Connell v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia

KEVIN ALEXANDER CONNELL
OPINION BY
v. Record No. 2193-99-2 JUDGE ROBERT P. FRANK
FEBRUARY 27, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY
Buford M. Parsons, Jr., Judge Designate

Christian L. Connell (Mays & Valentine,
L.L.P., on briefs), for appellant.

Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Kevin Alexander Connell (appellant) appeals his convictions

by a jury of second degree murder and use of a firearm in

commission of a murder. On appeal, he contends the trial court

erred in: 1) refusing to grant his proffered jury instruction

on excusable homicide; 2) refusing to grant either of his

proffered jury instructions on imperfect self-defense; and 3)

refusing to instruct the jury on the lesser-included offense of

voluntary manslaughter in mutual combat. For the reasons that

follow, we reverse the convictions.
 I. BACKGROUND

In the early morning hours of January 7, 1998, Jon Lord

(victim) was shot by appellant in the parking lot of the Hyatt

Hotel in Richmond.

Judy Wiesler, a witness for the Commonwealth, testified she

met the victim and Jeff Krupnicka on the evening of January 6,

1998 at the Hyatt Hotel in Richmond. Then, Wiesler and the

victim rode with Krupnicka to the Playing Field to get something

to eat and play pool. At the Playing Field, the three were

sitting at a table when appellant sat down at the table. None

of the three knew appellant. Appellant made fun of the victim's

pastel-colored tie by saying it looked feminine and made the

victim appear gay. Wiesler testified that appellant's tone was

sarcastic and insulting. Appellant then commented in a

sarcastic tone that Krupnicka had a Yankee accent and looked

homosexual because of the earring in his ear. Wiesler then left

the table and went to play pool. A couple of minutes later,

Wiesler looked up and saw the victim throw appellant's pack of

cigarettes on the floor. Appellant then walked away from the

table and left the Playing Field. Wiesler said that she, the

victim, and Krupnicka played pool after appellant left and "blew

off" the incident.

Wiesler further testified that she, the victim, and

Krupnicka left the Playing Field at 1:45 a.m. on January 7,

1998, and returned to the parking lot at the Hyatt Hotel. At

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the Hyatt Hotel, the victim and Wiesler exited Krupnicka's

vehicle and started walking toward their parked cars. They

noticed a four-wheel drive vehicle pull into the parking lot

behind Krupnicka's car. Appellant got out of the four-wheel

drive vehicle with a pistol in one hand and a shotgun in the

other. Appellant started to walk toward Wiesler, the victim,

and Krupnicka, yelling obscenities. Appellant had the pistol

pointed down and the shotgun pointed up in the air. Appellant

told Wiesler she was not going to get hurt and to walk away

because she was not involved. Wiesler walked toward the street

and was halfway across the street when she heard a shot.

Wiesler testified she turned around and saw the victim holding

appellant against the four-wheel drive vehicle. The victim had

his hands around appellant's shirt collar. Appellant was still

holding the shotgun. Wiesler heard more shots and started to

walk back to the Hyatt parking lot. Appellant and the victim

started struggling with each other and fell below Wiesler's line

of sight. After hearing three more shots, Wiesler looked around

the corner of a car and saw the victim lying on the ground. The

victim was screaming that he had been shot, and appellant was

standing over him with both guns in his hands. Appellant told

the victim he was an idiot and he was going to have to take him

to the hospital. Krupnicka drove his car up to appellant and

hit appellant in the back of his legs, causing appellant to

stumble forward. Appellant said Krupnicka was crazy and that

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Wiesler was an idiot for hanging out with the victim and

Krupnicka. Appellant then ran to his car and drove off.

Jeff Krupnicka testified that appellant approached him, the

victim, and Wiesler at the Playing Field. Appellant made

obscene remarks about the victim's and Krupnicka's neckties.

Krupnicka testified that he and the victim responded with

obscenities. Appellant lit a cigarette while sitting at the

table with Krupnicka and the victim. The victim grabbed the

cigarette out of appellant's mouth and threw it. More

obscenities were exchanged. Then, appellant tried to light

another cigarette. The victim took appellant's pack of

cigarettes, crumpled them, and threw them. Appellant cursed

Krupnicka and the victim and walked away.

