Lynn v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Bumgardner and Retired Judge Coulter *
Argued at Salem, Virginia

ROBERT SCOTT LYNN
OPINION BY
v. Record No. 0109-97-3 JUDGE SAM W. COLEMAN III
MAY 12, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
George E. Honts, III, Judge
Roger Groot (J. Lloyd Snook; Snook & Haughey,
P.C., on briefs), for appellant.

Leah A. Darron, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.

Robert Scott Lynn was convicted by a jury for second degree

murder and use of a firearm in the commission of murder. On

appeal, he contends: (1) the trial court erred in refusing to

grant certain proffered jury instructions, and (2) the evidence

is insufficient to support the convictions. We disagree and

affirm the convictions.
I. BACKGROUND

Appellant and his wife attended a holiday party hosted by

appellant's brother-in-law, Stuart Fitzgerald. James Nash, the

victim, also attended the party. Most of the guests, including

appellant and Nash, consumed a substantial amount of alcohol. At

one point during the evening, Nash displayed two firearms that he
*
Retired Judge Jack B. Coulter took part in the
consideration of this opinion by designation pursuant to Code
§ 17-116.01.
had carried with him, a .44 Magnum pistol and a 9 millimeter

semi-automatic pistol with a laser sight that produced a red dot

on the directed target.

At about 2:00 a.m., Fitzgerald's wife told the guests the

party was ending and asked Nash to leave. She asked Buddy Ayers,

Nash's co-worker, to assist in getting Nash to leave the party.

When Ayers touched Nash's shoulder to get his attention, Nash

lifted Ayers "cradle-style" and fell backward with Ayers off the

porch into a woodpile. Ayers stood up and was reaching to help

Nash from the woodpile when appellant charged by Ayers and began

punching Nash. Buddy Ayers testified that he was unable to

recall the ensuing events because someone "whacked" him across

the face with a large stick.
Kay Ayers testified that appellant and Fitzgerald ran over

and started throwing punches at Nash and Ayers as the latter two

men helped each other from the woodpile. She went into the house

to call the police. When she looked outside, Fitzgerald was

astraddle Ayers punching him while appellant was fighting with

someone else. She saw Nash go to his truck and return holding a

gun at his side. As she turned to tell Fitzgerald's wife to call

the police, she heard two gunshots, a pause, and then several

more gunshots in rapid succession. She testified that after the

firing ended, she looked out and saw Nash lying face down on the

lawn.

Rockbridge County Police Sergeant Steve Webb testified that

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when he arrived at the scene he found Nash lying on the front

lawn next to several parked cars. Appellant admitted to Webb

that he had shot Nash, stating, "I did it. I'm the one you

want." In a statement to Deputy Sheriff Christopher Blalock,

appellant stated that Nash grabbed his wife by the neck and fired

two gunshots by her head. Appellant recounted that he thought

his wife was dead. He told Blalock that he jumped the victim,

grabbed the gun, and "emptied the son-of-a-bitch."
Dr. William Massello, a forensic pathologist, testified that

Nash was shot at least five times from behind. One of the wounds

was consistent with the victim being shot while lying on the

ground. Special Agent Jerry Humphries, an expert in blood

spatter analysis, testified that the blood spatters found on the

vehicles parked near Nash's body indicated that Nash was shot

several times while moving toward the spot where his body was

found and at least once while lying on the ground. David Gibbs,

a forensic firearms expert, testified that at least one of the

bullets was fired into Nash at a distance of less than two feet.

Police officers found eleven shell casings at the scene that had

been fired from Nash's firearm.

In appellant's defense, Donna Fitzgerald testified that

after Ayers and Nash fell off the porch she saw her husband,

Stuart Fitzgerald, fighting with appellant. Appellant and his

brother knocked Fitzgerald to the ground and kicked and beat him

while he lay unconscious. After checking on her husband, Mrs.

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Fitzgerald saw Nash holding appellant with one hand and holding a

gun to his neck. She tried to pull the gun away, but Nash told

her that if she grabbed the wrong finger the gun would go off.

