                   COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia


DEMETRIUS O'NEAL BELL
                                      MEMORANDUM OPINION * BY
v.        Record No. 0861-95-2     JUDGE JERE M. H. WILLIS, JR.
                                          JUNE 11, 1996
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    Von L. Piersall, Jr., Judge
          Dianne G. Ringer, Assistant Public Defender,
          for appellant.

          Eugene Murphy, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     On appeal from his jury trial convictions of second degree

murder, attempted murder in the second degree, and two

corresponding firearm charges, Demetrius O'Neal Bell contends (1)

that the trial court erred in refusing his proffered jury

instruction precluding an inference of malice from his possession

of a deadly weapon, (2) that the trial court erred in denying his

motion to set aside the verdict based on nondisclosure of

additional felony convictions of a Commonwealth's witness, and

(3) that the evidence is insufficient to support his convictions.

 We find no error and affirm the judgment of the trial court.

     On August 14, 1994, at approximately 6:30 p.m., Germaine

Green confronted Bell about a gun Bell had borrowed four months

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
earlier and had not returned.    Green approached Bell from behind,

punched him in the face, put him in a choke hold, and tried to

break his arm.    Green's younger brother, Laron Gist, was present

during this encounter.

        Later that same evening, Green and Gist went looking for

Bell.    Green had a gun in his back pocket.    Seeing a group of six

to eight people, including Bell, standing across the street,

Green and Gist crossed the street toward them.      At that time,

they had nothing in their hands.     Seeing them, Bell fired one

shot at Gist, killing him.     He then fired three or four times at

Green, who turned and ran.
        Bell testified that he saw Gist "raising up like that," and

thought Gist had a gun.    He also testified that Green fired at

him first and he returned fire.    Bell had obtained his weapon

that evening.

        The trial court gave the following instructions:

             Instruction 4.
                  The Court instructs the jury that you
             may infer malice from the deliberate use of a
             deadly weapon unless, from all the evidence,
             you have a reasonable doubt as to whether
             malice existed.

                  A "deadly weapon" is any   object or
             instrument, not a part of the   human body,
             that is likely to cause death   or great bodily
             injury because of the manner,   and under the
             circumstances, in which it is   used.

             Instruction 19.

                  The Court instructs the jury that if you
             believe that the defendant was without fault
             in provoking or bringing on the difficulty,



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          and if you further believe that the defendant
          reasonably feared, under the circumstances as
          they appeared to him, that he was in danger
          of being killed or that he was in danger of
          great bodily harm, then the killing was in
          self-defense and you shall find the defendant
          not guilty.

          Instruction 20.

               The Court instructs the jury that if you
          believe that the defendant was without fault
          in provoking or bringing on the difficulty,
          and if you further believe that the defendant
          reasonably feared, under the circumstances as
          they appeared to him, that he was in danger
          of being killed or that he was in danger of
          great bodily harm, then the attempted killing
          was in self-defense and you shall find the
          defendant not guilty.
          Instruction 21.

               The Court instructs the jury that in
          passing upon the danger, if any, to which the
          defendant was exposed, you will consider the
          circumstances as they reasonably appeared to
          the defendant.


     The trial court refused the following jury instruction,

which was proffered by Bell:
          Instruction D-1.

               The Court instructs that when a person
          reasonably apprehends that another intends to
          attack him for the purpose of killing him or
          doing him serious bodily harm, then such
          person has a right to arm himself for his own
          necessary self-protection, and in such case,
          no inference of malice can be drawn from the
          fact that he prepared for it.


     Contending that the refusal of Instruction D-1 was error,

Bell argues that this denied the jury the opportunity to assess

all the evidence in light of his self-defense claim.




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     On review of the refusal of a jury instruction, we view the

evidence in the light most favorable to the proponent of the

instruction.   Martin v. Commonwealth, 13 Va. App. 524, 526, 414

S.E.2d 401, 401 (1992).   However, "'[w]hen granted instructions

fully and fairly cover a principle of law, a trial court does not

abuse its discretion in refusing another instruction relating to

the same legal principle.'"   Willis v. Commonwealth, 10 Va. App.