Krupnicka testified he, the victim, and Wiesler left the

Playing Field and returned to the Hyatt. The victim and Wiesler

exited his car and he stood in the doorway of his car to say

goodbye. At that time, appellant's vehicle pulled up behind

Krupnicka's car. Krupnicka saw appellant walk toward the victim

holding the pistol and the shotgun. As appellant walked, he

began talking and lowered the shotgun. Krupnicka heard

appellant say, "'I'm going to kill you.'" The victim lunged and

tried to grab the shotgun. Krupnicka testified he saw the

shotgun fire three times as the victim held it. The victim and

appellant then started wrestling. Krupnicka returned to his car

to call 911. Then, Krupnicka drove up behind appellant and hit

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him in the back of the legs. Appellant fell forward and then

got in his vehicle and drove away.

Appellant testified he was playing pool in the Playing

Field, when he first noticed Wiesler, the victim, and Krupnicka

loudly having fun at a nearby table. He testified that as he

was leaving the Playing Field, he "noticed . . . the victim's

[neck]tie and . . . actually paid him a compliment on it." He

testified that the victim responded, "I wear this tie to pick up

faggots like you." Appellant said he considered the comment

humorously "in the manner [the victim] intended it" and sat at

their table at their invitation. He testified that after he

introduced himself all three of the group introduced themselves

to him. They began a friendly conversation that later led to an

argument. Appellant testified he was intimidated and shocked

when the victim threatened him. After the victim pushed him,

appellant paid his bill and drove home, where he had another

alcoholic drink. He then decided that he would "scare the hell

out of [the group]" and "get an apology" from them. He

retrieved a rifle and a shotgun. A handgun was already in his

car. He then returned to the Playing Field.

He waited for Krupnicka, the victim, and Wiesler to leave

the Playing Field and he followed them to the Hyatt Hotel

parking lot. Appellant parked behind Krupnicka's car and got

out of his vehicle. He was carrying the shotgun and the pistol.

Appellant testified he walked to the front of his car and

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demanded an apology from Krupnicka and the victim. Appellant

testified that the victim then began to walk toward him.

Appellant told Wiesler to leave, that she was not involved, and

he did not want her to get hurt. Appellant testified he warned

the victim to stay back. He tucked the pistol in his pants and

then pointed the shotgun in the air to fire a warning shot over

the victim's head. Appellant testified he never pointed the

shotgun at the victim, did not say he was going to kill the

victim, and did not walk toward the victim. The victim

continued walking toward appellant and appellant fired a second

warning shot and said, "'Stay back.'" Appellant realized the

victim was not going to stop, so he turned to run and ran into

the front of his car. The victim then grabbed appellant and

appellant tossed away the shotgun. A struggle ensued between

the two men. Appellant testified the victim put him in a

headlock that included his left arm. The victim hoisted

appellant into the air and told him he was going to kill him.

The victim then dragged appellant around the side of appellant's

vehicle. Appellant's feet were dragging across the ground and

he did not have his weight under him. He stated that he "'was

like a rag doll in [the victim's] hands.'" Appellant stated

that it was at this point that he fired the shot into the

victim's side, which ultimately resulted in the victim's death.

The victim maintained his hold on appellant and appellant shot

him in the right thigh. The victim fell to the ground and

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appellant tried to get away from the victim. Fearing the victim

was going to grab the pistol, appellant shot him a third time in

the left shoulder. Appellant testified that he told the victim

he would not leave him and would get him to the hospital.

Appellant fled the scene after Krupnicka tried to run over him

with his vehicle.

The jury convicted appellant of second degree murder, a

lesser-included offense of the charge of first degree murder.

II. ANALYSIS

A defendant is entitled to have the jury
instructed only on those theories of the
case that are supported by evidence. Tuggle
v. Commonwealth, 228 Va. 493, 508, 323
S.E.2d 539, 548 (1984), vacated on other
grounds, 471 U.S. 1096, 105 S. Ct. 2315, 85
L.Ed.2d 835, aff'd on remand, 230 Va. 99,
334 S.E.2d 838 (1985); LeVasseur[v.
Commonwealth], 225 Va. [564,] 590-91, 304
S.E.2d [644,] 658-59 [(1983)]; Linwood Earl
Briley v. Commonwealth, 221 Va. 532, 543,
273 S.E.2d 48, 55 (1980), cert. denied, 451
U.S. 1031, 101 S. Ct. 3022, 69 L.Ed.2d 400
(1981). The evidence to support an
instruction "must be more than a scintilla."
LeVasseur, 225 Va. at 590, 304 S.E.2d at
658; Hatcher v. Commonwealth, 218 Va. 811,
814, 241 S.E.2d 756, 758 (1978).

Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280

(1986).

"[T]he trial court should instruct the
jury only on those theories of the case
which find support in the evidence." Morse
v. Commonwealth, 17 Va. App. 627, 632-33,
440 S.E.2d 145, 149 (1994). "'If any
credible evidence in the record supports a
proffered instruction on a lesser included
offense, failure to give the instruction is

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 reversible error.' 'Such an instruction,
however, must be supported by more than a
mere scintilla of evidence.'" Brandau v.
Commonwealth, 16 Va. App. 408, 411, 430
S.E.2d 563, 564 (1993) (citations omitted).

Goodson v. Commonwealth, 22 Va. App. 61, 78, 467 S.E.2d 848, 857

(1996).

"On appeal, when the issue is a refused jury instruction,

we view the evidence in the light most favorable to the

proponent of the instruction." Lynn v. Commonwealth, 27 Va.

App. 336, 344, 499 S.E.2d 1, 4-5 (1998) (citing Turner v.

Commonwealth, 23 Va. App. 270, 275, 476 S.E.2d 504, 507 (1996)),

aff'd, 257 Va. 239, 514 S.E.2d 147 (1999). Appellant first

contends the trial court erred in failing to give the jury

appellant's proffered instruction on excusable homicide. We

agree.

Excusable self-defense may be asserted
when the accused, who was at some fault in
precipitating the confrontation with the
victim, abandons the fight and retreats as
far as he or she safely can . . . . See
McCoy v. Commonwealth, 125 Va. 771, 776, 99
S.E. 644, 646 (1919).

Lynn, 27 Va. App. at 350, 499 S.E.2d at 7-8.

Once the accused abandons the attack and retreats as far as

he or she safely can, he or she may kill his or her adversary if

there is "a reasonably apparent necessity to preserve his [or

her] own life or save himself [or herself] from great bodily

harm." Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28,

31 (1958).

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 Appellant's evidence established he provoked the violence

in the hotel parking lot by following the victim, Krupnicka, and

Wiesler to that location. He testified that he fired two

warning shots over the victim's head when the victim began to

advance toward him. He put the pistol on safety and tucked it

into his pants. He also twice warned the victim to stay back.

Then, he turned to run and ran into the front of his vehicle,

which gave the victim the opportunity to catch him. This

testimony established more than a mere scintilla of evidence

that appellant retreated as far as possible before the victim

apprehended him. At this point, appellant tossed his shotgun

away. We believe this testimony established more than a mere

scintilla of evidence that appellant abandoned the fight.

The victim was 6'1" tall and weighed over 200 pounds, while

appellant is 5'6" tall and weighs 180 pounds. Appellant

testified the victim hoisted him into the air and told him he

was going to kill him. The victim headlocked appellant and

dragged appellant. Appellant testified that the victim again

told him he was going to kill him. Appellant said he did not

have his weight under him and "was like a rag doll in [the

victim's] hands." Appellant also testified he was fearful the

victim would shoot him with the shotgun. At this point,

appellant fired the fatal shot into the victim's side with the

pistol. This evidence provided more than a scintilla of

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evidence that appellant killed the victim out of a reasonably

apparent necessity to preserve his own life, and was sufficient

to support an instruction on excusable homicide. Therefore, we

find the trial judge erred in refusing to instruct the jury on

excusable homicide. We reverse appellant's convictions and

remand for a new trial if the Commonwealth be so advised.

III.

Appellant next contends the trial court erred in refusing

to grant either of appellant's proffered jury instructions on

imperfect self-defense. Appellant argues that the jury should

have been instructed on imperfect self-defense because there was

more than a scintilla of evidence that he displayed the firearms

without an intent to kill or do serious bodily harm and that he

shot the victim only because he reasonably feared he would

suffer serious bodily harm. We disagree.

