Graham v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia

MARK ANTHONY GRAHAM
OPINION BY
v. Record No. 2154-98-3 JUDGE RUDOLPH BUMGARDNER, III
MARCH 7, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Donald R. Mullins, Judge

James R. Henderson IV (Henderson and
DeCourcy, on brief), for appellant.

John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

A Tazewell County jury convicted Mark Anthony Graham of

statutory burglary, grand larceny of a firearm, shooting into an

occupied building, and possession of a firearm after being

convicted of a felony. He was acquitted of four other felonies:

aggravated malicious wounding, attempted malicious wounding, use

of a firearm in the commission of aggravated malicious wounding

and use of a firearm in the commission of attempted malicious

wounding. On appeal, the defendant argues the trial court erred

(1) by refusing his instruction on heat of passion, (2) by

refusing his instruction on the burden of proving affirmative

defenses, (3) by denying his motion for a continuance, (4) by
shackling him during trial, and (5) by holding the hearing on

whether to shackle in his absence. Finding no error, we affirm.

The events all occurred in the Hash Hollow area of Tazewell

County. Swanson and Linda Mullins lived in a house along the

public road at the mouth of the narrow, fairly steep hollow.

Approximately 200 to 300 feet behind them, their daughter, Pam,

and her husband, Doug Gates, lived in a trailer. One hundred

seventy-five yards farther up the hollow, Steven and Tammy Hash

lived in their trailer. The ground between the trailers was

open, but woods and a creek ran along the right side of the

hollow.

The defendant arrived unannounced at the Gateses' trailer

and stated that he wanted to stay there. Doug Gates was the

defendant's uncle, but Gates told him he could not stay because

the police had been there several times looking for him. They

told the defendant to leave, and when he would not, Doug Gates

called Swanson Mullins at his home. He asked Mullins to call

the sheriff or to send someone to help get rid of the defendant.

The defendant retrieved a shotgun from a bedroom and pointed it

at Gates's face. Gates knocked the gun away, they scuffled, but

the defendant left. Two or three minutes later, bullets started

hitting the trailer.

Several people were at the Mullinses' house when Gates

called. One of them, Donald Keene, went to investigate. As he

entered the Gateses' trailer, "someone started shooting through

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the trailer," breaking a window, and piercing the exterior.

Everyone in the trailer took cover while Gates again called

Mullins for help. Keene found a shotgun and shells, went

outside, and took cover behind a cinder block wall located a few

feet from the Gateses' trailer. Keene heard the defendant

hollering from the woods and saw him move from the woods toward

the Hashes' trailer.

After receiving Gates's first call for help, Mullins got

his pistol and went to the trailer to check on them. On his

way, he heard the defendant call his name from the vicinity of

the Hashes' trailer. After checking at the trailer, Mullins

returned to his house, got his rifle, and went into the woods

heading towards the Hashes' trailer. His son and a friend, who

were also armed, went with him.

When the call came to the Mullinses' house, Lewis Collins

grabbed a shotgun and made his way to a utility pole near the

Gateses' trailer. While there, Collins was shot in the shoulder

and stomach with double aught buckshot. He yelled to the

defendant that he had been hit and to stop shooting before

someone else got hurt. The defendant responded that he was not

going to give up. Collins moved to better cover behind the

cinder block wall where Keene was hiding.

During the episode, the defendant called Mullins's name

from the vicinity of the Hashes' trailer and said, "I've come to

die this time." The defendant hollered that he could see

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Mullins "real good." The shooting did not stop until sheriff's

deputies arrived and took charge. They found that numerous

bullets and buckshot penetrated the trailer on the side that

faced the Hashes' trailer. They also determined that numerous

shots hit the cinder block wall but particularly around the vent

window which Keene used as his vantage point. They found no

gunshot damage to the Hash trailer.

The defendant testified about the incident. A few days

before, he had argued with Mullins after telling him that Gates

had abused him as a child. Mullins threatened to kill the

defendant for "talking trash." Because he was wanted for a

probation violation, the defendant had been living in his car.

He went to the Gateses' trailer to take a shower and do laundry.

While doing so, Gates touched the defendant's behind, and they

began arguing. Gates telephoned Mullins telling him to send

some armed men to the trailer. The defendant then grabbed a gun

from the bedroom, pretended it was loaded, and pointed it in

Gates's face. They wrestled until the defendant told Gates to

let him go. When Gates did, the defendant left the trailer. As

he left, he did not see anyone coming from the Mullinses' house.

