COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Richmond, Virginia
SHIRLEY R. RHODES, S/K/A
SHIRLEY ROGER RHODES
OPINION BY
v. Record No. 2975-01-2 JUDGE ROSEMARIE ANNUNZIATA
JULY 29, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY
James A. Luke, Judge
Carson E. Saunders, Jr. (Vincent Law Firm, on
briefs), for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Rhodes was convicted by a jury of the first-degree murder
of Mary Lou Orloff and was sentenced to life imprisonment. On
appeal, he argues the trial court committed reversible error
when it refused to instruct the jury on "heat of passion." For
the reasons that follow, we affirm.
Facts
On appeal, when the issue is a refused jury instruction,
"[the evidence is viewed] in the light most favorable to the
proponent of the instruction." Lynn v. Commonwealth, 27
Va. App. 336, 344, 499 S.E.2d 1, 4-5 (1998) (citation omitted).
So viewed, the evidence shows that on Sunday, July 23, 2000,
Mary Lou Orloff returned to the home she shared with Rhodes at
approximately 5:30 p.m. She and Rhodes began arguing after he
requested her assistance in paying a bill in the amount of
$4,500. In the course of the argument she cursed at him, and
"got to pointing and stabbing me in my face with her fingers."
Officer James Huddle testified and read for the jury the written
statement Rhodes made to him after Orloff's body was discovered.
Huddle stated that, after Rhodes told him that Orloff put her
fingers in his face while they argued, Rhodes demonstrated the
movement for him and it was "sort of like pointing." Rhodes hit
Orloff in the stomach, and she put her hands in a clawing
position. He then hit her in the face, and she fell to the
floor and threatened to put a bullet in him. Rhodes stated he
might have stunned her with a stun gun at that point. After
Orloff fell to the ground, Rhodes went outside to get trash
bags, which he used to encase Orloff's body, holding one of the
bags closely around her head for a few minutes. Rhodes dragged
Orloff out of the house and put her inside the back of her
pickup truck. He drove to Suffolk where he buried the body,
using lime inside and outside the bag.
Rhodes abandoned the truck near U.S. Highway 301 and got a
ride home from a friend. On July 24, 2000, at approximately
11:00 a.m., one of Orloff's co-workers called in a missing
person's report because Orloff had not shown up for work. At
approximately 3:00 p.m., on July 24, 2000, Rhodes called the
Brunswick County Sheriff's Department to report Orloff as
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missing. Earlier that day, Lieutenant Raymond R. Bell of the
Sussex County Sheriff's Department observed Orloff's truck on a
path off of U.S. Highway 301. The investigation into the
abandoned vehicle ultimately led the police to Rhodes, who
confessed on July 27, 2000 to killing Orloff. According to
autopsy reports, Orloff's cause of death was "[a]sphyxia . . .
due to lack of oxygen to the body."
The jury was instructed that they could find Rhodes guilty
of voluntary manslaughter if they found the killing was
committed while in mutual combat:
If you find that the Commonwealth has
failed to prove beyond a reasonable doubt
that the killing was malicious but that the
Commonwealth has proved beyond a reasonable
doubt that the defendant killed Mary Lou
Orloff and further that the killing was the
result of an intentional act and that the
killing was committed while in mutual
combat, then you shall find the defendant
guilty of voluntary manslaughter.
The trial court also gave the following instructions to the
jury on malice:
Malice is that state of mind which
results in the intentional doing of a
wrongful act to another without legal excuse
or justification, at a time when the mind of
the actor is under the control of reason.
Malice may result from any unlawful or
unjustifiable motive including anger,
hatred, or revenge. Malice may be inferred
from any deliberate willful and cruel act
against another, however sudden.
Words alone, no matter how offensive or
insulting they may be, are never sufficient
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provocation to reduce the offense of murder
to manslaughter.
Rhodes proffered the following instruction to the trial court:
Heat of passion excludes malice when
that heat of passion arises from provocation
that reasonably produces an emotional state
of mind such as hot blood, rage, anger,
resentment, terror or fear so as to
demonstrate an absence of deliberate design
to kill, or cause one to act on impulse
without conscious reflection. Heat of
passion must be determined from
circumstances as they appeared to defendant
but those circumstances must be such as
would have aroused heat of passion in a
reasonable person.
