COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Kelsey Argued at Salem, Virginia
CHRIS BRUSANT SMITH MEMORANDUM OPINION* BY v. Record No. 2992-02-3 JUDGE D. ARTHUR KELSEY MAY 4, 2004 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Mosby G. Perrow, III, Judge
Craig P. Tiller (Freeman, Dunn, Alexander, Yeatts & Tiller, P.C., on briefs), for appellant.
Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
A jury found Chris Brusant Smith guilty of maliciously shooting at or into an occupied
vehicle in violation of Code § 18.2-154. The trial court, Smith contends, committed reversible
error by not giving his proffered heat-of-passion jury instruction. We disagree and affirm
Smith’s conviction.
I.
Michael Mosley walked from his home to a neighborhood convenience store after getting
home from work late one evening. Smith and his friend, Shawn Hay, arrived at the store just as
Mosley had finished his shopping. Both Smith and Hay noticed Mosley’s blue leather jacket.
Smith told Hay “if you give me a beer, I’ll get you the jacket.” Hay laughed and handed Smith a
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. beer. Smith and Hay then met a third man, Amos Morris, and after a few minutes all three men
left the store together.
Down the street from the store, Hay, Smith, and Morris noticed that the front light was on
at an apartment occupied by Hay’s friend. The three men stopped by to visit the friend, Juanita
Marshall, who happened to share half of a duplex with Mosley and his mother. As Marshall
talked with the men, a car driven by Mosley’s friend Chad Hudson pulled up and parked in front
of Mosley’s house. Hudson exited his vehicle and began approaching Mosley’s house when
Mosley, dressed in his blue leather jacket, exited his residence. “There goes the dude right
there,” Smith told Hay upon seeing Mosley. Smith pulled a handgun from his jacket pocket and
walked towards Mosley. Hay followed.
As Mosley was sitting down in the front seat of Hudson’s car, Smith attacked Mosley and
demanded that he hand over his jacket and money. Mosley fought back as best he could, but
Smith managed to get the jacket off of him. While Mosley clutched the jacket in defiance, Smith
climbed off of Mosley and shot him at close range. Even after shooting Mosley, Smith “still
kept beating him” and “kicked Mike Mosley in the back.” The whole ordeal, one witness said,
took about five to eight minutes. Smith then ran away with Mosley’s jacket and wallet. Mosley
died from the gunshot wound.
A grand jury indicted Smith for robbery, illegal use of a firearm, malicious shooting at or
into an occupied vehicle, and first-degree murder. At trial, Smith proffered a jury instruction that
defined “heat of passion” and distinguished it from malice. The trial judge refused the
instruction and instead used a general definition of malice, omitting any discussion of
heat-of-passion principles.
-2- The jury found Smith guilty of robbery, illegal use of a firearm, malicious shooting at or
into an occupied vehicle, and first-degree murder under a felony murder instruction. The jury
recommended, and the trial court imposed, a 118-year penitentiary sentence.
II.
On appeal, Smith argues that the proffered heat-of-passion instruction should have been
given on the charge of maliciously shooting at or into an occupied vehicle.1 We disagree.
Instructions should educate the jury “on all principles of law applicable to the pleadings
and the evidence.” Mouberry v. Commonwealth, 39 Va. App. 576, 582, 575 S.E.2d 567, 569
(2003) (citations omitted). A trial court must give an instruction if supported by “more than a
scintilla of evidence.” Rhodes v. Commonwealth, 41 Va. App. 195, 200, 583 S.E.2d 773, 775
(2003) (citing Commonwealth v. Donkor, 256 Va. 443, 445, 507 S.E.2d 75, 76 (1998)). An
“independent prerequisite” for any jury instruction, the scintilla test asks whether a factfinder
could “rationally” accept the position advocated by the instruction’s proponent. Carter v. United
States, 530 U.S. 255, 261 n.3 (2000) (quoting Schmuck v. United States, 489 U.S. 705, 716 n.8
(1989)) (internal quotation marks omitted). We answer that question while reviewing the record
in the light most favorable to the proponent. Esteban v. Commonwealth, 266 Va. 605, 607, 587
S.E.2d 523, 525 (2003).
Heat of passion negates malice only when some “reasonable provocation” creates a
“furor brevis which renders a man deaf to the voice of reason.” Rhodes, 41 Va. App. at 200-01,
1 Smith also sought review of other aspects of his other convictions. We granted the petition for appeal, however, only on Question Presented VIII, which reads: “Whether the trial court erred in refusing appellant’s tendered instruction J defining malice and explaining that heat of passion excludes malice where the trial court overruled the motion to strike Count 9 alleging a violation of Section 18.2-154 of the Code, of which malice is an element?” We thus limit our analysis to this issue. See Parker v. Commonwealth, 42 Va. App. 358, 373, 592 S.E.2d 358, 366 (2004) (recognizing that we will only consider “those arguments presented in the petition for appeal and granted by this Court”).
