Opinion
Record No. 1673-89-2
September 29, 1992
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND THOMAS N. NANCE, JUDGE.
Kimberly B. O'Donnell, Senior Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Robert B. Condon, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Reginald Lamont Taylor (appellant) appeals from judgments of the Circuit Court of the City of Richmond (trial court) which approved jury verdicts convicting him for malicious wounding and use of a firearm in the commission of that crime. The sole issue raised by appellant is whether the trial court erred in refusing to instruct the jury on the lesser-included offense of unlawful wounding. In fact, the trial court gave instructions on unlawful wounding. In this appeal, appellant argues that the trial court's error was its failure to grant Instruction A, which dealt with definitions of malice and heat of passion.
To determine whether the Commonwealth has proved a malicious wounding, 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). However, when properly presented to the trial court and the alleged error preserved for appeal, where the issue on appeal is whether an instruction should have been given, we examine the record to determine whether there is evidence that requires the requested instruction be given.
The Commonwealth proved that in December 1988, Monnie Sykes loaned a gold chain to appellant, with the understanding that it would be returned the following day. When it was not returned, Sykes pressed appellant for its return, threatening that they would fight and he would "mess" appellant up if he did not return the chain. On December 18, 1988, appellant advised Sykes that he had loaned the chain to a third person who had not returned it. In response, Sykes again threatened appellant, saying, "I am going to f___ you up." Later that same day, Sykes drove around looking for appellant. He found appellant with Barry Isom, to whom appellant claimed he had loaned the chain. Sykes got out of his car, approached appellant and engaged him in further conversation concerning the chain, with no success. During that conversation, Sykes grabbed appellant "up front" in a "bear hug" but when appellant offered no resistance, Sykes released him and started to walk away. Sykes walked five or six feet and, while his back was turned, appellant shot Sykes, striking him three times in the back. Sykes had no weapon. Sykes sustained injuries that required hospitalization for four and one-half months, is paralyzed and now lives in a nursing home. Sykes' wounds left him totally and permanently disabled.
Several days after the shooting, appellant told Richmond Homicide Detective Charles J. Hutson that Sykes had given him the chain to wear; that he, appellant, had loaned the chain to his friend Barry; that Sykes had threatened appellant on December 18, 1988; that Sykes confronted him and Barry later that same day and Sykes grabbed appellant, choked him and appeared to be "going for his pocket," whereupon appellant "pulled out a gun, .38 caliber, and shot him twice." Appellant expressed no fear, anger or resentment toward Sykes and did not claim that he saw a weapon on or about Sykes.
At trial, appellant presented some evidence on his behalf that conflicted in part with the evidence presented by the Commonwealth; however, appellant did not deny the account related by either Sykes or Hutson. A defense witness testified that about three weeks after the shooting, he visited Sykes in a hospital and Sykes said "it wouldn't have happened if [he] hadn't jumped on [appellant's] back." Appellant's mother testified that Sykes had told her that he wanted his chain returned and that he did not want to hurt appellant. She denied knowing that appellant had a .38 caliber gun or where it had been obtained. Barry testified that he had the chain but only for the purpose of having it repaired; that he was present when Sykes was shot; and that he saw Sykes jump on appellant's back. He also said that while Sykes was in that position, Barry heard three shots but did not see or know from where they came. At the time he heard the shots, Barry said appellant's hands were by his side "trying to get [Sykes] off his back." He said nothing about Sykes "going for his pocket."
