PRESENT: All the Justices

LAURENCE MARIA SMITH,
s/k/a LAURENCE MARIE SMITH
                                                              OPINION BY
v. Record No. 180198                               CHIEF JUSTICE DONALD W. LEMONS
                                                            December 13, 2018
COMMONWEALTH OF VIRGINIA


                       FROM THE COURT OF APPEALS OF VIRGINIA

       In this appeal, we consider whether the Court of Appeals of Virginia (“Court of

Appeals”) erred when it found the evidence was sufficient to uphold a conviction of voluntary

manslaughter in the Spotsylvania County Circuit Court (“trial court”).

                                     I. Facts and Proceedings

                                     A. The Evidence at Trial

       Laurence Maria Smith (“Smith”) was tried by a jury upon indictments for the first-degree

murder of her husband, Sean McVae Smith (“Sean”), and use of a firearm during the

commission of a felony. Smith pled not guilty, and a four-day jury trial was held.

       At the beginning of trial, the parties stipulated that Sean’s death was not a suicide, that he

was killed when a single bullet entered his mouth and struck his right carotid artery, and that at

the time the gun was fired, the muzzle was at least four feet from Sean’s body. Deputy Amanda

Trippett (“Deputy Trippett”), testified that she answered a 911 call from Smith on the evening of

March 16, 2015. A recording of the call was then played for the jury. During the call, Smith

reported that she accidentally shot her husband. Smith told Deputy Trippett “I was just cleaning”

the gun, and “I fired” it. Deputy Trippett asked if Sean was breathing, and Smith responded she

did not know. Later during the call, Smith told Deputy Trippett that Sean was not breathing.
When Deputy Trippett asked where the gun was, Smith replied she did not know. Smith was

crying and screaming hysterically during the call.

       Deputy Hernando Tavarez (“Deputy Tavarez”) responded to the house within three

minutes of the 911 call and was the first to arrive at the scene. Deputy Tavarez testified that a

small girl answered the door. Once he entered the home, Deputy Tavarez heard Smith say, “it’s

my fault, I should not have been playing with it.” Deputy Tavarez then saw Smith coming

downstairs from the second floor. Smith was hysterical, and her hands were covered in blood.

Deputy Tavarez directed Smith to stay downstairs while he went to look for Sean. Deputy

Tavarez found Sean lying face down at the top of the stairs. Sean was still alive, but he was

unconscious and bleeding profusely. Rescue personnel then arrived, so Deputy Tavarez stayed

downstairs with Smith and her two young daughters. Deputy Tavarez asked Smith where the gun

was, and Smith replied that the gun might be under her husband’s body. The police later found

the gun in the downstairs master bedroom. Deputy Tavarez testified that rescue personnel were

unable to save Sean, and he died at the scene.

       Deputy Brandon Handy (“Deputy Handy”) testified that he arrived at the scene several

minutes after Deputy Tavarez. Smith’s two young daughters were at the entrance to the home

screaming and crying. As Deputy Handy was getting the girls out of the house, Smith also came

to the doorway. Smith’s hands were covered in blood and she was screaming to Deputy Handy

“I shot him” and “arrest me.” Deputy Handy got Smith to sit down outside, and a neighbor came

and took the children next door. Smith then told Deputy Handy that she had accidentally shot

her husband. She thought her gun was empty when she squeezed the trigger.

       Detective Earl Swift performed a gunshot residue test on Smith while she was waiting

outside of the house. Smith was upset and crying while he performed the test. According to Det.




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Swift, Smith kept saying things such as, “arrest me, I shot and killed my husband, I deserve to

die because I killed by husband.” The police determined that Sean was shot in an upstairs

bedroom while standing by the window but that he walked into the hallway before collapsing.

The gunshot residue test came back positive.

