was afraid he was really going to hurt me, and
[Avent] was mad at the same time because [Thomas] was
attacking [Avent] because of the color of [Avent’s] skin.”
Following William’s death, a “scared” Avent worked with Thomas
to move the body and clean the house.
From Avent’s own testimony, it is clear that on the day
in question Avent comprehended what was occurring, he recalled
the chain of events, and he articulated reasons for his
reaction to the developing situation in a way that supports a
finding that he was capable of deliberation despite his
consumption of intoxicants. Accordingly, the trial court did
not err when it denied Avent’s motion to strike the charge of
first-degree murder on the grounds that he was voluntarily
intoxicated.
iii. Voluntary Manslaughter
The trial court denied Avent’s motion to strike the
charges of first- and second-degree murder, holding that
Avent’s use of the shotgun as a deadly weapon made the charges
34
of first- and second-degree murder appropriate. Avent
contends the trial court erred when it determined that the
evidence supported the greater charges.
“Generally, whether a killing was done in the heat of
passion upon reasonable provocation is a jury question.”
Barrett v. Commonwealth, 231 Va. 102, 106, 341 S.E.2d 190, 192
(1986). “Manslaughter . . . is the unlawful killing of
another without malice.” Jenkins v. Commonwealth, 244 Va.
445, 457, 423 S.E.2d 360, 368 (1992). Malice may be inferred
“from the deliberate use of a deadly weapon unless, from all
the evidence,” there is reasonable doubt as to whether malice
existed. Smith v. Commonwealth, 239 Va. 243, 263, 389 S.E.2d
871, 882 (1990). A “common theme running through [the
definitions of malice] is a requirement that a wrongful act be
done wilfully or purposefully.” Essex v. Commonwealth, 228
Va. 273, 280, 322 S.E.2d 216, 220 (1984) (quotation marks
omitted).
In this case, Avent admitted to purposefully using a
sawed-off shotgun both to shoot and bludgeon William.
Therefore, there was sufficient evidence from which the jury
could infer malice, and the charges of first- and second-
degree murder were properly before the jury. Accordingly, we
hold that the trial court did not err when it denied Avent’s
motion to strike those charges. For the same reasons, the
35
trial court did not err when it failed to strike the charge of
use of a firearm in the commission of a felony.
3. Self-Defense Jury Instruction
Avent argues that the trial court erred when it refused
to instruct the jury on his proffered self-defense jury
instruction.
a. Standard of Review
Because the trial court refused to grant the
instruction proffered by the accused, we view
the facts in the light most favorable to the
defendant. However, an instruction is proper
only if supported by more than a scintilla of
evidence. If the instruction is not applicable
to the facts and circumstances of the case, it
should not be given. Thus, it is not error to
refuse an instruction when there is no evidence
to support it.
Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736
(2001) (citations omitted).
b. Analysis
The trial court refused Avent’s proffered instruction,
ruling “as a matter of law, . . . the defendant used more
force than was reasonably necessary to protect himself from
threat and harm.” Additionally, the trial court found that
“[o]nce the defendant pursued the decedent up the stairs, he
lost the defense of justifiable homicide.”
Under either account of the events given by Avent – his
trial testimony or his statements made to investigators – he
36
forfeited his right to a self-defense jury instruction because
he was not without fault in bringing on the difficulty that
resulted in William’s death, and he was not in reasonable fear
of death or great bodily harm when he killed William.
Accordingly, viewing the evidence in the light most favorable
to the accused, we hold that the trial court did not err when
it refused Avent’s proffered jury instruction on justifiable
homicide.
“If a defendant is even slightly at fault, the killing is
not justifiable homicide.” Perricllia v. Commonwealth, 229
Va. 85, 94, 326 S.E.2d 679, 685 (1985). While there are
inconsistencies in Avent’s account of the events, he
consistently stated that the alleged altercation between
himself and William ended when William went upstairs. Avent
stated that during William’s alleged assault, William used a
racial epithet, and that when William ascended the stairs,
Avent believed he was going to retrieve a gun. Despite this
obvious hostility toward Avent and despite the fact that his
vehicle was available outside, mere steps from where he
entered William’s house, Avent pursued William upstairs
carrying a shotgun. We hold that the trial court did not err
in ruling that Avent was not entitled to a justifiable
homicide jury instruction due to his fault in bringing on the
difficulty by pursuing William upstairs.
37
Assuming arguendo that Avent was not at fault when he
followed William upstairs, or when he discharged the shotgun,
we agree with the trial court that at the instant Avent
applied lethal force he was not “under reasonable apprehension
of death or great bodily harm to himself.” Yarborough, 217
Va. at 975, 234 S.E.2d at 290. Avent’s own account of the
events reveals the following chronology: William attacked
Avent with a board, Avent shot William one time, William
continued his attack, and then Avent “hit him back hard one
time” with a blow strong enough to knock William to the floor
and the board from his hand.
At that moment, Avent stood astride William who was
wounded from a gunshot and on the floor without a weapon —
hardly a position that evokes “reasonable apprehension of
death or great bodily harm to himself.” Id. Despite
William’s prone and wounded position, Avent proceeded to
bludgeon him repeatedly with the barrel of the gun, conduct to
which the medical examiner ascribed William’s cause of death.
