COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Elder and Bray
Argued at Salem, Virginia
ROBERT LEE BANKS
MEMORANDUM OPINION * BY
v. Record No. 2990-95-3 JUDGE RICHARD S. BRAY
FEBRUARY 4, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WISE COUNTY
J. Robert Stump, Judge
(Anthony E. Collins; Collins & Collins, on
brief), for appellant. Appellant submitting
on brief.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Robert Lee Banks (defendant) was convicted by a jury of
voluntary manslaughter, assault and battery, and possession of
marijuana. Defendant was jointly tried with Eddie Perry (Perry),
pursuant to Code § 19.2-262.1. On appeal, defendant complains
that the trial court erroneously (1) limited Perry and himself to
three peremptory strikes each, (2) instructed the jury on the law
of self-defense, (3) admitted a staged photograph into evidence,
and (4) denied his motion for a mistrial. Defendant also
challenges the sufficiency of the evidence to support the
voluntary manslaughter conviction. Finding no error, we affirm
the convictions.
The parties are fully conversant with the record, and this
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
PEREMPTORY STRIKES
Defendant first argues that he and Perry were each entitled
to exercise four peremptory strikes pursuant to Code § 19.2-262.
However, in accordance with Adkins v. Commonwealth, ___ Va. App.
___, ___, ___ S.E.2d ___, ___ (1997), defendant and Perry
together were statutorily assured no more than four peremptory
strikes. Because the trial court permitted a total of six
peremptory challenges, we find no error.
SELF-DEFENSE INSTRUCTION
Defendant next complains that portions of jury instruction
"No. 3" incorrectly suggested to the jury that an instigator of
combat may never claim self-defense, despite retreat, an
attendant expression for peace, and reasonable belief that he was
threatened with serious bodily harm or death. 1
In reviewing a challenged jury instruction, our
responsibility "is 'to see that the law has been clearly stated
and that 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) (quoting Swisher v. Swisher, 223 Va.
1
For the first time on appeal, defendant contends that the
instruction also implied that words alone were sufficient to
justify an attack upon defendant by Adkins, thereby affording
Adkins a different standard of provocation than defendant.
However, Rule 5A:18 precludes our consideration of an argument
not presented to the trial court. See Deal v. Commonwealth, 15
Va. App. 157, 161, 421 S.E.2d 897, 900 (1992).
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499, 503, 290 S.E.2d 856, 858 (1982)). "A party is entitled to
have the jury instructed according to the law favorable to his or
her theory of the case if evidence in the record supports it."
Foster v. Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200
(1991). In undertaking this issue, we view the evidence in the
light most favorable to the party offering the instruction. See
id.
The general rule is that one cannot provoke
an attack, bring on a combat, and then slay
his assailant, and claim exemption from the
consequences on the ground of self-defense.
No one can avail himself of the plea of
self-defense, in a case of homicide, . . .
when the defendant was himself the aggressor,
and willfully brought on himself, without
legal excuse, the necessity for the killing
. . . . He who provokes a personal
encounter, in any case, thereby disables
himself from relying on the plea of
self-defense in justification of a blow which
he struck during the encounter.
Sims v. Commonwealth, 134 Va. 736, 761-62, 115 S.E. 382, 390
(1922) (citation omitted). Moreover, "'[w]hen two persons enter
willingly into a combat, not for self protection but to gratify
their passion by inflicting injury upon each other, the doctrine
of self-defense cannot be invoked on behalf of either.'" Jones
v. Commonwealth, 196 Va. 10, 14, 82 S.E.2d 482, 485 (1954)
(citation omitted).
Here, several witnesses testified that defendant stopped his
automobile adjacent to vehicles occupied by the victims, and
defendant's passenger "held up a knife and said that he had
something there that would solve everything." Defendant then
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drove a short distance away, stopped, exited the vehicle, and ran
toward the victims. Thomas Gross approached the onrushing
defendant, placed his hands on defendant's shoulders in a
conciliatory gesture, and requested him to return to his car.
Defendant then stabbed Gross and thereafter stabbed and killed
Adkins while the men attempted to disarm defendant.
From such evidence, the jury could have concluded that
defendant armed himself with a deadly weapon and "solely provoked
the encounter" with the victims, thereby precluding a claim of
self-defense and justifying the inclusion of this principle of
law in the challenged instruction. Other evidence would have
permitted an inference that defendant and Allen Adkins ran toward
one another and engaged in mutual combat, a circumstance also
precluding a claim of self-defense and justifying a related
instruction. We, therefore, find that the challenged instruction
was supported by the evidence and correctly set forth the
applicable law.