The defendant walked up the hollow to get away without

going past the Mullinses' house. Halfway to the Hashes'

trailer, he saw four armed men, including Mullins and Collins,

walking toward him. Two men seemed to be coming around each

side of the Gateses' trailer. He turned to continue running up

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the hollow. When he reached the Hashes' trailer, he decided to

get help there. As he went by the window to the utility room he

saw guns and burst through the window. He did not know whether

anyone was home and did not see a car there. He broke through

the window without ever going to the door or calling out to

anyone for help. The defendant armed himself with a shotgun and

a .22 caliber rifle, found the ammunition kept at the other end

of the trailer, and went back outside.

The defendant saw three men down the hollow near the

Gateses' trailer, and he fired shots in the air to warn them

that he was armed. He ran back into the trailer and fired more

shots into the air. The defendant started aiming at the

Gateses' trailer after the others started shooting back.

Eventually the defendant ran low on ammunition. He left the

trailer and worked his way up the hollow and across the

mountain. He went to North Carolina and turned himself in six

days later to the Pulaski sheriff's office.

The trial court refused two defense instructions. The

first 1 would have instructed the jury that they could not find

1
Defense Instruction No. 17A provides:

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

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that the defendant acted with malice if they found he acted in a

heat of passion upon reasonable provocation. The trial court

gave the first paragraph of the instruction which defined

malice. The defendant was acquitted of the primary charges that

contained the element, malice: aggravated malicious wounding of

Lewis Collins, attempted malicious wounding of Donald Keene, use

of a firearm in the commission of aggravated malicious wounding,

and use of a firearm in the commission of attempted malicious

wounding. The issue is moot as to those offenses.

Only the conviction of shooting into an occupied dwelling

required a finding of malice. When considering whether a trial

court erred in refusing to give a proffered instruction, "we

view the evidence with respect to the refused instruction in the

light most favorable to the defendant." Boone v. Commonwealth,

from any deliberate willful and cruel act
against another, however sudden.
Heat of passion excludes malice when
the heat of passion arises from provocation
that reasonably produces an emotional state
of mind such as hot blood, or rage, anger,
resentment, terror or fear so as to 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.

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14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992). Viewed in

that manner, the facts do not support a defense that the

defendant acted in a heat of passion when he fired into the

Gateses' trailer.

After the defendant left the Gateses' trailer, he was

halfway to the Hashes' trailer before he saw anyone. Instead of

continuing his escape up the mountain, he broke through the

trailer window when he saw weapons inside. Arming himself and

finding ammunition, he went outside. The men he saw were near

the Gateses' trailer, a distance of about 175 yards; no one was

coming up the hill, and no shots had been fired. The defendant

fired warning shots but yelled that he "didn't have a problem

with them." He went back into the trailer and resumed firing

while dodging from window to window to avoid detection. He

aimed shots at the Gateses' trailer and the wall after shots

were fired from that direction.

"'Heat of passion' refers to 'the furor brevis which

renders a man deaf to the voice of reason.' An accused must

show that he committed the crime with 'passion' and upon

'reasonable provocation.'" Caudill v. Commonwealth, 27 Va. App.

81, 85, 497 S.E.2d 513, 514-15 (1998) (citations omitted). The

law requires the simultaneous occurrence of both reasonable

provocation and passion. See Canipe v. Commonwealth, 25 Va.

App. 629, 643, 491 S.E.2d 747, 753 (1997).

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 Heat of passion excludes malice when provocation reasonably

produces fear that causes one to act on impulse without

conscious reflection. By his own testimony, the defendant

consciously abandoned his escape, armed himself, and started

shooting. He did so before any other shots were fired or any

words exchanged. Mullins's threat was made two days earlier and

not at the time of the incident. The defendant did not act on

sudden provocation or from passion. He acted upon reflection

and deliberation. We find the evidence insufficient as a matter

of law to justify a heat of passion instruction.

The trial court refused a second defense instruction. 2 It

would have instructed that affirmative defenses need only be

proved sufficiently to raise a reasonable doubt. The defendant

asserted two affirmative defenses, self-defense and duress. The

defendant was acquitted of the crimes against which self-defense

applied: aggravated malicious wounding of Lewis Collins,

attempted malicious wounding of Donald Keene, use of a firearm

in the commission of aggravated malicious wounding and use of a

2
Defense Instruction No. 28A provides:

The defendant need not prove his
affirmative defenses beyond a reasonable
doubt, or even by a preponderance of the
evidence. The defendant must only introduce
sufficient evidence which, when considered
with the whole evidence, creates a
reasonable doubt regarding his guilt.