Consequently, we hold that under the circumstances, Avent’s
use of force was not reasonable to justify killing William.
The trial court did not err when it refused to grant Avent’s
proffered self-defense jury instruction.
4. Motion for New Trial
38
Avent contends that it was error for the trial court to
deny his motion for a new trial on the basis of improper
argument at the penalty phase of the trial. Avent asserts
that the argument “appealed to the jury’s passion, and that
the case should be remanded for new trial as to punishment.”
a. Standard of Review
We apply an abuse of discretion standard of review to the
trial court’s determination of whether the Commonwealth’s
argument was objectionable.
Sometimes it is difficult to draw the line
between proper and improper comments, hence the
general rule is to leave such distinction
largely to the discretion of the trial court,
whose ruling will be allowed to stand unless it
is made to appear probable that the party
complaining has been substantially prejudiced
by the objectionable remarks or argument.
McLean v. Commonwealth, 186 Va. 398, 401, 43 S.E.2d 45, 47
(1947).
b. Analysis
Avent is correct that a “prosecutor’s request . . . must
not appeal . . . to the jurors’ passions by exciting their
personal interests in protecting the safety and security of
their own lives and property.” Hutchins v. Commonwealth, 220
Va. 17, 19, 255 S.E.2d 459, 460-61 (1979). However, the
language of which Avent complains does not violate that
standard.
39
During the penalty phase, the prosecutor said:
Now, the second thing that I’d ask that
you consider, not only as punishment for him,
but the second thing is to look at the danger
he would pose if he wasn’t in prison because if
you do anything else less than life, anything
less, then one day he’s going to walk out of
that prison cell, and he’s going to come back
in this society.
This case is distinguishable from Hutchins. In Hutchins,
during a trial held in Franklin County, the prosecutor made
specific, repeated reference to the safety and security of the
jurors during closing argument. Id. at 18, 235 S.E.2d at 460.
At one point, the prosecutor stated, “[t]his case is about the
security of Franklin County property owners.” Id. Later, the
prosecutor asked,
What message are you going to send out to the
people of Franklin County? Are you going to
send out, ‘Come on down. It’s down there.
It’s yours for the picking. We don’t care. We
don’t think it’s serious. We’re going to slap
him on the wrist and turn him loose.’
Id. at 19, 235 S.E.2d at 460-61. We assessed the prejudice of
such an argument by noting:
What this argument does is create an atmosphere
wherein a defendant may be convicted and
punished, not just for the offense on trial,
but to set an example to deter some unknown
future criminal activity by some as yet
unidentified outside criminal actor. The
potential harm in such an argument is that it
tends both to inflame a juror's natural
prejudice against an outsider entering his
jurisdiction for criminal purposes and to
divert the juror's attention from the evidence
40
produced at trial and focus it upon extraneous
and inadmissible matters.
Id. at 20, 255 S.E. 2d at 461.
In this case, there was no reference to potential
criminal offenses by others. Based upon our review of the
record, we cannot say that Avent was “substantially
prejudiced” by the prosecutor’s statement during the
sentencing phase of his trial. See McLean, 186 Va. at 401, 43
S.E.2d at 47. Accordingly, we cannot find that the trial
court abused its discretion when it denied Avent’s motion for
a new trial based on improper argument.
C. POST-TRIAL ISSUES
1. After-Discovered Evidence
Avent argues that the trial court erred when it denied
his motion for a new trial based on after-discovered evidence.
a. Standard of Review
A motion for a new trial based on after-discovered
evidence “is a matter submitted to the sound discretion of the
circuit court and will be granted only under unusual
circumstances after particular care and caution has been given
to the evidence presented.” Orndorff v. Commonwealth, 271 Va.
486, 501, 628 S.E.2d 344, 352 (2006).
b. Analysis
41
“Motions for new trials based on after-discovered
evidence are . . . not looked upon with favor, are considered
with special care and caution, and are awarded with great
reluctance.” Odum v. Commonwealth, 225 Va. 123, 130, 301
S.E.2d 145, 149 (1983). See Garnett v. Commonwealth, 275 Va.
397, 416-17, 657 S.E.2d 100, 112 (2008); Commonwealth v.
Tweed, 264 Va. 524, 528-29, 570 S.E.2d 797, 800 (2002). The
moving party
bears the burden to establish that the evidence
(1) appears to have been discovered subsequent
to the trial; (2) could not have been secured
for use at the trial in the exercise of
reasonable diligence by the movant; (3) is not
merely cumulative, corroborative or collateral;
and (4) is material, and such as should produce
opposite results on the merits at another
trial.
Id. The moving party “must establish each of these mandatory
criteria.” Garnett, 275 Va. at 417, 657 S.E.2d at 112.
In this case, the Commonwealth conceded that the first
three criteria have been satisfied. The trial court, without
deciding whether the first three criteria were satisfied,
ruled that if this after-discovered evidence had been
available at trial, “there is virtually no likelihood that it
would have produced the opposite result.” We agree with the
trial court and hold that it did not abuse its discretion in
reaching this conclusion.