When the Commonwealth rested, appellant did not move to strike the evidence; however, when both sides rested, counsel for appellant made the following motion:
MS. O'DONNELL: Judge, I make a motion to dismiss based on — well, I should back up. It's in the form of a Motion to Strike, which I would like to have made at the end of the Commonwealth's evidence, but I will make now in the form of a Motion to Dismiss in that there is no malice being shown. What we have at most by the victim's own admissions we have a situation where he confronted the defendant. Because of that, because of the provocation, admitted provocation on the part of the victim at the very most what we have here is an unlawful wounding. I think that's the most that we have based on the law and the evidence. The law is very clear. The instructions as to malice, malice cannot coexist with heat of passion and heat of passion can include fear. It can include anger, resentment where there is provocation and heat of passion, malice cannot be present. Again, the victim admitted he is the one who approached. He is the one who began any confrontation of this young man. He never struck him, never attempted to reach him. Based on that I move the Court to strike the charges down to unlawful wounding. I don't think the jury would have any evidence to go beyond that and if they did that decision would be based solely on sympathy for the victim, not on the evidence.
THE COURT: Motion denied.
MS. O'DONNELL: Note my exception for the record.
Counsel's argument addressed the sufficiency of the evidence, not the reason for granting Instruction A. The record does not disclose any discussion counsel had with the trial court concerning instructions. Nothing in the record shows what reason, if any, was given by appellant as to why the malice instruction should be repeated and the remainder of Instruction A given. The following relevant instructions were given:
We are unable to determine from the record which instructions were requested by either the Commonwealth or appellant.
INSTRUCTION NO. 6
The defendant is charged with the crime of aggravated malicious wounding. The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:
(1) That the defendant wounded Monnie Sykes; and
(2) That such wounding was with intent to maim, disfigure, disable or kill Monnie Sykes; and
(3) That the act was done with malice; and
(4) That as a result of the act Monnie Sykes is totally and permanently disabled.
If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the above elements of the offense as charged, then you shall find the defendant guilty of aggravated malicious wounding.
If you find from the evidence that the Commonwealth has proven beyond a reasonable doubt each of the first three elements of the offense as charged, but that Monnie Sykes is not totally and permanently disabled, then you shall find the defendant guilty of malicious wounding.
If you find from the evidence that the Commonwealth has proven beyond a reasonable doubt each of the first two elements of the offense as charged, but that the act was done unlawfully and not maliciously, then you shall find the defendant guilty of unlawful wounding.
If you find the Commonwealth has failed to prove beyond a reasonable doubt any of the above offenses then you shall find the defendant not guilty.
INSTRUCTION NO. 7
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 his actions were in self-defense and you shall find the defendant not guilty.
INSTRUCTION NO. 8
If you have a reasonable doubt as to the grade of the offense, then you must resolve that doubt in favor of the defendant, and find him guilty of the lesser offense. For example, if you have a reasonable doubt as to whether he is guilty of aggravated malicious wounding or malicious wounding then you shall find him guilty of malicious wounding; if you have a reasonable doubt as to whether he is guilty of malicious wounding or unlawful wounding, you shall find him guilty of unlawful wounding; if you have a reasonable doubt as to whether he is guilty at all, you shall find him not guilty.
INSTRUCTION NO. 5
You may infer malice from the deliberate use of a deadly weapon unless, from all the evidence, you have a reasonable doubt as to whether malice existed.
A "deadly weapon" is any object or instrument, not a part of the human body, that is likely to cause death or great bodily injury because of the manner, and under the circumstances, in which it is used.
INSTRUCTION NO. 4
Malice is that state of mind which results in the intentional doing of a wrongful act to another without legal excuse or justification, at a time when the mind of the actor is under the control of reason. Malice may result from any unlawful or unjustifiable motive including anger, hatred or revenge. Malice may be inferred from any deliberate willful and cruel act against another, however sudden.
Instruction A, which the trial court refused to grant, provided:
INSTRUCTION NO. A
Malice is the state of mind which results in the intentional doing of a wrongful act to another without legal excuse or justification, at a time when the mind of the actor is under the control of reason. Malice may result from any unlawful or unjustifiable motive including anger, hatred or revenge. Malice may be inferred from any deliberate willful and cruel act against another, however sudden.
