                      COURT OF APPEALS OF VIRGINIA


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


KEVIN JARARD MARTIN
                                         MEMORANDUM OPINION * BY
v.   Record No. 0470-02-1              JUDGE ROSEMARIE ANNUNZIATA
                                              APRIL 8, 2003
COMMONWEALTH OF VIRGINIA


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

          Charles E. Haden for appellant.

          Leah A. Darron, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Kevin Jarard Martin, appellant, appeals his conviction by

jury as a principal in the first degree for 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

refusing to strike a juror, Erma Mitchell, for cause, 2) in

denying his request that the jury be instructed on manslaughter,

3) in denying his request to instruct the jury on attempted

unlawful wounding and unlawfully shooting into an occupied



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
vehicle and 4) in denying his request to instruct the jury on

justifiable homicide.   For the reasons that follow, we affirm.

     On appeal, when the issue is a refused jury instruction, we

view the evidence in the light most favorable to Martin, 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.    Martin and Audry Lawrence

Williams also went to the skating rink that evening.    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.   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
                              - 2 -
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.

     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, Massey and

Bennett, 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.


                                 - 3 -
     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."

     Martin did not testify at trial.    He was tried and found

guilty by a jury of second-degree murder in violation of Code

§§ 18.2-30 and 18.2-32(a), three counts of attempt to maim, in

violation of Code §§ 18.2-51 and 18.2-26, four counts of use of

a firearm in the commission of a felony in violation of Code

§ 18.2-53.1, one count of shooting from a vehicle, in violation

of Code § 18.2-286.1, and one count of shooting at an occupied

vehicle in violation of Code § 18.2-154.       He was sentenced to

serve forty years in prison, with twenty-nine years suspended on

the murder conviction, and to three years in prison on the

attending firearm conviction.    On each of the three remaining

firearm convictions, he was sentenced to serve five years in

prison.   He received suspended sentences on his other

convictions, for an active sentence of twenty-nine years.

                         I.   Jury Selection

     On appeal, Martin first contends that that trial court

erred when it refused to strike a juror, Erma Mitchell, for

cause.    We find no error and affirm.

     Martin's claim on appeal is based on the following colloquy

during voir dire.


                                - 4 -
          THE COURT: Have any of you expressed or
          formed any opinion as to the guilt or
          innocence of the accused in this case?

          THE JURORS:   No.

          THE COURT: Are any of you [sensible] of any
          bias or prejudice against either the
          Commonwealth or the accused?

          THE JURORS:   No.

          THE COURT: The defendants are presumed to
          be innocent. Is there anyone who does not
          understand that?

          THE JURORS:   No.

          THE COURT: The Commonwealth must prove the
          defendants' guilt beyond a reasonable doubt.
          Does anyone not understand that?

          THE JURORS:   No.

          THE COURT: The defendants in this case are
          not required to produce any evidence. Is
          there anyone who does not understand that?

          THE JURORS:   No.

          THE COURT: Is there anyone who does not
          know of any reason whatsoever why you cannot
          give a fair and impartial trial to both the
          Commonwealth and to the accused based solely
          on the law?

          THE JURORS:   No.

     The jurors were questioned individually, and Erma Mitchell

was asked if she had received any information about the case

from any source.   She replied, "All I recall is just, you know,

when it happened on the TV and the newspaper."   Mitchell told

the court she had seen news reports about the shooting and had


                               - 5 -
some questions.   The following colloquy occurred, inter alia,

between Mitchell, defense counsel and the court:

          MR. CLANCY [Appellant's attorney]: "[I]f it
          is shown that the young lady that was killed
          is an innocent bystander, but it is also
          shown that Mr. Martin acted reasonably under
          the circumstances as presented to him, could
          you find him not guilty of the murder of
          that young lady?

          MITCHELL: Well, that could be - - I would
          have some questions in my own mind, you
          know? You don't want me to say, do you?

          MR. CLANCY: Actually, I do. This is
          absolutely the time that you need to say.
          We need to hear it from you.

          MITCHELL: Well, why did he have a gun down
          there in the first place that would be one
          of the things. Accidentally shot is one
          thing, but having a gun there I mean you are
          asking for trouble.

          MR. CLANCY: Did you learn about the gun
          from the newspaper or media?

          MITCHELL:    The media.

          THE COURT: Could you find Kevin Martin not
          guilty if you find he acted reasonably under
          the circumstances as believed by him . . .
          despite the fact that an innocent bystander
          was killed?

          MITCHELL: That's a difficult question. Do
          you want to go over that one more time . . .
          I suppose so.

          THE COURT:   You could find him not guilty?

          MITCHELL:    Yes, sir.

          MR. CLANCY: You seem like you have some
          hesitancy. Would this be difficulty [sic]
          for you because the law may tell you that
          you have to do this, but you have personal
                              - 6 -
           beliefs or feelings that will make that
           difficult?

           MITCHELL: Yes, I guess it would be a little
           difficult, but I still think I could, you
           know, render a not guilty verdict.

           MR. CLANCY: If the judge said under the law
           you would have to do that.

           MITCHELL:   Right.

           MRS. CURTIS [Commonwealth's Attorney]:
           Judge, I just think the problem here is the
           way the question is asked because he
           emphasis on the question should be if she
           found that he acted reasonably. If she
           found, in fact, that he acted reasonably
           then could she find him not guilty even
           though an innocent bystander was killed.

           MITCHELL:   Yes.

           MRS. CURTIS: And your answer to that is,
           yes, and you can say that without
           hesitation?

           MITCHELL:   Yes, I guess.

     On appeal, we accord great deference to a trial court's

decision to deny a motion to exclude a juror for cause, and the

decision will not be disturbed on appeal absent manifest error.