She saw the red dot from the laser sight on appellant's face and

ran toward the house. When she looked back, she saw three people

struggling and then two gunshot flashes, followed by four more

gunshots. She testified that she saw Nash take a step and fall

and that appellant was standing a few feet away from Nash and was

holding a gun at his side.
Appellant's wife testified that she saw Nash point the gun

at appellant and tell him, "I'm going to kill you." She saw the

red dot from the laser sight fixed on appellant's face and neck.

She testified that she tried to grab the gun but Nash started

choking her. She claimed she heard the gun discharge and

afterward was able to get free from Nash. She testified that she

thought that she had somehow shot Nash. She did not see her

husband shoot Nash.

Appellant testified that Nash grabbed him around the neck

and held the gun to his face. When a "commotion" distracted

Nash, he loosened his grip and appellant was able to break free.

Appellant testified that he heard his wife scream and that he

looked back and saw Nash fire two shots by her head while holding

her by the neck. Appellant said he charged Nash from a distance

of about five to eight feet, knocked him off balance, grabbed the

gun, and started shooting. Appellant stated that he did not know

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where he shot Nash or how many times he pulled the trigger.

Appellant was arrested and charged with first degree murder

and use of a firearm in the commission of murder. At trial, the

judge refused to grant four of appellant's tendered jury

instructions. The jury convicted appellant of second degree

murder and use of a firearm in the commission of murder.

II. JURY INSTRUCTIONS

"Both the Commonwealth and the defendant are entitled to

appropriate instructions to the jury of the law applicable to

each version of the case, provided such instructions are based

upon the evidence adduced." Stewart v. Commonwealth, 10 Va. App.

563, 570, 394 S.E.2d 509, 514 (1990) (citation omitted). "An

instruction is properly refused when it is unsupported by the

evidence." Wilson v. Commonwealth, 25 Va. App. 263, 274, 487

S.E.2d 857, 863 (1997). On appeal, when the issue is a refused

jury instruction, we view the evidence in the light most

favorable to the proponent of the instruction. See Turner v.
Commonwealth, 23 Va. App. 270, 275, 476 S.E.2d 504, 507 (1996).

A. Instruction L

The trial judge granted several instructions pertaining to

the malice requirement for first or second degree murder and the

lack of malice as an element for the lesser-included offense of

voluntary manslaughter. Instruction 9 instructed the jury to

find the appellant guilty of voluntary manslaughter if it found

the Commonwealth had failed to prove that the killing was

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malicious but had proved the killing was intentional and

"committed while in a sudden heat of passion upon reasonable

provocation or in mutual combat." Instruction 11 defined the

difference between malice and heat of passion. 1 Instruction 14

informed the jury that "the difference between murder and

manslaughter is malice, when malice is present the killing is

murder. When it is absent, the killing can be no more than

manslaughter."
The trial judge refused appellant's proffered Instruction L.

Instruction L stated:
If you believe from the evidence that
the conduct of the deceased was such as to
reasonably provoke the passion and anger of
1
Instruction 11 provided:

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.

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, rage, anger,
resentment, terror or fear so as to
demonstrate an absence of deliberate design
to kill, or to cause one to act on impulse
without conscious reflection. Heat of
passion must be determined from circumstances
as they appeared to the defendant but those
circumstances must be such as would have
aroused heat of passion in a reasonable
person.

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 the defendant and as a result, before a
reasonable time had elapsed for the
defendant's passion to subside and while
still in the heat of said passion and anger
and before his reason returned, he killed the
deceased, you cannot find him guilty of a
higher grade of offense than voluntary
manslaughter.

Generally, a "cooling off" instruction is sought by the

Commonwealth to enable the jury to find that an accused's passion

kindled by an act of provocation had "cooled" so as to enable the

accused to regain his or her reason before committing the

homicide. See Miller v. Commonwealth, 5 Va. App. 22, 25, 359

S.E.2d 841, 842 (1987) ("If [the Commonwealth] demonstrates that

the accused reflected or deliberated, that his passion cooled, or

that there was reasonable time or opportunity for cooling, then

the [offense] is attributable to malice and not heat of

passion."). In the present case, appellant requested the

instruction to enable the jury to find the converse -- that he

acted in the heat of passion and that sufficient time had not

elapsed for his passion to "cool" before he shot Nash.