Appellant argues the refused instruction would have

mitigated the malice necessary for a murder conviction to

manslaughter. Appellant cites authority from other states in

support of his argument. The cases cited by appellant liken

imperfect self-defense to voluntary manslaughter committed in

the heat of passion. See People v. Heflin, 456 N.W.2d 10, 22

n.22 (Mich. 1990); State v. Faulkner, 483 A.2d 759, 761 (Md.

1984); State v. Sanders, 556 S.W.2d 75, 76 (Mo. Ct. App. 1977);

Reed v. State, 11 Tex. App. 509, 519 (Tex. Ct. App. 1892); State

v. Partlow, 4 S.W. 14 (Mo. 1887).

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 In this case, the trial court instructed the jury on the

definitions of malice, heat of passion, first degree and second

degree murder, and voluntary manslaughter in the heat of

passion. The trial court also granted an instruction explaining

that malice distinguishes murder from manslaughter.

Appellant also relies upon Hash v. Commonwealth, 88 Va.

172, 13 S.E. 398 (1891), to support his argument that imperfect

self-defense is a doctrine recognized by Virginia law.

Appellant concedes, however, that Hash is the only Virginia case

that discusses "imperfect defense."

If we interpret the discussion of "imperfect defense" in

Hash for the proposition that one can provoke a confrontation

and still avail himself or herself of the defense of justifiable

homicide, such holding was overruled by Jackson v. Commonwealth,

98 Va. 845, 36 S.E. 487 (1900). However, if we interpret Hash

to hold that one may avail himself or herself of "imperfect

defense" if he or she provoked an attack without felonious

intent, such holding merely is the law of voluntary manslaughter

as it currently stands in the Commonwealth. Further, the trial

court instructed the jury on voluntary manslaughter, heat of

passion, and the distinction between murder and manslaughter.

We, therefore, find the trial court did not err in denying

appellant's proffered jury instructions on imperfect

self-defense.

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 IV.

Finally, appellant contends the trial court erred in

refusing his request to instruct the jury on the lesser-included

offense of voluntary manslaughter by mutual combat. We

disagree.

"For combat to be 'mutual,' it must have been voluntarily

and mutually entered into by both or all parties to the affray."

Lynn, 27 Va. App. at 356, 499 S.E.2d at 10 (citing Smith v.

Commonwealth, 17 Va. App. 68, 72, 435 S.E.2d 414, 417 (1993)).

"'One who is assaulted may and usually does defend himself, but

the ensuing struggle cannot be accurately described as a mutual

combat.'" Smith, 17 Va. App. at 72-73, 435 S.E.2d at 417

(quoting Harper v. Commonwealth, 165 Va. 816, 820, 183 S.E. 171,

173 (1936)).

Appellant's evidence established that when the victim began

walking toward him in the hotel parking lot, appellant warned

the victim to stay back, fired two warning shots over the

victim's head, and told the victim, "Stay back." When it became

clear that the victim was still advancing, appellant tried to

run away but ran into the front of his car. At that point, the

victim grabbed appellant.

The record does not contain a scintilla of evidence that

the fight between appellant and the victim was mutual combat.

Appellant's evidence showed that he was attacked by the victim,

which, under Smith, does not constitute mutual combat. We,

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therefore, find the trial court did not err in refusing

appellant's request for a jury instruction on mutual combat.

For these reasons, we affirm the trial court's refusal to

instruct the jury on imperfect self-defense and mutual combat,

but we reverse appellant's convictions based on the trial

court's refusal to instruct the jury on excusable homicide and

remand for further proceedings if the Commonwealth be so

advised.

Reversed and remanded.

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Benton, J., concurring and dissenting.

I concur in Part I, Part II, and Part IV of the majority

opinion. Therefore, I would also reverse the convictions and

remand for a new trial. I dissent from Part III, however,

because I believe the doctrine of imperfect self-defense was

available to Kevin Alexander Connell and required the trial

judge to give the jury a separate, additional instruction

regarding voluntary manslaughter.

In Virginia, "manslaughter is a common law offense."

