COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia
BOLIVAR CAUDILL, S/K/A
BOLIVER CAUDILL
OPINION BY
v. Record No. 0587-97-3 JUDGE SAM W. COLEMAN III
APRIL 7, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF RUSSELL COUNTY
Donald A. McGlothlin, Jr., Judge
Wade T. Compton (C. Eugene Compton, P.C., on
brief), for appellant.
Richard B. Smith, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Bolivar Caudill appeals his jury trial conviction for
malicious wounding in violation of Code § 18.2-51. He contends
the trial court erred when it: (1) refused to instruct the jury
on the "heat of passion" defense, and (2) excluded from the
jury's consideration during the sentencing phase evidence
regarding the impact of appellant's incarceration upon his
family. Finding no error, we affirm the conviction.
I. BACKGROUND
At a social gathering hosted by Sharon George Peak, Peak's
four-year-old daughter accidentally knocked an ashtray into
appellant's lap. Appellant "jumped up and . . . called her a
little bitch and a little whore." Harris, another guest, told
appellant he should not speak to a child in that manner. Peak
asked appellant to leave the trailer, which he did. Once
outside, appellant started cursing and screaming for Harris to
come out of the trailer "and settle it." Appellant stated: "I
just want to talk." Harris decided to "go talk to him and see if
he'll calm down." When Harris exited the trailer, appellant
lunged at him and slashed Harris' face with a shiny object.
Appellant then warned another guest that "he was the next little
son-of-a-bitch . . . he was going to get." At trial, appellant
testified that he did not recall the incident because he was very
intoxicated. Harris' face was permanently scarred as a result of
the attack.
II. "HEAT OF PASSION" INSTRUCTION
The trial court denied appellant's request for a jury
instruction on the heat of passion defense. 1 Appellant contends
the trial court improperly refused the instruction because the
jury could have concluded that Harris' "harsh words" reasonably
provoked appellant to attack Harris in the "heat of passion."
Appellant asserts that had the instruction been given, the jury
could have convicted him for the lesser offense of unlawful
wounding. See Miller v. Commonwealth, 5 Va. App. 22, 24-25, 359
S.E.2d 841, 842 (1987). His contention is without merit.
"It is well settled that a trial court must instruct the
jury on a lesser-included offense if more than a scintilla of
evidence supports it." Donkor v. Commonwealth, 26 Va. App. 325,
1
The so-called "heat of passion" defense is not a defense in
the traditional sense; the existence of "heat of passion" merely
reduces the grade of the offense to a Class 6 felony.
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330, 494 S.E.2d 498, 500 (1998). However, an instruction is
properly refused when it is unsupported by the evidence. Bennett
v. Commonwealth, 8 Va. App. 228, 234, 380 S.E.2d 17, 21 (1989).
Although the Commonwealth prevailed at trial, we must view the
evidence with respect to the refused instruction in the light
most favorable to the appellant. Turner v. Commonwealth, 23 Va.
App. 270, 275, 476 S.E.2d 504, 507 (1996).
No evidence in the record supports appellant's contention
that the trial court was required to give an instruction on the
heat of passion defense. "Heat of passion" refers to the furor
brevis which renders a man deaf to the voice of reason. Hannah
v. Commonwealth, 153 Va. 863, 870, 149 S.E. 419, 421 (1929). To
establish the heat of passion defense, an accused must prove he
committed the crime with "passion" and upon "reasonable
provocation." Canipe v. Commonwealth, 25 Va. App. 629, 643, 491
S.E.2d 747, 753 (1997). Viewed in the light most favorable to
appellant, the evidence establishes, at most, that appellant
and Harris exchanged "harsh words" before the attack. The
long-standing rule in Virginia is that "[w]ords alone, however
insulting or contemptuous, are never a sufficient provocation"
for one to seriously injure or kill another. Id. (quoting Read
v. Commonwealth, 63 Va. (22 Gratt) 924, 938 (1872)) (emphasis
added). The evidence was insufficient as a matter of law to
prove "heat of passion." Accordingly, the trial court did not
err in refusing to instruct the jury on the heat of passion
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defense.
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III. ADMISSIBILITY OF EVIDENCE AT SENTENCING HEARING
At his sentencing hearing, appellant informed the court that
he wished to offer as mitigating evidence for the jury's
consideration appellant's wife's testimony that she suffered from
a serious medical condition and depended upon him to administer
her medication and to take her to the doctor. The trial judge
and defense counsel had the following dialogue:
[DEFENSE COUNSEL]: Well, your honor, we
wanted to call Betty Jean Caudill as a
witness for mitigation. The proffered
evidence would be and (sic) Ms. Caudill would
testify to her current health condition. The
medication that she is receiving and the type
of treatment she has to undergo (sic) her
medical condition. It would consist of (sic)
that Mr. Caudill who assists her with her
medication. Who assists or does the
housekeeping chores as all of the children
are out of the home, your honor. He is
responsible for taking her to the doctor and
back. And, that would be the proffer of what
she would testify to.
