                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Clements and Senior Judge Overton
Argued at Chesapeake, Virginia


REBECCA SCARLETT CARY
                                                              MEMORANDUM OPINION* BY
v.     Record No. 2031-03-1                                     JUDGE LARRY G. ELDER
                                                                  DECEMBER 21, 2004
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                               Charles D. Griffith, Jr., Judge

                 Joseph R. Winston, Special Appellate Counsel (Indigent Defense
                 Commission, on briefs), for appellant.

                 Steven R. McCullough, Assistant Attorney General (Jerry W.
                 Kilgore, Attorney General, on brief), for appellee.


       Rebecca Scarlett Cary (appellant) appeals from her jury trial conviction for first-degree

murder and the use of a firearm in the commission of murder. On appeal, she contends the court

committed reversible error by (1) commanding her, outside the presence of the jury, to compose

herself during a break in her testimony at trial; (2) refusing to allow her to offer testimony that

she acted in self-defense and to give her proffered jury instruction regarding same; (3) refusing

her proffered jury instructions on the right to arm, heat of passion and voluntary manslaughter;

and (4) concluding the evidence was sufficient to support her conviction for first-degree murder.

       We hold appellant did not properly preserve her claim that the trial court abused its

discretion by directing her to compose herself. We also hold that the evidence, viewed in the

light most favorable to the Commonwealth, was sufficient to support her convictions for

first-degree murder and the concomitant use of a firearm. However, we hold the court’s

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
exclusion of evidence of the victim’s prior threats and violence toward her, coupled with its

rejection of her jury instructions on self-defense, right to arm, voluntary manslaughter and heat

of passion, constituted reversible error. Thus, we vacate her convictions and remand for further

proceedings consistent with this opinion if the Commonwealth be so advised.

                                                 I.

                                                 A.

        TRIAL COURT’S DIRECTION TO DEFENDANT TO COMPOSE HERSELF

       A criminal defendant has a constitutional right to testify in her own behalf at trial. U.S.

Const. amend. V; Va. Const. art. 1, § 8; see Code § 19.2-268.

               “A judge must not express or indicate, by word or deed, an opinion
               as to the credibility of a witness or as to the weight or quality of
               the evidence. Any question or act of the judge which may have a
               tendency to indicate his thought or belief with respect to the
               character of the evidence is improper, and should be avoided. The
               impartiality of the judge must be preserved in form and in fact.”

Brown v. Commonwealth, 3 Va. App. 101, 106, 348 S.E.2d 408, 411 (1986) (quoting Jones v.

Town of LaCrosse, 180 Va. 406, 410, 23 S.E.2d 142, 144 (1942)) (reversing and remanding for

new trial based on court’s conduct “in the presence of the jury”). “This prerogative of the jury is

so jealously guarded that it is usually held to be reversible error for a judge to comment,” in the

presence of the jury, “on the weight of the evidence or the credibility of the witnesses.” Charles

E. Friend, The Law of Evidence in Virginia § 1.5, at 29 (6th ed. 2003).

       Here, appellant objected “to the Court’s comments [to Ms. Cary to make herself as calm

as she was on the night of the killing] and the implication drawn therein,” but she did not explain

how those specific comments, made outside the presence of the jury, would improperly invade

the province of the jury. She made specific objections to “other comments that the Court has

made in the presence of the jury,” but she does not challenge any of those “other comments” in

this appeal. Not until this appeal did she claim the trial judge’s instruction to her to compose
                                                -2-
herself improperly interfered with her show of legitimate emotion while testifying and that this

could have had a negative impact on the jury’s perception of her credibility. The trial court also

clearly did not perceive any attempt on appellant’s part to register such an objection, for it noted

repeatedly that it had “been very careful not to . . . say anything . . . in the presence of the jury

that could effect the jury’s decision in this case.” Thus, appellant failed to preserve this

objection for appeal under Rule 5A:18.

                                                   B.