       Smith was then taken to the police department and interviewed by Detective Frank Corona

(“Detective Corona”). A video of Detective Corona’s interview with Smith was offered into

evidence by the Commonwealth. During the interview, Smith told Detective Corona that she and

Sean had planned to have the flooring replaced in the upstairs spare bedroom. In preparation for

installation of the new flooring, Smith had moved several things from the room. She had also

moved the gun safe out of the closet into the room. Smith said that Sean came home from work

and told her they needed to remove the guns from the safe before moving it any further. Sean and

Smith emptied the gun safe, and then Sean sent Smith downstairs to their bedroom to get her

“peashooter.” Smith explained the “peashooter” was a tiny gun she kept in her purse. According

to Smith, Sean told her “don’t forget to uncock it,” and “don’t fuck around.” Smith told Detective

Corona that she had “popped out the magazine,” racked the slide back, and saw a bullet eject from

the gun when she was in the bedroom. Smith stated that she believed the gun then was empty.

When Smith brought the gun upstairs, her husband asked if she did “like I told you.”

        Smith told Sean “see, it’s empty” and pulled the trigger to show him it was unloaded.

Smith explained to Detective Corona that she thought the gun was empty when she pulled the

trigger. She wanted to show Sean she had the skills to disarm a weapon. Smith told Detective

Corona that she “didn’t have any aim.” Later in the interview, however, she admitted that she

aimed towards the window near where her husband was standing. Smith “dropped the gun” after

shooting her husband, rushed to help him, and got his blood on her hands. Smith told Det.




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Corona she then retrieved the gun and put it on her bed before she called 911 because her

daughters were in the house. She then went back upstairs to try to help Sean.

         When Detective Corona asked Smith whether she and her husband had argued prior to the

shooting, Smith stated they had not. She then clarified they had been “fussing” at each other but

not arguing. Later, Smith admitted that she and her husband had been “arguing about twenty

minutes before all this went down” because she scratched one of his guns when she moved the

gun safe. Smith also admitted that the argument upset her. However, Smith said she was no

longer angry when she shot her husband. Detective Corona testified that blood was not visible on

the gun when it was recovered. He also testified that a swab of Smith’s gun tested negative for

blood.

         Smith told Detective Corona that she had taken a gun safety course and obtained a

concealed weapon permit in 2011. She admitted that in that class she learned never to point her

gun at a person unless she intended to kill. Smith told Detective Corona that she had been

“stupid” and “retarded” because she did not follow the basic gun safety rules. She explained that

Sean always took care of the weapons. Although Sean would let her load the weapons, she said

when unloading he would “check[] and double check[] and triple check[] to make sure

everything is empty.” Smith stated she wanted to show Sean that he could trust her with the gun.

         Smith’s two young daughters were questioned by police on the evening of the shooting.

A video of the daughters’ statements was introduced by the Commonwealth without objection.

Both daughters described their parents as “fighting” prior to the shooting. The youngest

daughter stated she heard her parents “yelling” about her father’s gun safe. The older daughter

indicated her father may have been upset because one of the weapons was scratched. The older

daughter recalled her mother saying she accidentally pulled the trigger when she was cleaning




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her gun. She later stated, “I don’t know if it’s actually true.” The older daughter also said that,

after the shooting, she and her sister waited downstairs in the master bedroom before the police

came.

        Smith moved to strike the evidence when the Commonwealth rested. The trial court

denied the motion. Smith’s first witness was Kelly Johnson, a forensic biologist with the

Virginia Department of Forensic Science, who testified that Smith’s gun, the magazine, and the

unspent cartridge were visually inspected and tested for blood, and no blood was found. Lauren

Claytor, a forensic scientist in the firearm section of the Department of Forensics, testified that

she tested the gun used in this case. She explained that this particular gun was capable of being

fired with the magazine removed. She explained that the magazine would hold six bullets and

the firearm would also hold one in the firing chamber. Claytor also testified that there would not

be a discernible difference in the weight of the firearm if it was unloaded versus having one

bullet in the chamber. However, she also testified that there is a “peephole” in the gun so a

person can look to see if there is a cartridge in the chamber.