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firearm in the commission of attempted malicious wounding. The

issue is moot as to those offenses.

Self-defense excuses or justifies a homicide or assault

committed while repelling violence arrayed against the

defendant. It is a response to the threat of death or serious

bodily harm. It is a defense to an act of violence that repels

violence directed at the defendant. The right to use force to

defend against death or serious bodily harm cannot excuse or

justify a burglary or larceny.

"Homicide in defense of person or
property, under certain circumstances of
necessity; which is justifiable by the
permission of the law. This takes place
when a man, in defense of his person,
habitation or property, kills another, who
manifestly intends and endeavors, by
violence or surprise, to commit a forcible
or atrocious felony upon either. In the
cases to which this ground of justification
applies, no felony has been committed, but
only attempted; and the homicide is
justifiable in order to prevent it.

"All felonies may not be so prevented.
A distinction is made between such felonies
as are attended with force, or any
extraordinary degree of atrocity, which in
their nature betoken such urgent necessity
as will not allow of any delay, and others
of a different kind and unaccompanied by
violence on the part of the felon. Those
only which come within the former
description may be prevented by homicide; as
murder, rape, robbery, arson, burglary and
the like. In the attempt to commit either
of these, the party whose person or property
is attacked is not obliged to retreat, but
may pursue his adversary until he has
secured himself from all danger, and if he

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 kill him in so doing, it is called
justifiable self-defense."

Dodson v. Commonwealth, 159 Va. 976, 980-81, 167 S.E. 260, 261,

(1933) (citation omitted).

The efforts of the defendant to obtain weapons with which

to defend himself are relevant to explain why he broke in the

Hashes' trailer and took the guns. Those facts tend to negate

the existence of the intent necessary to establish burglary or

larceny. They showed the defendant broke into the trailer to

defend himself, not to commit a felony. They showed he took the

guns as a means of protecting himself, not to steal them. In

the sense that those facts refute the Commonwealth's evidence of

guilt, the jury was adequately instructed in applying the facts

to the law.

The first instruction that the trial court gave provided,

"There is no burden on the defendant to produce any evidence." 3

3
The entire Instruction No. 1 reads as follows:

The defendant is presumed to be
innocent. You should not assume the
defendant is guilty because he has been
charged and is on trial. This presumption
of innocence remains with the defendant
throughout trial and is enough to require
you to find the defendant not guilty unless
and until the Commonwealth proves each and
every element of the offense beyond a
reasonable doubt. This does not require
proof beyond all possible doubt, nor is the
Commonwealth required to disprove every
conceivable circumstance of innocence.
However, suspicion or probability of guilt
is not enough for a conviction.

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See Russell v. Commonwealth, 216 Va. 833, 837, 223 S.E.2d 877,

879 (1976) (approving instruction). This Court has discouraged

attempts to further define reasonable doubt and the burden of

proof. See Blaylock v. Commonwealth, 26 Va. App. 579, 598-99,

496 S.E.2d 97, 106-07 (1998) (where court gave alibi

instruction, no error to deny instruction explaining burden to

prove defense); Diffendal v. Commonwealth, 8 Va. App. 417, 423,

382 S.E.2d 24, 26-27 (1989) (proper to refuse instructions which

are misleading or redundant).

The affirmative defense of self-defense is similar to the

alibi defense; it only requires the defendant to raise a

reasonable doubt as to his guilt. See McGhee v. Commonwealth,

219 Va. 560, 562, 248 S.E.2d 808, 810 (1978); Lynn v.

Commonwealth, 27 Va. App. 336, 352, 499 S.E.2d 1, 9 (1998),

aff'd, 257 Va. 239, 514 S.E.2d 147 (1999). As such, the

defendant has no burden to prove the defense or negate an

element of the crime. See Charles E. Friend, The Law of

Evidence in Virginia § 9-11, 342 (4th ed. 1993). The

instructions given defined the elements of proof and the burden

of proof. We find no error in the trial court's refusing to

give the additional instruction on the burden of proving

There is no burden on the defendant to
produce any evidence.
A reasonable doubt is a doubt based on
your sound judgment after a full and
impartial consideration of all the evidence
in the case.

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affirmative defenses. Where a refused instruction is covered in

another instruction there is no error. See Williams v.

Commonwealth, 228 Va. 347, 349, 323 S.E.2d 73, 74 (1984).

The defendant raised a second affirmative defense, duress.