If a person acts upon reflection or
deliberation, or after his passion has
cooled or there has been a reasonable time
or opportunity for cooling, then the act is
not attributable to heat of passion.
The trial court refused Rhodes's proffered instruction, and the
jury convicted him of first-degree murder.
Analysis
On appeal, Rhodes contends the trial court erred in
refusing to give his proffered instruction on "heat of passion."
We find this contention is without merit.
Jury instructions are properly refused if not supported by
more than a scintilla of evidence. Commonwealth v. Donkor, 256
Va. 443, 445, 507 S.E.2d 75, 76 (1998). However, "[i]f a
proffered instruction finds any support in credible evidence,
its refusal is reversible error." McClung v. Commonwealth, 215
Va. 654, 657, 212 S.E.2d 599, 602 (1975). "A reviewing court's
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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.'" Darnell v.
Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988)
(quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856,
858 (1982)).
[W]here a homicide is committed in the
course of a sudden quarrel, or mutual
combat, or upon a sudden provocation and
without any previous grudge, and the killing
is from the sudden heat of passion growing
solely out of the quarrel, or combat, or
provocation, it is not murder, but is
[voluntary] manslaughter . . . if there be
no further justification, and involuntary
manslaughter if the killing be done in the
commission of some lawful act, such as in
justifiable self-defense.
Wilkins v. Commonwealth, 176 Va. 580, 583, 11 S.E.2d 653, 654
(1940) (citing Byrd v. Commonwealth, 89 Va. 536, 16 S.E. 727
(1893); Read v. Commonwealth, 63 Va. (22 Gratt.) 924 (1872)).
A killing done in the heat of passion and upon reasonable
provocation will reduce a homicide from murder to voluntary
manslaughter. Barrett v. Commonwealth, 231 Va. 102, 105-06, 341
S.E.2d 190, 192 (1986) (citing Martin v. Commonwealth, 184 Va.
1009, 1016-17, 37 S.E.2d 43, 46 (1946)). "Heat of passion
refers to the furor brevis which renders a man deaf to the voice
of reason." Caudill v. Commonwealth, 27 Va. App. 81, 85, 497
S.E.2d 513, 514-15 (1998) (citation omitted). "[It] excludes
malice when provocation reasonably produces fear [or anger] that
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causes one to act on impulse without conscious reflection."
Graham v. Commonwealth, 31 Va. App. 662, 671, 525 S.E.2d 567,
571 (2000). "Heat of passion is determined by the nature and
degree of the provocation and may be founded upon rage, fear or
a combination of both." Barrett, 231 Va. at 106, 341 S.E.2d at
192.
Applying these principles to the case at bar, we find
the record does not contain a scintilla of evidence to support a
heat of passion instruction. Rhodes stated that, when Orloff
returned home on July 23, 2000, they argued about a credit card
bill. Orloff cursed and yelled at him and started pointing and
stabbing her fingers at Rhodes's face. Rhodes responded by
punching Orloff in the stomach and in the face until she fell to
the ground and threatened to "put a bullet in him." She did
nothing more to voluntarily engage in combat with Rhodes. Words
alone, no matter how insulting, are never sufficient to
constitute heat of passion. Canipe v. Commonwealth, 25 Va. App.
629, 642, 491 S.E.2d 747, 753 (1997); compare Belton v.
Commonwealth, 200 Va. 5, 7-8, 104 S.E.2d 1, 6 (1958) (finding
reversible error where trial court refused an instruction on
"heat of passion," where defendant had arrived home on two
occasions and discovered victim, his wife, in a nightgown,
drinking whiskey with another man and she told him on the night
she was killed, "[T]his is my body and I give to . . . who I
want to . . . .").
