                      OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Frank and Senior Judge Bray
Argued at Chesapeake, Virginia


AUDRY LAWRENCE WILLIAMS, III
                                         MEMORANDUM OPINION * BY
v.   Record No. 0552-02-1              JUDGE ROSEMARIE ANNUNZIATA
                                              APRIL 8, 2003
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                  Christopher W. Hutton, Judge

          Peter S. Economou (Weisbrod & Phillips, on
          brief), for appellant.

          Amy L. Marshall, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Audry Lawrence Williams, III, appellant, appeals his

conviction by jury as a principal in the second degree of

second-degree murder, shooting into an occupied vehicle,

discharging a firearm from a vehicle, three counts of attempted

maiming, and four counts of use of a firearm in the commission

of a felony.   He cites as grounds for appeal the trial court's

error 1) in denying his request that the jury be instructed on

manslaughter and 2) in denying his request to instruct the jury

on attempted unlawful wounding and unlawfully shooting into an

occupied vehicle.   For the reasons that follow, we affirm.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     On appeal, when the issue is a refused jury instruction, we

view the evidence in the light most favorable to Williams, the

proponent of the instruction.     Lynn v. Commonwealth, 27 Va. App.

336, 344, 499 S.E.2d 1, 4-5 (1998).    So viewed, the record shows

that an altercation occurred on the evening of March 2, 2001

that resulted in the killing of a fourteen-year-old bystander,

Stephanie McSweeney.   On the evening in question, roommates,

Orrien Hymes, Frank Massey and Brian Bennett went to the Plaza

Roller Skating Rink in Hampton.    Massey, who was skating "pretty

fast," accidentally bumped into Williams and knocked him to the

floor of the rink.   Massey continued skating, unaware that he

had knocked down another skater, but Hymes, skating ten feet

behind Massey, stopped to make sure Williams was not injured.

     Williams was "pretty hot about being knocked down" and

began screaming at Hymes.   Williams's friend, Kevin Martin,

joined them and began exchanging words with Hymes, stating "You

don't know who you're messing with" and making "threatening

gestures."   Massey skated around the rink and returned to the

place where he had knocked Williams down.    He and Hymes tried to

apologize, but "[Williams] took it as we were threatening him."

Massey and Hymes decided to keep skating, but Martin "kept

coming up at [them]," and followed them around the rink while

they skated.   After a subsequent encounter between Hymes, Martin

and Williams, described by Bennett as a "struggle," the three

roommates decided to leave the rink.
                              - 2 -
     The hostilities continued in the parking lot.       As Hymes and

Massey walked into the lot and toward Hymes's car, Martin,

accompanied by Williams, continued to threaten Massey and Hymes,

stating "We are going to get you."       Hymes testified that "[i]t

was possible [Massey] was making threats" to Williams and

Martin.   Upon reaching his car, Hymes picked up a black plastic

toolbox, held it up and said to Martin and Williams, "We got

something in this box that will take care of you."      Martin

responded that he had something in his car that would take care

of Hymes, walked toward Williams's car, entered the car and

drove toward the exit.   The cars of each group arrived at the

exit at roughly the same time.    As each waited to pull out of

the lot into traffic, Williams's car stalled, and Hymes and

Massey saw Martin reach for something under the front seat.

     As Hymes sped away, he and his two roommates, Bennett and

Massey, heard gunfire, and Bennett saw Martin firing at them.

Massey saw "somebody grab their chest" and fall down and hit the

ground.   The victim was fourteen-year-old Stephanie McSweeney,

who was crossing the street to use a pay phone.      McSweeney died

from a single gunshot wound to her chest.

     Martin was arrested the next morning and questioned about

the shooting.   He stated that he did not mean to shoot

McSweeney, but believed that one of the bullets he fired hit her

"because [he] was shooting that way."


                                 - 3 -
                           Jury Instructions

     On appeal, Williams contends the trial court erred in

refusing to instruct the jury on voluntary manslaughter,

unlawful wounding, and unlawful shooting at an occupied vehicle.

He contends that the evidence, viewed in the light most

favorable to him, supports a finding that he acted in the heat

of passion and in the absence of malice.       We disagree.

     Jury instructions are properly refused if not supported by

more than a scintilla of evidence.       Commonwealth v. Donkor, 256

Va. 443, 445, 507 S.E.2d 75, 76 (1998).      "A jury instruction,

even though correctly stating the law, should not be given if it

is not applicable to the facts in evidence.'"       Arnold v.

Commonwealth, 37 Va. App. 781, 787, 560 S.E.2d 915, 919 (2002)

(quoting Darnell v. Commonwealth, 6 Va. App. 485, 488, 370

S.E.2d 717, 719 (1988)).    We view the evidence in the light most

favorable to Williams, the proponent of the instruction.        Lynn,

27 Va. App. at 344, 499 S.E.2d at 4-5.

     To reduce a homicide from murder to voluntary manslaughter,

the killing must have been done in the heat of passion and upon

reasonable provocation.     Barrett v. Commonwealth, 231 Va. 102,

105-06, 341 S.E.2d 190, 192 (1986) (citing Martin v.

Commonwealth, 184 Va. 1009, 1016-17, 37 S.E.2d 43, 46 (1946)).

"Heat of passion excludes malice when provocation reasonably

produces fear [or anger] that causes one to act on impulse


                                 - 4 -
without conscious reflection."    Graham v. Commonwealth, 31

Va. App. 662, 671, 525 S.E.2d 567, 571 (2000).