Duress excuses criminal behavior "where the defendant shows that

the acts were the product of threats inducing a reasonable fear

of immediate death or serious bodily injury." Pancoast v.

Commonwealth, 2 Va. App. 28, 33, 340 S.E.2d 833, 836 (1986)

(citing United States v. Bailey, 444 U.S. 394, 409 (1980)).

Where the defendant fails "to take advantage of a reasonable

opportunity to escape, or of a reasonable opportunity to avoid

doing the acts without being harmed, he may not rely on duress

as a defense." Id. (citations omitted). The defendant must

show that the threat, which is "specifically directed toward

causing [him] to commit the crime charged," was coupled with

evidence that he "reasonably believed that participation in the

crime was the only way to avoid the threatened harm." Roger D.

Groot, Criminal Offenses and Defenses 181 (4th ed. 1999) (citing

Sam v. Commonwealth, 13 Va. App. 312, 324, 411 S.E.2d 832, 838

(1991)).

Again viewing the evidence in the light most favorable to

the defendant, we find the evidence insufficient to establish

duress. The defendant refused to leave the Gateses' trailer and

knew that Gates telephoned Mullins for help. The defendant was

halfway up the hollow when he saw four armed men coming around

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the Gateses' trailer. The defendant was fleeing, and he was

familiar with the area and knew his way around the woods. He

consciously quit his escape, elected to remain, and armed

himself by breaking in the Hashes' trailer. The defendant did

not take advantage of the alternative to his criminal conduct.

Indeed, he abandoned it and took up the fray. Because the

defendant is not entitled to rely on the defense of duress, he

is not entitled to complain that the trial court failed to

instruct on the burden of proving the defense.

The defendant contends the trial court erred in the conduct

of the trial proceedings. First, he argues that the trial court

erred in denying a continuance made the morning of trial. The

defendant moved for the continuance because he did not get

enough sleep to be adequately prepared. The trial court had

ordered the defendant moved from Keen Mountain Correctional

Center to the county jail as an accommodation for trial

preparation. However, the day before trial, the sheriff

returned the defendant to the correctional center. He arrived

there at 3:00 p.m. but did not go to bed until around 11:00 p.m.

He was awakened after 1:00 a.m. and returned to jail arriving at

5:30 a.m. The defendant did not rest after he arrived at the

jail. He contended he was unprepared to assist with his defense

because of a lack of rest. The trial court denied the motion

but delayed the trial an hour to allow defendant to confer with

his attorney.

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 The defendant's trial had been continued on five previous

occasions. The trial court stated:

this defendant has jerked the Court around
for a number of times indicating that he was
going to go ahead and enter pleas of guilty
to these charges, or certain charges, and
would get right up until the scheduled time
for entering those pleas and he would change
his mind and have to be taken back to the
penitentiary and so forth . . . .

The trial court had entered eight transportation orders for the

defendant and had allowed him to stay in the jail for periods of

thirty days to facilitate his trial preparation. The

correctional center was 35 to 40 miles from the jail. The trial

court had granted the defendant previous continuances to permit

additional preparation.

"The decision whether to grant a continuance is within the

sound discretion of the trial court. Abuse of discretion and

prejudice to the complaining party are essential to reversal."

Lowery v. Commonwealth, 9 Va. App. 304, 307, 387 S.E.2d 508, 509

(1990) (citations omitted). See also Cardwell v. Commonwealth,

248 Va. 501, 509, 450 S.E.2d 146, 151 (1994), cert. denied, 514

U.S. 1097 (1995).

The evidence does not support the defendant's allegation

that the court abused its discretion. The evidence does not

show, and the defendant does not allege, that he was prejudiced

by the court's denial of his motion. The record reflects that

the defendant testified that morning at a suppression hearing,

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and his testimony was clear, coherent, and responsive. The

record does not reflect that the defendant was not fully able to

assist in his defense. Indeed, the defendant was acquitted of

four felonies. We conclude the trial court did not abuse its

discretion by refusing to continue the trial.

Next we consider whether the trial court erred in shackling

the defendant during the trial. The trial court entered a

preliminary order to shackle the defendant after the sheriff's

department advised that the defendant had threatened to attack

the Commonwealth's Attorney and some witnesses during the trial.