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Furthermore, Orloff was 5 feet 2 inches tall and weighed
160 pounds as compared to Rhodes, who is approximately 6 feet 3
inches tall and weighs over 300 pounds. Orloff did not possess
a gun, or any other means to seriously harm Rhodes, and did
nothing more than curse at Rhodes, point and stab her fingers in
his direction, and verbally threaten to shoot him. Such acts
did not establish Orloff's "imminent intention to kill or
seriously harm" Rhodes, Smith v. Commonwealth, 17 Va. App. 68,
71-72, 436 S.E.2d 414, 416 (1993), and would not render a
reasonable person "deaf to the voice of reason." Caudill, 27
Va. App. at 85, 497 S.E.2d at 514-15; compare Belton, 200 Va. at
9, 104 S.E.2d at 4 (further noting that where victim hit the
defendant while they were arguing, "heat of passion" instruction
was warranted). In short, not a scintilla of evidence
establishes reasonable provocation on the part of the victim.
Rhodes manifestly proffered the heat of passion instruction
to develop and explain one of the elements of "voluntary
manslaughter based on mutual combat," which was made part of the
court's finding instruction. It cannot logically be said,
however, that an instruction without evidentiary support is
properly given because it clarifies or develops law presented in
another instruction that is also without evidentiary support.
These are the circumstances in which the proffered instruction
must be evaluated in this case. Notwithstanding the
insufficient evidentiary predicate underlying a heat of passion
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instruction, the court included in its finding instruction a
voluntary manslaughter theory of conviction. To be sure, the
voluntary manslaughter instruction was given without objection
from either party and we address it not to show reversible
error, but to make clear the underlying factual circumstances
which generated the defense's perceived need for further
instruction. It cannot follow that an erroneous instruction
derives validity because it serves to explain another
instruction, which itself has been erroneously given, albeit
without objection. Because not a scintilla of evidence supports
a voluntary manslaughter theory upon which a conviction could
lie in this case, Rhodes's proffered instruction would only
serve to compound the error and it was properly denied.
Accordingly, we find no error in the trial court's decision
and affirm Rhodes's conviction. 1
Affirmed.
1
The Commonwealth filed an objection to Rhodes's
designation of the record on appeal, contending he included
material not "germane to the question[s] presented." Rule
5A:25(c)(3). Specifically, the Commonwealth argues that neither
the pretrial motion transcript, the sentencing transcript, nor
the voir dire of the jury, has any relevance to the question of
whether the trial court erred in refusing a "heat of passion"
instruction. We agree and direct the trial court, in
determining counsel's costs and necessary direct out-of-pocket
expenses, that counsel not be reimbursed for the costs and
expenses related to these irrelevant items.
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Benton, J., dissenting.
The trial judge determined that the evidence was sufficient
to support a jury instruction on voluntary manslaughter.
Although the judge instructed the jury that they could find
voluntary manslaughter as a lesser-included offense, he refused
to instruct the jury concerning heat of passion. The
instruction clearly was deficient because it failed to inform
the jury of an essential ingredient of voluntary manslaughter.
Thus, I would hold that the error was prejudicial and,
therefore, reversible.
I.
"Because the issue on appeal deals with the circuit court's
refusal of [an element of] the lesser-included offense
instruction . . . and even though the Commonwealth prevailed at
trial, we must view the evidence on this issue in the light most
favorable to the defendant, the proponent of the instruction."
Commonwealth v. Leal, 265 Va. 142, 145, 574 S.E.2d 287, 287
(2003); Blondel v. Hays, 241 Va. 467, 469, 403 S.E.2d 340, 341
(1991). Viewed in this light, the evidence proved Shirley R.
Rhodes and Mary Lou Orloff resided together. According to
Rhodes's confession, he and Orloff argued on July 23 about their
household finances. During the argument Orloff began "stabbing
[Rhodes] in [his] face with her fingers." In response, Rhodes
hit her and, during the fight, punched her face. After Orloff
fell to the floor and threatened "to put a bullet in [him],"
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Rhodes used a stun gun on her. He then put a "trash bag over
her head to clean up," enclosed her body in a bag, and put lime
into the bag. He buried Orloff's body in a wooded area.
Four days later, the police uncovered Orloff's badly
decomposed body in a bag with limestone and rock salt. The
officer who heard and transcribed Rhodes's confession testified
that he "was under the impression that [Rhodes's conduct] was a
continuance movement . . . was just one continued fluid movement
from the beginning of the confrontation until he drug her out to
the front steps." When he asked Rhodes, "When did you decide to
kill her," Rhodes said:
I didn't mean to kill her. I think when
I hit her in the face -- I think I killed
her by pushing her nose bone up into her
brain.