ADMISSIBILITY OF STAGED PHOTOGRAPH
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be disturbed
on appeal in the absence of an abuse of discretion." Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).
"The factual determinations which are necessary predicates to
rulings on the admissibility of evidence and the purposes for
which it is admitted are for the trial judge and not the jury."
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Rabeiro v. Commonwealth, 10 Va. App. 61, 64, 389 S.E.2d 731, 732
(1990). On appeal, such factual determinations are given "the
same weight as is accorded a finding of fact by the jury." Id.
at 64, 389 S.E.2d at 733.
A staged photograph purporting to depict the
circumstances existing at the time of an
event . . . is in the nature of a test or
experiment which is offered for the same
purpose. Accordingly, the party who offers
such evidence must show that the
reconstruction or recreation is substantially
similar, although not necessarily identical,
to the actual event in all of its essential
particulars.
Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176, 178 (1992)
(citation omitted).
In this instance, an eyewitness testified that the disputed
photo was "substantially similar to the way [she] saw" the
events. After careful consideration, the trial court admitted
the photograph and, at defendant's request, instructed the jury
that the photo was admitted for "demonstrative purposes only."
When the witness later noted minor differences between the
photograph and events, an in-court demonstration and further
testimony clarified the variations for the jury. Under such
circumstances, we are unable to conclude that the trial judge
abused his discretion in admitting the photograph.
MISTRIAL MOTION BASED ON REFERENCE TO O. J. SIMPSON TRIAL
It is well established that arguments not presented timely
to the trial court are deemed waived on appeal, absent good cause
or to attain the ends of justice. See, e.g., Deal v.
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Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897, 900 (1992).
The comment in issue was uttered by the court during the
Commonwealth's redirect examination of a witness, but defendant
did not request a mistrial until after the conclusion of
recross-examination by a codefendant. Further, defendant never
requested a cautionary instruction. We, therefore, decline to
review this issue on appeal. Cf. Cheng v. Commonwealth, 240 Va.
26, 38-39, 393 S.E.2d 599, 605-06 (1990) (error assigned to
prosecutor's improper comment or conduct barred unless raised in
timely motion for cautionary instruction or mistrial).
SUFFICIENCY OF EVIDENCE TO PROVE VOLUNTARY MANSLAUGHTER
Lastly, defendant challenges the sufficiency of the evidence
to support the conviction for voluntary manslaughter. Under
familiar principles of appellate review, we examine the evidence
in the light most favorable to the Commonwealth, granting to it
all reasonable inferences fairly deducible therefrom. See
Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719,
721 (1988). The jury's verdict will not be disturbed unless
plainly wrong or without evidence to support it. See id. The
credibility of a witness, the weight accorded the testimony, and
the inferences to be drawn from proven facts are matters solely
for the fact finder's determination. See Long v. Commonwealth, 8
Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). The fact finder
is not required to believe the entire testimony of a witness, but
may accept and reject portions in assessing such evidence. See
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Durham v. Commonwealth, 214 Va. 166, 169, 198 S.E.2d 603, 606
(1973).
Defendant and the victim Adkins had several disagreements
within hours of the homicide. Immediately prior to the offense,
defendant again confronted Adkins, stabbing Gross when Gross
attempted to prevent an altercation. As Gross and Adkins
wrestled with defendant in an effort to disarm him, defendant
stabbed and killed Adkins. Gross and Adkins had no weapons.
Such evidence was sufficient to support defendant's
conviction of voluntary manslaughter, the unlawful killing of
another without malice, actual or implied, upon a sudden heat,
reasonable provocation, or in mutual combat. See Moxley v.
Commonwealth, 195 Va. 151, 157, 77 S.E.2d 389, 393 (1953)
(quoting Read v. Commonwealth, 63 Va. (22 Gratt.) 924, 937-38
(1872)).
Although defendant contended that Adkins was the aggressor
and that he acted in self-defense, the jury was not required to
believe this testimony and could infer that defendant was lying
to conceal guilt. See Rollston v. Commonwealth, 11 Va. App. 535,
547, 399 S.E.2d 823, 830 (1991). Any alleged inconsistencies in
the Commonwealth's evidence were circumstances weighed by the
jury in finding defendant guilty of voluntary manslaughter.
Accordingly, we affirm the convictions.
Affirmed.
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