                        COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Senior Judge Hodges
Argued at Richmond, Virginia


NAKITA LASHAUN BARNES
                                           MEMORANDUM OPINION * BY
v.   Record No. 0564-01-2                JUDGE JAMES W. BENTON, JR.
                                                AUGUST 6, 2002
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                   James F. D'Alton, Jr., Judge

          Michael HuYoung (Christopher H. Macturk;
          Barnes & Batzli, P.C., on brief), for
          appellant.

          Margaret W. Reed, Assistant Attorney General
          (Randolph A. Beales, Attorney General, on
          brief), for appellee.


     A jury convicted Nakita LaShaun Barnes of second degree

murder of Latrice Bates.    Barnes contends the trial judge erred

(i) by refusing to give jury instructions on justifiable

homicide and the defense of others, and (ii) by refusing to

grant Barnes a new trial after finding that the Commonwealth's

attorney failed to properly provide Barnes with a copy of a

Commonwealth's witness' criminal record.    We reverse the

conviction and remand for further proceedings.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                I.

     Appellant was indicted and tried for first degree murder.

At trial, LaShaunda McGee, a witness for the Commonwealth,

testified that on January 2, 2000, Berthshena Jefferson and

Waverly Epps were visiting her while she cleaned her apartment

after a New Year's party.   Latrice Bates arrived at McGee's

apartment at 3:00 p.m. with Bates's "boyfriend's sister."

According to McGee, she did not know Bates before this day.     No

evidence proved who invited Bates to McGee's apartment.    McGee

said Bates left after a brief stay.

     McGee testified that Bates returned later and that she and

Bates had a "general conversation."    McGee testified that

appellant, whom she had known for about ten years, called on the

telephone and said Bates had called appellant to ask "was

[appellant] messing with [Bates's boyfriend] at [McGee's] house

on New Year's Eve."   McGee told appellant, "hold on," and "put

the phone down."   McGee said when she returned to the telephone,

appellant asked McGee whether she had heard Bates in the

background.   McGee testified that she told appellant she was

coming to appellant's house but that appellant said "no," she

was coming to McGee's apartment.     McGee testified she told Bates

to leave because appellant was coming to the apartment, and she

then called appellant and told her not to come.    Appellant said

she was "on her way over . . . [and] hung the phone up."      McGee

testified that in an attempt to stall appellant, she again

                               - 2 -
called appellant "and told her to stop at the store and get

. . . a Pepsi."

        McGee testified she was standing on her porch when

appellant arrived.    McGee testified she "ran to [appellant's]

car, and . . . told her that [Bates] was in the parking lot

somewhere and don't get out of the car, to pull off."      McGee

recalled appellant's window was halfway down and appellant's

child was in a child carrier on the rear seat.      McGee testified

that appellant got out of her car.       Bates then was standing

behind McGee "saying stuff" to appellant.      McGee said appellant

never responded.    McGee testified that Bates and appellant began

hitting each other and that she moved away from the fight when

one of them hit her.    McGee saw appellant shake her head, heard

something drop, and saw Bates run to her car and then to the

apartment building.    Appellant drove away.    McGee said she did

not see Bates threaten appellant's child.

        On cross-examination, McGee testified that she had a

videotape of her New Year's party which depicted Bates's

boyfriend and appellant.    She denied telling Bates that

appellant and Bates's boyfriend had been "messing around,"

denied playing the video for Bates, and could not recall whether

she told Bates that appellant and Bates's boyfriend were on the

tape.    She recalled telling Bates only that she had a tape

showing Bates's boyfriend with his friend, Lloyd.      McGee



                                 - 3 -
testified that Bates knew before she came to the apartment that

appellant and Bates's boyfriend had been together at the party.

     McGee admitted that Bates left her apartment at 3:00 p.m.

"to look for [appellant's] house" and intended "to ask

[appellant] about [Bates's boyfriend]."    She had given Bates

appellant's telephone number and knew Bates intended to call

appellant.   When Bates could not find appellant, Bates returned

to the apartment.   McGee testified that Bates called appellant

from McGee's apartment and told appellant she wanted to "whip

her ass."

     McGee testified that although she told appellant not to

come to her apartment, she admitted she did not give appellant

an explanation.   She also testified that she "used to keep

[appellant's] kids," but she denied she was to do so that day.

McGee denied that she schemed to cause Bates and appellant to

fight and testified she did not "remember the fight at all."

McGee said she called the police after the fight.

     Berthshena Jefferson, who was in McGee's apartment when

Bates arrived, testified that Bates was her friend.    She

recalled that when Bates returned to the apartment at 7:00 p.m.