Malice cannot co-exist with heat of passion upon reasonable provocation. Heat of passion is such a state of emotion, or hot blood, or rage, anger, resentment, terror or fear as to demonstrate the absence of deliberate design to kill or cause permanent injury or as to cause one to act on impulse without conscious reflection. Heat of passion is not caused by slight provocation but must have been aroused from circumstances as they appeared to defendant which would have aroused the passion of an ordinarily reasonable person in like circumstances.
As noted, the record contains no discussions concerning appellant's reason for offering Instruction A nor does it disclose the reasons for objecting to its refusal. In fact, the only reference to an objection of any kind being made to any of the instructions came after the jury had returned its verdict and was discharged.
MS. O'DONNELL: Judge, a couple of motions. I want to clarify for the record that an instruction was offered on the definition of malice which was rejected by the Court. I want to make sure our objection is noted for the record. That instruction was marked A.
THE COURT: It's part of the record.
MS. O'DONNELL: That would have been offered by the defense and it was rejected by the Court. Of course, I renew my motion that I made to dismiss based on the evidence. Then I would make a motion for a Presentence Report.
The issue presented in this appeal is whether the trial court erred in refusing to instruct the jury on the lesser-included offense of unlawful wounding. As can be seen, a lesser-included offense instruction was given (see Instruction Nos. 6, 7 and 8). Moreover, the wording of the entire first paragraph of refused Instruction A was contained in Instruction 4. We could speculate that the trial court refused Instruction A because it duplicated Instruction No. 4. The trial court may have offered to grant the second paragraph only and appellant declined to accept it without the first paragraph attached. It was not error to refuse to grant duplicate instructions. We could further speculate that the first paragraph of Instruction A was granted as Instruction 4, while the second half was refused.
Because we have not been provided with an adequate record to make a proper review of the error alleged, we are unable to determine the reason for the trial court's action. Even viewing the assertion made after the verdict and discharge of the jury, indicating that an objection was timely made to the trial court's refusal to grant Instruction A, we still are not provided with a record that discloses the reason for the objection or whether it was stated with specificity as required by Rule 5A:18. All presumptions exist in favor of the regularity of the judgments of the courts of general jurisdiction, and one who asserts the contrary is required to overcome the presumption by record proof. Mack v. Commonwealth, 177 Va. 921, 929, 15 S.E.2d 62, 65 (1941).
On appeal, the burden is on the appellant to point to the alleged error in the record and to show by the record not only that a timely objection was made, but that reasons for the objection were stated with specificity. Rule 5A:18. The reason for the Rule is clearly stated in Gardner v. Commonwealth, 3 Va. App. 418, 350 S.E.2d 229 (1986):
Rule 5A:18 serves an important function during the conduct of a trial. It places the parties on notice that they must give the trial court the first opportunity to rule on disputed evidentiary and procedural questions. The purpose of this rule is to allow correction of an error if possible during the trial, thereby avoiding the necessity of mistrials and reversals. To hold otherwise would invite parties to remain silent at trial, possibly resulting in the trial court committing needless error.
Id. at 423, 350 S.E.2d at 232.
Appellant argues that when he framed the issue as the trial court's refusal to grant an unlawful wounding instruction, he meant its refusal to grant Instruction A, which dealt with the definition of malice. In response to the argument that the trial court granted a definitive malice instruction using the words contained in the first paragraph of Instruction A, appellant expands his argument to say that what he meant by the issue he framed is that the evidence supported a "heat of passion" instruction, and that the failure of the trial court to grant an instruction that included that defense is the reversible error he urges in this appeal. The record does not reflect that he stated that reason with specificity nor do the facts contained in the record support his claim that the trial court erred in refusing to grant it.
In support of his heat of passion argument, appellant citesBarrett v. Commonwealth, 231 Va. 102, 341 S.E.2d 190 (1986). InBarrett, the trial court instructed the jury on the crime of malicious wounding but refused to grant an instruction on "the lesser-included offense of unlawful wounding." Id. at 105, 341 S.E.2d at 192. In the case before us, the trial court instructed the jury on the lesser-included offense of unlawful wounding, defined malice, and informed the jury that unless malice was proved beyond a reasonable doubt, unlawful wounding was the greatest offense of which appellant could be convicted.