                   EVIDENCE OF VIOLENCE AND JURY INSTRUCTIONS

        “A reviewing court’s responsibility in reviewing jury instructions is ‘to see that the law

has been clearly stated and that the instructions cover all issues which the evidence fairly

raises.’” Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting

Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). “A defendant is entitled to

have the jury instructed only on those theories of the case that are supported by the evidence.”

Connell v. Commonwealth, 34 Va. App. 429, 436, 542 S.E.2d 49, 52 (2001). “[A]n instruction

is proper only if supported by more than a scintilla of evidence.” Commonwealth v. Sands, 262

Va. 724, 729, 553 S.E.2d 733, 736 (2001). In reviewing a trial court’s refusal to give a requested

instruction, we view the evidence in the light most favorable to the proponent of the instruction.

See Turner v. Commonwealth, 23 Va. App. 270, 275, 476 S.E.2d 504, 507 (1996), aff’d, 255 Va.

1, 492 S.E.2d 447 (1997).

                                 1. Self-Defense and Right to Arm

        Settled principles provide that

                [a] criminal defendant may offer evidence regarding the victim’s
                character for violence, turbulence, or aggression for two purposes:
                (1) to show “who was the aggressor” or (2) to show “the
                reasonable apprehensions of the defendant for his life and safety.”
                However, it is well established that such evidence of the victim’s
                character is admissible only when the defendant “adduces evidence
                                                  -3-
               that he acted in self-defense.” Jordan v. Commonwealth, 219 Va.
               852, 855, 252 S.E.2d 323, 325 (1979); see also Burford v.
               Commonwealth, 179 Va. 752, 767, 20 S.E.2d 509, 515 (1942)
               (stating that evidence of a victim’s character for violence “is
               admissible only when the defendant has interposed a plea of
               self-defense . . . , and when a proper foundation is laid by proof of
               some overt act justifying such defense”); Mealy v.
               Commonwealth, 135 Va. 585, 596, 115 S.E. 528, 531 (1923)
               (stating that evidence of the victim’s “quarrelsome, dangerous, and
               ferocious” character was not admissible “because there was no
               foundation in the case for the theory of self-defense”); Harrison v.
               Commonwealth, 79 Va. (4 Hans.) 374, 379 (1884) (stating that
               evidence of the victim’s “brutal and ferocious” character is
               inadmissible “where no case of self-defence has been made out”).
               If the defendant has established prima facie evidence of
               self-defense, then the evidence of the victim’s character must also
               satisfy additional tests of relevance.

Canipe v. Commonwealth, 25 Va. App. 629, 640-41, 491 S.E.2d 747, 752 (1997) (quoting

Randolph v. Commonwealth, 190 Va. 256, 265, 56 S.E.2d 226, 230 (1949)) (citations omitted).

       Self-defense is an affirmative defense. McGhee v. Commonwealth, 219 Va. 560, 562,

248 S.E.2d 808, 810 (1978).

               A person who reasonably apprehends bodily harm by another is
               privileged to exercise reasonable force to repel the assault. The
               privilege to use such force is limited by the equally well
               recognized rule that a person “shall not, except in extreme cases,
               endanger human life or do great bodily harm.” Moreover, the
               amount of force used must be reasonable in relation to the harm
               threatened.

Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382 S.E.2d 24, 25-26 (1989) (quoting

Montgomery v. Commonwealth, 98 Va. 840, 843, 36 S.E. 371, 372 (1900)) (citations omitted).

       An assertion of self-defense to completely absolve a defendant of criminal responsibility

for a killing “‘implicitly admits the killing was intentional and assumes the burden of introducing

evidence of justification or excuse that raises a reasonable doubt in the minds of the jurors.’”

Sands, 262 Va. at 729, 553 S.E.2d at 736 (quoting McGhee, 219 Va. at 562, 248 S.E.2d at 810).

In these circumstances, self-defense requires proof of “a reasonable fear of death or bodily harm

                                                -4-
based on an honest appraisal of the surrounding circumstances” and “an act by the victim which

is taken by the defendant to signal the intent to inflict death or bodily harm, imminently, and a

proportional response by the defendant.” John L. Costello, Virginia Criminal Law and

Procedure § 33.2-3, 33.2-4, at 433 (3d ed. 2002).