Bates called someone on the telephone.    Jefferson said she did

not hear the conversation.   Jefferson also testified that McGee

called appellant on the telephone.     During one of those calls,

she heard "a lot of arguing and commotion."    Jefferson testified

that after the calls Bates and McGee began "swapping

                               - 4 -
information."   Jefferson said she then advised Bates to leave

the apartment and did not know where Bates went.

     Jefferson testified that later, after hearing argument

outside the apartment, she ran outside.     Epps and Bates's

boyfriend's sister also went outside.     Jefferson saw Bates's car

parked outside the apartment and saw Bates standing by

appellant's car.   Jefferson testified that appellant was getting

out of her car but "got back in the car" when McGee told her to

do so.   Jefferson testified that Bates was then "like towards

the rear end of [appellant's] car."     Jefferson also recalled

that appellant's child was in a child carrier on the rear seat

and that the rear window was up.    She heard Bates yelling at

appellant, "I'm Twon's girlfriend.      I'm Twon's girlfriend."

     According to Jefferson, Epps attempted to stop the

argument, and said to McGee, "why [are] you letting this shit go

down out here?"    Jefferson testified that she told appellant to

get back into the car and leave, that she pulled Bates away, and

that appellant came toward Bates.    Jefferson testified that she

heard something hit the ground after she and Epps stopped the

fighting.   Jefferson also testified she called the rescue squad

and the police when she saw Bates bleeding.

     Sergeant Thomas Patrick testified that after he arrested

appellant, he and Detective Young interviewed her.     The video

recorder failed, however, and did not record the interview

session.    According to Patrick, who testified from his memory

                                - 5 -
and a police report he had written after speaking with

appellant, appellant told him she went to McGee's apartment "to

drop her baby off."   When she arrived, Bates, who had threatened

her that evening, approached her car.    Appellant said she got

out of her car and Bates began an argument.   After Bates struck

appellant on her upper left cheek bone, appellant retrieved a

kitchen knife from her car, held it behind her back, and then

struck Bates with it.   Appellant said she was unsure how many

times she struck Bates with the knife.

     Testifying for the defense, Waverly Epps said he was at

McGee's apartment when Bates arrived.    He did not know Bates or

appellant before that day.   He testified that McGee showed a

videotape of the New Year's party to Bates and that "the battery

kept going dead" as the camcorder played.   He testified,

however, he was able to see a portion of the tape depicting

appellant with Bates's "baby's daddy . . . all on her."     He

testified that "McGee was just boosting it up" and that Bates

"got upset" after seeing the tape.

     Epps also testified that McGee later called appellant on

the telephone.   Epps recalled that after the telephone

conversation, Bates "was hyped . . . like . . . [the] sooner she

come over here, I'm going to get her."   He testified that later,

when Bates heard a car horn, she "fl[ew] out the house."    Epps

testified that he then ran outside and saw Bates hitting

appellant through the open window of the car.   Epps testified

                               - 6 -
that when appellant attempted to drive away, Bates opened the

car's rear door, where appellant's daughter was seated.      He

heard appellant say, "My baby [is] in the car" and heard Bates

reply "my baby [is] out here too."

     Epps testified that he then grabbed Bates and moved her

away until Bates began to hit him.       When he released her, she

ran to appellant and resumed striking appellant.       He testified

that appellant "never ma[d]e an attempt to move to her again,

you know, to fight her again."    Epps testified that Bates "r[a]n

up on [appellant] twice" and that he did not see appellant stab

Bates because it apparently occurred while they were fighting.

     Epps testified that during the investigation he told the

prosecutor he did not want to be involved in the case and did

not tell the prosecutor about the videotape.      On

cross-examination, Epps admitted that he had been convicted of

one felony involving the distribution of cocaine.      Further

explaining the events, Epps testified that Bates "run to the car

the first time, hit her . . . then [appellant] . . . rolled the

window up.   Then [Bates] tried to get in the back door of the

car where the baby was . . . ."    Epps testified that although

appellant could have driven away, she "stopped to get out"

because the car's rear door was open.

     Appellant testified that she had not met Bates before that

evening in the parking lot.   She testified that Bates called her

and said she was going to "whip my ass about [Bates's

                                 - 7 -
boyfriend]."   Appellant testified that she hung up the telephone

during Bates's call and then called McGee to ask whether she

knew "anything about it."    McGee said she did not know anything,

put down the telephone, and spoke to Jefferson, who said she did

not know anything.   Appellant said she told McGee, who earlier

had agreed to keep appellant's child, that she was bringing the

child to McGee.   Appellant testified that McGee called back and

told her not to come.   When she asked for a reason, McGee said

"just bring [her] a soda" when she came.