THE COURT: So, do I understand that the
testimony would be basically that she has a
medical condition and is unable to do these
other items that you just enumerated for
herself and that, that if Mr. Caudill were to
be incarcerated that she would not have
anyone to help her do these things?
[DEFENSE COUNSEL]: Yes, sir.
Over appellant's objection, the trial judge excluded the
evidence, holding that the adverse impact of appellant's
incarceration on his family was irrelevant to the jury's
recommendation of punishment.
Code § 19.2-295.1 provides, in pertinent part, as follows:
In cases of trial by jury, upon finding that
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the defendant is guilty of a felony, a
separate proceeding limited to the
ascertainment of punishment shall be held as
soon as possible before the same jury. . . .
After the Commonwealth has introduced . . .
evidence of prior convictions, or if no such
evidence is introduced, the defendant may
introduce relevant, admissible evidence
related to punishment.
(Emphasis added.) The question of what evidence may be properly
admitted by the defendant at sentencing as "relevant, admissible
evidence related to punishment" is an unsettled issue in
Virginia. See Shifflett v. Commonwealth, 26 Va. App. 254, 494
S.E.2d 163 (1997) (en banc) (currently on appeal to the Virginia
Supreme Court).
However, in Coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d
797 (1979), upon being convicted for capital murder, the
defendant sought to introduce his former wife's testimony as to
the adverse effect that sentencing him to death would have upon
their two young children. The trial court refused to admit the
evidence. On appeal, the Supreme Court noted that Coppola's
proffered evidence of family impact was "not analogous to any of
the evidence specifically approved in the [death penalty]
2
statute." Id. at 253, 257 S.E.2d at 804. Affirming the trial
2
Because the defendant was convicted for capital murder, the
Coppola Court considered the admissibility of evidence under Code
§ 19.2-264.4(B), Virginia's death penalty statute. Code
§ 19.2-264.4(B) provides "[i]n cases of trial by jury, evidence
may be presented as to any matter which the court deems relevant
to sentence. . . ." The statute then enumerates an extensive,
but not exhaustive, list of evidence that may be introduced at
sentencing, all of which "bears upon the record of the defendant
and the atrociousness of the crime." Coppola, 220 Va. at 253,
257 S.E.2d at 804. Our decisions have analogized the sentencing
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court's ruling, the Court held that "the effect of [the
defendant's] incarceration upon relatives is not a mitigating
circumstance for the jury to consider" during the sentencing
phase of trial. Id. at 254, 257 S.E.2d at 804. We find the
Coppola decision persuasive and controlling here.
Within the past year, in Shifflett, we held that the trial
court erred by excluding from the jury's consideration at
sentencing Shifflett's girlfriend's testimony that "would have
proved that Shifflett was a responsible father who worked
earnestly to provide for his children." 26 Va. App. at 261, 494
S.E.2d at 166. We stated: "For the determination of sentences,
justice generally requires consideration of more than the
particular acts by which the crime was committed and that there
be taken into account the circumstances of the offense together
with the [offender's] character and propensities [for
rehabilitation].'" Id. at 259, 494 S.E.2d at 166 (quoting
Pennsylvania v. Ashe, 302 U.S. 51, 55 (1937)) (emphasis added).
Thus, we held in Shifflett that evidence of an offender's
"habits" and "character" is "relevant to determining an
appropriate punishment" under Code § 19.2-295.1. Id. at 261, 494
S.E.2d at 166. In so holding, we concluded the evidence that
Shifflett "contributed positively to his family situation" would
(..continued)
provisions of Code § 19.2-295.1 to those applicable to the
sentencing phase of bifurcated capital murder trials. See Bunn
v. Commonwealth, 21 Va. App. 593, 598, 466 S.E.2d 744, 746
(1996); Gilliam v. Commonwealth, 21 Va. App. 519, 522-23, 465
S.E.2d 592, 594 (1996).
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have reflected upon his character and was, therefore, admissible
at his sentencing hearing. Id. However, we noted that the
evidence "was not offered merely to prove the family's apparent
need for [the defendant's] income." Id.
Here, as in Coppola, appellant offered the evidence in order
to prove that his incarceration would adversely affect his
family. Unlike the circumstances of Shifflett, appellant's
wife's testimony that she suffered from a serious medical
condition and depended upon appellant to ensure that she receive
medical treatment did not reflect upon the appellant's
"character" and "propensities" for rehabilitation. Accordingly,
under Coppola, appellant's proffered evidence that his
incarceration would adversely impact his wife was not a
mitigating circumstance that the jury could properly consider
under Code § 19.2-295.1, and the trial court did not err in
refusing to admit the evidence at appellant's sentencing hearing.
For these reasons, we affirm the conviction.
Affirmed.
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