COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Frank
Argued at Chesapeake, Virginia
SHUN O'NEAL PATTERSON
MEMORANDUM OPINION * BY
v. Record No. 0342-01-1 JUDGE RUDOLPH BUMGARDNER, III
FEBRUARY 5, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
Edward I. Sarfan (Sarfan & Nachman, L.L.C.,
on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
A jury convicted Shun O'Neal Patterson of first degree
murder, use of a firearm in the commission of a felony, and
robbery. On appeal, he contends the trial court erred (1) in
finding the evidence sufficient to prove murder, (2) in refusing
his voluntary manslaughter instruction, (3) in giving
contradictory jury instructions, and (4) in giving a
self-defense instruction after telling counsel it would not.
Finding no error, we affirm.
On appeal, we review the evidence and all reasonable
inferences fairly deducible therefrom in the light most
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
favorable to the Commonwealth. Archer v. Commonwealth, 26 Va.
App. 1, 11, 492 S.E.2d 826, 831 (1997). Where there is credible
evidence supporting the verdict, "'this Court should not
overrule it and substitute its own judgment, even if its opinion
might differ from that of the jury.'" George v. Commonwealth,
242 Va. 264, 278, 411 S.E.2d 12, 20 (1991) (quoting Snyder v.
Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d 452, 457 (1961)).
Geraldine Perkins saw the victim riding his bicycle through
an apartment complex. The defendant appeared and "snatched him
off his bike." The two men were "tussling . . . [and] about a
minute later the gun went off." The victim fell to the ground
and the gun dropped. The victim said, "Don't shoot me, don't
shoot me." The defendant reached over to get the gun and said,
"I'm going to kill you goddamn it, I'm going to kill you." The
defendant shot the victim, "[t]hen turned around and shot him
again." As Perkins called 911, she saw the defendant running
away with the gun in his right hand.
Keara Littlejohn heard a gunshot and went outside her
apartment. She saw the victim lying on the ground and the
defendant "standing over" him near his head. The defendant told
the victim to give him his money and then shot the victim twice.
The defendant took something from the victim's back pocket and
ran.
The victim suffered two gunshot wounds. One came from a
gun pressed tightly against his skin but was not fatal. The
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other entered above the collarbone, severed the artery and vein
beneath that bone, injured the lung and liver, and lodged in the
victim's flank. It was fatal.
The defendant maintained the victim robbed him at gunpoint
shortly before the shooting. The victim then pursued the
defendant and again threatened to shoot him. The two men
struggled, the gun went off, and the victim fell to the ground.
The defendant picked up the money the victim had stolen from him
earlier and ran. At first the defendant did not remember having
the gun in his hand as he ran, but later he admitted taking the
gun and giving it away.
"The credibility of the witnesses and the weight accorded
the evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995) (citations omitted). The fact finder is not required
to believe all aspects of a witness' testimony; it may accept
some parts as believable and reject other parts as implausible.
Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24
(1993).
The jury accepted the testimony of the Commonwealth's
witnesses and did not accept the defendant's testimony. The
Commonwealth's witnesses were competent and not inherently
incredible. From their testimony, the jury could conclude
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beyond a reasonable doubt that the defendant committed the
offenses charged.
The defendant contends the trial court erred in refusing to
instruct on voluntary manslaughter. The court instructed the
jury on first and second degree murder, malice, and heat of
passion. The court did not instruct on voluntary manslaughter
reasoning that no evidence showed the defendant acted in the
heat of passion.
In Turner v. Commonwealth, 23 Va. App. 270, 276, 476 S.E.2d
504, 507 (1996), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997), the
trial court instructed on first and second degree murder but
refused to instruct on voluntary manslaughter. Turner was
convicted of first degree murder. "[B]y rejecting the
lesser-included offense of second degree murder, [the jury]
necessarily rejected the factual basis upon which it might have
rendered a verdict on the lesser-included offense of voluntary
manslaughter." Id. at 278, 476 S.E.2d at 508 (footnote
omitted).
As in Turner, this jury convicted the defendant of first
degree murder. In doing so, it found the defendant acted with
malice and premeditation. Voluntary manslaughter requires heat
of passion upon reasonable provocation. Heat of passion cannot
coexist with malice. Barrett v. Commonwealth, 231 Va. 102, 106,
341 S.E.2d 190, 192 (1986). Reasonable provocation cannot
coexist with premeditation. Turner, 23 Va. App. at 277, 476
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S.E.2d at 508. The jury would have convicted of second degree
murder if it did not find premeditation; it would have acquitted
if it did not find malice. Any error would have been harmless
beyond a reasonable doubt because the jury necessarily rejected
the factual basis of voluntary manslaughter.
The defendant contends the trial court erred in granting
Instruction 6, which defined malice but included a definition of
heat of passion. The defendant argues the instruction was
confusing and misleading because the trial court did not
instruct on voluntary manslaughter. We do not address this
contention because the defendant did not object to Instruction 6
as given. Rule 5A:18; Barnabei v. Commonwealth, 252 Va. 161,
170, 477 S.E.2d 270, 275 (1996), cert. denied, 530 U.S. 1300
(2000).
The defendant also contends the trial court erred in giving
a self-defense instruction after indicating it would refuse the
instruction. The trial court could change its initial ruling to
refuse the instruction. The defendant never objected to
receiving the instruction at trial and did not request
additional time to prepare his closing argument. We will not
consider this issue for the first time on appeal. Rule 5A:18.
The record does not reflect any reason to invoke the exceptions
to the rule. The defendant requested the self-defense
instruction; he got the instruction he requested.
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We conclude the trial court properly instructed the jury
and the evidence proved first degree murder beyond a reasonable
doubt. Accordingly, we affirm the convictions.
Affirmed.
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