     We find the record in this case is devoid of provocation

evidence.   Specifically, the evidence fails to support the

conclusion Williams urges us to accept:   that Martin shot in the

heat of passion, without reflection, due to fear or anger.

     Williams was convicted as a principal in the second degree,

having been "present, aiding and abetting [Martin in the

commission of the crime]" and having "intended his . . . words,

gestures, signals, or actions to in some way encourage, advise,

urge, or in some way help [Martin] committing the crime to

commit it."    McGill v. Commonwealth, 24 Va. App. 728, 733, 485

S.E.2d 173, 175 (1997).   The Commonwealth need only show,

therefore, that Williams was guilty of some overt act in

furtherance of the crime.    Augustine v. Commonwealth, 226 Va.

120, 124, 306 S.E.2d 886, 889 (1983).    Because Williams did not

shoot the victim, the Commonwealth was not required to prove

Williams acted with malice in loading his gun, permitting Martin

to use his gun, and driving the car as Martin shot at Hymes's

vehicle.    Convicted as a principal in the second degree,

Williams's intent is irrelevant to the issue of his guilt.     See

Hunt v. Commonwealth, 25 Va. App. 395, 403-04, 488 S.E.2d 672,

677 (1997) (finding defendant was not entitled to a voluntary

manslaughter instruction where his actions did not kill the


                                 - 5 -
victim and, therefore, whether he acted in the heat of passion

was irrelevant).   Therefore, under the facts of this case, the

trial court did not err when it refused to give a heat of

passion voluntary manslaughter instruction. 1

     To the extent Williams premises his contention of error on

the trial court's refusal to give a voluntary manslaughter

instruction concerning codefendant Martin, we find there is not

a scintilla of evidence to support the instruction.   The record

shows that Martin did not act in the heat of passion.

     First, although there was an argument in the parking lot

between the parties, words alone are never sufficient to

constitute heat of passion.   Canipe v. Commonwealth, 25 Va. App.

629, 645, 491 S.E.2d 747, 754 (1997); see also McCoy v.

Commonwealth, 133 Va. 731, 739, 112 S.E. 704, 707 (1922) ("[T]he


     1
       The Commonwealth contends the issue of whether the trial
court erred in refusing to give a heat of passion instruction is
barred procedurally under Rule 5A:18 because the appellant
failed to make clear to whom the instruction applied. The
Commonwealth contends that, because the defendants failed to
inform this Court whether the instruction applied to Williams,
Martin or both, Williams is barred from raising the issue on
appeal. See Rule 5A:18; see also Lee v. Lee, 12 Va. App. 512,
516, 404 S.E.2d 736, 738-39 (1991) (en banc). We are not
persuaded by this argument. The record shows that the heat of
passion instruction was to apply to both defendants. Ruling on
the instruction, the trial judge referenced both defendants and
stated "[t]he first issue is whether or not these defendants are
entitled to an instruction of the lesser included offense of
voluntary manslaughter." The judge specifically noted that "the
defendants [sic] appellate rights, should they be necessary to
be invoked, are fully preserved in this area" and "To that
ruling, I note the exception of both defendants." Thus, we find
the issue was properly preserved.

                               - 6 -
law is so tender in its regard for human life that it does not

permit a man to defend himself against the charge of

murder . . . unless his victim has done something more than to

merely offer him a verbal insult.").   In addition, the fact that

Hymes knocked Williams down accidentally while skating at the

rink would not render a reasonable person "deaf to the voice of

reason."    Canipe, 25 Va. App. at 645, 491 S.E.2d at 754.     In any

event, the facts belie a contention to the contrary.   By

Williams's own testimony, Martin was "all right," stating to

Williams "[Y]eah, them guys talking a lot of junk but I ain't

worried about it."

      Second, Martin told Detective Thurman Clark that he did

not shoot directly at the car; he shot in the air once "to make

them put the gun back down," and then he shot two more times.

The conduct described evinces reflection and deliberate,

purposeful action, not one borne out of the heat of passion.

     Third, the events that occurred while the parties were

driving from the parking lot were likewise insufficient to

warrant the heat of passion instruction.   According to Martin,

someone from Hymes's car pointed a gun at Williams's head, not

at him.    Therefore, assuming arguendo that act constituted

provocation, it was directed at Williams, not Martin, the

individual who shot the gun.

     Finally, the evidence in the record demonstrates that there

was reasonable opportunity for Martin to cool.   His conduct in
                              - 7 -
shooting the victim, therefore, cannot be attributed to the heat

of passion.      Miller v. Commonwealth, 5 Va. App. 22, 25, 359

S.E.2d 841, 842 (1987).     Martin and Williams stated they were

the first to leave the skating rink and the first to enter the

car to drive away.     By the time the shooting incident occurred,

sufficient time had passed for the provocation caused by the

incident, if any existed, to cool.     In short, the evidence fails

to support the conclusion that Martin was "rendered deaf to the

voice of reason."      Canipe, 25 Va. App. at 645, 491 S.E.2d at

754. 2

         For these reasons, we hold that the trial court did not err

in refusing Williams's heat of passion instruction, and we

affirm the decision of the trial court.

                                                           Affirmed.




         2
       Williams further contends the trial court erred in
refusing a jury instruction on the lesser offenses of attempted
unlawful wounding and unlawfully shooting into an occupied
vehicle, on the ground that there was evidence of "heat of
passion." Because we find, for the reasons set forth in this
opinion, that there was not a scintilla of evidence to support a
"heat of passion" instruction, we reject Williams's contention.
                              - 8 -