Barrett is important in our consideration of the case before us because it explains what is necessary to entitle an accused to a heat of passion instruction. The Barrett opinion compared unlawful wounding cases to the cases involving the reduction of murder to manslaughter. Barrett specifically stated that not only must the accused's passion be shown, the evidence also must show that the act was committed upon "reasonable provocation." Moreover, Barrett stated that the "nature and degree of the provocation" determines whether heat of passion may be used to reduce the degree of the offense from murder to manslaughter. Id. at 106, 341 S.E.2d at 192. See also Richardson v. Commonwealth, 128 Va. 691, 695, 104 S.E. 788, 790 (1920) (where the Court held that "whether the killing is from the sudden heat of passion . . . is found in the nature and degree of the provocation and the manner in which it is resented"). Thus, passion without sufficient provocation to commit the act in the manner in which it was committed, will not support a request for a heat of passion instruction. See Martin v. Commonwealth, 184 Va. 1009, 1016, 37 S.E.2d 43, 46 (1946).
Barrett further declares that whether an act was done in the heat of passion is generally a jury question but if "the trial court, giving the [accused] the benefit of every reasonable inference from the evidence, finds that the minds of reasonable men could not differ . . . the question becomes [one] of law."Barrett at 106, 341 S.E.2d at 192-93. In Barrett, in addition to threats made by the victim to him, Barrett heard someone exclaim: "Watch out, Rudy; he's got a gun." No such evidence is contained in the record before us. "[I]t is settled law [in Virginia] that slight provocation does not suffice" to entitle an accused to a heat of passion instruction. Ballard v. Commonwealth, 156 Va. 980, 993, 159 S.E. 222, 226 (1931). The reasonable provocation rule long has been established in Virginia. See Read v. Commonwealth, 63 Va. (22 Gratt.) 924 (1872).
A reasonable provocation is always necessary to reduce a felonious homicide, committed upon sudden provocation, from the degree of murder (which is its presumed degree), to that of manslaughter; and especially where the offence is committed with a deadly weapon. Words alone, however insulting or contemptuous, are never a sufficient provocation to have that effect, at least where a deadly weapon is used, so tender is the law of human life, and so much opposed is it to the use of such a weapon.
It is not only necessary in such a case and for such an effect that a reasonable provocation should be received, but it is also necessary that the provocation should have the effect of producing sudden passion under the influence of which alone the offence is committed. It must be a sudden transport of passion, which the law calls furor brevis. If a person on receiving the gravest provocation, is unmoved by passion, but wantonly and wilfully and wickedly kills his adversary otherwise than in self-defence, he is guilty of murder. The law mitigates the offence to manslaughter, only as an indulgence to the infirmity of human nature. Provocation without passion or passion without provocation will not do; both must concur to reduce the offence to the grade of manslaughter.
Id. at 938 (emphasis added). See also Martin, 184 Va. at 1016-17, 37 S.E.2d at 46-7. This rule was established and continues because of our high regard for human life and distaste for violence by one human being against another. Read, 63 Va. (22 Gratt.) at 924, Martin, 184 Va. at 1017, 37 S.E.2d at 47.
When "the Commonwealth proves [a malicious wounding] and establishes the accused as the criminal agent, the . . . [accused] has the burden [to] show circumstances of justification, excuse or alleviation. Hodge v. Commonwealth, 217 Va. 338, 341, 228 S.E.2d 692, 694 (1976)." The Due Process Clause does not prohibit the use of presumptions or inferences to shift to the accused the burden of producing some evidence contesting the otherwise presumed or inferred fact. Here, the Commonwealth proved a prima facie malicious wounding and that appellant was the criminal agent. Once the Commonwealth proved its prima facie case, it was incumbent upon the accused to produce some evidence indicating that he acted in the heat of passion. Id. at 341-42, 228 S.E.2d at 695. The Commonwealth's evidence did not establish that appellant was moved by heat of passion. Neither the threats nor the "bear hug" constituted adequate provocation for appellant to shoot Sykes three times in the back as Sykes walked away from the encounter. If appellant was entitled to that portion of Instruction A that was refused, the entitlement must be found in the evidence presented by the defense.