At a pretrial hearing, a deputy testified that he was advised to

use two guards when transporting the defendant. The defendant's

psychiatrist at Keen Mountain Correctional Center had informed

the sheriff's office that the defendant "was dangerous and that

they had him in solitary confinement down there and . . . to use

extra security on him." They also advised that the defendant

"was capable of killing someone." The Commonwealth noted that

"the defendant had made threats to disrupt the facility or cause

a problem when transported to Keen Mountain [and] that did

happen." On a previous occasion, transportation officers had

needed to use a shock belt to subdue the defendant.

Commendably, defense counsel, as an officer of the court,

indicated that there were allegations the defendant possibly

intended to disrupt the trial.

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 The conduct of a trial is left to the sound discretion of

the trial court. See Gray v. Commonwealth, 233 Va. 313, 343-44,

356 S.E.2d 157, 174, cert. denied, 484 U.S. 873 (1987). An

accused may be shackled during a jury trial "after a

determination that such measures are necessary for security

reasons." Seegars v. Commonwealth, 18 Va. App. 641, 646, 445

S.E.2d 720, 723 (1994) (citing Gray, 233 Va. at 343-44, 356

S.E.2d at 174). In considering whether a defendant shall be

restrained, the trial court may consider "the seriousness of the

charge, the defendant's temperament, age, and physical

attributes, his criminal record and any . . . threatened

misconduct." Frye v. Commonwealth, 231 Va. 370, 381-82, 345

S.E.2d 267, 276 (1986) (citation omitted). See Martin v.

Commonwealth, 11 Va. App. 397, 406, 399 S.E.2d 623, 628 (1990)

(record must support court's decision). Moreover, when a jury

is not aware of the defendant's restraints, there is no

constitutional violation. See Gray, 233 Va. at 343-44, 356

S.E.2d at 174.

The trial court ruled that the defendant would be shackled

during trial but granted defense counsel's request to drape two

sides of the defense table to prevent the jury from seeing the

restraints. The defendant did not request an instruction on the

use of restraints and none was given. No evidence indicates

that the jury ever observed the restraints. Given the

seriousness of the charges, the threatened misconduct, the prior

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misconduct during transport, and the lack of evidence that the

jury saw the restraints, we conclude that the trial court did

not err.

The defendant was absent during the hearing on whether to

shackle him. The defendant argues that conducting the hearing

in his absence was a violation of his constitutional rights

under the Sixth and Fourteenth Amendments, as well as his rights

under the Virginia Constitution, Article 1, Section 8, and Code

§ 19.2-259. 4

A defendant has a constitutional right to be present at all

stages of the trial from arraignment to sentence. See U.S.

Const. amend. VI; Code § 19.2-259; Jones v. Commonwealth, 227

Va. 425, 428, 317 S.E.2d 482, 483 (1984); Williams v.

Commonwealth, 188 Va. 583, 592-93, 50 S.E.2d 407, 411-12 (1948).

While this right must be carefully safeguarded, it is not

absolute. See Cruz v. Commonwealth, 24 Va. App. 454, 461, 482

S.E.2d 880, 883 (1997) (en banc) (defendant's right to be

present may be forfeited). When the hearing was conducted, the

sheriff had served the indictment on the defendant, the trial

court had appointed counsel, but it had not arraigned the

defendant, nor had he entered a plea. The trial had not

commenced, so the hearing could not have been a stage of the

trial. See Burnley v. Commonwealth, 208 Va. 356, 362, 158

4
Code § 19.2-259 provides, in part, that "[a] person tried
for felony shall be personally present during the trial."

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S.E.2d 108, 112 (1967). The defendant concedes he found no

authority that a defendant's rights are violated if he is not

present at a pretrial proceeding. We conclude that the pretrial

hearing was not a stage of the trial at which the defendant's

presence was required.

We also conclude that the decision to shackle the defendant

was not a ruling that so affected the defendant's interests that

his presence was mandated. It was an administrative proceeding

to assess the security requirements at trial. It was held six

months before the trial finally commenced. Nothing bearing on

the merits of the case was discussed, considered, or decided.

Compare Quintana v. Commonwealth, 224 Va. 127, 295 S.E.2d 643

(1982), cert. denied, 460 U.S. 1029 (1983) (defendant's presence

not required at pretrial conference on his sanity), and Bilokur

v. Commonwealth, 221 Va. 467, 270 S.E.2d 747 (1980) (defendant's

presence not required at pretrial interrogation of victim by

both parties), with Hunter v. Commonwealth, 23 Va. App. 306, 477

S.E.2d 1 (1996) (defendant's presence required for jury view of

crime scene), and Brittingham v. Commonwealth, 10 Va. App. 530,

394 S.E.2d 336 (1990) (error to prevent court reporter from

recording in camera examination by both parties of witness on

whether defendant was offered immunity for cooperating). We

conclude that neither the nature nor purpose of the pretrial

hearing mandated the defendant's presence.