               The “bare fear” of serious bodily injury, or even death, however
               well-grounded, will not justify the taking of human life. “There
               must [also] be some overt act indicative of imminent danger at the
               time.” Vlastaris v. Commonwealth, 164 Va. 647, 652, 178 S.E.
               775, 776 (1935). In other words, a defendant “must wait till some
               overt act is done[,] . . . till the danger becomes imminent.” [Id.] at
               652, 178 S.E. at 777. In the context of a self-defense plea,
               “imminent danger” is defined as “[a]n immediate, real threat to
               one’s safety . . . .” Black’s Law Dictionary 399 (7th ed. 1999).
               “There must be . . . some act menacing present peril . . . [and] [t]he
               act . . . must be of such a character as to afford a reasonable ground
               for believing there is a design . . . to do some serious bodily harm,
               and imminent danger of carrying such design into immediate
               execution.” Byrd v. Commonwealth, 89 Va. 536, 539, 16 S.E.
               727, 729 (1893).

Sands, 262 Va. at 729, 553 S.E.2d at 736 (citations omitted).

       Applying these principles in Sands, the Virginia Supreme Court held the threat posed by

Sands’s husband was not sufficiently imminent to entitle her to a jury instruction on self-defense.

262 Va. at 729-31, 553 S.E.2d at 736-37. The Court noted the evidence supported the

conclusion that Sands, whose husband had beaten her daily for years during their marriage and

did so repeatedly and severely throughout the day of the killing, “reasonably believed that she

was in danger of serious bodily harm or death.” Id. at 730, 553 S.E.2d at 737. However, it held

as a matter of law that the threat he posed was not imminent because Sands shot her husband

while he “reclin[ed] on [a bed], watching television [in another room].” Id. The Court

emphasized that “[t]he requirement of an overt act indicative of imminent danger ensures that the

most extreme recourse, the killing of another human being, will be used only in situations of

necessity.” Id. at 731, 553 S.E.2d at 737; see also Mealy, 135 Va. at 588-90, 115 S.E. at 529

                                                -5-
(holding denial of self-defense instruction not error where victim beat defendant and said he

would kill her but defendant escaped victim’s beating, left room to get gun, and returned to room

and shot him in back “after he had seated himself at the table to eat his supper”).

       Appellant contends she should have been entitled to offer the proffered evidence of the

victim’s prior physical and emotional abuse of her and her children but that, even if such

evidence was properly excluded, the evidence actually admitted nevertheless supported the

giving of a self-defense instruction. We hold appellant proffered sufficient evidence of an “overt

act indicative of imminent danger,” Vlastaris, 164 Va. at 652, 178 S.E. at 776, to entitle her to a

self-defense instruction. Thus, at least some of her evidence about the victim’s prior threats and

abuse was admissible to show “‘the reasonable apprehensions of [appellant] for [her] life and

safety,’” Canipe, 25 Va. App. at 640-41, 491 S.E.2d at 752 (quoting Randolph, 190 Va. at 265,

56 S.E.2d at 230), immediately prior to the shooting.1

       Evidence from appellant’s son, Darron, proffered but not admitted, established that the

victim threatened to kill appellant while in her apartment on the night of the shooting. Although

threats, standing alone, do not constitute an overt act entitling a defendant to use self-defense,

they nevertheless are relevant in assessing whether the potential assailant’s behavior, taken as a

whole, establishes the necessary overt act making the threat of harm imminent. See Craig v.