-3- 583 S.E.2d at 775-76 (quoting Caudill v. Commonwealth, 27 Va. App. 81, 85, 497 S.E.2d 513,
514-15 (1998)). The provocation must be objectively reasonable under the circumstances. See
Stewart v. Commonwealth, 245 Va. 222, 240, 427 S.E.2d 394, 406 (1993); Willis v.
Commonwealth, 37 Va. App. 224, 231, 556 S.E.2d 60, 64 (2001); Robertson v. Commonwealth,
31 Va. App. 814, 823, 525 S.E.2d 640, 645 (2000) (“In order to determine whether the accused
acted in the heat of passion, it is necessary to consider the nature and degree of provocation as
well as the manner in which it was resisted.” (quoting Miller v. Commonwealth, 5 Va. App. 22,
25, 359 S.E.2d 841, 842 (1987))). The “victim of the crime” must be the provoker, Arnold v.
Commonwealth, 37 Va. App. 781, 789, 560 S.E.2d 915, 919 (2002), and there must be a
“simultaneous occurrence” of both provocation and passion, Graham v. Commonwealth, 31
Va. App. 662, 671, 525 S.E.2d 567, 571 (2000) (citing Canipe v. Commonwealth, 25 Va. App.
629, 643, 491 S.E.2d 747, 753 (1997)).
In this case, the trial court correctly ruled that the heat-of-passion instruction could not be
given even under Smith’s version of the facts.2 No rational factfinder could find that Mosley, a
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Kelsey Argued at Salem, Virginia
CHRIS BRUSANT SMITH MEMORANDUM OPINION* BY v. Record No. 2992-02-3 JUDGE D. ARTHUR KELSEY MAY 4, 2004 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Mosby G. Perrow, III, Judge
Craig P. Tiller (Freeman, Dunn, Alexander, Yeatts & Tiller, P.C., on briefs), for appellant.
Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
A jury found Chris Brusant Smith guilty of maliciously shooting at or into an occupied
vehicle in violation of Code § 18.2-154. The trial court, Smith contends, committed reversible
error by not giving his proffered heat-of-passion jury instruction. We disagree and affirm
Smith’s conviction.
I.
Michael Mosley walked from his home to a neighborhood convenience store after getting
home from work late one evening. Smith and his friend, Shawn Hay, arrived at the store just as
Mosley had finished his shopping. Both Smith and Hay noticed Mosley’s blue leather jacket.
Smith told Hay “if you give me a beer, I’ll get you the jacket.” Hay laughed and handed Smith a
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. beer. Smith and Hay then met a third man, Amos Morris, and after a few minutes all three men
left the store together.
Down the street from the store, Hay, Smith, and Morris noticed that the front light was on
at an apartment occupied by Hay’s friend. The three men stopped by to visit the friend, Juanita
Marshall, who happened to share half of a duplex with Mosley and his mother. As Marshall
talked with the men, a car driven by Mosley’s friend Chad Hudson pulled up and parked in front
of Mosley’s house. Hudson exited his vehicle and began approaching Mosley’s house when
Mosley, dressed in his blue leather jacket, exited his residence. “There goes the dude right
there,” Smith told Hay upon seeing Mosley. Smith pulled a handgun from his jacket pocket and
walked towards Mosley. Hay followed.
As Mosley was sitting down in the front seat of Hudson’s car, Smith attacked Mosley and
demanded that he hand over his jacket and money. Mosley fought back as best he could, but
Smith managed to get the jacket off of him. While Mosley clutched the jacket in defiance, Smith
climbed off of Mosley and shot him at close range. Even after shooting Mosley, Smith “still
kept beating him” and “kicked Mike Mosley in the back.” The whole ordeal, one witness said,
took about five to eight minutes. Smith then ran away with Mosley’s jacket and wallet. Mosley
died from the gunshot wound.
A grand jury indicted Smith for robbery, illegal use of a firearm, malicious shooting at or
into an occupied vehicle, and first-degree murder. At trial, Smith proffered a jury instruction that
defined “heat of passion” and distinguished it from malice. The trial judge refused the
instruction and instead used a general definition of malice, omitting any discussion of
heat-of-passion principles.
-2- The jury found Smith guilty of robbery, illegal use of a firearm, malicious shooting at or
into an occupied vehicle, and first-degree murder under a felony murder instruction. The jury
recommended, and the trial court imposed, a 118-year penitentiary sentence.
II.
On appeal, Smith argues that the proffered heat-of-passion instruction should have been
given on the charge of maliciously shooting at or into an occupied vehicle.1 We disagree.
Instructions should educate the jury “on all principles of law applicable to the pleadings
and the evidence.” Mouberry v. Commonwealth, 39 Va. App. 576, 582, 575 S.E.2d 567, 569
(2003) (citations omitted). A trial court must give an instruction if supported by “more than a
scintilla of evidence.” Rhodes v. Commonwealth, 41 Va. App. 195, 200, 583 S.E.2d 773, 775
(2003) (citing Commonwealth v. Donkor, 256 Va. 443, 445, 507 S.E.2d 75, 76 (1998)). An
“independent prerequisite” for any jury instruction, the scintilla test asks whether a factfinder
could “rationally” accept the position advocated by the instruction’s proponent. Carter v. United
States, 530 U.S. 255, 261 n.3 (2000) (quoting Schmuck v. United States, 489 U.S. 705, 716 n.8
(1989)) (internal quotation marks omitted). We answer that question while reviewing the record
in the light most favorable to the proponent. Esteban v. Commonwealth, 266 Va. 605, 607, 587
S.E.2d 523, 525 (2003).
