                             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.




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       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.




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