Appellant did not testify; therefore, no words emanated from him to show that he harbored emotion, rage, fear or resentment. The testimony of appellant's witnesses did not prove any provocation sufficient to justify appellant's act in "pull[ing] out a gun" and firing three bullets into Sykes' back.
Charles Cheatum, Jr. testified for the defense. Appellant's mother is Cheatum's "girlfriend." About three weeks after Sykes was shot by appellant, Cheatum visited Sykes in the hospital and testified that Sykes told him "it wouldn't have happened if I hadn't jumped on Reginald's back, you know." Cheatum heard that appellant had shot Sykes. He knew that Sykes threatened to hurt or jump appellant and that they argued about the chain. Cheatum claimed this had been going on a "whole week" and did not know the chain incident began only three days before the shooting.
Annie T. Jones, appellant's mother, testified for the defense. She stated that Sykes came to her house on the morning of "the 18th." Sykes came to talk about the chain and was "frustrated." Sykes said: "I don't want to hurt him . . . I just want my chain." Sykes left, saying, "I don't want to hurt him." Mrs. Jones did not know about the chain until the "18th." She did not know appellant had a gun or where he had procured it.
The final defense witness was Barry Isom. He was with appellant on December 18, 1988 when Sykes was shot. He saw Sykes drive up and call appellant to Sykes' car. He saw them talking but could not hear what was said. He testified that appellant started to walk away and "Sykes jumped out of the car, jumped on his [appellant's] back, grabbed him by the neck and started hitting him on the side of the head." He heard three shots but did not know from what source they came. At the time Barry heard the shots, he said Sykes was still on appellant's back and appellant's hands "was like on his side trying to get Monnie Sykes off his back." He did not see a gun and did not know who had one. After the shots were heard, appellant ran off and "Sykes was laying in the street." The prosecutor asked Barry to demonstrate for the jury how appellant could have shot Sykes in the back while Sykes was on appellant's back and Barry responded that he did not know how it happened.
It is undisputed that Sykes was shot in the back three times. The evidence does not refute that the shooting occurred as appellant walked away. The only eyewitness other than Sykes testified that he did not know how it happened. Appellant did not testify. The trial court did not find that reasonable provocation existed which would have entitled appellant to Instruction A. We have no record of any reason given by appellant as to why he thought Instruction A should be granted. The trial court's ruling is presumed to be correct and the evidence does not rebut that presumption nor meet appellant's burden to produce evidence that would entitle him to Instruction A. We have examined the record presented and find, giving the evidence every reasonable inference for the benefit of appellant, that reasonable men could not differ from the trial court's finding.
Accordingly, for the reasons stated, and because the record does not show appellant advised the trial court with specificity a reason for presenting Instruction A, we affirm the judgment of the trial court.
Affirmed.
It is firmly established that "when a principle of law is vital to a defendant in a criminal case, a trial court has an affirmative duty properly to instruct a jury about the matter."Jimenez v. Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991). Additionally, we are guided by the well established principle that "where evidence tends to sustain both the prosecution's and the defense's theory of the case, the trial judge is required to give requested instructions covering both theories." Diffendal v. Commonwealth, 8 Va. App. 417, 423, 382 S.E.2d 24, 26 (1989) (citing Jackson v. Commonwealth, 96 Va. 107, 113, 30 S.E. 452, 454 (1989)). See also Miller v. Commonwealth, 5 Va. App. 22, 25, 359 S.E.2d 841, 842 (1987). The trial judge has the responsibility "`to see that the law has been clearly stated and that the instructions cover all issues which the evidence fully raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (quotingSwisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)) (emphasis added). Although unlawful wounding was before the jury as the law of the case upon which the jury could have rested its verdict, see, e.g., Miles v. Commonwealth, 205 Va. 462, 468, 138 S.E.2d 22, 27 (1964), the trial judge incompletely and inadequately instructed the jury on the elements of unlawful wounding. The trial judge erred in refusing a properly drawn instruction explaining heat of passion, an element of unlawful wounding.