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 For the foregoing reasons, we affirm the defendant's

convictions.

Affirmed.

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Benton, J., dissenting.

The standard for granting jury instructions is well

established.

If there is evidence in the record to
support the defendant's theory of defense,
the trial judge may not refuse to grant a
proper, proffered instruction.
"Furthermore, where evidence tends to
sustain both the prosecution's and the
defense's theory of the case, the trial
judge is required to give requested
instructions covering both theories." When
instructing the jury, the trial judge must
be mindful that:

[t]he jury is not required to accept,
in toto, either the theory of the
Commonwealth or that of an accused.
They have the right to reject that
part of the evidence believed by them
to be untrue and to accept that
found by them to be true. In so
doing, they have broad discretion in
applying the law to the facts and in
fixing the degree of guilt, if any,
of a person charged with a crime.

Delacruz v. Commonwealth, 11 Va. App. 335, 338-39, 398 S.E.2d

103, 105 (1990) (citations omitted). I would hold that the

trial judge erred in refusing to instruct the jury on heat of

passion and affirmative defenses.

I.

"Although the Commonwealth prevailed at trial, the

appropriate standard for review requires that we view the

evidence with respect to the refused instruction in the light

most favorable to the defendant." Boone v. Commonwealth, 14 Va.

App. 130, 131, 415 S.E.2d 250, 251 (1992). So viewed, the

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record contains evidence that Mark Graham went to his uncle's

residential trailer to shower and wash his clothing. When

Graham was preparing to shower, his uncle, who Graham said had

molested him in the past, improperly touched him. After they

argued, Graham's uncle telephoned Swanson Mullins and told him

"to come . . . with the guns and shoot [Graham]." Graham

struggled with his uncle and ran from the trailer. As Graham

ran up the hollow toward a wooded hill and away from Mullins's

residence, he saw Mullins and three other men approaching him.

Graham testified that he knew he was in danger because all four

men were armed with guns and because Mullins had previously

threatened to kill him. He had seen Mullins and his friends

beat other people, and he knew they were "enforcers."

As Graham ran up the hollow and passed the Hashes' trailer,

he saw guns inside. Graham testified that he saw the armed men

coming around the Gateses' trailer and moving up the hill toward

him "before [he] ever got in [the Hashes'] trailer." He said

that "[e]verything was happening so fast" and explained his

conduct as follows:

I got up to about the trailer and I don't
know why I was looking over there, but I
mean I was looking over in that direction
and as soon as I seen two guns hanging on
the gun rack I went straight through the
window and got one. I don't remember if I
loaded the gun or not before I went outside
but the gun was obviously loaded. I must
have checked and seen it was loaded. And I
shot up in the air, one, two or three times.
I ain't for sure. I don't remember.

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 Warning them that I got a gun. You know,
don't come after me because I'm armed too.

Graham testified that he was afraid the men intended to

shoot or hurt him and that he shot in the air because he "was

wanting them to back off and not keep coming . . . [toward

him]." He testified that the men continued up the hill and

began shooting at him. He shot at the men, telephoned 911 for

help, and then called the telephone operator after he got no

answer at 911. As he was asking the operator to contact the

police and shooting at the men who were shooting at him, he

realized that shots were also being fired from the Gateses'

trailer. He then shot at the Gateses' trailer. When the

operator told Graham that the police would arrive in ten or

fifteen minutes, he had no more ammunition. Graham then ran

from the trailer farther up the hollow into the woods.

When the police arrived, they saw a man behind the Gateses'

trailer with a shotgun. That man directed the police to his

friend who had been shot and who also had a shotgun. When the

police learned that other armed men were around, they ordered

the men to come out of the woods. Three men came from the

direction of the Hashes' trailer; they all had "long guns," one

of which was a shotgun.

The grand jury indicted Graham for the aggravated malicious

wounding of Lewis Collins, the attempted malicious wounding of

Donald Keene, use of a firearm in the commission of each of

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those felonies, shooting into an occupied dwelling, possession

of a firearm by a convicted felon, statutory burglary, and grand

larceny. At his jury trial, Graham was acquitted of malicious

wounding, attempted malicious wounding, and use of a firearm in

the commission of those shootings. The jury convicted him of

shooting into an occupied dwelling, statutory burglary, grand

larceny, and possession of a firearm by a convicted felon.

