COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Lemons
Argued at Richmond, Virginia
LAMAR ANTHONY PENDERGRASS
MEMORANDUM OPINION * BY
v. Record No. 2969-97-2 JUDGE DONALD W. LEMONS
FEBRUARY 23, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D'Alton, Jr., Judge
Jay "C" Paul (Johnson & Paul, P.C., on brief),
for appellant.
Kathleen B. Martin, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Lamar Anthony Pendergrass appeals his conviction for
malicious wounding and use of a firearm in the commission of
malicious wounding. On appeal, he argues that the trial court
erred in refusing his requested jury instruction on self-defense.
Because we hold that the trial court did not err in refusing his
instruction, we affirm.
I. BACKGROUND
On August 2, 1996, between 7:45 and 8:00 a.m., Mark Brown,
the victim, was shot while entering his vehicle that was parked
in the parking lot of a hotel in the City of Petersburg. Brown
testified that he was seated in his car, and "just when . . .
[he] was about to turn the ignition on" he heard a shot. He
"looked down" and "saw the blood." He looked up and saw Lamar
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116-010,
this opinion is not designated for publication.
Anthony Pendergrass. Pendergrass shot him two more times. Brown
testified that he did not have a gun in his possession that
morning.
Pendergrass stated that on the evening of August 1, 1996,
the night before the shooting, he was drinking heavily.
Pendergrass’ wife was involved in a hotly contested custody
dispute with Brown, with whom she had a seven-year-old child,
D’Angelo. By court order, D’Angelo was to be turned over by the
Pendergrasses to Brown on August 2, 1996. Pendergrass testified
that he drank "two bottles of Hennesy" at his house but
"[e]ventually that wasn’t enough so he left his house and went to
a store where he purchased "two twelve packs of beer."
Pendergrass testified that he continued drinking until he "was
about out of beer" sometime between 2:00 and 2:30 a.m. on August
2, 1996.
Pendergrass stated that he went with a friend to downtown
Petersburg, where he obtained more alcohol. Pendergrass
testified that he was "uncomfortable" in that neighborhood and
that he took his gun out of his trunk and placed it in his
waistband. He drove through the city and parked on Sycamore
Street where he "passed out."
Pendergrass woke up between 7:00 and 7:15 a.m. that morning.
He started to drive home, when he saw Brown’s vehicle in a hotel
parking lot and "went crazy." He drove into the lot and saw
Brown getting into his car. Pendergrass admitted that when he
saw Brown, "I just went off." Pendergrass alleged that Brown
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pulled a gun on him and that the two men yelled obscenities at
each other. Pendergrass stated that he "turned around" and
"panicked" and that he was "scared." Pendergrass said that Brown
made a comment about Pendergrass never seeing D’Angelo again, and
Pendergrass admitted that he then shot Brown.
II. JURY INSTRUCTION
Upon review of jury instructions given or refused at trial,
an appellate court is charged with seeing that "the law has been
clearly stated and the instructions cover all issues which the
evidence fairly raises." Darnell v. Commonwealth, 6 Va. App.
485, 488, 370 S.E.2d 717, 719 (1988) (citations omitted). The
evidence relied on to support a proffered instruction must amount
to "more than a scintilla." Morse v. Commonwealth, 17 Va. App.
627, 633, 440 S.E.2d 145, 149 (1994) (citations omitted). "An
instruction that is not supported by the evidence, however, is
properly refused." Lea v. Commonwealth, 16 Va. App. 300, 304,
429 S.E.2d 477, 479-80 (1993) (citations omitted).
"Homicide [or wounding] in self-defense may be either
justifiable or excusable. If it is either, it entitles the
prisoner to an acquittal." Peeples v. Commonwealth, 28 Va. App.
360, 366, 504 S.E.2d 870, 873 (1998) (alterations in original)
(citations omitted). When an accused has been charged with
malicious wounding, he or she is entitled to request an
instruction on self-defense if it is supported by the evidence.
See Foster v. Commonwealth, 13 Va. App. 380, 412 S.E.2d 198
(1991). Justifiable self-defense occurs when the accused has
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acted totally without fault. See Foote v. Commonwealth, 11 Va.
App. 61, 67, 396 S.E.2d 851, 855 (1990). "Fault" is defined as
"any conduct on the part of an accused which a jury may
reasonably infer from the evidence to have contributed to an
affray." Bell v. Commonwealth, 2 Va. App. 48, 58, 341 S.E.2d
654, 659 (1986) (citations omitted). "If a defendant is even
slightly at fault, the killing is not justifiable homicide."
Perricllia v. Commonwealth, 229 Va. 85, 94, 326 S.E.2d 679, 685
(1995). Excusable homicide in self-defense, however,
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 [to] save himself
from great bodily harm.
Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416
(1993).
At trial, Pendergrass requested the following instruction
on justifiable self-defense:
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 testimony at trial revealed that Pendergrass had been
drinking excessively on the night of August 1, 1996 and the
morning of August 2, 1996. He brought a gun to the confrontation
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with Brown. He and Brown exchanged hostile words about the
custody of D’Angelo. Pendergrass testified that Brown "pulled a
gun" on him. Pendergrass stated that he then "turned around" and
that he "was walking real fast away from [Brown]." Pendergrass
stated, "[w]e both were still screaming" and that Brown made a
remark stating that Pendergrass would never see D’Angelo again.
Pendergrass stated "[w]hen he said that to me, I don’t know
. . . I just went crazy." Pendergrass testified "I just felt
like I snapped. I went crazy. I realized I had my gun inside my
waist. I just pulled it out, turned around and I fired. He was
just getting into his car at the time. After I fired the shots,
I stood there, because I couldn’t, I just freaked [sic]."
Pendergrass testified that he shot Brown in response to his
statements about D’Angelo. Furthermore, Pendergrass testified
that he shot Brown more than one time because he was "enraged
. . . by what he said, all [the] things that were going on."
Pendergrass requested an instruction on justifiable
self-defense which requires that he be without fault. By his own
testimony at trial, Pendergrass was not without fault in
provoking or bringing on the fight. The trial court did not err
in refusing the instruction on justifiable self-defense, and the
conviction is affirmed.
Affirmed.
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