        Patrick Lamb, a bloodstain pattern analyst with the Fredericksburg Police Department,

also testified on Smith’s behalf. Lamb explained that based on the blood patterns where Sean

was shot, there did not appear to be any signs of a struggle between Smith and Sean. Smith also

called Dr. Mary Beth Williams, an expert in trauma, to testify on her behalf. Dr. Williams

testified that she watched the video of Smith’s interview with Detective Corona, and Smith’s

behavior during that interview was consistent with someone who had just experienced a

traumatic event. Dr. Williams also met with Smith on two occasions prior to trial, and she saw

behavior in those meetings that was also consistent with someone who had experienced a

traumatic event.




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       Smith then renewed her motion to strike at the close of all the evidence. She argued that

the evidence proved she did not know the firearm was loaded and that the shooting was an

accident. The circuit court again denied Smith’s motion, finding that, while the jury could agree

with Smith that the shooting was an accident, based upon the evidence presented the jury could

also find that Smith acted with malice.

                                     B. The Jury Instructions

       The Commonwealth and Smith submitted agreed upon jury instructions to the circuit

court. Jury instruction 6, a “waterfall” instruction, included instructions for first-degree murder

as well as the lesser included offenses of second-degree murder, voluntary manslaughter, and

involuntary manslaughter. Jury Instruction 6 provided, in relevant part:

               Mrs. Smith is charged with the crime of first degree murder. The
               Commonwealth must prove beyond a reasonable doubt each of the
               following elements of that crime:

                   (1) That Mrs. Smith killed Sean Smith; and
                   (2) That the killing was done with malice; and
                   (3) That the killing was willful, deliberate and premeditated.

               If you find from the evidence that the Commonwealth has proved
               beyond a reasonable doubt each of the above elements of the crime
               as charged, then you shall find Mrs. Smith guilty of first degree
               murder . . . .

               If you find from the evidence that the Commonwealth has proved
               beyond a reasonable doubt each of the first two elements of the
               offense as charged but you do not find beyond a reasonable doubt
               that the killing was willful, deliberate and premeditated, then you
               shall find Mrs. Smith guilty of second degree murder . . . .

               If you find that the Commonwealth has failed to prove beyond a
               reasonable doubt that the killing was malicious but that the
               Commonwealth has proved beyond a reasonable doubt that Mrs.
               Smith killed Sean Smith and further:

                    (1) That the killing was the result of an intentional act; and




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                     (2) That the killing was committed while in the sudden heat of
                         passion upon reasonable provocation;

                 then you shall find Mrs. Smith guilty of voluntary manslaughter
                 ....

                 If you find that the Commonwealth has failed to prove beyond a
                 reasonable doubt the elements of voluntary manslaughter, but you
                 find that the Commonwealth has proven beyond a reasonable
                 doubt that:

                     (1) That Mrs. Smith killed Sean Smith; and
                     (2) That the killing, although unintended, was the direct result
                         of negligence so gross, wanton and culpable as to show a
                         callous disregard of human life;

                 then you shall find Mrs. Smith guilty of involuntary manslaughter
                 ....

                 If you find that the Commonwealth has failed to prove beyond a
                 reasonable doubt any one or more of the elements of involuntary
                 manslaughter, then you shall find Mrs. Smith not guilty.

In jury instruction 7, the jury was instructed that if it had reasonable doubt about the grade of

homicide, then it should find Smith guilty of the lesser offense. The jury was also instructed that

if it had reasonable doubt the Commonwealth had proved any of the offenses, then it should find

Smith not guilty.

       Jury instruction 9 informed the jury that if malice was absent, the killing could be no

more than manslaughter. Jury instruction 10 defined heat of passion for the jury, and stated in

relevant part:

                 Heat of passion excludes malice when that heat of passion arises
                 from provocation that reasonably produces an emotional state of
                 mind such as hot blood, rage, anger, resentment, terror or fear, so
                 as to demonstrate an absence of deliberate design to kill or to cause
                 one to act on impulse without conscious reflection. Heat of
                 passion must be determined from circumstances as they appeared
                 to defendant but those circumstances must be such as would have
                 aroused heat of passion in a reasonable person. If a person acts
                 upon reflection or deliberation, or after his passion has cooled or



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               there has been a reasonable time or opportunity for cooling, then
               the act is not attributable to heat of passion.