The giving of a "cooling off" instruction is discretionary.

The instruction is generally given to explain how a person may

be under the control of reason when performing a malicious act

even though the person's actions were recently controlled by

rage, anger, or the heat of passion. Although it may not be

error for the court to instruct the jury in a proper case that

they can find the killing occurred during the heat of passion if

insufficient time had elapsed for "cooling off," it is not error

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to refuse the instruction when the evidence does not support a

need for explaining the concept. The trial court may not have

erred had it granted Instruction L; however, it did not err by

refusing it. No version of the evidence established that a

period elapsed during the confrontation which reasonably could

have been viewed by the jury as a "cooling off" period. At the

time of the killing, appellant was either acting maliciously or

was controlled by rage and killed in the heat of passion. Viewed

in the light most favorable to the appellant, the evidence proved

that appellant grabbed Nash's gun and shot him in immediate

response to Nash's firing shots over appellant's wife's head.

Very little time elapsed between the alleged provocation and the

shooting; neither the Commonwealth nor the appellant was entitled

as a matter of right to a "cooling" instruction. 2 See Potter v.

Commonwealth, 222 Va. 606, 610, 283 S.E.2d 448, 450-51 (1981)

(Commonwealth not entitled to "cooling" instruction where killing

occurred in course of "continuous fight"). The court's other

instructions fully and accurately instructed the jury as to the

elements of murder and voluntary manslaughter under Virginia law.

Accordingly, the trial court did not err in refusing to give

Instruction L.
2
Appellant notes that Instruction L was an "expanded
version" of the third paragraph of Virginia Model Jury
Instruction No. 34.220. Appellant argues that this paragraph is
routinely included in the instructions where the heat of passion
defense is asserted. However, as the commentary for the model
instruction states: "If there is no issue pertaining to cooling
of heat of passion, the third paragraph of the instruction should
not be given."

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 B. Instruction O

The trial court instructed the jury that it may "infer

malice from the deliberate use of a deadly weapon, unless from

all of the evidence you have a reasonable doubt that malice

existed." Citing Jones v. Commonwealth, 187 Va. 133, 142, 45

S.E.2d 903, 911 (1948), and Bevley v. Commonwealth, 185 Va. 210,

215, 38 S.E.2d 331, 333 (1946), appellant argues that the trial

judge should also have instructed the jury that "one who has been

threatened, and who reasonably apprehends a future deadly attack,

has a right to arm himself." As to the right to arm oneself,

appellant contends the trial judge erred by refusing

Instruction O, which stated:
When a person reasonably apprehends that
another intends to attack him or a member of
his family for the purpose of killing him or
a member of his family or doing him or a
member of his family serious bodily harm,
then such person had a right to arm himself
for his own necessary self-protection and the
protection of his family, and in such case,
no inference of malice can be drawn from the
fact that he prepared for it.

Although the instruction is a correct statement of Virginia

law, appellant's reliance on Jones and Bevley is misplaced. In

Bevley, the defendant attended a party where another guest had

become intoxicated and violent. Bevley, 185 Va. at 213, 38

S.E.2d at 332. When the guest threatened to disarm another guest

and shoot Bevley and several others, Bevley obtained a handgun

from his car. Id. During an altercation shortly thereafter,

Bevley shot and killed the guest. At trial, Bevley was

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confronted with the fact that his having consciously and

deliberately armed himself could be considered as evidence of a

malicious and premeditated killing, without an explanation that a

person has a right to arm and defend himself or herself against a

perceived attack. Our Supreme Court held that Bevley was

entitled to an instruction "'that one who has been threatened

with murderous assaults and has reason to believe that such

assaults will be made, may arm himself in his defense and in such

case no inference of malice can be drawn from the fact of

preparation for it.'" Id. at 215, 38 S.E.2d at 333 (quoting with

approval State v. Summers, 188 S.E. 873, 875 (W. Va. 1936))

