COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
BRYANT LAVAR GAYLES
MEMORANDUM OPINION * BY
v. Record No. 0961-99-2 JUDGE CHARLES H. DUFF
MAY 2, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Gregory W. Franklin, Assistant Public
Defender (David J. Johnson, Public Defender,
on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Bryant Lavar Gayles, appellant, was convicted of first degree
murder. On appeal, he argues the trial court erred in refusing to
give his proposed jury instruction on self-defense. Assuming,
without deciding, that the failure to give the instruction was
error, we find the error was harmless. Therefore, we affirm the
conviction.
FACTS
The evidence proved that on the evening of June 21, 1998,
Robert Kruk was sitting on his front porch when he saw appellant
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
and Christopher Henshaw walking along the street toward his
residence. Appellant and Henshaw were arguing loudly, and at
one point, they began throwing debris at one another. Kruk and
Rebecca Swanson, who also saw appellant and Henshaw from her
third floor balcony, both indicated that neither man hit the
other with the bottles and bricks they were throwing. The two
men then began tussling. Swanson heard appellant state to
Henshaw, "I will cut you for all you did to me, bitch."
Appellant then retrieved a knife from his duffel bag and fatally
stabbed Henshaw in the chest.
Appellant walked away from Henshaw, toward a nearby
convenience store. Before reaching the store, an eyewitness saw
appellant throw a knife over a wall into the courtyard of an
apartment complex. The police later recovered the knife from
that location. The police also apprehended appellant shortly
thereafter, and appellant admitted that he "stabbed the bitch."
Appellant had splattered blood on his shorts, shoes and legs.
Officer Preuss reported that appellant laughed about the
incident, and he showed no remorse, even after hearing that
Henshaw was dying. Appellant stated, "I told that son of a
bitch if he fuck[ed] with me again, I'd kill him." Appellant
also told the police, "It was fun."
In an interview with Detective Boswell, appellant
repeatedly asserted that he had cut Henshaw with a broken
bottle, and he denied stabbing Henshaw with a knife. However,
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the police found no broken bottle, only some broken glass, at
the crime scene. Appellant claimed that Henshaw had hit him
with a brick, but none of the officers who saw appellant noticed
any injuries on appellant's body. Appellant also asserted that
he had called 911 earlier that evening after Henshaw threatened
him. Police records reflected, however, that no 911 calls were
received that evening from the pay telephones where appellant
alleged he made the call.
At the trial, appellant proffered the following jury
instruction:
If you believe that the defendant was
without fault in provoking or bringing on
the fight, 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.
The trial court refused to give the instruction, and
appellant appeals that decision.
ANALYSIS
Appellant contends that because Henshaw attacked him with a
brick, then he was entitled to the self-defense instruction.
Assuming, without deciding, that a self-defense instruction
should have been given, the trial court's failure to give the
instruction was harmless error.
"[N]on-constitutional error is harmless '[w]hen it plainly
appears from the record and the evidence given at the trial that
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the parties have had a fair trial on the merits and substantial
justice has been reached.'" Lavinder v. Commonwealth, 12 Va.
App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc) (citation
omitted). "[W]here the reviewing court is able to determine
that the trial court's error in failing to instruct the jury
could not have affected the verdict, that error is harmless."
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).
Based upon our examination of the record and evidence
presented in the case, we are satisfied that the failure to give
a self-defense jury instruction did not affect the verdict or
otherwise deprive appellant of a fair trial on the merits. The
evidence of appellant's guilt was overwhelming. Several
witnesses saw appellant and Henshaw arguing. They heard
appellant threaten to "cut" Henshaw for "all he did to [him]."
None of the eyewitnesses saw Henshaw attack appellant with a
brick, and appellant had no injuries after the incident. During
the scuffle, appellant took the time to retrieve the knife from
his duffel bag, then stabbed the unarmed victim. He also
disposed of the murder weapon, lied about making 911 calls, and
showed no remorse for Henshaw's death.
Furthermore, the trial court instructed the jury on the
elements of first degree murder, second degree murder, and
voluntary manslaughter. In his closing argument, appellant
argued to the jury that he acted in mutual combat, an element of
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voluntary manslaughter. See Wilkins v. Commonwealth, 176 Va.
580, 583, 11 S.E.2d 653, 654 (1940). However, the jury found
appellant guilty of first degree murder. Thus, the jury found
beyond a reasonable doubt that appellant acted maliciously,
willfully, deliberately and premeditatedly. See Rhodes v.
Commonwealth, 238 Va. 480, 485, 384 S.E.2d 95, 98 (1989). A
finding of malice excludes a finding of heat of passion. If
upon being assaulted, "'[the defendant's] resistance with a
deadly weapon be made in a very cruel manner, not at all
justified by the nature of the assault, the inference would be
that malice, not passion, impelled the blow making his crime
murder.'" Moxley v. Commonwealth, 195 Va. 151, 158, 77 S.E.2d
389, 393 (1953) (citation omitted).
Furthermore, in the context of the failure to give a
lesser-included offense jury instruction, an error "is harmless
only where the jury's resolution of disputed facts compels the
conclusion that it necessarily excluded an alternative
resolution of fact that would have supported the lesser-included
offense on which it was not instructed." Turner, 23 Va. App. at
277, 476 S.E.2d at 508. By convicting appellant of first degree
murder, the jury necessarily rejected appellant's mutual combat
theory and necessarily rejected the factual basis which would
have supported a self-defense claim. See id. at 277-78, 476
S.E.2d at 508.
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Accordingly, we affirm appellant's conviction.
Affirmed.
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