     Appellant testified that, when she arrived at McGee's

apartment, she did not know Bates was there.   She testified that

after she sounded the horn McGee ran to the car and told her not

to get out.    Bates then appeared at her car and began cursing

her and punching her through the window.   Appellant said she did

not know at that point who Bates was and began moving the car in

reverse.   She testified that, before she could lock the door,

Bates opened the rear door where her child was seated.

Appellant said she "panicked," stopped the car, and grabbed the

knife because Bates was at the rear open door by her child.    She

testified that she initially had the knife behind her back and

then brought it forward and waved it at Bates "to let her know I

didn't want to fight her."   She testified that they began

fighting while she had the knife in her hand and that she

stabbed Bates during the fight.   When Bates suddenly stopped,

the knife slipped from appellant's hand.   Appellant testified

                                - 8 -
that she "didn't mean to do it," that she was pregnant, and that

she was protecting herself, her child, and her unborn baby.     She

admitted that Bates never touched her child.

     On rebuttal, McGee testified she had seen the same knife in

the visor of appellant's father's car several days before the

incident.   At that time, appellant said to McGee "[t]hat she was

tired of people running up on her, and the next person that

does, she was going to use it."    She also testified that Epps

did not leave the apartment when Bates left and that only she

and her neighbor were outside when appellant arrived.

     At the conclusion of the testimony, the trial judge

instructed the jury on excusable self-defense.    The trial judge

rejected jury instructions based on justifiable self-defense and

defense of others.   The trial judge also instructed the jury

that if they found that appellant maliciously killed Bates, but

did not find that the killing was "willful, deliberate, and

premeditated, then you shall find [appellant] guilty of second

degree murder."   After deliberating, the jury returned a verdict

of second degree murder.

                               II.

     When reviewing a trial judge's decision refusing a

proffered jury instruction, "'[t]he appropriate standard of

review requires that we view the evidence with respect to the

refused instruction in the light most favorable to [the

proponent of the instruction].'"     Hartigan v. Commonwealth, 31

                               - 9 -
Va. App. 243, 257, 522 S.E.2d 406, 412 (1999) (citation

omitted).   "If any credible evidence in the record supports a

proffered instruction . . . , failure to give the instruction is

reversible error."    Boone v. Commonwealth, 14 Va. App. 130, 132,

415 S.E.2d 250, 251 (1992).   "The trial judge has a

responsibility to instruct the jury on the applicable law so as

to aid the jury in arriving at a proper verdict."      Hartigan, 31

Va. App. at 257, 522 S.E.2d at 412.     "In addition, where there

is evidence which 'tends to sustain both the prosecution's and

the defense's theory of the case, the trial judge is required to

give requested instructions covering both theories.'"      Alexander

v. Commonwealth, 28 Va. App. 771, 775, 508 S.E.2d 912, 914

(1999) (citation omitted).

     The testimony of appellant and Epps provided sufficient

evidence from which the jury could have determined that

appellant acted in self-defense of herself and her child.

Appellant testified that she went to McGee's apartment to

deliver her child for McGee to babysit and that she was not

aware that Bates was at McGee's apartment.    She testified that

when she arrived at McGee's apartment, Bates, whom she had never

met, began punching her.   Appellant and Epps also testified that

appellant was about to drive away when Bates opened the car's

rear door where appellant's child was seated.

            Killing in self-defense may be either
            justifiable or excusable homicide.
            "Justifiable homicide in self-defense occurs

                               - 10 -
          where a person, without any fault on his
          part in provoking or bringing on the
          difficulty, kills another under reasonable
          apprehension of death or great bodily harm
          to himself." "Excusable homicide in
          self-defense occurs where the accused,
          although in some fault in the first instance
          in provoking or bringing on the difficulty,
          when attacked retreats as far as possible,
          announces his desire for peace, and kills
          his adversary from a reasonably apparent
          necessity to preserve his own life or save
          himself from great bodily harm."

Yarborough v. Commonwealth, 217 Va. 971, 975, 234 S.E.2d 286,

290 (1977) (citation omitted).   "In the case of justifiable

homicide, '[in which] the accused is free from fault in bringing

on the fray, the accused "need not retreat, but is permitted to

stand his [or her] ground and repel the attack by force,

including deadly force, if it is necessary."'"   Sands v.