430, 444, 393 S.E.2d 405, 412 (1990) (citation omitted).
     Instructions 19 and 20 directed the jury to acquit Bell of

the murder and attempted murder charges if it found that he was

not at fault in bringing on the difficulty and "reasonably

feared" that he was in danger.    Instruction 21 directed the jury

to examine the circumstances from Bell's perspective.   These

instructions fully covered the self-defense issue.   The

Commonwealth made no contention that malice or criminal intent

should be imputed to Bell simply by virtue of his being armed.

Thus, Instruction D-1 addressed no issue in the case.

     Bell next contends that the trial court erred in denying his

motion to set aside the verdict when a Commonwealth's witness

testified falsely about his prior record.   At trial, Eugene

Ransom admitted that he had been convicted of two habitual

offender offenses, possession of cocaine, possession of heroin,

possession of a firearm, and petit larceny.   Subsequent to Bell's

trial in February, 1995, but prior to sentencing, Bell's counsel

discovered that Ransom had pled guilty in December, 1994 to



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forgery, uttering, and grand larceny.   He had not yet been

sentenced on the charges.   The Commonwealth failed to disclose

the December 24 pleas despite a proper motion for discovery.
          [T]he Commonwealth must turn over evidence
          favorable to an accused that is material to
          either guilt or punishment. In United States
          v. Bagley, 473 U.S. 667 (1985), the Court set
          forth the test for materiality, finding that
          evidence is material, "only 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.

Hughes v. Commonwealth, 18 Va. App. 510, 525, 446 S.E.2d 451,

460-61 (1994) (en banc) (citation omitted).     We have held that a

witness becomes a convicted felon, for impeachment purposes, when

a court accepts his voluntary guilty plea.    This is true even

though the witness has not yet been sentenced.     Fields v.

Commonwealth, 5 Va. App. 229, 234, 361 S.E.2d 359, 362 (1987).

"The non-disclosure of such evidence requires reversal, however,

only if it is material within the meaning of that term as defined

in Bagley."   Jeffries v. Commonwealth, 6 Va. App. 21, 28, 365

S.E.2d 773, 777 (1988).

     The trial court ruled that the undisclosed additional

convictions could not "in any reasonable likelihood have affected

the judgment of the jury in this case based on all the evidence

that was presented as well as the impeachment evidence that was

in fact presented of this particular witness."    The record

supports this holding.    Ransom was subjected to substantial

impeachment on his extensive criminal record.    No reasonable


                                - 5 -
likelihood exists that disclosure of his other felony convictions

would have affected the jury's judgment.    See Fitzgerald v. Bass,

6 Va. App. 38, 52-55, 366 S.E.2d 615, 623-24 (1988), cert.

denied, 493 U.S. 945 (1989).

     Finally, Bell contends that the evidence was insufficient to

support his convictions.   In addressing this issue, we view the

evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.   Higginbotham v. Commonwealth, 216 Va. 349, 352, 218

S.E.2d 534, 537 (1975).    "The jury's verdict will not be

disturbed on appeal unless it is plainly wrong or without

evidence to support it."    Traverso v. Commonwealth, 6 Va. App.

172, 176, 366 S.E.2d 719, 721 (1988).

     It is undisputed that Gist was not armed when he was shot

and killed by Bell.   Green testified that he had not drawn his

weapon or fired at Bell when Bell shot Gist.   The jury rejected

Bell's claim of self-defense.   "The weight which should be given

to evidence and whether the testimony of a witness is credible

are questions which the fact finder must decide."    Bridgeman v.

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).

The testimony of Green and Ransom was competent, was not

inherently incredible, and was sufficient to prove beyond a

reasonable doubt that Bell was guilty of second degree murder of

Gist, attempted second degree murder of Green, and the attendant

firearm charges.




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The judgment of the trial court is affirmed.

                                               Affirmed.




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