Blythe v. Commonwealth, 222 Va. 722, 725, 284 S.E.2d 796, 797

(1981). The common law traditionally recognized a circumstance

in which a "'killing in self-defen[s]e will be manslaughter

only.'" Hash v. Commonwealth, 88 Va. 172, 194, 13 S.E. 398, 405

(1891) (citation omitted). This common law doctrine is

generally called "the imperfect right of self-defen[s]e." Id.

at 193, 13 S.E. at 405. The Supreme Court has described the

doctrine as follows:

Here is a clear recognition of the
doctrine that, although the slayer provoked
the combat, or produced the occasion, yet,
if it was done without any felonious intent,
the party may avail himself of the plea of
self-defen[s]e. . . . "Indeed the assertion
that one who begins a quarrel or brings on a
difficulty with the felonious purpose to
kill the person assaulted, and
accomplish[es] such purpose, is guilty of
murder, and cannot avail himself of the
doctrine of self-defen[s]e, carries with it
in its very bosom the inevitable corollary
that if the quarrel be begun without a
felonious purpose, then the homicidal act

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 will not be murder. To deny this obvious
deduction is equivalent to the anomalous
assertion that there can be a felony without
a felonious intent; that the act done
characterizes the intent, and not the intent
the act."

Id. at 194-95, 13 S.E. at 405-06 (citations omitted). 1

Five years after Hash, the United States Supreme Court

cited several common law treatises for the proposition that

"where the accused embarks in a quarrel with no felonious

intent, or malice, or premeditated purpose of doing bodily harm

or killing, and under reasonable belief of imminent danger he

inflicts a fatal wound, it is [manslaughter,] not murder."

Wallace v. United States, 162 U.S. 466, 471 (1896). Applying

that principle, the Court observed the following:

Granting that the jury would have been
justified in finding that [the accused's]
intention in going for the gun and returning
with it as he did was to inflict bodily harm
on [the deceased] if he did not leave, still
the presumption was not an irrebuttable one,
and it was for the jury to say whether [the
accused's] statement that he procured the

1
The Court's later decision in Jackson v. Commonwealth, 98
Va. 845, 36 S.E. 487 (1900), did not abolish the doctrine of
imperfect self-defense. Jackson was primarily concerned with
the propriety of the trial judge giving a justifiable homicide
instruction. Approving that action, the Court noted that the
justifiable homicide instruction "did not instruct the jury, nor
was it intended to instruct them, upon the degree of the
prisoner's guilt, whether it was murder or manslaughter, but it
was merely intended to tell them that, upon the facts
hypothetically stated in the instruction, the prisoner was not
entitled to an acquittal." Id. at 848, 36 S.E. at 488. Thus, I
do not disagree with the majority opinion's observation that
Jackson did not eliminate the common law doctrine of imperfect
self-defense.

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 gun only for self protection was or was not
true. And if they believed from the
evidence that this was true, and that the
killing was under reasonable apprehension of
imminent peril, then it was for the jury to
determine under all the facts and
circumstances whether [the accused] had
committed the offense of manslaughter,
rather than that of murder, if he could not
be excused altogether.

Id. at 477.

Several other states continue to recognize this common law

doctrine. For example, the North Carolina Supreme Court has

described the doctrine as follows:

[I]f defendant believed it was necessary to
kill the deceased in order to save herself
from death or great bodily harm, and if
defendant's belief was reasonable in that
the circumstances as they appeared to her at
the time were sufficient to create such a
belief in the mind of a person of ordinary
firmness, but defendant, although without
murderous intent, was the aggressor in
bringing on the difficulty, or defendant
used excessive force, the defendant under
those circumstances has only the imperfect
right of self-defense, having lost the
benefit of perfect self-defense, and is
guilty at least of voluntary manslaughter.

An imperfect right of self-defense is
thus available to a defendant who reasonably
believes it necessary to kill the deceased
to save himself from death or great bodily
harm even if defendant (1) might have
brought on the difficulty, provided he did
so without murderous intent, and (2) might
have used excessive force.

State v. Mize, 340 S.E.2d 439, 441-42 (N.C. 1986) (quotation

marks and citations omitted). See also Swann v. United States,

648 A.2d 928, 933 (D.C. 1994); State v. Faulkner, 483 A.2d 759,

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761 (Md. 1984); State v. Sanders, 556 S.W.2d 75, 76 (Mo. Ct.

App. 1977).