Commonwealth, 33 Va. App. 669, 678, 536 S.E.2d 461, 465 (2000)

(citations omitted).   Based on appellant's testimony, the trial

judge erred in rejecting the justifiable self-defense

instruction.

     The error in not instructing the jury concerning

justifiable self-defense was not harmless.   "Because the

evidence, viewed in the light most favorable to appellant, would

support a finding that the homicide was justifiable, appellant

had no duty under the law of self-defense to retreat in order to

be entitled to the instruction."   Id. at 680, 536 S.E.2d at 466.

The jury was not instructed that if it believed appellant had



                              - 11 -
not retreated, the jury could have found that appellant acted in

self-defense.

     The evidence, viewed in the light most favorable to

appellant, also supported an instruction on defense of others.

          "[A] person asserting a claim of defense of
          others may do so . . . where the person to
          whose aid he or she went would have been
          legally entitled to defend himself or
          herself." Thus, one may be justified in
          using deadly force to defend another person
          where he or she reasonably believes that the
          person defended faces an imminent threat of
          serious bodily harm or death and that such
          person was not at fault in bringing about
          the necessity to use the deadly force.

Lynn v. Commonwealth, 27 Va. App. 336, 353, 499 S.E.2d 1, 9

(1998) (citation omitted).

     Appellant and Epps testified that when appellant attempted

to leave, Bates opened the car's rear door, where appellant's

child was seated.   Jefferson also testified Bates was standing

by the car's rear door.   Bates was cursing and enraged.   Based

on Bates's actions, as described by appellant and Epps, the jury

could have found that appellant reasonably feared that her child

was in imminent danger of harm.    "The credibility of

[appellant's] story was for the jury to determine in the light

of all the other evidence, and [s]he was entitled to have [her]

version of the evidence presented to them under a proper

instruction or instructions."     Spear v. Commonwealth, 213 Va.

599, 601, 194 S.E.2d 751, 753 (1973).    The record establishes

that "[t]he refused instruction was predicated upon

                                - 12 -
[appellant's] evidence and was a correct statement of the law."

Id.   Thus, we hold the trial judge erred by not instructing the

jury on defense of others.

                              III.

      At sentencing, appellant's attorney moved for a new trial

contending that the prosecutor failed to divulge McGee's

criminal conviction record.   The record indicates McGee had at

least fourteen felony convictions for forgery, larceny, and

uttering, which were not disclosed to appellant and not revealed

to the jury.   Although the trial judge determined that the

prosecutor improperly withheld from the defense this evidence,

he concluded that his confidence in the jury's verdict was not

undermined and found as follows:

           I've looked at the evidence through all the
           other witnesses, and although you make a
           point, . . . that [appellant's] statement
           wasn't written down; it wasn't recorded; it
           wasn't videotaped, but it was her statement
           and her statement was relayed to the jury
           and they could weigh those facts and
           determine how much weight to give it. And
           it certainly was enough in and of itself to
           prove not only second-degree murder. She
           had time to reflect. She went in the car,
           got the knife out after this initial
           encounter, and you had other testimony from
           Ms. Jefferson and this evidence alone in my
           opinion would not be enough to undermine the
           competence in the outcome of the verdict or
           that they probably would have entertained a
           reasonable doubt, and I will so rule and I
           will deny your motion to set aside the
           verdict for all the reasons as stated.




                               - 13 -
     Appellant contends McGee's testimony was critical in the

Commonwealth's effort to establish that appellant's conduct was

intentional and resulted, as the prosecutor argued, from

"hatred, anger or revenge."   Appellant further contends "[n]o

. . . witness other than McGee could have established this

element of malice; thus, discrediting her was crucial to

[appellant's] defense."   We agree.

     In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court

outlined the following principles:

            A prosecution that withholds evidence . . .
            which, if made available, would tend to
            exculpate [the accused] or reduce the
            penalty helps shape a trial that bears
            heavily on the defendant. That casts the
            prosecutor in the role of an architect of a
            proceeding that does not comport with
            standards of justice, even though . . . his
            action is not "the result of guile."

Id. at 87-88 (citation omitted).      Thus, the Court held that "the

suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution."      Id. at 87.   "A

fair analysis of the holding in Brady indicates that implicit in

the requirement of materiality is a concern that the suppressed

evidence might have affected the outcome of the trial."        United

States v. Bagley, 473 U.S. 667, 674-75 (1985) (citation

omitted).