(emphasis added). Similarly, in Jones, the Court held that the

refusal of a similar instruction was erroneous where the

defendant obtained a handgun from his house after the victim had

beaten and threatened to kill the defendant fifteen minutes

before the killing. Jones, 187 Va. at 141-42, 45 S.E.2d at

911-12. As Jones and Bevley illustrate, the right to arm

instruction is required only where the evidence fairly suggests

that the accused obtained the firearm in preparation for a future
deadly attack. In both cases, the defendants consciously and

deliberately armed themselves rather than seizing an available

weapon to fend off an attack against themselves or family

members.

Here, the evidence, viewed in the light most favorable to

appellant, does not support giving a right to arm instruction.

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Unlike the facts in Jones and Bevley, the evidence does not

support the proposition that appellant armed himself with

planning and deliberation for the purpose of being able to defend

himself from a future attack. Rather, accepting appellant's

account of the incident, appellant seized Nash's firearm in order

to repel an immediate threat of harm from Nash. To disarm an

assailant during an attack and to use the weapon against the

attacker does not constitute exercising the right to arm oneself

in order to avert or resist an anticipated deadly attack. Cf.

Wilson, 25 Va. App. at 274, 487 S.E.2d at 863 (right to arm

instruction properly refused where accused brought gun to

victim's apartment without perceiving any threat of harm from

victim). Furthermore, considering the court's other instructions

on the law of self-defense and defense of others, the jury

remained free to conclude that appellant did not maliciously kill

Nash but rather disarmed and shot Nash in order to protect

himself or his family from an immediate threat of death or

serious bodily harm. Accordingly, the trial judge did not err by

refusing the right to arm instruction.
C. Instruction S

Instruction S, which the trial judge refused, provided in

pertinent part that "where a killing takes place in combat, in

determining whether or not the defendant thought that he or a

member of his family was in danger of great bodily harm, the jury

ought to consider the relative size and strength of the parties."

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 The trial court did not err in rejecting Instruction S. The

trial court fully and accurately instructed the jury regarding

justifiable self-defense 3 and defense of certain family

members. 4 Although "[t]he court might well have told the jury

that [the relative size and strength of the principals] might be

considered in determining whether or not the accused did believe,

and had reason to believe, that he stood in danger of serious

bodily harm," its failure to further instruct the jury to

consider this factor was not reversible error. Ballard v.

Commonwealth, 156 Va. 980, 1005, 159 S.E. 222, 231 (1931); see

also Hodges v. Commonwealth, 89 Va. 265, 273, 15 S.E. 513, 516

(1892). During closing argument, the parties remained free to
3
Instruction 16 provided:

If you believe that the defendant was without
fault in provoking [the fight with Nash] 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.
4
Instruction 17 provided:

If you believe that the Defendant reasonably
believed under the circumstances that his
wife and/or child were without fault in
provoking the altercation, and if you further
believe that the Defendant reasonably feared,
under the circumstances as they appeared to
him, that wife and/or child were in danger of
being killed or that either of them were in
danger or great bodily harm, the killing was
in defense of another, and you shall find the
Defendant not guilty.

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discuss the relative size and strength of the combatants. The

court's instructions enabled the jury to consider all relevant

circumstances, including the relative sizes of the persons,

without the trial judge emphasizing and isolating one particular

factor as perhaps being more significant.

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 D. Instruction P

Finally, we hold that the trial court did not err in

rejecting appellant's proposed Instruction P. Instruction P

explained the law of excusable homicide by self-defense, stating:
If you believe that the Defendant was to some
degree at fault in provoking or bringing on
the fight with [the victim], and if you
further believe that when attacked: (1) he
retreated as far as he safely could under the
circumstances; (2) in a good faith attempt to
abandon the fight; and (3) made known his
desire for peace by word or act; and (4) he
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.