Jury instruction 12 explained that malice could be inferred from the use of deadly weapon. Jury

instruction 14 explained that “[p]rovocation cannot be relied upon to reduce murder in the

second degree to manslaughter, unless the provocation has so aroused the anger of the assailant

as to temporarily affect his reason and self-control.” Neither the Commonwealth nor Smith

requested an instruction on the principle that words alone are insufficient provocation to reduce

second-degree murder to voluntary manslaughter, and no such instruction was given.

                                     C. Motion to Set Aside

       The jury found Smith guilty of voluntary manslaughter. Smith filed a motion to set aside

the jury’s verdict based on insufficient evidence to prove the elements of the offense of voluntary

manslaughter. Smith argued that the Commonwealth had to prove each element of voluntary

manslaughter, and specifically that the Commonwealth had failed to prove heat of passion upon

reasonable provocation. As part of her argument that the Commonwealth failed to prove heat of

passion upon reasonable provocation, Smith asserted that words alone are never sufficient to

constitute a reasonable provocation. Smith argued that the evidence proved that she and Sean

only had a brief argument and there was no physical altercation. She also argued that even if the

argument created reasonable provocation, the evidence showed that she was not acting in the

heat of passion at the time of the shooting. Accordingly, Smith asserted that the evidence was

insufficient to prove voluntary manslaughter.

       At the hearing on her motion to set aside, Smith agreed that the instruction on voluntary

manslaughter was a correct statement of law and that she had not objected to it. Instead, her

argument was that the evidence was insufficient to support a conviction for voluntary

manslaughter. She argued there was no evidence this was an intentional killing, and no evidence



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of heat of passion upon reasonable provocation. Smith reiterated that the evidence proved there

was just a minor verbal argument between her and Sean; nothing that would qualify as

reasonable provocation because “mere words are not enough for heat of passion.”

       The Commonwealth responded that Smith had waived this argument by agreeing to the

jury instruction on voluntary manslaughter. The Commonwealth argued that the jury was

entitled to find that Smith was angry and upset when she intentionally fired the gun at Smith, and

that the evidence was sufficient to support her conviction. The Commonwealth asserted that if

there was any error, Smith invited that error by allowing the voluntary manslaughter instruction

to go the jury without objection.

       The trial court asked why Smith did not object to a voluntary manslaughter instruction

before it was given to the jury if there was no evidence to support such an instruction. Smith

responded that she was not challenging the instruction, she was challenging the sufficiency of the

evidence to support the conviction. The trial court then found there was sufficient evidence to

support the jury’s verdict and denied the motion. The trial court later sentenced Smith to ten

years’ imprisonment, in accordance with the jury’s recommendation.

                                    D. Court of Appeals Opinion

       The Court of Appeals, by published opinion, affirmed Smith’s conviction. Smith v.

Commonwealth, 68 Va. App. 399 (2018). The Court of Appeals assumed, without deciding, that

reasonable provocation was an element of voluntary manslaughter based on the jury instruction

given at trial. Id. at 414. Instead of deciding whether the evidence was sufficient to support

Smith’s conviction of voluntary manslaughter, the Court of Appeals relied on our decision in

Blankenship v. Commonwealth, 193 Va. 587 (1952), and held that a rational factfinder could

have found the evidence was sufficient to convict Smith of the higher offense of second-degree




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murder. Therefore, she was not prejudiced by the jury’s decision to find her guilty of the lesser

offense of voluntary manslaughter. Id. at 415-17. The concurrence disagreed with the

majority’s analysis and set forth alternative bases for affirming Smith’s conviction. See id. at

421-36.