42
As the trial court correctly noted, there is doubt
whether the after-discovered evidence would be admissible at
trial. “[W]here an accused adduces evidence that he acted in
self-defense, evidence of specific acts is admissible to show
the character of the decedent for turbulence and violence,
even if the accused is unaware of such character.” Barnes v.
Commonwealth, 214 Va. 24, 25, 197 S.E.2d 189, 190 (1973).
However, this statement of the law has been qualified. “[T]he
ultimate issue becomes whether such evidence of prior conduct
was sufficiently connected in time and circumstances with the
homicide as to be likely to characterize the victim’s conduct
toward the defendant.” Id. at 26, 197 S.E.2d at 190. “A
single act of bad conduct does not establish one’s unfavorable
character. While evidence of a series of bad acts may
collectively be admissible to establish poor character, the
conduct in a single incident is insufficient.” McMinn v.
Rounds, 267 Va. 277, 282, 591 S.E.2d 694, 697 (2004).
The after-discovered evidence in this case was not
connected in time or circumstances with the homicide. The
accusations introduced at the hearing are between 10 and 12
years before the killing, and they involve domestic conduct,
not a confrontation of the type Avent alleges occurred on the
day in question.
43
Assuming arguendo that the evidence would be admissible
at a new trial, it would not be likely to alter the outcome.
Even armed with the new evidence, Avent’s statements to the
police and his trial testimony precluded him, as a matter of
law, from the benefit of a jury instruction on self-defense.
Additionally, the jury had before it Avent’s account of the
events that included William’s alleged use of provocative
language and physical assault. The jury rejected Avent’s
account and the addition of a decade-old allegation would not
likely “produce opposite results on the merits at another
trial.” Garnett, 275 Va. at 417, 657 S.E.2d at 112. We hold
that the trial court did not abuse its discretion when it
denied Avent’s motion for a new trial based on after-
discovered evidence.
2. Motion to Set Aside the Verdict
Avent assigns error to the trial court’s denial of his
motion to set aside the jury’s verdict and the sentencing
order on the grounds that there was insufficient evidence of
premeditation to support a finding of first-degree murder.
a. Standard of Review
“When reviewing the sufficiency of the evidence to
support a conviction, the Court will affirm the judgment
unless the judgment is plainly wrong or without evidence to
44
support it.” Bolden v. Commonwealth, 275 Va. 144, 148, 654
S.E.2d 584, 586 (2008).
b. Analysis
[T]he question whether a defendant is guilty of
a premeditated killing of the victim is usually
a jury question. The intention to kill need
not exist for any specified length of time
prior to the actual killing; the design to kill
may be formed only a moment before the fatal
act is committed provided the accused had time
to think and did intend to kill.
. . . .
To premeditate means to adopt a specific intent
to kill, and that is what distinguishes first
and second degree murder. The intent to kill
must come into existence at some time before
the killing; it need not exist for any
particular length of time.
Remington v. Commonwealth, 262 Va. 333, 352, 551 S.E.2d 620,
632 (2001) (citations and quotation marks omitted).
In deciding [whether premeditation and
deliberation exist], the jury may properly
consider the brutality of the attack, and
whether more than one blow was struck, the
disparity in size and strength between the
defendant and the victim, the concealment of
the victim’s body, and the defendant’s lack of
remorse and efforts to avoid detection.
Epperly v. Commonwealth, 224 Va. 214, 232, 294 S.E.2d 882, 892
(1982) (citations omitted). Viewing the evidence in the light
most favorable to the Commonwealth, there was sufficient
evidence for the jury to find that Avent committed
premeditated, first-degree murder.
45
Avent entered William’s house only after Thomas had
entered through a window, and he did so carrying a concealed,
sawed-off shotgun. Following a skirmish on the first floor,
Avent gave several different reasons for following William
upstairs, among them Avent’s anger towards William. Once
upstairs, Avent shot and then brutally bludgeoned an unarmed
William to the point that William’s skull collapsed. Avent
used such violent force that afterward he was “leaning up
against the wall and [his] head was hurting” and the gun was
broken into pieces.
Following the assault, Avent and Thomas tried to conceal
William’s death by cleaning up blood, hiding or discarding
evidence, dragging William’s body to an out-building and
covering it, then fleeing to a remote settlement on the Navajo
Reservation in Arizona. When he was interviewed in Arizona,
Avent “showed no emotion” and “did not ask anything about the
Thomas family.” Despite Avent’s claims that William attacked
him, no witness that saw Avent following the alleged attack
was able to identify any injuries to him.
The record reveals a brutal attack where, after the
victim was shot, more than one blow was struck, and the
defendant attempted to conceal the crime and avoid detection,
and expressed no remorse for the killing. Accordingly, there
was ample evidence to support the jury’s finding of
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premeditated killing in the first degree. Therefore, the
trial court did not err when it denied Avent’s motion to set
aside the verdict on the grounds that there was insufficient
evidence to support a finding of premeditation.
III. CONCLUSION
For the foregoing reasons, we will affirm the judgment of
the Court of Appeals.
Affirmed.
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