OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Frank and Senior Judge Bray
Argued at Chesapeake, Virginia
AUDRY LAWRENCE WILLIAMS, III
MEMORANDUM OPINION * BY
v. Record No. 0552-02-1 JUDGE ROSEMARIE ANNUNZIATA
APRIL 8, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
Peter S. Economou (Weisbrod & Phillips, on
brief), for appellant.
Amy L. Marshall, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Audry Lawrence Williams, III, appellant, appeals his
conviction by jury as a principal in the second degree of
second-degree murder, shooting into an occupied vehicle,
discharging a firearm from a vehicle, three counts of attempted
maiming, and four counts of use of a firearm in the commission
of a felony. He cites as grounds for appeal the trial court's
error 1) in denying his request that the jury be instructed on
manslaughter and 2) in denying his request to instruct the jury
on attempted unlawful wounding and unlawfully shooting into an
occupied vehicle. For the reasons that follow, we affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On appeal, when the issue is a refused jury instruction, we
view the evidence in the light most favorable to Williams, the
proponent of the instruction. Lynn v. Commonwealth, 27 Va. App.
336, 344, 499 S.E.2d 1, 4-5 (1998). So viewed, the record shows
that an altercation occurred on the evening of March 2, 2001
that resulted in the killing of a fourteen-year-old bystander,
Stephanie McSweeney. On the evening in question, roommates,
Orrien Hymes, Frank Massey and Brian Bennett went to the Plaza
Roller Skating Rink in Hampton. Massey, who was skating "pretty
fast," accidentally bumped into Williams and knocked him to the
floor of the rink. Massey continued skating, unaware that he
had knocked down another skater, but Hymes, skating ten feet
behind Massey, stopped to make sure Williams was not injured.
Williams was "pretty hot about being knocked down" and
began screaming at Hymes. Williams's friend, Kevin Martin,
joined them and began exchanging words with Hymes, stating "You
don't know who you're messing with" and making "threatening
gestures." Massey skated around the rink and returned to the
place where he had knocked Williams down. He and Hymes tried to
apologize, but "[Williams] took it as we were threatening him."
Massey and Hymes decided to keep skating, but Martin "kept
coming up at [them]," and followed them around the rink while
they skated. After a subsequent encounter between Hymes, Martin
and Williams, described by Bennett as a "struggle," the three
roommates decided to leave the rink.
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The hostilities continued in the parking lot. As Hymes and
Massey walked into the lot and toward Hymes's car, Martin,
accompanied by Williams, continued to threaten Massey and Hymes,
stating "We are going to get you." Hymes testified that "[i]t
was possible [Massey] was making threats" to Williams and
Martin. Upon reaching his car, Hymes picked up a black plastic
toolbox, held it up and said to Martin and Williams, "We got
something in this box that will take care of you." Martin
responded that he had something in his car that would take care
of Hymes, walked toward Williams's car, entered the car and
drove toward the exit. The cars of each group arrived at the
exit at roughly the same time. As each waited to pull out of
the lot into traffic, Williams's car stalled, and Hymes and
Massey saw Martin reach for something under the front seat.
As Hymes sped away, he and his two roommates, Bennett and
Massey, heard gunfire, and Bennett saw Martin firing at them.
Massey saw "somebody grab their chest" and fall down and hit the
ground. The victim was fourteen-year-old Stephanie McSweeney,
who was crossing the street to use a pay phone. McSweeney died
from a single gunshot wound to her chest.
Martin was arrested the next morning and questioned about
the shooting. He stated that he did not mean to shoot
McSweeney, but believed that one of the bullets he fired hit her
"because [he] was shooting that way."
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Jury Instructions
On appeal, Williams contends the trial court erred in
refusing to instruct the jury on voluntary manslaughter,
unlawful wounding, and unlawful shooting at an occupied vehicle.
He contends that the evidence, viewed in the light most
favorable to him, supports a finding that he acted in the heat
of passion and in the absence of malice. We disagree.
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). "A jury instruction,
even though correctly stating the law, should not be given if it
is not applicable to the facts in evidence.'" Arnold v.
Commonwealth, 37 Va. App. 781, 787, 560 S.E.2d 915, 919 (2002)
(quoting Darnell v. Commonwealth, 6 Va. App. 485, 488, 370
S.E.2d 717, 719 (1988)). We view the evidence in the light most
favorable to Williams, the proponent of the instruction. Lynn,
27 Va. App. at 344, 499 S.E.2d at 4-5.
To reduce a homicide from murder to voluntary manslaughter,
the killing must have been done in the heat of passion and upon
reasonable provocation. 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 excludes malice when provocation reasonably
produces fear [or anger] that causes one to act on impulse
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without conscious reflection." Graham v. Commonwealth, 31
Va. App. 662, 671, 525 S.E.2d 567, 571 (2000).
We find the record in this case is devoid of provocation
evidence. Specifically, the evidence fails to support the
conclusion Williams urges us to accept: that Martin shot in the
heat of passion, without reflection, due to fear or anger.