II.

The trial judge refused to instruct the jury as follows

concerning heat of passion:

Heat of passion excludes malice when the
heat of passion arises from provocation that
reasonably produces an emotional state of
mind such as hot blood, or rage, anger,
resentment, terror or fear so as to 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 refusal was plain error because it deprived Graham of

an instruction that would have put before the jury an element of

his defense. "Malice and heat of passion are mutually

exclusive; malice excludes passion, and passion presupposes the

absence of malice." Barrett v. Commonwealth, 231 Va. 102, 106,

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341 S.E.2d 190, 192 (1986) (citations omitted). As the majority

notes, "[h]eat of passion" refers to "the furor brevis which

renders a [person] deaf to the voice of reason." Hannah v.

Commonwealth, 153 Va. 863, 870, 149 S.E. 419, 421 (1929).

Therefore, heat of passion may be "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 (citations omitted). Whether Graham acted maliciously or

in the heat of passion, therefore, was a jury question. See id.

Graham testified that shots were being fired at him from

the Gateses' trailer and that he shot at that person in

self-defense. If the jury believed Graham's testimony, it

provided the basis upon which they could have concluded, if

properly instructed, that Graham acted in the heat of passion

when he obtained the gun from the Hashes' trailer and returned

gunfire toward the person who was shooting at him from the

Gateses' trailer.

It is clear from the jury's verdicts that the jury accepted

Graham's claim of self-defense. The jury acquitted him of the

charges of aggravated malicious wounding, attempted malicious

wounding, and the use of a firearm in the commission of those

offenses. Furthermore, the evidence proved the police found two

armed men, one of whom had been shot, behind the Gateses'

trailer. The jury, however, acquitted Graham of charges

concerning that wounding. "A plea of self defense and a claim

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of provoked heat of passion do not conflict with each other."

Barrett, 231 Va. at 106, 341 S.E.2d at 192. Because the

evidence in the record could support a jury finding that Graham

acted in the heat of passion while shooting into the trailer to

defend himself, I would hold that the trial judge erred in

refusing the instruction.

III.

In view of Graham's testimony, the trial judge instructed

the jury as follows concerning Graham's affirmative defense of

duress:

If you find from the evidence that the
defendant acted under duress, then you must
find him not guilty. In order for the
defendant to use the defense of duress, you
must find from the evidence that he was
threatened and that he had a reasonable fear
of imminent death or serious bodily injury.
The defense of duress is not available if
the defendant had a reasonable opportunity
to escape and did not do so or had a
reasonable opportunity to avoid committing
the crime without being harmed.

The trial judge, however, did not inform the jury of the

standard by which it was required to measure that evidence. The

necessary result of this omission was to leave the jury

uninformed of a critical aspect of the law relating to Graham's

defense. Thus, I would also hold that the trial judge erred in

refusing the following instruction that Graham tendered:

The defendant need not prove his affirmative
defenses beyond a reasonable doubt, or even
by a preponderance of the evidence. The
defendant must only introduce evidence

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 which, when considered with the whole
evidence, creates a reasonable doubt
regarding his guilt.

In its brief, the Commonwealth acknowledges "that a

defendant need only sustain a plea of self-defense to the point

where the evidence in support thereof, when considered along

with all other evidence produced in the case, raises a

reasonable doubt in the minds of the jurors regarding the guilt

of the accused." McGhee v. Commonwealth, 219 Va. 560, 561, 248

S.E.2d 808, 809 (1978) (citation omitted). The record does not

support, however, the Commonwealth's contention that the subject

of Graham's burden was adequately covered by other instructions.

Although the trial judge correctly instructed the jury that

"[t]here is no burden on the defendant to produce any evidence,"

that instruction fails to inform the jury of the appropriate

standard by which to weigh Graham's defenses in relation to the

Commonwealth's ultimate burden of proof.

"The common law defense of duress excuses acts which would

otherwise constitute a crime, where the defendant shows that the

acts were the product of threats inducing a reasonable fear of

immediate death or serious bodily injury." Pancoast v.

Commonwealth, 2 Va. App. 28, 33, 340 S.E.2d 833, 836 (1986).

Graham testified that he acted under conditions of extremis and

to defend himself when he entered the Hashes' trailer to get a

gun to hold his attackers at bay.