Commonwealth, 14 Va. App. 842, 843-44, 419 S.E.2d 429, 430-31 (1992) (holding in malicious

wounding case that “the nature and quality of an overt act cannot be judged in a vacuum” and

that “the acts [relied upon] must be viewed through the eyes of the person allegedly threatened”

such that victim’s cursing and threatening to kill defendant coupled with victim’s “[going] to his



       1
         The trial court commented that some of the proffered evidence was too remote in time
or was inadmissible for other reasons. We do not address the admissibility of any particular
testimony concerning the victim’s prior conduct; we hold only that evidence of this general type
was admissible based on appellant’s claim of self-defense.
                                              -6-
car, where he reached ‘up under his seat,’” and walking toward defendant with one hand behind

his back constituted “a sufficient showing of an overt act by [the victim] to admit the excluded

evidence” of previous violence against a third person, who was defendant’s wife and victim’s

sister). The evidence testified to and not stricken from the record, as well as other proffered

evidence, if accepted as credible by the jury, could have established the necessary overt act

indicative of imminent danger. On the evening of the killing, the victim smelled of alcohol, was

“in[] a rage,” grabbed appellant by the hair and “hit her in the face and sides” before he ceased

the attack and went into the bathroom for a little more than five minutes. An autopsy showed the

victim’s blood alcohol concentration at the time of his death was .23% by weight by volume and

also indicated he had cocaine in his system.

       Appellant proffered that when she first met the victim, he raped her, and that he had

beaten her severely on several prior occasions. On one occasion, he inflicted a wound on her

neck requiring 75 stitches and leaving a permanent scar, and on another occasion, he broke her

jaw, which she had to have wired closed for two months. She proffered that, in the past, she had

sought help from the police and the courts to protect her from the victim and had moved on

numerous occasions but that the victim ignored at least one court order of protection, always

managed to learn where she was living, and would eventually appear at her new residence and

beat her.

       She testified that, when the victim emerged from the bathroom on the night of his death,

he again refused to leave, said “nobody can do nothing to him,” and resumed his verbal assault.

He called appellant a “bitch and whore” and threatened to “sew her vagina shut” and “to smack

[her]” and “break [her] up.” Appellant testified first that she “[thought] he was getting ready to

come [back] into the living room” and “[thought] he was starting toward [her],” but she then

testified without equivocation that “[h]e was coming back” and she was “not sure whether he

                                                -7-
was walking or running.” (Emphasis added). She was trembling and shaking as he came back

toward her, and she said that, if he had actually reached the living room, “I don’t know whether I

would be alive today.”

        This evidence, viewed in the light most favorable to appellant, established an overt act of

sufficient imminence to entitle her to a self-defense instruction because it supported a finding

that the victim, although still over ten feet away, was advancing toward her in a threatening

fashion to resume the attack he had stopped only moments earlier. These facts stand in marked

contrast to those in Sands, in which the victim had at least temporarily ceased his repeated

attacks on the defendant and was watching television in another room when she retrieved a gun

and “shot him five times while he reclined on the bed.” Sands, 262 Va. at 730, 553 S.E.2d at

737. That the victim here appeared unarmed does not defeat the threat. The victim had beaten

appellant with his fists on numerous prior occasions and, on one occasion, broke a glass in her

face. Appellant testified that, prior to the night on which she shot the victim, he had beaten her

as recently as the previous weekend.

        That appellant claimed the shooting was an accident does not prevent her from asserting a

legal claim of self-defense. The Supreme Court has recognized that “‘[t]he mere fact that the

defendant did not, at the time of the killing, believe such killing was necessary does not divest

[her] of the right to set up self-defense if the killing was not intended by [her] but was incidental

to [her] excusable defense of [herself] when assaulted.’” Valentine v. Commonwealth, 187 Va.

946, 953, 48 S.E.2d 264, 268 (1948) (quoting 1 Wharton’s Criminal Law § 623, at 851 (12th

ed.)). Further, settled legal principles allow a party to assert alternative legal theories or

defenses, and the Supreme Court has held that the facts in a criminal case may support the giving

of instructions on both accident and self-defense. See Jones v. Commonwealth, 196 Va. 10,

14-15, 82 S.E.2d 482, 484-85 (1954). Jones involved a struggle over a pistol, id., but we see no

                                                 -8-
reason to limit the availability of alternative defenses of accident and self-defense to a case

involving an actual physical struggle so long as the evidence establishes an overt act necessary to

allow one to invoke the doctrine of self-defense.2 Further, the Court in Jones held the defendant

was entitled to a self-defense instruction even though the defendant’s testimony directly

supported only the claim that the shooting was an accident. The defendant in Jones testified that

the victim had a pistol and that “[t]he pistol went off about three times when we were tussling,”

after which the defendant said he “twisted [the victim’s] hand and got the pistol.” Id. at 13, 82