                               - 14 -
     In light of the violation, we must determine "if there is a

reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been

different."   Id. at 682.    Proving that she did not go to McGee's

apartment to confront Bates was critical to appellant's

self-defense argument.   McGee's testimony substantially

contradicted appellant's testimony that she did not know Bates

was at McGee's apartment that evening.    McGee testified that

while she was on the phone with appellant, appellant heard Bates

in the background and asked was Bates there.    McGee also denied

that appellant was coming to her apartment so that she could

babysit appellant's child.

     Although the jury was not satisfied beyond a reasonable

doubt that the killing was willful, deliberate, and premeditated

and, therefore, did not convict appellant of first degree

murder, this circumstance does not necessarily imply that the

jury entirely rejected McGee's testimony that appellant called

her and heard Bates in the background before she came over.

Even if the jury rejected that testimony while concluding that

appellant was not guilty of first degree murder, the jury could

have found, based on McGee's testimony, that appellant knew

Bates was at McGee's apartment, that appellant went to McGee's

apartment to confront Bates, and that appellant's actions were

done with malice.



                                - 15 -
     Moreover, even if, as the Commonwealth contends, the jury

rejected entirely the testimony that appellant knew Bates was at

McGee's apartment, other evidence of malice was established by

McGee's testimony that appellant said a few days prior to the

incident that she would use the knife on the next person that

"ran up on her."   The prosecutor argued to the jury that this

comment proved appellant's state of mind and told the jury:

"McGee told you the defendant had the knife a couple of days

before.   She said she was going to kill the next person who ran

up on her.   She did in fact do that.   She killed Latrice Bates."

Furthermore, the record reveals that during their deliberations

the jury inquired, "[W]as McGee's testimony that the knife was

seen in the visor of a car other than [appellant's] three days

prior?"   The trial judge answered the jury's question by

stating, "This is a factual matter which you must resolve."     It

is clear that the Commonwealth's proof of elements of the

offense rested substantially upon McGee's credibility.   McGee's

testimony was pivotal to the Commonwealth's proof of appellant's

purpose in going to McGee's apartment that evening.

     The trial judge concluded that the jury could have also

determined, based on the testimony of Sergeant Patrick and

Jefferson, that appellant's decision to use the knife was not in

self-defense or defense of her child or unborn baby but, rather,

was done maliciously and with premeditation.   As the Supreme



                              - 16 -
Court held in Kyles v. Whitley, 514 U.S. 419, 434 (1995), our

analysis of this issue "is not a sufficiency of evidence test."

          A defendant need not demonstrate that after
          discounting the inculpatory evidence in
          light of the undisclosed evidence, there
          would not have been enough left to convict.
          The possibility of an acquittal on a
          criminal charge does not imply an
          insufficient evidentiary basis to convict.
          One does not show a Brady violation by
          demonstrating that some of the inculpatory
          evidence should have been excluded, but by
          showing that the favorable evidence could
          reasonably be taken to put the whole case in
          such a different light as to undermine
          confidence in the verdict.

Id. at 434-35.

     "[W]hen the case is evaluated in the context of the entire

record, including . . . [McGee's] omitted [felony convictions],

a jury would have entertained a reasonable doubt regarding

[appellant's] guilt."     Soering v. Deeds, 255 Va. 457, 464, 499

S.E.2d 514, 517 (1998).    Although Epps, who had not previously

known appellant or Bates, confirmed appellant's testimony that

Bates approached appellant and began hitting her, the prosecutor

argued to the jury that they could disbelieve Epps because he

was a convicted felon.    Had the jury known McGee had been

convicted of at least fourteen felonies, there is a reasonable

probability that the jury would have weighed the testimony of

appellant and Epps in a different light.    The evidence of

McGee's convictions could reasonably have led the jury to accept

appellant's testimony that she went to McGee's apartment so that


                                - 17 -
McGee could look after her child and that, upon arriving at

McGee's apartment, she was attacked by Bates, whom she had never

seen and did not know.

     In sum, all the evidence describes Bates as the enraged

instigator of the argument.    Appellant and Epps testified that

when appellant attempted to drive away, Bates opened the door

where appellant's child was seated.     Their testimony, if

believed, was sufficient to cast reasonable doubt on whether

appellant acted with malice.   In addition, in considering the

undisclosed evidence, the jury may have been persuaded that

appellant's actions were in self-defense or defense of her

child.   We hold, therefore, that the failure to provide the jury

with McGee's substantial criminal record undermines confidence

in the jury's verdict.

     Accordingly, we reverse the conviction and remand the case

for further proceedings.

                                           Reversed and remanded.




                               - 18 -
