                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Agee
Argued at Alexandria, Virginia


NICOLAS REYES
                                              MEMORANDUM OPINION * BY
v.   Record No. 0360-01-4                      JUDGE G. STEVEN AGEE
                                                   JULY 30, 2002
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                       John E. Kloch, Judge

          Lana M. Manitta (Mark J. Petrovich; Martin,
          Arif, Petrovich & Walsh, on brief), for
          appellant.

          Eugene Murphy, Assistant Attorney General
          (Randolph A. Beales, Attorney General, on
          brief), for appellee.


     Nicolas Reyes (Reyes) was convicted by an Alexandria

Circuit Court jury of first degree murder and the use of a

firearm in the commission of a murder.        He was sentenced to

serve a term of imprisonment of forty-seven years.        On appeal,

Reyes argues that the trial court erred by denying his proffered

jury instruction on voluntary manslaughter.       For the following

reason, we affirm the decision of the trial court.

                            I.   BACKGROUND

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, only those facts necessary to a disposition of this

appeal are recited.

     On the night of April 30, 1991, Bartolo Reyes (Bartolo)

suffered fatal gunshot wounds.    Reyes, Bartolo's live-in

boyfriend, fled the Commonwealth shortly thereafter.    He was not

found until arrested in Miami, Florida on July 18, 2000.

     Jose and Sonya Cruz lived in a house with Reyes and

Bartolo.   The Cruzes occupied one bedroom, Reyes and Bartolo the

other.   However, on the night Bartolo was shot, she and her

infant son were permitted, at her request, to stay with the

Cruzes in their bedroom.   After the lights were turned off,

Reyes entered the room.

     According to the Cruzes, Reyes opened the bedroom door,

turned on the lights, entered the room with a gun in his hand

and stated, "I'm going to kill you."     Reyes directed his words

to the bed where Bartolo was lying with her son.    Bartolo rose

and asked Reyes, "What's wrong with you?"    As Bartolo proceeded

towards Reyes, with nothing in her hands, Reyes fired the gun.

Bartolo fell to the ground and Reyes fired the gun again,

shooting Bartolo in the head.    The Cruzes further testified that

no struggle occurred between Reyes and Bartolo.

     Reyes, however, testified that he and Bartolo had problems

in their relationship and that she had previously threatened him

with a gun.   The night of her death, though, they were getting

along.   After Bartolo went to bed in the Cruzes' room, another

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occupant of the house told Reyes that she was calling him from

that room.   Reyes said he then entered the Cruzes' room and

asked Bartolo what she was doing in that room.      According to

Reyes' testimony, Bartolo then jumped out of the bed and said

that she was going to kill him.     They struggled, she tripped on

the edge of the bed and fell, and the gun went off.      He

testified that they both then fell to the floor and the other

shot went off.

     Reyes contends that he never had the gun in his hand and

that the incident was an accident.

     At the close of evidence, the trial court instructed the

jury on first and second degree murder, malice, self-defense and

accidental killing.   Although requested by Reyes, the trial

court did not instruct the jury on voluntary manslaughter

reasoning that no evidence showed Reyes acted in the heat of

passion or during mutual combat.

                            II.   ANALYSIS

     Reyes alleges on appeal that the trial judge erred in

refusing his proffered jury instruction on voluntary

manslaughter.    He contends an instruction on the offense of

voluntary manslaughter, a lesser-included offense of murder, is

supported by the evidence in the case.       As such, he argues the

trial court should have instructed the jury on the lesser

offense and its failure to do so constitutes reversible error.

We disagree.

                                  - 3 -
     In Turner v. Commonwealth, 23 Va. App. 270, 476 S.E.2d 504

(1996), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997), the trial court

instructed the jury on first and second degree murder but

refused to instruct it on voluntary manslaughter.   Turner was

convicted of first degree murder.   He appealed to this Court

alleging the trial court erred in refusing to instruct the jury

on voluntary manslaughter and that such an error required a new

trial.    We disagreed, holding that where the jury is instructed

on first degree murder and second degree murder, the jury

rejects second degree murder when the defendant is convicted of

first degree murder.   Such a verdict "compels the conclusion

that [the jury] would never have reached a voluntary

manslaughter verdict."    Id. at 277, 476 S.E.2d at 508

(citations omitted).   We deemed any error in refusing to give

the instruction to be harmless.   "[B]y rejecting the

lesser-included offense of second degree murder, [the jury]

necessarily rejected the factual basis upon which it might have

rendered a verdict on the lesser-included offense of voluntary

manslaughter."    Id. at 278, 476 S.E.2d at 508 (footnote

omitted).