Green v. Commonwealth, 262 Va. 105, 115, 546 S.E.2d 446, 451

(2001).   "[D]oubts as to the impartiality of a juror should

always be resolved in favor the accused[,]" Educational Books,

Inc. v. Commonwealth, 3 Va. App. 384, 385, 349 S.E.2d 903, 906

(1986), but the fact that a prospective juror has some knowledge

of the case is not, in itself, a basis for disqualification.

Pope v. Commonwealth, 234 Va. 114, 124, 360 S.E.2d 352, 358

                                - 7 -
(1987).    "Even though a prospective juror may hold preconceived

views, opinions, or misconceptions . . .," nothing more is

required than the prospective juror's ability to "lay aside

[her] preconceived views and render a verdict based solely on

the law and evidence presented at trial."    Griffin v.

Commonwealth, 19 Va. App. 619, 621, 454 S.E.2d 363, 364 (1995)

(citations omitted).

            As a fact finder, the trial court must weigh
            the meaning of the answers given in light of
            the phrasing of the question posed, the
            inflections, tone and tenor of the dialogue,
            and the general demeanor of the prospective
            juror. We are aware that, while the words
            employed, may, when transcribed and read in
            retrospect, appear ambivalent, the judge who
            heard them uttered was uniquely positioned
            to assess their ultimate import.

Smith v. Commonwealth, 219 Va. 455, 464-65, 248 S.E.2d 135, 141

(1978); see also People v. Kubat, 447 N.E.2d 247, 275 (Ill.

1983) (finding that a prospective juror's use of phrases during

voir dire, such as "I don't think" or "I don't know" is not

necessarily indicative of doubt and "a venireman [is not

expected] to express himself with meticulous preciseness

. . .").   To determine a prospective juror's qualifications to

reach a fair and impartial verdict, the trial court must

consider the totality of a juror's responses to voir dire,

including the manner in which the prospective juror responds as

well as the content and substance of the response.    See Vinson



                                - 8 -
v. Commonwealth, 258 Va. 459, 467, 522 S.E.2d 170, 176 (1999)

(citations omitted).

      In the case at bar, the record shows that Mitchell advised

the court that she had seen news reports about the shooting.

The news reports she read raised questions about the reason

Martin and Williams were carrying a gun on the evening in

question.   When further questioned, Mitchell informed the trial

court that she could set aside any concerns and decide the case

based on the law and the evidence presented.     The court found

that any hesitation with which Mitchell answered the inquiries

regarding her ability to be fair and impartial to be a

reflection of her effort to answer complicated questions

truthfully.   The court specifically found that Mitchell's

answers did not reflect an inability to be impartial.    Because

the trial court was in a unique position to assess the

prospective juror's responses, we find no abuse of discretion in

its determination that Mitchell could render a fair and

impartial verdict in the case.

                       II.   Jury Instructions

     Martin further contends the trial court erred in refusing

to give the jury an instruction on voluntary manslaughter,

unlawful wounding, and unlawful shooting at an occupied vehicle

on the ground that the facts support a finding that he acted in

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


                                 - 9 -
     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).   On appeal, when the

issue is a refused jury instruction, "[the evidence is viewed]

in the light most favorable to the proponent of the

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

(citation omitted).   "'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)).

     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

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 does not support Martin's

argument that the court erred in refusing his proffered

instructions.   The evidence fails to support Martin's contention

that he shot in the "heat of passion" and without reflection

because he was afraid or angry. Instead, the evidence shows
                              - 10 -
that he acted in a calculated and purposeful manner.   In

response to his observation that someone in Hymes's car was

pointing a gun at his companion Williams's head, Martin shot his

gun in the air one time "in order to make them put the gun

down."   Thereafter, he shot two more times, until someone in

Hymes's car fired at Williams, at which point he fired all the

shots in his clip.   When Martin spoke to the police about the

shooting, he stated that the three men "shouldn't have messed

with us"; the statement reflects deliberation and intent, rather

than the "heat of passion."

     Moreover, the evidence in the record shows that there was

reasonable opportunity for Martin to cool.   His conduct in

shooting the victim, therefore, cannot be attributed to the heat

of passion.   See 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 v. Commonwealth, 25 Va. App. 629, 645,

491 S.E.2d 747, 754. 1


     1
       Martin 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."
                              - 11 -
     Martin also contends the trial court erred in refusing to

instruct the jury that he acted in self-defense. 2   His contention

is without merit.   Martin offered the following justifiable

homicide instruction:

          If you believe that the defendants were
          without fault in provoking or bringing on
          the difficulty, and if you further believe
          that the defendants reasonably feared, under
          the circumstances as they appeared to them,
          that they were in danger of being killed or
          that they were in danger of great bodily
          harm, then the killing was in self-defense,
          and you shall find the defendants not
          guilty. The defendants must be totally free
          from fault, and must not have even remotely
          contributed to the cause of the difficulty.

     To warrant an instruction on the theory of justifiable

homicide, the defendant must be "totally free" from fault and

must not have "even remotely" contributed to the affray, as

noted in the proposed instruction.   If the accused is "even

slightly at fault at creating the difficulty leading to the

necessity to kill, the killing is not justifiable homicide."

Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416

(1993) (internal quotations and citations omitted).    After

Williams was knocked down, Martin admitted that he approached

Hymes and threatened him.   Martin was therefore not "totally



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 Martin's contention.
     2
       Martin's proffered instruction on excusable homicide was
granted.
                              - 12 -
free from fault" and was not entitled to the justifiable

homicide instruction.

     Finding no error in the trial court's decision, we affirm

Martin's convictions.

                                                       Affirmed.




                             - 13 -