S.E.2d at 484. Thus, the defendant’s testimony supported an accident instruction, which the trial

court gave, but it denied his request for an instruction on self-defense. Id. at 14-15, 82 S.E.2d at

485. On appeal, the Supreme Court held

               the jury could well conclude that [the defendant] neither provoked
               the encounter nor willingly entered into mutual combat, but merely
               sought to defend himself when [the victim] drew his pistol.
               Different inferences, i.e., accidental killing or killing in
               self-defense, might be reasonably drawn from what was said and
               done. Under such circumstances [the] accused was entitled to have
               both of his theories of the case submitted to the jury, and an
               appropriate instruction upon the theory of self-defense should have
               been given by the court.

Id. at 15, 82 S.E.2d at 485.

       In appellant’s case, a jury rejecting her claim of accident could nevertheless have found

the facts were sufficient to justify her shooting the victim in self-defense. Appellant’s son

testified that, using two hands, appellant pointed the weapon directly at the victim’s shoulder, in

contrast to appellant’s testimony that, while she was shaking with fear, she merely waved the

gun in the victim’s direction in an effort to scare him into leaving. If the jury accepted Darron’s


       2
         The holding in Jordan v. Commonwealth, 219 Va. 852, 252 S.E.2d 323 (1979), relied
on by the Commonwealth and the trial court in making its ruling, does not require a different
result. Jordan involved a victim who made only verbal threats and a defendant who returned
from a place of safety to renew his confrontation with the victim. Id. at 855-56, 252 S.E.2d at
325-26.
                                               -9-
testimony about the manner in which appellant held the gun, this, coupled with Darron’s

proffered testimony that the victim had threatened to kill her that evening and appellant’s

testimony that the victim had beaten her just a few minutes earlier and was again advancing

toward her in the living room while continuing to threaten physical violence, was sufficient to

support a finding that she shot the victim in self-defense. Because the trial court rejected

appellant’s self-defense theory and, thus, refused to admit much of her proffered evidence

regarding the victim’s prior threats and abuse, we cannot say these errors did not affect the

verdict.

       Finally, even if appellant had not been entitled to an instruction indicating that the right

of self-defense fully justified her use of deadly force because the threat posed by the victim was

not sufficiently imminent, she nevertheless was entitled to an instruction indicating that the right

of self-defense justified her merely threatening to use such force.

               The force used to repel an addressable threat must be no more than
               necessary, i.e., deadly force may be met with deadly force, but less
               than deadly force must be met with a proportionally reduced
               response. . . . The threat of deadly force, rather than its actual use,
               may be the appropriately proportional response to some forceful
               overtures.

Costello, supra, § 33.2-2, at 430 (emphasis added). Thus, the victim’s physical abuse of

appellant on the night in question, his threat to kill her, and his renewing those threats on

returning from the bathroom toward her position in the living room constituted a sufficient overt

act to justify her retaining the gun she seized from her son and her subsequently picking the gun

up from the couch and pointing it at the victim. Although appellant’s proffered self-defense

instruction did not cover this theory, her proffered right to arm instruction did.

       Appellant also argued that the right to arm instruction was proper because it provided an

explanation for her purchasing the gun different from the Commonwealth’s anticipated argument

that her purchase of it showed her killing of the victim was premeditated. The trial court refused
                                                - 10 -
appellant’s proffered right to arm instruction, concluding it was not justified under Lynn v.

Commonwealth, 27 Va. App. 336, 499 S.E.2d 1 (1998), and Bevley v. Commonwealth, 185 Va.

210, 38 S.E.2d 331 (1946), because “[t]his is not a case where there is some testimony that this

specific victim specifically threatened to kill or harm [appellant] and that she reasonably

apprehended that he would carry it out and as a result of that threat went and armed herself.” We

hold that refusal was error under the facts of this case.