The assistant chief medical examiner testified that she
determined the cause of death to be asphyxia because none of the
bruising on the body appeared to result from a lethal blow. She
further explained her conclusion as follows:
Well, in this case the diagnosis of
asphyxia would have been made because she is
wrapped in a heavy plastic which would
exclude her -- which would prevent her from
breathing air and especially if something
was held over her face. But the plastic
sheeting alone would have prevented her from
breathing air. She wouldn't get oxygen.
She could become unconscious and pass out
and eventually she would die.
Because this evidence raised a factual issue whether Rhodes
believed Orloff was dead when he put the plastic bags over her,
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the trial judge properly instructed the jury that if the
Commonwealth failed to prove the killing was malicious, the jury
could find voluntary manslaughter. In pertinent part, he
instructed the jury as follows:
If you find that the Commonwealth has
failed to prove beyond a reasonable doubt
that the killing was malicious but that the
Commonwealth has proved beyond a reasonable
doubt that the defendant killed Mary Lou
Orloff and further:
1. That the killing was the result of an
intentional act; and
2. That the killing was committed while
in mutual combat then you shall find the
defendant guilty of voluntary
manslaughter . . . .
II.
"Manslaughter . . . is the unlawful killing of another
without malice." Barrett v. Commonwealth, 231 Va. 102, 105, 341
S.E.2d 190, 192 (1986).
"To speak of a homicide as having been
committed with malice aforethought and in
sudden passion, upon reasonable provocation
is a legal solecism. 'Malice aforethought'
implies a mind under the sway of reason,
whereas 'passion,' while it does not imply
dethronement of reason, yet is the furor
brevis which renders a man deaf to the value
of reason, so that, although the act done
was intentional of death, it was not the
result of malignity of heart, but imputable
to human infirmity. Passion and malice are
therefore inconsistent motive powers, and
hence an act which proceeds from the one
cannot also proceed from the other. . . .
Malice excludes passion. Passion
presupposes the absence of malice. In law
they cannot coexist. Therefore, if an act
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of killing, prompted by malice, would be
murder, it is only manslaughter when it
springs from passion."
Belton v. Commonwealth, 200 Va. 5, 9-10, 104 S.E.2d 1, 4-5
(1958) (citation omitted)
The instruction the judge gave to the jury concerning
manslaughter was premised upon evidence of a killing arising
from a quarrel and mutual combat.
"It has been long settled that where a
homicide is committed in the course of a
sudden quarrel, or mutual combat, or upon a
sudden provocation and without any previous
grudge, and the killing is from the sudden
heat of passion growing solely out of the
quarrel, or combat, or provocation, it is
not murder, but is manslaughter only --
voluntary manslaughter, if there be no
further justification, and involuntary
manslaughter if the killing be done in the
commission of some lawful act, such as in
justifiable self-defense."
Wilkins v. Commonwealth, 176 Va. 580, 583, 11 S.E.2d 653, 654
(1940) (citations omitted; emphasis added). Applying these same
principles in various circumstances, the Supreme Court has held
that "[w]hen a homicide is committed in the course of a sudden
quarrel or broil, or mutual combat, . . . and without any
previous grudge, the offence may be murder or manslaughter,
according to the circumstances of the case." Read v.
Commonwealth, 63 Va. (22 Gratt.) 924, 937-38 (1872). Thus,
"[i]t is perfectly true that where homicide occurs in the course
of a sudden quarrel, mutual combat, . . . and the killing is
from passion growing solely out of the provocation, the offense
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is manslaughter and not murder." Ballard v. Commonwealth, 156
Va. 980, 993, 159 S.E. 222, 226 (1931). Likewise, evidence of
"passion brought on by an unlawful assault may reduce the
homicide to manslaughter." Moxley v. Commonwealth, 195 Va. 151,
158, 77 S.E.2d 389, 393 (1953).
Without an instruction concerning heat of passion, the
voluntary manslaughter instruction was prejudicially deficient.