Heat of passion negates malice only when some “reasonable provocation” creates a
“furor brevis which renders a man deaf to the voice of reason.” Rhodes, 41 Va. App. at 200-01,
1 Smith also sought review of other aspects of his other convictions. We granted the petition for appeal, however, only on Question Presented VIII, which reads: “Whether the trial court erred in refusing appellant’s tendered instruction J defining malice and explaining that heat of passion excludes malice where the trial court overruled the motion to strike Count 9 alleging a violation of Section 18.2-154 of the Code, of which malice is an element?” We thus limit our analysis to this issue. See Parker v. Commonwealth, 42 Va. App. 358, 373, 592 S.E.2d 358, 366 (2004) (recognizing that we will only consider “those arguments presented in the petition for appeal and granted by this Court”).
-3- 583 S.E.2d at 775-76 (quoting Caudill v. Commonwealth, 27 Va. App. 81, 85, 497 S.E.2d 513,
514-15 (1998)). The provocation must be objectively reasonable under the circumstances. See
Stewart v. Commonwealth, 245 Va. 222, 240, 427 S.E.2d 394, 406 (1993); Willis v.
Commonwealth, 37 Va. App. 224, 231, 556 S.E.2d 60, 64 (2001); Robertson v. Commonwealth,
31 Va. App. 814, 823, 525 S.E.2d 640, 645 (2000) (“In order to determine whether the accused
acted in the heat of passion, it is necessary to consider the nature and degree of provocation as
well as the manner in which it was resisted.” (quoting Miller v. Commonwealth, 5 Va. App. 22,
25, 359 S.E.2d 841, 842 (1987))). The “victim of the crime” must be the provoker, Arnold v.
Commonwealth, 37 Va. App. 781, 789, 560 S.E.2d 915, 919 (2002), and there must be a
“simultaneous occurrence” of both provocation and passion, Graham v. Commonwealth, 31
Va. App. 662, 671, 525 S.E.2d 567, 571 (2000) (citing Canipe v. Commonwealth, 25 Va. App.
629, 643, 491 S.E.2d 747, 753 (1997)).
In this case, the trial court correctly ruled that the heat-of-passion instruction could not be
given even under Smith’s version of the facts.2 No rational factfinder could find that Mosley, a
victim of an armed robbery, did anything that objectively speaking could be said to have
reasonably provoked Smith to shoot him. At most, the evidence showed only that Mosley
attempted to defend himself and refused to turn over his leather jacket to Smith. Cf. Humphrey
v. Commonwealth, 37 Va. App. 36, 49, 553 S.E.2d 546, 552 (2001) (“A person who reasonably
2 The absence of Smith’s heat-of-passion instruction had no impact on his robbery, illegal use of a firearm, or felony murder convictions. Malice is not an element of the robbery or firearm charges. As for felony murder, “the malice intrinsic in the commission of one of the predicate felonies ‘provides the malice prerequisite to a finding that the homicide was murder.’” Dalo v. Commonwealth, 37 Va. App. 156, 167, 554 S.E.2d 705, 710 (2001), (quoting Wooden v. Commonwealth, 222 Va. 758, 762, 284 S.E.2d 811, 814 (1981)), aff’d, 264 Va. 431, 570 S.E.2d 840 (2002), cert. denied, 538 U.S. 924 (2003); see also Commonwealth v. Montague, 260 Va. 697, 700, 536 S.E.2d 910, 912 (2000); Cotton v. Commonwealth, 35 Va. App. 511, 515, 546 S.E.2d 241, 243 (2001).
-4- apprehends [imminent] bodily harm by another is privileged to exercise reasonable force
to repel the assault.” (quoting Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382 S.E.2d 24,
25 (1989))); Connell v. Commonwealth, 34 Va. App. 429, 439, 542 S.E.2d 49, 54 (2001) (“One
who is assaulted may and usually does defend himself, the ensuing struggle cannot be accurately
described as a mutual combat.”).
As the Virginia Supreme Court has explained, a “man cannot go a-gunning for an
adversary and kill him on the first appearance of resistance, and rely upon the necessity of the
killing as an excuse therefor.” Jordan v. Commonwealth, 219 Va. 852, 855-56, 252 S.E.2d 323,
325 (1979) (quoting Sims v. Commonwealth, 134 Va. 736, 760, 115 S.E. 382, 390 (1922))
(internal quotation marks omitted). For similar reasons, an armed robber cannot attack a victim
and then claim the victim’s resistance reasonably provoked the robber to kill him. As a matter of
law, the heat-of-passion doctrine simply does not go that far.
Because the trial court did not err in refusing the heat-of-passion instruction proffered by
Smith, we affirm his conviction.
Affirmed.
-5-