COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Fitzpatrick
Argued at Alexandria, Virginia
JONATHAN KEVIN WRIGHT
v. Record No. 0832-94-4 MEMORANDUM OPINION*
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA MAY 16, 1995
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
Richard C. Goemann, Senior Assistant Public Defender,
for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Jonathan Kevin Wright (appellant) appeals from a judgment of
the Circuit Court of the City of Alexandria (trial court) that
approved his jury trial conviction for voluntary manslaughter.
The sole issue presented is whether the evidence is sufficient to
support that conviction. Upon review of the record, we find that
the evidence is sufficient to support the judgment.
Voluntary manslaughter is defined as the unlawful killing of
another without malice, actual or implied, upon sudden heat, or
reasonable provocation, or in mutual combat. King v.
Commonwealth, 4 Va. (2 Va. Cas.) 78 (1817). It is a common law
offense. Blythe v. Commonwealth, 222 Va. 722, 725, 284 S.E.2d
796, 797 (1981). Punishment for that offense is established by
____________________
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Code § 18.2-35. To support a conviction for voluntary
manslaughter the Commonwealth is not required to prove malice,
either expressed or implied. Essex v. Commonwealth, 228 Va. 273,
280, 322 S.E.2d 216, 219 (1984); Clark v. Commonwealth, 90 Va.
360, 18 S.E. 440 (1893). When the evidence is clear, as here,
that the accused inflicted the blow that caused the death of the
victim, and the defense is self-defense, the burden is on the
accused to prove that the killing occurred in self-defense. See
Frazier v. Weatherholtz, 572 F.2d 994 (4th Cir.), cert. denied
439 U.S. 826 (1978).
Upon familiar principles on appeal, when the issue is
sufficiency, we view the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975). Viewed in that light, the
record reveals that appellant admitted that he inflicted the
wounds by gunshot that resulted in the victim's death. He
contended that the shots were fired in self-defense. According
to appellant, he used the gun because the victim was advancing on
him with a knife the victim had taken from the kitchen.
The Commonwealth presented evidence that showed appellant
had bought the gun three or four months prior to the day he used
it to kill the victim. Appellant asserted that prior to coming
toward him with the knife in her hand, the victim had pointed the
gun at him and said: "I kill you." The gun, however, had been
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laid aside on top of a video cassette recorder. When the
paramedics answered a 911 call, they found the victim seated in
an armchair next to a sofa. A knife was found on the sofa. The
victim's fingerprints were not found on the knife. The
paramedics also observed that when they arrived there was blood
on the sofa and appellant's shirt, but none on the floor. A
.38 caliber revolver was found under some papers on the dining
room table. No fingerprints were found on the gun.
The victim died from multiple gunshot wounds. The victim
was left-handed. Expert testimony disclosed that one of these
wounds was to the victim's left hand, described as a "defensive
wound" and that from the pattern of the wound he opined that her
wounded hand had not held a knife when the bullet entered her
hand. The expert also testified that other wounds were inflicted
from a distance of one to no more than twelve inches.
Two bullets, fired from a distance of "no more than twelve
inches," entered the victim's left breast and chest and traveled
in straight lines backward, downward, and to the right before
lodging in her back. Another bullet fired from no more than one
inch entered the back of the victim's left shoulder and traveled
in a straight line forward, downward, and to the right.
Based on his plea of self-defense, appellant contends that
he was entitled to an acquittal as a matter of law.
As a general rule, whether provocation,
shown by credible evidence, is sufficient to
engender the furor brevis necessary to rebut
the presumption of malice arising from a
homicide is a question of fact. Only when
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the trial court, giving the defendant the
benefit of every reasonable inference from
the evidence, can say that the minds of
reasonable men could not differ does the
question become a question of law.
McClung v. Commonwealth, 215 Va. 654, 656, 212 S.E.2d 290, 292
(1975).
The jury were not required to accept the
defendant's statement as to how the killing
occurred simply because the defendant said it
happened that way and no witnesses testified
to the contrary. If from the improbability
of his story and his manner of relating it,
or from its contradictions within itself, or
by the attending facts and circumstances, the
jury are convinced that he is not speaking
the truth, they may reject his testimony,
even though his reputation for truth is not
attacked and he is not contradicted by other
witnesses.
Randolph v. Commonwealth, 190 Va. 256, 263, 56 S.E.2d 226, 229
(1949). Moreover, even if the jury believed that the victim in
some manner had threatened appellant, on this evidence, the jury
could have found that appellant used more force than necessary to
repel the threat. See Cook v. Commonwealth, 219 Va. 769, 773,
250 S.E.2d 361, 364 (1979).
We hold that under these facts, it was not error to submit
the issue to the jury, and that there is evidence to support its
verdict and the judgment of the trial court. Accordingly, that
judgment is affirmed.
Affirmed.
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