As previously noted, the trial court instructed the jury

that a defendant who is without fault in bringing about an

altercation has the right to use lethal force to defend himself

or certain family members. We concur in the trial court's

finding that no credible evidence supported the theory that the

killing was excusable self-defense. Excusable self-defense may

be asserted when the accused, who was at some fault in

precipitating the confrontation with the victim, abandons the

fight and retreats as far as he or she safely can before

attempting to repel the attack. See McCoy v. Commonwealth, 125

Va. 771, 776, 99 S.E. 644, 646 (1919). Appellant neither

abandoned the fight nor retreated. Appellant testified that he

broke free from Nash's hold and tackled Nash. Cf. Smith v.

Commonwealth, 17 Va. App. 68, 72, 435 S.E.2d 414, 417 (1993)

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(excusable self-defense where defendant used deadly force after

fleeing from armed intruders and being cornered in kitchen).

Thus, viewing the evidence in the light most favorable to

appellant, the evidence did not support a finding by the jury

that appellant "retreated as far as he safely could under the

circumstances." The trial judge did not err in rejecting

Instruction P.

III. SUFFICIENCY OF THE EVIDENCE
Second degree murder is defined as a "malicious killing" of

another person. Turner v. Commonwealth, 23 Va. App. 270, 274,

476 S.E.2d 504, 506 (1996). It is undisputed that appellant

intentionally shot the victim, James Nash. Appellant contends

the evidence is insufficient to prove that he acted with malice.

He argues that the evidence proved he killed Nash in self-

defense or in defense of his wife and, therefore, he was entitled

to an acquittal as a matter of law. Alternatively, he asserts

that the jury could not have convicted him for an offense greater

than voluntary manslaughter because the evidence proved as a

matter of law that he killed Nash in the heat of passion and in

mutual combat.

When the sufficiency of the evidence is challenged on

appeal, we review the evidence in the light most favorable to the

Commonwealth and grant to it all reasonable inferences fairly

deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349,

352, 218 S.E.2d 534, 537 (1975). In a jury trial, the

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credibility of the witnesses and the weight accorded to their

testimony are matters solely within the province of the jury.

Coppola v. Commonwealth, 220 Va. 243, 252, 257 S.E.2d 797, 803

(1979). Under familiar principles of appellate review, we may

not disturb the jury's verdict unless it is plainly wrong or

unsupported by the evidence. Traverso v. Commonwealth, 6 Va.

App. 172, 176, 366 S.E.2d 719, 721 (1988).

A. Malice
The element of malice requires the Commonwealth to prove

that the accused "wilfully or purposefully" killed another.

Essex v. Commonwealth, 228 Va. 273, 280, 322 S.E.2d 216, 220

(1984).
Malice may be either express or
implied. . . . "Express malice is evidenced
when one person kills another with a sedate,
deliberate mind, and formed design. . . .
Implied malice exists when any purposeful,
cruel act is committed by one individual
against another without any, or without
great[,] provocation. . . ."

Canipe v. Commonwealth, 25 Va. App. 629, 642, 491 S.E.2d 747, 753

(1997) (quoting Essex, 228 Va. at 280, 322 S.E.2d at 220).
Implied malice may be inferred from "conduct likely to cause

death or great bodily harm, wilfully or purposefully undertaken."

Essex, 228 Va. at 281, 322 S.E.2d at 220 (emphasis added).

Viewed in the light most favorable to the Commonwealth, the

evidence is sufficient to prove that appellant maliciously shot

and killed Nash. Appellant admitted that he intentionally shot

Nash. The jury could infer malice from appellant's deliberate

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use of a deadly weapon. See Morris v. Commonwealth, 17 Va. App.

575, 579, 439 S.E.2d 867, 869-70 (1994). Other evidence

substantiated the finding that appellant acted with malice.