       Lynn is factually distinguishable, and the rulings in Bevley and Jones v. Commonwealth,

187 Va. 133, 45 S.E.2d 908 (1948), both of which the Court discussed and distinguished in

Lynn, support the conclusion that appellant was entitled to a right to arm instruction under the

facts of this case. In Lynn, the defendant was involved in a physical struggle with the victim and

contended he “seized [the victim’s] firearm in order to repel an immediate threat of harm from

[the victim].” 27 Va. App. at 348, 499 S.E.2d at 6. The Court ruled that “[t]o disarm an

assailant during an attack and to use the weapon against the attacker does not constitute

exercising the right to arm oneself in order to avert or resist an anticipated deadly attack.” Id. at

348, 499 S.E.2d at 7. The Court also noted that the jury was instructed on “the law of

self-defense and defense of others,” leaving it “free to conclude that [Lynn] did not maliciously

kill [the victim] but rather disarmed and shot [the victim] in order to protect himself or his family

from an immediate threat of death or serious bodily harm.” Id.

       In Bevley, the defendant was attending a party when another guest threatened to shoot

him. 185 Va. at 213, 38 S.E.2d at 332. Bevley obtained a handgun from his car, and during an

altercation shortly thereafter, he shot and killed the guest. Id. “At trial, Bevley was confronted

with the fact that his having consciously and deliberately armed himself could be considered as

evidence of a malicious and premeditated killing, without an explanation that a person has a right

to arm and defend himself or herself against a perceived attack.” Lynn, 27 Va. App. at 347, 499

                                                - 11 -
S.E.2d at 6. The Supreme Court held the trial court should have instructed the jury “‘that one

who has been threatened with murderous assaults and has reason to believe that such assaults

will be made, may arm himself in his defense and in such case no inference of malice can be

drawn from the fact of preparation for it.’” Bevley, 185 Va. at 213, 38 S.E.2d at 332 (quoting

State v. Summers, 188 S.E. 873, 875 (1936) (emphasis added)).

       In Jones, the victim beat and threatened to kill Jones, who then obtained a handgun from

his house and shot the victim fifteen minutes later. 187 Va. at 141-42, 45 S.E.2d at 911-12. The

Court held that the refusal of a right to arm instruction on these facts was erroneous. Id.

       In the context of the facts in Lynn, we interpreted Bevley and Jones to stand for the

proposition that

               the right to arm instruction is required only where the evidence
               fairly suggests that the accused obtained the firearm in preparation
               for a future deadly attack. In both cases, the defendants
               consciously and deliberately armed themselves rather than seizing
               an available weapon to fend off an attack against themselves or
               family members.

Lynn, 27 Va. App. at 348, 499 S.E.2d at 6.

       Here, appellant did not seize the weapon from the victim, her potential assailant, as

occurred in Lynn. Rather, the evidence, viewed in the light most favorable to appellant,

supported a finding that she obtained the firearm in preparation for a future deadly attack by the

victim at three discreet times--when she first purchased the firearm; when she snatched it from

her son’s hands while the victim was in the bathroom and kept it by her side rather than hiding it

or returning it to its place in her room; and when she picked it up off the couch and pointed it at

the victim as he again advanced toward her where she sat on the couch. The instruction was

relevant to appellant’s explanation for why she purchased the gun. Her testimony that she

purchased the gun to protect herself, her home and her family does not preclude the conclusion

that she intended to protect them, at least in part, from the victim, who, her proffered testimony
                                               - 12 -
established, had repeatedly beaten her and her children and inflicted serious injuries on her on

numerous prior occasions. The instruction also was relevant to explain why appellant kept the

gun after seizing it from her son and why she picked it up when the victim returned from the

bathroom, after which time she claimed it accidentally discharged. To the extent the

Commonwealth planned to argue that appellant’s purchase of the weapon or use of it on

September 6, 2002 showed malice, she was entitled to an instruction that permitted her to argue

she had “a right to arm and defend . . . herself against a perceived attack.” Lynn, 27 Va. App. at

347, 499 S.E.2d at 6. Further, this theory also required the admission of evidence of the victim’s

history of violence toward appellant and their children in order to show “‘the reasonable

apprehensions of [appellant] for [her] life and safety’” sufficient to justify her arming herself.