       Smith subsequently appealed to this Court, and we awarded an appeal on the following

assignment of error:

           1. The Court of Appeals erred in affirming the trial court’s conviction
              of Appellant of voluntary manslaughter as the evidence was
              insufficient to prove Appellant intentionally killed Sean Smith and
              that Appellant acted in the “heat of passion” and “upon reasonable
              provocation.”

                                           II. Analysis

                                     A. Standard of Review

       “When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is

presumed correct and will not be disturbed unless it is plainly wrong or without evidence to

support it.’” Commonwealth v. Perkins, 295 Va. 323, 327 (2018) (quoting Pijor v.

Commonwealth, 294 Va. 502, 512 (2017)). This Court “does not ask itself whether it believes

that the evidence at the trial established guilt beyond a reasonable doubt.” Perkins, 295 Va. at

327 (quoting Williams v. Commonwealth¸ 278 Va. 190, 193 (2009) (emphasis in original)).

“Rather, the relevant question is, upon review of the evidence in the light most favorable to the

prosecution, whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Perkins, 295 Va. at 327 (emphasis in original; internal

quotation marks and citation omitted).




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                                       B. Jury Instructions

       The jury in this case was given a “waterfall” instruction that set forth the elements the

jury was required to find in order to convict Smith of first degree murder, second degree murder,

voluntary manslaughter, or involuntary manslaughter. Jury instruction 6 was agreed upon by

both parties. We have stated that “instructions given without objection become the law of the

case and thereby bind the parties in the trial court and this Court on review.” Wintergreen

Partners, Inc. v. McGuireWoods, LLP, 280 Va. 374, 379 (2010) (quoting Owens-Illinois, Inc. v.

Thomas Baker Real Estate, Ltd., 237 Va. 649, 652 (1989)). The law of the case doctrine applies

in criminal cases. Jiminez v. Commonwealth, 241 Va. 244, 249-50 (1991).

       With respect to the offense of voluntary manslaughter, jury instruction 6 provided:

               If you find that the Commonwealth has failed to prove beyond a
               reasonable doubt that the killing was malicious but that the
               Commonwealth has proved beyond a reasonable doubt that Mrs.
               Smith killed Sean Smith and further:

                   (1) That the killing was the result of an intentional act; and
                   (2) That the killing was committed while in the sudden heat of
                   passion upon reasonable provocation;

               then you shall find Mrs. Smith guilty of voluntary manslaughter
               ....

The jury was also instructed that, “[h]eat of passion excludes malice when [it] arises from

provocation that reasonably produces an emotional state of mind such as hot blood, rage, anger,

resentment, terror, or fear” and that the provocation must have “so aroused the anger of the

assailant as to temporarily affect his reason and self-control.” Neither Smith nor the

Commonwealth asked the trial court to instruct the jury that words alone are never sufficient

provocation to reduce murder to manslaughter, even though this principle is well established in

our case law, and there is a model jury instruction to this effect. See Martin v. Commonwealth,




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184 Va. 1009, 1016-17 (1946), and Virginia Model Jury Instructions—Criminal, No. 33.550

(“Words alone, no matter how offensive or insulting they may be, are never sufficient

provocation to reduce the offense of murder to manslaughter.”).

       Although Smith raised the issue that words alone are never sufficient provocation to

reduce murder to manslaughter in her motion to set aside the verdict, that argument came too

late. See Spitzli v. Minson, 231 Va. 12, 19 (1986) (“Here, the defendant did make a motion to set

aside the verdict, but this does not save him from his failure to object to the instructions which

submitted the issues … to the jury.”). In this case, Smith expressly agreed to jury instructions

that omitted the very legal principle on which she seeks to rely on appeal. We have clearly

stated that an agreed jury instruction becomes the law of the case, even if it imposes “an

inappropriate standard.” Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 136 (1992).

By failing to object to Jury Instruction No. 6, and by failing to request an instruction on the

principle that words alone are insufficient provocation to support reducing murder to

manslaughter, Smith waived any arguments on appeal with respect to defects in the wording of

the voluntary manslaughter instruction, or as to whether an instruction on voluntary

manslaughter should have been given at all, absent an instruction that words alone are

insufficient provocation to support a conviction of voluntary manslaughter. See id.