The jury absolved Connell of willful, deliberate, and

premeditated conduct by finding him not guilty of first degree

murder but guilty only of second degree murder. See Code

§ 18.2-32. Thus, we can reasonably conclude that the jury may

have accepted some portion of Connell's testimony that he armed

himself and returned to "scare" the victim and to seek an

"apology." In any event, when we view this evidence in the

light most favorable to Connell, see Martin v. Commonwealth, 13

Va. App. 524, 526, 414 S.E.2d 401, 401 (1992), we must conclude

that the jury could have found Connell's testimony to be germane

to Connell's claim of imperfect self-defense.

I disagree with the majority opinion's holding that the

manslaughter instruction the trial judge gave the jury was

sufficient to encompass the theory of imperfect self-defense.

The instruction on voluntary manslaughter was premised upon a

finding by the jury of "sudden heat of passion." The

instruction Connell tendered in support of the theory of

imperfect self-defense would have permitted the jury

alternatively to find voluntary manslaughter even if the jury

found that Connell did not act in "sudden heat of passion."

Connell's instruction would have allowed the jury to find him

guilty of voluntary manslaughter if the jury found that he

"believed it to be necessary to kill" Jon Lord "to save himself

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from death or great bodily harm" and that his belief was

"reasonable." If the jury believed that Connell had initiated

the altercation without felonious intent, it could have found

voluntary manslaughter under the theory of imperfect

self-defense, without regard to any finding of sudden heat of

passion. Neither Hash nor the other authorities that discuss

the theory of imperfect self-defense require proof of sudden

heat of passion.

In Swann, the District of Columbia Court of Appeals

rejected the government's argument that the general manslaughter

instruction was sufficient and that "heat of passion"

encompasses the "fear" or "terror" found in a claim of imperfect

self-defense. See 648 A.2d at 931-32. I believe the court's

discussion is persuasive.

While [the government's] argument is not
without force, we think that an imperfect
self-defense claim must be viewed through a
different prism. Unlike other aspects of
provocation, which can only reduce a
homicide to manslaughter, a state of mind
arising out of a self-defense situation
justifies outright exoneration if
reasonable. Because the subjective state of
mind required for an imperfect self-defense
claim is identical to that required for a
true self-defense claim, we can find in the
controlling authority no suggestion that an
actual, albeit unreasonable, belief that
one's life is in danger cannot serve as a
mitigating factor justifying a voluntary
manslaughter instruction where also coupled
with an actual belief that the force used
was necessary in self-defense. Thus,
however the emotions of fear and terror
unrelated to self-defense may relate to

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 mitigation of second-degree murder where the
killing was provoked or the defendant acted
in the heat of passion, we think that
analysis cannot be controlling on the
distinct issue of a killing committed in the
actual but unreasonable belief that the
defendant is in mortal danger. While fear
and terror may be a consequence of that
situation, the motivation for the killing
stems from the actual, albeit unreasonable,
perception of imminent danger to one's life,
and the mitigation issue where a
self-defense claim is involved is measured
by the actual presence of that state of
mind.

Swann, 648 A.2d at 932. 2

For these reasons, I would hold that the evidence was

sufficient to support an instruction to the jury under both

manslaughter principles and that the trial judge erred in

refusing the instruction concerning the claim of imperfect

self-defense. Accordingly, I would remand with the additional

direction that Connell is entitled to an instruction on

imperfect self-defense on retrial, if the evidence supports it.

2
The District of Columbia applies the common law rule even
when the accused has an actual, albeit unreasonable, belief that
his or her life is in danger. The Hash Court did not state
explicitly whether it required a reasonable belief on the part
of the accused to justify an imperfect self-defense instruction.
It limited its discussion to the intent with which the accused
entered the deadly encounter. See 88 Va. at 195, 13 S.E. at 406
(limiting the accused's culpability to "the intention with which
the occasion was brought about" instead of the reasonableness of
belief in danger). In this case, however, Connell requested an
instruction predicated on the jury finding his belief in the
necessity of killing the victim reasonable. Regardless of these
distinctions in the doctrine, Swann demonstrates that imperfect
self-defense encompasses a type of voluntary manslaughter
clearly distinct from the voluntary manslaughter arising from
the sudden heat of passion.

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