"Although the Commonwealth prevailed at trial, the appropriate standard of review requires that we view the evidence pertinent to [the] refused instruction in the light most favorable to [the defense]." Martin v. Commonwealth, 13 Va. App. 524, 526, 414 S.E.2d 401, 401 (1992) (en banc), (citingBlondel v. Hays, 241 Va. 467, 469, 403 S.E.2d 340, 341 (1991)). The evidence in the record favorable to the defense theory establishes that Monnie Sykes, who was thirty-two years of age, became angered when Reginald Lamont Taylor, age sixteen, failed to return his borrowed chain on the day promised. Sykes argued with Taylor several times over the chain, threatening "to fuck [him] up," and sent messages that he intended to hurt Taylor. On the day before the shooting, Sykes threatened to fight Taylor and to "mess him up." The next day Sykes did not find Taylor at home and again threatened "to hurt him or jump him." Sykes then got into his automobile and drove around looking for Taylor. When Sykes found Taylor they argued again. Sykes jumped on Taylor's back, grabbed Taylor's neck, choked Taylor, and began hitting Taylor on the head. When Taylor saw Sykes "going for his pocket," Taylor withdrew a gun and shot Sykes.
This Court explained in Mason v. Commonwealth, 7 Va. App. 339, 373 S.E.2d 603 (1988):
"Code § 18.2-51 contemplates that a cutting or wounding may either be a malicious wounding or an unlawful wounding, and a jury should be so instructed." In order to properly distinguish malicious wounding from unlawful wounding, the jury must be given a complete definition of malice. We find that here, when the trial court instructed the jury [that] it could ignore the concepts of heat of passion and control of reason, its definition of malice was rendered incomplete.
Id. at 346-47, 373 S.E.2d at 607 (citation omitted) (emphasis added). See also Mullaney v. Wilbur, 421 U.S. 684, 704 (1975);Miller, 5 Va. App. at 25, 359 S.E.2d at 842.
The trial judge refused entirely Taylor's request to instruct the jury on heat of passion, thereby precluding the jury from considering a concept fundamental to the lesser-included offense of unlawful wounding. The jury was instructed to consider the evidence without a basis upon which to gauge the parameters that separate malice from heat of passion. In Barrett v. Commonwealth, 231 Va. 102, 341 S.E.2d 190 (1986), the trial judge's refusal to instruct the jury on the lesser included offense of unlawful wounding led the Supreme Court to reverse and state the following:
The trial court instructed the jury on the crime of malicious wounding, but refused Barrett's request for instructions on the lesser-included offense of unlawful wounding. The court reasoned that the evidence could support only a conviction of malicious wounding or an acquittal by reason of self-defense. Because the mental-state elements of unlawful wounding are the same as those of voluntary manslaughter, we will examine homicide law for a resolution of this issue.
Every malicious homicide is murder. Manslaughter, on the other hand, is the unlawful killing of another without malice. To reduce a homicide from murder to voluntary manslaughter, the killing must have been done in the heat of passion and upon reasonable provocation.
Heat of passion is determined by the nature and degree of the provocation, and may be founded upon rage, fear, or a combination of both. Malice and heat of passion are mutually exclusive; malice excludes passion, and passion presupposes the absence of malice.
Id. at 105-106, 341 S.E.2d at 192 (citations omitted).