                                  C. Sufficiency of the Evidence

       The jury in this case was instructed that it could find Smith guilty of voluntary

manslaughter if it found that the killing was not malicious but was still intentional and

committed while in the sudden heat of passion upon reasonable provocation. They were never

instructed that a verbal argument alone is not sufficient to constitute reasonable provocation, and

Smith never requested that the jury be so instructed. Jurors are not expected to know the law




                                                 12
independently. Breeden v. Commonwealth, 217 Va. 297, 300 (1976). Because the voluntary

manslaughter instruction was agreed upon and is now the law of the case, we need not express an

opinion as to the correctness of this instruction. Rather, we consider whether the evidence was

sufficient to support Smith’s conviction for voluntary manslaughter based upon the instructions

given in this case.

       The Commonwealth presented evidence of Smith’s familiarity with firearms and the

methods of unloading and checking to see whether a weapon is loaded. The jury could have

considered the location of Sean’s wound, and reject Smith’s claim that she did not aim the gun,

particularly in light of her ultimate admission that she aimed at the window near where Sean was

standing. In this case, the jury could have found that the act of pulling the trigger was an

intentional act, and that this killing was therefore not an accident. There was also evidence

presented by the Commonwealth that Smith and Sean had been arguing, that Smith then went

downstairs, got her gun, and came back upstairs and shot Sean. The jury could have inferred that

Smith was angry with Sean and came upstairs and shot Sean while under a heat of passion

produced by the argument. Under these circumstances, we cannot say that the evidence was

insufficient to support the jury’s verdict.

       Because we find the evidence sufficient to support the conviction for voluntary

manslaughter, we need not consider whether the Court of Appeals properly applied our prior

decision in Blankenship when it determined the evidence supported a conviction of second

degree murder and thereby justified Smith’s conviction of the lesser offense of voluntary

manslaughter. Instead, because we conclude that the development of additional facts in this case

is unnecessary and that the evidence in the record fully supports it, we will affirm the judgment

of the Court of Appeals as the right result for a different reason. Robinson Family, LLC v. Allen,




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295 Va. 130, 141 n.9 (2018) (reviewing court may affirm the judgment of the lower court by

applying the “right-result-different reason doctrine,” but in doing so, the reviewing court “do[es]

not examine the lower court's reasoning”); Rickman v. Commonwealth, 294 Va. 531, 542 (2017)

(reviewing court may affirm the judgment of the lower court by applying the “right-result-

different reason doctrine,” but in doing so, the reviewing court “express[es] no view on the

correctness of the lower court's rationale”).

                                           III. Conclusion

       For the reasons stated, we will affirm the judgment of the Court of Appeals sustaining the

conviction.

                                                                                            Affirmed.



JUSTICE KELSEY, with whom JUSTICE McCLANAHAN and JUSTICE McCULLOUGH
join, concurring.

       I fully agree with the Chief Justice’s opinion. The legal analysis, as well as its specific

holding, hews closely to our traditional view that “the doctrine of judicial restraint dictates that

we decide cases ‘on the best and narrowest grounds available.’” Commonwealth v. White, 293

Va. 411, 419 (2017) (alteration and citation omitted).

       I concur only to call attention to Judge Humphreys’s historical analysis of the crime of

manslaughter under English common law. See Smith v. Commonwealth, 68 Va. App. 399, 421-

36 (2018) (Humphreys, J., concurring). His thesis begins with Blackstone’s definition of

manslaughter as “[t]he unlawful killing of another without malice either express or implied,” id.

at 423 (quoting 4 William Blackstone, Commentaries *190), and thereafter surveys how an

anfractuous series of precedents seems to suggest that “‘heat of passion upon reasonable

provocation’ has evolved into the only currently legally recognized factor in the Commonwealth


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that negates malice,” id. at 426. The present case does not present an opportunity to test this

thesis, but future cases no doubt will.




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