     As in Turner, the jury in the case at bar convicted Reyes

of first degree murder.   In doing so, it found Reyes acted with

malice and premeditation, necessary elements of first degree

murder.   By contrast, voluntary manslaughter involves the

unlawful killing of another without malice or premeditation.

                                - 4 -
See Moxley v. Commonwealth, 195 Va. 151, 157, 77 S.E.2d 389, 393

(1953).   The jury would have convicted Reyes of second degree

murder if it did not find premeditation; it would have acquitted

if it did not find malice.   Pursuant to our holding in Turner,

therefore, any error by the trial court in refusing to give the

requested instruction is harmless beyond a reasonable doubt

because the jury necessarily rejected the factual basis of

killing without malice or premeditation upon which a voluntary

manslaughter verdict could have been returned.

     Therefore, assuming without deciding, that the trial court

erred in refusing to instruct the jury on voluntary

manslaughter, Turner mandates that such error was harmless.      The

judgment of the trial court is therefore affirmed.



                                                         Affirmed.




                               - 5 -
Benton, J., dissenting.

     In Turner v. Commonwealth, 23 Va. App. 270, 275, 476 S.E.2d

504, 507 (1996), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997), where

the jury convicted the defendant of first degree murder, this

Court and the Supreme Court held that the trial judge erred in

refusing to instruct the jury on voluntary manslaughter.    In

view of the facts of that case, however, both courts ruled that

the error was harmless.   Id.

     The issue whether Reyes acted maliciously and with

premeditation was disputed in this case.   Unlike in Turner,

where the opinion notes the evidence proved the defendant armed

himself, sought to find the victim, and continuously pursued and

shot the victim, 23 Va. App. at 273-74, 476 S.E.2d at 506, the

evidence in this case was sufficient to prove Reyes was unarmed.

See Blondel v. Hayes, 241 Va. 467, 469, 403 S.E.2d 340, 341

(1991) (holding that evidence must be viewed in the light most

favorable to the proponent of the instruction).   The evidence

further proved that Reyes and Bartolo argued and that after the

argument Bartolo went into a bedroom, which was not theirs.

When Reyes entered the bedroom and asked Bartolo why she was in

that bedroom, Bartolo jumped from the bed, threatened to kill

Reyes, and struggled with him.    Bartolo had a gun.   During the

course of the struggle, the gun discharged twice killing

Bartolo.



                                 - 6 -
             Although the evidence could have
          supported a finding of non-malicious
          homicide, the trial judge only instructed
          the jury on degrees of homicide that
          involved malice. A jury's decision to
          select culpability from one of the malicious
          homicides on which it was instructed does
          not manifest beyond a reasonable doubt that
          the jury would not have found a
          non-malicious killing if properly
          instructed. . . . [T]he jury's rejection of
          one theory of the case does not necessarily
          indicate that it would have rejected another
          theory of the case that was supported by
          evidence.

             In failing to instruct the jury that it
          could convict Turner of a homicide of a
          lesser grade than first or second degree
          murder, the trial judge misdirected the jury
          by limiting the jury's options to a finding
          of a malicious killing or a not guilty
          verdict.

Turner, 23 Va. App. at 281, 476 S.E.2d at 510 (Benton, J.,

dissenting) (citations omitted).

     In short, the jury might have decided to convict Reyes of

murder because the Commonwealth proved he intentionally killed

Bartolo without a reasonable belief that he was acting in

self-defense.   Because the jury was improperly instructed, it

could have reached that decision despite clear proof that Reyes

killed Bartolo upon sudden passion brought on by mutual combat.

In the absence of an instruction that a homicide also was

committed under the latter circumstances, the jury was precluded

from finding Reyes guilty of the lesser offense of voluntary

manslaughter.   The error, therefore, was not harmless.




                               - 7 -
     For these reasons and the reasons more fully stated in

Turner, 23 Va. App. at 279-86, 476 S.E.2d at 508-12 (Benton, J.,

dissenting), I would reverse the convictions and remand for a

new trial.




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