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 Each claim of self-defense and duress "is an affirmative

defense, the absence of which is not an element of [the offenses

Graham was charged with committing]." McGhee, 219 Va. at 562,

248 S.E.2d at 810. Graham had the burden of persuading the jury

that he acted in self-defense or under duress only to the degree

necessary to raise a reasonable doubt about his guilt. See id.;

see also Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d

414, 416 (1993) (discussing the elements of self-defense);

Pancoast, 2 Va. App. at 33, 340 S.E.2d at 836 (discussing the

elements of duress). "Whether an accused proves circumstances

sufficient to create a reasonable doubt that he acted in [a

manner that is excused by the affirmative defense] is a question

of fact." Smith, 17 Va. App. at 71, 435 S.E.2d at 416. In

making that factual determination, the jury should have been

informed of the limited nature of Graham's burden of persuasion.

The Commonwealth argues that self-defense is similar to the

concept of alibi for which the jury does not have to be

separately instructed on the burden of proof. In Fenner v.

Commonwealth, 152 Va. 1014, 148 S.E. 821 (1929), however, the

Supreme Court held that alibi is not an affirmative defense.

See id. at 1019, 148 S.E. at 822.

"Alibi is regarded by some courts as a
special affirmative defense, but the better
doctrine seems to be that it is not a
defense in the accurate meaning of the term,
but a mere fact shown in rebuttal of the
State's evidence; and, consequently, the
evidence introduced to support it should be

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 left to the jury, uninfluenced by any charge
from the court tending to place it upon a
different footing from other evidence in the
case or calculated to disparage and excite
prejudice against it."

* * * * * * *

"Thus, where the evidence offered by the
defendant is of an alibi - that is, that he
was at another place at the time the crime
was committed, and therefore could not have
committed it - he is obviously merely
disproving the truth of the prosecution's
evidence or inference from evidence; he is
making an entirely negative defense. It is
not for him to establish an alibi, but
simply to throw doubt on the case of the
prosecution."

Id. at 1019-20, 148 S.E. at 822-23 (citations omitted).

The instruction Graham tendered was vital to the jury's

understanding because many of the instructions to the jury

addressed the notion of proof beyond a reasonable doubt, the

Commonwealth's ultimate burden of persuasion. It is reasonable

to conclude that the lack of an instruction clearly explaining

Graham's burden of persuasion effectively conveyed to the jury

that Graham had to prove his affirmative defenses beyond a

reasonable doubt. No instruction either informed them otherwise

or provided them with the proper guidance. See Taylor v.

Commonwealth, 12 Va. App. 419, 422, 404 S.E.2d 78, 80 (1991)

(holding that "the trial judge should [instruct] the jury as to

the law of the case applicable to the facts in such a manner

that they may not be misled"). The trial judge was obligated to

properly instruct the jury on this point so that the jury would

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not apply the wrong standard and expect Graham to meet the same

high level of persuasion contained in other instructions it

received.

The purpose of an instruction is to furnish
guidance to the jury in their deliberations,
and to aid them in arriving at a proper
verdict, so far as it is competent for the
court to assist them. The chief object
contemplated in the charge of the judge is
to explain the law of the case, to point out
the essentials to be proved on the one side
or the other, and to bring into view the
relation of the particular evidence adduced
to the particular issues involved. In his
instructions the trial judge should inform
the jury as to the law of the case
applicable to the facts in such a manner
that they may not be misled.

Cooper v. Commonwealth, 2 Va. App. 497, 500, 345 S.E.2d 775, 777

(1986) (citation omitted).

IV.

In summary, the trial judge committed reversible error in

refusing to give the instructions concerning heat of passion and

Graham's burden of persuasion on affirmative defenses. In

acquitting Graham of malicious wounding, attempted malicious

wounding, and the lesser-included offenses of those charges, the

jury accepted Graham's defense that he was acting in

self-defense when he shot and wounded one of the armed men

behind the Gateses' trailer and shot at another of the armed men

pursuing him. In determining Graham's defense that he entered

the house and took the guns to defend himself because of duress,

the jury was not informed that proof of this defense was not to

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be determined by the heightened standard of beyond a reasonable

doubt, which was contained in several instructions. "As this

Court noted in Cooper v. Commonwealth, 2 Va. App. 497, [500,]

345 S.E.2d 775 [, 777] (1986), '[t]he purpose of an instruction

is to furnish guidance to the jury in their deliberations, and

to aid them in arriving at a proper verdict.'" Diffendal v.

Commonwealth, 8 Va. App. 417, 422, 382 S.E.2d 24, 26 (1989)

(citation omitted).

For these reasons, I would reverse the convictions and

remand for a retrial with a properly instructed jury. I

dissent.

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