Canipe, 25 Va. App. at 640-41, 491 S.E.2d at 752 (quoting Randolph, 190 Va. at 265, 56 S.E.2d

at 230).

                           2. Voluntary Manslaughter and Heat of Passion

          Code § 18.2-32 provides in relevant part that “[m]urder . . . by any willful, deliberate and

premeditated killing . . . is murder of the first degree.” “To premeditate means to adopt a

specific intent to kill, and that is what distinguishes first and second degree murder.” Smith v.

Commonwealth, 220 Va. 696, 700, 261 S.E.2d 550, 553 (1980). “Second degree murder is

defined as a ‘malicious killing’ of another person.” Lynn, 27 Va. App. at 351, 499 S.E.2d at 8.

“Manslaughter, on the other hand, is the unlawful killing of another without malice. . . . Malice

and heat of passion are mutually exclusive; malice excludes passion, and passion presupposes the

absence of malice.” Barrett v. Commonwealth, 231 Va. 102, 105-06, 341 S.E.2d 190, 192

(1986).

          Here, if the jury rejected the testimony of appellant and her son, Darron, that she removed

the clip from the gun and thought the gun was not loaded and accepted Darron’s testimony that

                                                 - 13 -
appellant pointed the gun directly at the victim, coupled with the Commonwealth’s evidence that

the pressure required to pull the trigger on the gun was not insignificant, it could find that the

shooting was intentional. Also, appellant’s testimony of the victim’s prior conduct that evening

and her testimony that he was coming back into the living room, where she feared he would

assault her further and perhaps kill her, created a jury issue on whether there had been a cooling

off period sufficient to preclude a finding that appellant acted in the heat of passion. Thus, the

trial court’s refusal to give the proffered instruction was error.

       Nevertheless,

               where the reviewing court is able to determine that the trial court’s
               error in failing to instruct the jury could not have affected the
               verdict, that error is harmless. Such a determination can be made
               where it is evident from the verdict that the jury would have
               necessarily rejected the lesser-included offense on which it was not
               instructed.

Turner v. Commonwealth, 23 Va. App. 270, 276, 476 S.E.2d 504, 507 (1996), aff’d, 255 Va. 1,

492 S.E.2d 447 (1997). When a jury is instructed on first-degree murder and second-degree

murder and convicts the defendant of first-degree murder, such a verdict “compels the

conclusion that [the jury] would never have reached a voluntary manslaughter verdict.” Id. at

277, 476 S.E.2d at 508.

       Thus, under ordinary circumstances, the jury’s conviction of appellant for first-degree

murder would preclude a finding that the court’s failure to instruct on voluntary manslaughter

was reversible error. Here, however, voluntary manslaughter was not the only legal theory on

which the trial court erroneously failed to instruct the jury. As discussed above, it failed to

instruct on self-defense and the right to arm. Absent either or both of these instructions, the jury

might erroneously have concluded that either appellant’s purchasing the firearm or deliberately

using it against the victim on the night of his death compelled a finding that she acted with

premeditation or malice. Thus, the jury’s findings of malice and premeditation are tainted by the
                                                - 14 -
erroneous failure to instruct on self-defense and the right to arm, and we are unable to conclude

the refusal to give voluntary manslaughter and heat of passion instructions was harmless error.

                                                  C.

       SUFFICIENCY OF EVIDENCE FOR FIRST-DEGREE MURDER CONVICTION

       Although we hold the court erred in excluding evidence of the victim’s prior violence and

threats and in failing to instruct the jury on self-defense, the right to arm, and voluntary

manslaughter--errors that require us to vacate the convictions and remand for a new trial--we

would be compelled to dismiss the indictments rather than merely vacate the convictions if the

evidence adduced at trial was insufficient to support convictions for first-degree murder and use

of a firearm. Thus, we examine the evidence in the record in the light most favorable to the

Commonwealth and conclude that it was sufficient to support appellant’s convictions.

