                      COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Benton and
          Senior Judge Overton
Argued at Alexandria, Virginia


DWAYNE MICHEAL BARNHILL
                                            MEMORANDUM OPINION * BY
v.   Record No. 2733-01-4                   JUDGE NELSON T. OVERTON
                                               OCTOBER 8, 2002
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                      William D. Hamblen, Judge

           William A. Boge for appellant.

           Richard B. Smith, Senior Assistant Attorney
           General (Jerry W. Kilgore, Attorney General,
           on brief), for appellee.


     A jury convicted Dwayne M. Barnhill, appellant, of first

degree murder and use of a firearm in the commission of murder.

On appeal, he contends the trial court erred in refusing to

instruct the jury on voluntary manslaughter and that such error

was not harmless.   We disagree and affirm.

                             BACKGROUND

     Appellant, Kenneth Wilson, Fahd Eltobgi and Terrell Weathers

drove a Subaru to a certain area in Prince William County,

Virginia, to purchase marijuana.   A Jeep pulled alongside the

Subaru and a few individuals, including Christopher Bouling, the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
victim, exited and approached the Subaru on foot.    Bouling reached

through the driver's window of the Subaru and punched Wilson in

the face and threw or hit Wilson with a bottle.    After the assault

on Wilson, several shots were fired from the Subaru that appellant

occupied.    Eltobgi and Weathers testified appellant fired the

shots.    Eltobgi also testified appellant stated to Wilson, "I did

it for you Kenny."    Eltobgi testified that later in the evening

appellant kissed Wilson on the forehead and said, "We're brothers

now."    Star Hambleton testified he had a conversation with

appellant the following day and appellant admitted firing the

shots.    Appellant testified he did not fire the gun, but that

Wilson had fired it.    Appellant also denied making the admission

to Hambleton and denied telling Wilson, "I did it for you Kenny."

        Appellant asked the trial court to instruct the jury on

voluntary manslaughter and proffered the instructions.    Appellant

argued he acted upon reasonable provocation and in the heat of

passion when he observed Bouling hit Wilson.    The trial court

found that Wilson and appellant had a "casual friendship."     The

trial court also found that seeing Bouling hit Wilson did not give

appellant adequate provocation and that appellant did not act in

the heat of passion.    The trial court instructed the jury on

first and second degree murder, and refused appellant's

proffered instructions on voluntary manslaughter.




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                            HARMLESS ERROR

           [W]here 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 was instructed on first degree murder and second degree

murder and convicted 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.

     Code § 18.2-32 provides in part, "[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.'"     Rhodes v. Commonwealth, 238 Va. 480, 485, 384

S.E.2d 95, 98 (1989) (citation omitted).     "Second degree murder

is defined as a 'malicious killing' of another person."      Lynn v.

Commonwealth, 27 Va. App. 336, 351, 499 S.E.2d 1, 8 (1998),

aff'd, 257 Va. 239, 514 S.E.2d 147 (1999).     "Manslaughter, on

the other hand, is the unlawful killing of another without

malice."   Barrett v. Commonwealth, 231 Va. 102, 105, 341 S.E.2d



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190, 192 (1986).   "'Malice and heat of passion are mutually

exclusive; malice excludes passion, and passion presupposes the

absence of malice.'"   Robertson v. Commonwealth, 31 Va. App.

814, 823, 525 S.E.2d 640, 645 (2000) (citation omitted).

     Assuming without deciding the trial court erred in refusing

to instruct the jury on voluntary manslaughter, the error was

harmless because the jury convicted appellant of first degree

murder.   In convicting appellant of first degree murder, the

jury rejected the lesser-included offense of second degree

murder.   In so doing, the jury found beyond a reasonable doubt

that appellant acted not only maliciously, but also willfully,

deliberately, and with premeditation.   Any error was harmless

beyond a reasonable doubt because the jury necessarily rejected

the factual basis of voluntary manslaughter.    Based upon the

foregoing, we affirm appellant's convictions.

                                                           Affirmed.




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