By failing to inform the jury concerning heat of passion, the
trial judge permitted the jury to conclude that the furor
brevis, which arose during the quarrel and mutual combat, was an
indicia of malice only. For he instructed the jury as follows:
Once the Commonwealth has proved there
was an unlawful killing, then you are
entitled to infer there was malice. . . .
Malice may result from any unlawful or
unjustifiable motive including anger,
hatred, or revenge. Malice may be inferred
from any deliberate willful and cruel act
against another, however sudden.
The jury had no basis to know that a killing growing out of
a quarrel and combat was not necessarily malicious and that this
was a circumstance sufficient to prove manslaughter if done in
the heat of passion. Thus, even if the jury believed Rhodes's
actions were being directed by passion rather than reason, the
instructions did not inform them that this was the predicate for
a finding of manslaughter. Put another way, without an
instruction on heat of passion, even if the jury believed Rhodes
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acted in passion, they could still find, based on the
instructions, that he acted with malice.
III.
The majority disposes of this case on an issue that was
neither raised at trial nor briefed by the Commonwealth. In
particular, the majority asserts that the record contains
insufficient evidence to support a voluntary manslaughter
instruction based on mutual combat. Thus, the majority
concludes that a heat of passion instruction that explained one
of the manslaughter elements was not warranted because it
"derives validity" from "another instruction, which itself has
been erroneously given." To support that conclusion, the
majority posits that after Orloff cursed, stabbed her fingers in
Rhodes's face, and threatened to shoot him, she did nothing more
to voluntarily engage in combat with Rhodes. This view of the
evidence arbitrarily and impermissibly divides the events into
two time frames and fails to view the evidence in the light most
favorable to the proponent of the instruction. See Blondel, 241
Va. at 469, 403 S.E.2d at 341.
On the evidence in the record, the jury could have found
that although Orloff did nothing after she threatened to shoot
Rhodes, she did plenty in the nature of "combat" or provocation
immediately before that. Moreover, the majority's view of the
record is contrary to the testimony of the officer who heard
Rhodes's confession and testified that Rhodes's conduct "was
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just one continued fluid movement from the beginning of the
confrontation until he drug her out to the front steps." This
evidence clearly was enough to pass the "scintilla of evidence"
threshold and to raise a factual issue for the jury.
Furthermore, the record reflects that the Commonwealth did
not object to the trial judge's instruction to the jury that it
was to assess mutual combat or provocation. Indeed, it appears
that this was a lesser-included offense instruction that may
have been proposed by the Commonwealth because of the lack of
contrary evidence concerning the events surrounding Orloff's
death. In any event, the manslaughter instruction was supported
by the following principles:
A jury, not the trial court, weighs the
evidence and assesses the credibility of the
witnesses. It is immaterial that the jury
might have rejected the lesser-included
offense; if there is evidence tending to
support the lesser offense, a trial court
errs in refusing an instruction thereon.
Barrett, 231 Va. at 107, 341 S.E.2d at 193. Indeed, the trial
judge's decision to instruct the jury on manslaughter was
consistent with the principles in Belton and similar decisions
of the Supreme Court. See e.g. Briggs v. Commonwealth, 82 Va.
554, 565 (1886) (holding that "[i]f upon being assaulted, the
passion of the assaulted person become[s] greatly excited, and
under that impulse he kill[s] his assailant, though it be with a
deadly weapon, the offence is manslaughter only").
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The Supreme Court reversed the murder conviction in Belton
because the trial judge failed to instruct the jury on heat of
passion. Belton "shot and killed his wife" but contended he
acted in the heat of passion upon reasonable provocation. 200
Va. at 6, 104 S.E.2d at 2. Similar to the present case, the
evidence in Belton proved a simple argument escalated to the
following events:
"I asked her about Lonza. So she said,
'If you think I'm going with Lonza, you ask
him. If you beat him - I hope he beat hell
out of you.' . . . So she told me, said,
'That's right - this my body and I give it
to my - who I want to, and this is your
money, and I spend it on who I want to.'
