Fedrico M. Gilmore v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: February 16, 1999
• Docket: 0709981
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Bray and Senior Judge Overton ∗ Argued at Norfolk, Virginia

FEDRICO M. GILMORE MEMORANDUM OPINION ∗∗ BY v. Record No. 0709-98-1 JUDGE NELSON T. OVERTON FEBRUARY 16, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK Westbrook J. Parker, Judge

Barrett R. Richardson (Richardson & Rosenberg LLC, on brief), for appellant.

Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Fedrico M. Gilmore (defendant) appeals his conviction for

the second degree murder of Laura Joyner. He contends that the

trial court erred by refusing to instruct the jury on the

elements of voluntary manslaughter. Because we hold the evidence

did not warrant such an instruction, we affirm.

The parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedental

value, no recitation of the facts is necessary.

∗Judge Overton participated in the hearing and decision of this case prior to the effective date of his retirement on January 31, 1999 and thereafter by his designation as a senior judge pursuant to Code § 17.1-401, recodifying Code § 17-116.01:1. ∗∗ Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. "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,

330, 494 S.E.2d 497, 500 (1998) (citing Boone v. Commonwealth, 14

Va. App. 130, 132, 415 S.E.2d 250, 251 (1992)). "In determining

whether to instruct the jury on a lesser-included offense, the

evidence must be viewed in the light most favorable to the

accused's theory of the case." Lea v. Commonwealth, 16 Va. App.

300, 305, 429 S.E.2d 477, 480 (1993) (citing Barrett v.

Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986)).

Therefore, we must examine the record for evidence that the

defendant committed voluntary manslaughter.

To reduce a homicide from murder to manslaughter, the

killing must have been committed in the heat of passion, upon

reasonable provocation and without malice. See Barrett, 231 Va.

at 105-06, 341 S.E.2d at 192. Defendant asserts on appeal that

he killed Ms. Joyner because she called out the name of her

boyfriend during intercourse and this drove him into a jealous

rage. The record, however, belies his assertion. Ms. Joyner

allegedly called out the name of her boyfriend while they were

engaged in intercourse, yet defendant waited until after they had

finished intercourse in order to strangle her. Defendant

testified that Joyner's calling of another man's name didn't

anger him, it "didn't really like tick me off, like tick me off,

I could care, I could really care less, but it was just the

point." Moreover, defendant and Ms. Joyner did not share a close

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"bam, bam, gone, that type."

According to defendant's own testimony he did not kill Ms.

Joyner because he was angry, but just to make "the point." In

these circumstances, we can discern no reasonable provocation for

his actions nor find even a "scintilla" of evidence that

defendant acted in the heat of passion. Because the evidence

supports the trial court's decision to refuse the jury

instruction, we affirm defendant's conviction.

Affirmed.

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