Buddy and Kay Ayers testified that appellant charged Nash and

began punching him violently when Nash stood after falling into

the woodpile. Appellant shot Nash at least five times from

behind, one of which was from a distance of approximately two

feet while Nash was lying face down on the ground. Indeed,

appellant testified that he "emptied" the firearm, firing bullets

into Nash until he hit the ground. From the foregoing evidence,

the jury could have reasonably concluded that appellant willfully

and purposefully shot Nash several times in the back and killed

him. See Waller v. Commonwealth, 178 Va. 294, 313, 16 S.E.2d

808, 815 (1941); Branch v. Commonwealth, 14 Va. App. 836, 841,

419 S.E.2d 422, 426 (1992).

B. Affirmative Defenses

We next consider whether the evidence proved as a matter of

law the appellant's affirmative defenses:
1. Self-defense/Defense of Others

Self-defense and defense of others are affirmative defenses

for which the accused has the burden of persuading the fact

finder that he or she acted in defense of self or another to the

degree necessary to raise a reasonable doubt about his or her

guilt. See Smith, 17 Va. App. at 71, 435 S.E.2d at 416; Foster
v. Commonwealth, 13 Va. App. 380, 385, 412 S.E.2d 198, 201-02

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(1991) (recognizing defense of others "is commensurate with

self-defense"). Although undisputed facts may establish

self-defense as a matter of law, see, e.g., Hensley v.

Commonwealth, 161 Va. 1033, 170 S.E. 568 (1933), whether the

accused establishes that he or she acted in either respect is

generally a question of fact. See Yarborough v. Commonwealth,

217 Va. 971, 979, 234 S.E.2d 286, 292 (1977).

A claim of self-defense may be either justifiable or

excusable; if it is either, the accused is entitled to an

acquittal. See Bailey v. Commonwealth, 200 Va. 92, 96, 104

S.E.2d 28, 31 (1958). "Justifiable homicide in self-defense

occurs [when] a person, without any fault on his part in

provoking or bringing on the difficulty, kills another under

reasonable apprehension of death or great bodily harm to

himself." Id. (emphasis added). "If an accused 'is even

slightly at fault' at creating the difficulty leading to the

necessity to kill, 'the killing is not justifiable homicide.'"
Smith, 17 Va. App. at 71, 435 S.E.2d at 416.
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.

Bailey, 200 Va. at 96, 104 S.E.2d at 31 (citations omitted).

"[A] person asserting a claim of defense of others may do so

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only where the person to whose aid he or she went would have been

legally entitled to defend himself or herself." Foster, 13 Va.

App. at 385, 412 S.E.2d at 201 (citing with approval 40 Am. Jur.

2d Homicide § 171 (1968)). Thus, one may be justified in using

deadly force to defend another person where he or she reasonably

believes that the person defended faces an imminent threat of

serious bodily harm or death and that such person was not at

fault in bringing about the necessity to use the deadly force.
See Foster, 13 Va. App. at 385-86, 412 S.E.2d at 201-02; see also

1 Wayne R. LaFave, Substantive Criminal Law § 5.8 (1986).

Viewed in the light most favorable to the Commonwealth, the

evidence is insufficient to prove as a matter of law that

appellant killed Nash in self-defense or in defense of others.

"[I]n order that [a homicide] may be justifiable as self-defense,

the defendant must have been free from all fault or wrong-doing

on his part which had the effect to provoke or bring on the

difficulty." Bell v. Commonwealth, 2 Va. App. 48, 56, 341 S.E.2d

654, 658 (1986) (citation omitted). Considering Buddy and Kay

Ayers' testimony that appellant initiated the altercation by

attacking Nash at the woodpile, the jury could have reasonably

concluded that appellant was "at fault" in provoking the

difficulty with Nash. On this basis, the jury could have found

that appellant, as the instigator of the affray, was not entitled

to an acquittal based on justifiable self-defense. 5
5
Because, as we held in Part II(D), the evidence, viewed in
the light most favorable to appellant, is insufficient to support

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 In addition, the jury could reasonably have found that

appellant did not kill Nash upon the reasonable belief that Nash

posed a threat of serious bodily harm or death to either

appellant or his wife. As the trier of fact, the jury had 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.