It is immaterial that the trial judge granted a self-defense instruction: self-defense and heat of passion are mutually exclusive, consistent defenses. Id. at 106, 341 S.E.2d at 192. Likewise, "[i]t is immaterial that the jury might have rejected the lesser-included offense; if there is evidence tending to support the lesser offense, a trial court errs in refusing an instruction thereon." Id. at 107, 341 S.E.2d at 193. See also Miller, 5 Va. App. at 26, 359 S.E.2d at 843 (shooting in anger after disengaging from a fight supports the granting of a heat of passion instruction).
The jury is not required to accept, in toto, either the theory of the Commonwealth or that of an accused. They have the right to reject that part of the evidence believed by them to be untrue and to accept that found by them to be true. In so doing, they have broad discretion in applying the law to the facts and in fixing the degree of guilt, if any, of a person charged with a crime.
Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958). "If a proffered instruction finds any support in credible evidence, its refusal is reversible error." McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975). Plainly, the trial judge erred in refusing to grant the instruction pertaining to heat of passion.
Without specifically so stating, the majority opinion appears not only to address the merits of the appeal but also to hold, in the alternative, that the issue raised by this appeal is procedurally barred. I also disagree with that holding. The Commonwealth concedes in its brief that Instruction A "offered a definition of the term heat of passion" and "was a correct statement of the law." Despite the lack of dispute concerning the lawfulness of the instruction, the majority states that it is unable to determine whether Instruction A was tendered by the Commonwealth or Taylor. The record, however, contains the following statement by Taylor's counsel:
[DEFENSE COUNSEL]: Judge, a couple of motions. I want to clarify for the record that an instruction was offered on the definition of malice which was rejected by the Court. I want to make sure our objection is noted for the record. That instruction was marked A.
THE COURT: It's part of the record.
[DEFENSE COUNSEL]: That would have been offered by the defense and it was rejected by the Court.
The majority opinion also reasons that Rule 5A:18 should be invoked because the record does not disclose any discussion among counsel and the trial judge concerning instructions. The record discloses that the trial judge was aware of Taylor's theory of defense. Indeed, Taylor's counsel specifically stated:
[T]here is no malice being shown. What we have at most by the victim's own admissions we have a situation where he confronted the defendant. Because of that, because of the provocation, admitted provocation on the part of the victim at the very most what we have here is an unlawful wounding. I think that's the most that we have based on the law and the evidence. The law is very clear. The instructions as to malice, malice cannot coexist with heat of passion and heat of passion can include fear. It can include anger, resentment where there is provocation and heat of passion, malice cannot be present. Again, the victim admitted he is the one who approached. He is the one who began any confrontation of this young man.
After these arguments were made at the conclusion of the evidence, the trial judge considered the instructions and refused the instruction concerning heat of passion.
In Martin, this Court recently rejected in an en banc decision the reasoning now advanced in the majority's opinion.
The primary function of Rule 5A:18 is to alert the trial judge to possible error so that the judge may consider the issue intelligently and take any corrective actions necessary to avoid unnecessary appeals, reversals and mistrials. By tendering the assault instruction, [the defense] fully alerted the trial judge and the Commonwealth that simple assault is a lesser-included offense of attempted capital murder and sufficient evidence supported granting the instruction. At this point in the proceedings, the trial judge had an affirmative duty to include the instruction. Nonetheless, the trial judge refused the instruction. Requiring [the defense] to "object" after this refusal would, in effect, recreate the requirement of noting an exception to a final adverse ruling of the trial judge. As we stated in Martinez v. Commonwealth, 10 Va. App. 664, 668, 395 S.E.2d 467, 470 (1990), aff'd as modified, 241 Va. 557, 403 S.E.2d 358 (1991), "the requirement for an exception [has been] eliminated."
13 Va. App. at 530, 414 S.E.2d at 404.
For these reasons, I would reverse the conviction and remand for a new trial.