Williams was convicted as a principal in the second degree,
having been "present, aiding and abetting [Martin in the
commission of the crime]" and having "intended his . . . words,
gestures, signals, or actions to in some way encourage, advise,
urge, or in some way help [Martin] committing the crime to
commit it." McGill v. Commonwealth, 24 Va. App. 728, 733, 485
S.E.2d 173, 175 (1997). The Commonwealth need only show,
therefore, that Williams was guilty of some overt act in
furtherance of the crime. Augustine v. Commonwealth, 226 Va.
120, 124, 306 S.E.2d 886, 889 (1983). Because Williams did not
shoot the victim, the Commonwealth was not required to prove
Williams acted with malice in loading his gun, permitting Martin
to use his gun, and driving the car as Martin shot at Hymes's
vehicle. Convicted as a principal in the second degree,
Williams's intent is irrelevant to the issue of his guilt. See
Hunt v. Commonwealth, 25 Va. App. 395, 403-04, 488 S.E.2d 672,
677 (1997) (finding defendant was not entitled to a voluntary
manslaughter instruction where his actions did not kill the
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victim and, therefore, whether he acted in the heat of passion
was irrelevant). Therefore, under the facts of this case, the
trial court did not err when it refused to give a heat of
passion voluntary manslaughter instruction. 1
To the extent Williams premises his contention of error on
the trial court's refusal to give a voluntary manslaughter
instruction concerning codefendant Martin, we find there is not
a scintilla of evidence to support the instruction. The record
shows that Martin did not act in the heat of passion.
First, although there was an argument in the parking lot
between the parties, words alone are never sufficient to
constitute heat of passion. Canipe v. Commonwealth, 25 Va. App.
629, 645, 491 S.E.2d 747, 754 (1997); see also McCoy v.
Commonwealth, 133 Va. 731, 739, 112 S.E. 704, 707 (1922) ("[T]he
1
The Commonwealth contends the issue of whether the trial
court erred in refusing to give a heat of passion instruction is
barred procedurally under Rule 5A:18 because the appellant
failed to make clear to whom the instruction applied. The
Commonwealth contends that, because the defendants failed to
inform this Court whether the instruction applied to Williams,
Martin or both, Williams is barred from raising the issue on
appeal. See Rule 5A:18; see also Lee v. Lee, 12 Va. App. 512,
516, 404 S.E.2d 736, 738-39 (1991) (en banc). We are not
persuaded by this argument. The record shows that the heat of
passion instruction was to apply to both defendants. Ruling on
the instruction, the trial judge referenced both defendants and
stated "[t]he first issue is whether or not these defendants are
entitled to an instruction of the lesser included offense of
voluntary manslaughter." The judge specifically noted that "the
defendants [sic] appellate rights, should they be necessary to
be invoked, are fully preserved in this area" and "To that
ruling, I note the exception of both defendants." Thus, we find
the issue was properly preserved.
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law is so tender in its regard for human life that it does not
permit a man to defend himself against the charge of
murder . . . unless his victim has done something more than to
merely offer him a verbal insult."). In addition, the fact that
Hymes knocked Williams down accidentally while skating at the
rink would not render a reasonable person "deaf to the voice of
reason." Canipe, 25 Va. App. at 645, 491 S.E.2d at 754. In any
event, the facts belie a contention to the contrary. By
Williams's own testimony, Martin was "all right," stating to
Williams "[Y]eah, them guys talking a lot of junk but I ain't
worried about it."
Second, Martin told Detective Thurman Clark that he did
not shoot directly at the car; he shot in the air once "to make
them put the gun back down," and then he shot two more times.
The conduct described evinces reflection and deliberate,
purposeful action, not one borne out of the heat of passion.
Third, the events that occurred while the parties were
driving from the parking lot were likewise insufficient to
warrant the heat of passion instruction. According to Martin,
someone from Hymes's car pointed a gun at Williams's head, not
at him. Therefore, assuming arguendo that act constituted
provocation, it was directed at Williams, not Martin, the
individual who shot the gun.
Finally, the evidence in the record demonstrates that there
was reasonable opportunity for Martin to cool. His conduct in
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shooting the victim, therefore, cannot be attributed to the heat
of passion. Miller v. Commonwealth, 5 Va. App. 22, 25, 359
S.E.2d 841, 842 (1987). Martin and Williams stated they were
the first to leave the skating rink and the first to enter the
car to drive away. By the time the shooting incident occurred,
sufficient time had passed for the provocation caused by the
incident, if any existed, to cool. In short, the evidence fails
to support the conclusion that Martin was "rendered deaf to the
voice of reason." Canipe, 25 Va. App. at 645, 491 S.E.2d at
754. 2
For these reasons, we hold that the trial court did not err
in refusing Williams's heat of passion instruction, and we
affirm the decision of the trial court.
Affirmed.
2
Williams further contends the trial court erred in
refusing a jury instruction on the lesser offenses of attempted
unlawful wounding and unlawfully shooting into an occupied
vehicle, on the ground that there was evidence of "heat of
passion." Because we find, for the reasons set forth in this
opinion, that there was not a scintilla of evidence to support a
"heat of passion" instruction, we reject Williams's contention.
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Audry Lawrence Williams, III v. Commonwealth
Combined Opinion