Painter v. Commonwealth, 210 Va. 360, 367, 171 S.E.2d 166, 171

(1969). The jury could have disbelieved appellant's evidence

that Nash held a gun to appellant's neck, grabbed appellant's

wife, and fired two shots by her head. See Montgomery v.

Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980)

("[E]ven if the defendant's [evidence] was not inherently

incredible, the trier of fact need not have believed the

explanation. . . ."). Thus, the jury could have reasonably

concluded that Nash committed no "overt act indicating [his]

imminent intention to kill or seriously harm the accused" or his

wife, as is required before one may lawfully use deadly force to

defend oneself or others. Smith, 17 Va. App. at 71-72, 435

S.E.2d at 417. Furthermore, even if the jury had believed

appellant's account of the events, it could have reasonably

(..continued)
a jury instruction on excusable self-defense, the evidence, when
viewed in the light most favorable to the Commonwealth, is
palpably insufficient to prove that appellant committed excusable
homicide in self-defense.

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concluded that appellant had quelled any danger to him or his

wife once he had disarmed Nash. Accordingly, we cannot say as a

matter of law that appellant killed Nash in self-defense or in

defense of others.

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 2. Heat of Passion

We further hold that the evidence does not prove as a matter

of law that appellant killed Nash in the heat of passion. To the

contrary, the evidence is sufficient to support the jury's

conclusion that appellant did not shoot Nash in the heat of

passion. "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, 341 S.E.2d

190, 192 (1986) (citations omitted). "Heat of passion" refers to

"the furor brevis which renders a man deaf to the voice of
reason." Canipe, 25 Va. App. at 643, 491 S.E.2d at 753. To show

that a homicide occurred in the heat of passion, the evidence

must prove that the accused killed while motivated by "passion"

and upon "reasonable provocation." Id. Although undisputed

facts may prove as a matter of law that a killing was in the heat

of passion and, thus, no more than involuntary manslaughter, see

Tillman v. Commonwealth, 185 Va. 46, 53, 37 S.E.2d 768, 773

(1946), whether an accused killed in the heat of passion is

generally a question of fact. See Canipe, 25 Va. App. at 643,

491 S.E.2d at 754.

As noted in Part III(B)(1), the jury could have disbelieved

any or all of the evidence presented by appellant asserting that

Nash grabbed appellant's wife around the neck and fired gunshots

by her head. See Durham v. Commonwealth, 214 Va. 166, 169, 198

S.E.2d 603, 606 (1973); Rollston v. Commonwealth, 11 Va. App.

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535, 547, 399 S.E.2d 823, 830 (1991). Moreover, the jury could

have reasonably concluded that any of Nash's other purported

actions, namely refusing to leave the party and accidently

knocking over Fitzgerald's woodpile, did not constitute

"reasonable provocation" for killing him. Accordingly, the jury

could have reasonably concluded that appellant acted with malice

and did not kill Nash in the heat of passion.

C. Mutual Combat
Finally, we hold that the evidence fails to support

appellant's contention that he killed Nash in the course of

mutual combat. For combat to be "mutual," it must have been

voluntarily and mutually entered into by both or all parties to

the affray. See Smith, 17 Va. App. at 72, 435 S.E.2d at 417. It

is settled that "[o]ne who is assaulted may and usually does

defend himself, but the ensuing struggle cannot be accurately

described as mutual combat." Harper v. Commonwealth, 165 Va.

816, 820, 183 S.E. 171, 173 (1936). In this case, the evidence,

viewed in the light most favorable to the Commonwealth,

established at most that Nash started fighting with appellant

after appellant struck Nash by the woodpile. The jury could have

reasonably concluded that Nash, if he did enter the altercation

with appellant, did not do so voluntarily.

For the foregoing reasons, we hold that the trial court did

not err in refusing appellant's Instructions L, O, P and S. We

further conclude that the evidence is sufficient to support the

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second degree murder and use of a firearm in the commission of

murder convictions. Accordingly, we affirm the convictions.

Affirmed.

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