She hit me - I can't remember exactly how it
was. So I think she got out of the car - I
think she got out of the car, and I think
she was going to get some flowers . . . then
I called her and next thing I saw her on the
ground, and then when I saw her on the
ground after I come to myself in some kind
of way, I called her, and when I called her
she wouldn't say anything. . . . I remember
one shot and I saw her on the ground - and I
saw her on the ground, wounded, and I called
and she wouldn't say anything, and so I mean
I can't remember too well now.
200 Va. at 8, 104 S.E.2d at 3-4. In the present case, just as
the Court ruled in Belton, "[t]he decisive question is not
whether the evidence supports the verdict of the jury, but
whether under all the facts and circumstances the jury was
properly instructed on the pertinent principles of law and,
therefore, whether the accused has had a fair and impartial
trial." 200 Va. at 8, 104 S.E.2d at 4.
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Therefore, the trial judge properly left to the jury the
issue the majority now sua sponte decides the jury should not
have considered. The trial judge, however, was required to
submit to the jury, on proper instructions, not only the
determination of combat and provocation but also the essential
element of heat of passion. See id. at 9, 104 S.E.2d at 4
(noting that the record supports "the accused's only defense
. . . that he [shot and] killed his wife in the heat of passion,
aroused by her striking him and saying she would give his money
and her body to whom she pleased").
IV.
"[W]here it is impossible to determine from the verdict
whether the jury would have necessarily rejected a
lesser-included offense on which it was not instructed, error in
refusing to instruct on that offense is not harmless." Turner
v. Commonwealth, 23 Va. App. 270, 276, 476 S.E.2d 504, 507
(1996). In this case, the jury's finding of premeditation does
not render the error harmless. The jury was instructed that
premeditation "means a specific intent to kill adopted at some
time before the killing, but which need not exist for any
particular length of time." In the absence of a definition of
heat of passion, the jury could have found that evidence proving
the elements traditionally associated with manslaughter -- i.e.,
"intentional act" and "mutual combat" -- satisfied the
premeditation requirements because intent was proved and the
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combat afforded time of contemplation. In other words, the
absence of a heat of passion instruction invited the jury to
conclude that because the quarrel or combat lasted for several
minutes the killing was deliberate and thoughtful, and not
merely an "act done . . . intentional of death." Belton, 200
Va. at 9, 104 S.E.2d at 5. The jury would not have known that
under existing law they could have found that this period still
constituted "the time during which the furor brevis controls,"
and, thus, evidenced manslaughter. Potter v. Commonwealth, 222
Va. 606, 610, 283 S.E.2d 448, 450 (1981).
In addition, the jury's rejection of Rhodes's claim of
voluntary manslaughter and conviction of premeditated murder
does not necessarily indicate they did not believe the killing
occurred in the heat of passion. "To argue that a finding by
the jury that [Rhodes] acted with deliberate intention precludes
any possibility that they could have found sufficient
provocation begs the question." State v. Benavidez, 616 P.2d
419, 421 (N.M. 1980). Simply put, the judge did not inform the
jury in a way that would have allowed them to sift through the
evidence and properly apply the law. Had the jury been
instructed on heat of passion they could have found that the
killing occurred as a result of "sudden heat of passion growing
solely out of the quarrel or combat," Wilkins, 176 Va. at 583,
11 S.E.2d at 654; that the anger arose during the time of the
confrontation as a result of furor brevis and was not
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necessarily evidence of premeditation; and that, although
intentional, the killing was not malicious. "Had the jury been
[properly] instructed in the definition of voluntary
manslaughter, they could have found that the homicide met that
definition." McClung v. Commonwealth, 215 Va. 654, 657, 212
S.E.2d 290, 293 (1975).
The error in refusing the instruction allowed the jury to
find the element of premeditation even when evidence merely
established the elements of manslaughter. This case is not one
in which "the other evidence of guilt was so overwhelming and
the error so insignificant by comparison that the error could
not have affected the verdict." Hooker v. Commonwealth, 14
Va. App. 454, 457 n.2, 418 S.E.2d 343, 345 n.2 (1992).
V.
For these reasons, I would hold that the trial judge erred
in refusing to instruct the jury on heat of passion as an
ingredient of the voluntary manslaughter instruction and that
the error was not harmless.
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