       “To prove premeditated murder, the Commonwealth must establish: ‘(1) a killing; (2) a

reasoning process antecedent to the act of killing, resulting in the formation of a specific intent to

kill; and (3) the performance of that act with malicious intent.’ Premeditation requires the

formation of the specific intent to kill.” Archie v. Commonwealth, 14 Va. App. 684, 689, 420

S.E.2d 718, 721 (1992) (quoting Rhodes v. Commonwealth, 238 Va. 480, 486, 384 S.E.2d 95, 98

(1989)). “It rests within the province of the trier of fact to determine whether a defendant acted

willfully, deliberately and with premeditation in killing his victim.” Morris v. Commonwealth,

17 Va. App. 575, 578, 439 S.E.2d 867, 869 (1994).

       Here, the evidence established that appellant and the victim had been involved in a

romantic relationship “on and off” for about sixteen years before the victim’s death and had three

children together. About three months prior to the shooting on September 6, 2002, appellant

purchased a semi-automatic firearm. About three weeks before the shooting, appellant went to a

restaurant where the victim’s sister, Yolanda Beekman-Bray, worked. Appellant told

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Beekman-Bray, “I bought a gun, and I’ll use it,” and “[Y]ou better tell [the victim] to stop before

I start.” Appellant, who testified she was bipolar, also told Beekman-Bray, “I am on these pills

now. I am legally crazy. So if I kill [the victim], I am not going to get a day of time.” Later that

same day, appellant telephoned Beekman-Bray and repeated her threat, saying, “[I]f [you] don’t

think that [I’ll] kill [the victim], to let her know.” Beekman-Bray also testified that appellant and

the victim had argued on prior occasions about money.

       Appellant bought bullets for the firearm and admitted loading it on September 4, 2002,

two days before shooting the victim. Tracy Tabron, an acquaintance of the victim’s who had

also dated appellant and was with her when she purchased the firearm, testified appellant told

him on September 5, 2002, the day before the shooting, that, “[I]f [the victim] don’t have her no

money by . . . Friday, she was going to kill him.” The next day, Friday, September 6, 2002,

appellant shot the victim while he was standing eleven to eighteen feet away from her. Her son

testified that she pointed the firearm directly at the victim’s chest and shoulder before firing.

The Commonwealth offered evidence that the pressure required to pull the trigger on the gun

was not insignificant, making it unlikely that the firearm would discharge accidentally. The

victim was unarmed at the time of the shooting.

       Although appellant called 911 immediately after the shooting, she and her son moved the

victim’s body outside her apartment, and appellant told police the victim had already been shot

when he appeared at her door. She claimed to have no idea concerning where the victim had

been shot or by whom. She gave no indication that the victim had attacked or beaten her, and the

officer observed no visible marks or bruises on her body. Appellant told the investigating officer

that the victim owed her child support money, and the officer testified that appellant appeared to

be angry about that fact.




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       When the investigating officers were unable to learn anything about the victim’s shooting

by canvassing the neighborhood, they questioned appellant further. She tacitly admitted

shooting the victim but claimed she could not remember all the events of that evening and that

the shooting was an accident. Not until appellant testified at trial did she claim that the victim

had beaten her on the night of his death.

       Based on this evidence, the fact finder was entitled to reject appellant’s claim that she

shot the victim accidentally and to conclude that she shot him willfully, deliberately and with

premeditation, thereby supporting her convictions for first-degree murder and the concomitant

use of a firearm.

                                                 II.

       For these reasons, we hold appellant did not properly preserve her claim that the trial

court abused its discretion by directing her to compose herself. We also hold that the evidence,

viewed in the light most favorable to the Commonwealth, was sufficient to support her

convictions for first-degree murder and the concomitant use of a firearm. However, because the

court’s blanket exclusion of evidence of the victim’s prior threats and violence toward her,

coupled with its rejection of her jury instructions on self-defense, right to arm, voluntary

manslaughter and heat of passion, constituted reversible error, we vacate her convictions and

remand for further proceedings consistent with this opinion if the Commonwealth be so advised.

                                                                            Vacated and remanded.




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