                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Clements and Beales
Argued at Richmond, Virginia


JERRY LAMONT BARNES
                                                                MEMORANDUM OPINION* BY
v.        Record No. 2589-05-2                                JUDGE JEAN HARRISON CLEMENTS
                                                                      JANUARY 9, 2007
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
                                   W. Allan Sharrett, Judge

                    (Christopher B. Ackerman, on brief), for appellant. Appellant
                    submitting on brief.

                    Karen Misbach, Assistant Attorney General (Robert F. McDonnell,
                    Attorney General, on brief), for appellee.


          Jerry Lamont Barnes was convicted in a jury trial of malicious wounding, in violation of

Code § 18.2-51. On appeal, he contends the trial court erred in (1) finding the prosecutor’s use of a

peremptory strike to remove a member of the jury panel was not racially motivated, (2) refusing to

instruct the jury that malice may not ordinarily be inferred from a blow with a fist, and (3) refusing

to instruct the jury on heat of passion. Finding no error, we affirm the trial court’s judgment and

appellant’s conviction.

          As the parties are fully conversant with the record in this case, and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this

appeal.



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

          Barnes was indicted for feloniously and maliciously causing bodily harm to Andra Childers,

a household member, with the intent to maim, disfigure, disable, or kill her.

          During jury selection, the prosecutor exercised a peremptory strike to remove Donna

Pettaway, an African-American woman, from the jury panel. Barnes’s attorney objected, arguing

that the removal of Pettaway was racially motivated. The prosecutor explained her use of a

peremptory strike to remove Pettaway from the jury panel as follows: “Pettaway is a familiar name

in the Commonwealth’s Attorney’s office. I’m not sure if she is related to them or not. Hopewell is

a small town. I . . . had two Pettaways on my docket yesterday. I was concerned about her family’s

dealings with my office.” Defense counsel responded, “They are not good reasons to be removing

[her].”

          In the ensuing discussion with the trial judge, the prosecutor acknowledged that Pettaway

did not indicate during voir dire questioning of the jury panel that any member of her family had

been charged with a crime. When asked by the judge why she did not follow up on Pettaway’s lack

of a response by privately asking her if anyone in her family had been arrested, the prosecutor

explained that there were “many different Pettaways and [she] did not call specific names to

follow-up on that.” She further explained that she had already decided at that point to use a

peremptory strike to remove Pettaway from the jury panel, rather than attempt to do so for cause.

          After initially finding the defense had “made out a prima facie case of purposeful

discrimination,” the trial judge concluded that the prosecutor’s explanation for striking Pettaway

was neither inherently discriminatory nor a pretext for racial discrimination. Accordingly, the

judge overruled the defense’s objection to the peremptory strike.

          At trial, two very different versions of the events of the night in question emerged.

Childers testified that she and Barnes were living together in an apartment at the time of the

                                                  -2-
alleged assault. According to Childers, she was drinking alcoholic beverages and playing cards

with friends at a neighbor’s apartment in the same building on March 25, 2005. When Barnes

came home that night, he went to the apartment where Childers was playing cards and angrily

dragged her down the hallway to their apartment. There, he hit her once with his open hand and

stepped on her face when she fell to the floor. She said she remained in her apartment in bed

until the next day when her neighbors discovered her and called the police.

          Robert Gregory testified that he hosted the card game attended by Childers on March 25,

2005. He said that, when Barnes arrived at the card game, he grabbed Childers’s shirt and pulled

her down the hall to their apartment. Shortly thereafter, he heard noises from their apartment

that “sounded like a woman getting hurt.” He further testified that, when he saw Childers the

next day, her face was “black and blue” and “swollen” and that it was not like that the night

before.

          Richard Barbie, a neighbor of Childers and Barnes, testified that Barnes approached him

in the hallway of the apartment building on March 26, 2005, and said he “need[ed] somebody to

talk to, bad.” After speaking with Barnes, Barbie went to Childers and Barnes’s apartment, and

knocked on the door. When Childers answered the door, Barbie saw she had a “[m]essed up

face.” Barbie called 911.

          The police officer who investigated the call testified that Childers told him she had been

“beaten” by Barnes but did not report that Barnes had kicked or stepped on her. He noted in his

report that Childers stated that Barnes “had punched her in the face several times with his fist.”

The officer also testified that, when he went to Childers and Barnes’s apartment, he saw “blood

splatter” on the bed where she was sitting. He also observed that “the left side of her face was

very swollen,” her eye was “bruised” and “half swollen shut,” and she had “blood trickling from

her nose and from her mouth area.”

                                                 -3-
       The doctor who treated Childers in the emergency room on March 26, 2005, testified that

Childers told him she had been punched in the face the previous day. He ordered a CAT scan to

evaluate her facial injuries. The scan revealed that her cheekbone, jawbone, and “two bones

deeper inside the face” were fractured. The doctor testified that the fractures were recently

inflicted and the result of “very significant trauma to her face” caused by blunt force. The doctor

further testified that Childers “was so swollen and bruised,” he could not tell whether the injuries

had been caused by one punch or multiple punches.

       Barnes testified at trial that he and Childers had a romantic relationship and had lived

together for six months. According to Barnes, he returned home from work on the night of

March 25, 2005, and found Childers asleep in bed with another man who lived in their building.

Childers and the man were nude and highly intoxicated. Barnes, who had previously spoken to a

police officer about this man visiting his apartment, became “frustrated” by what he saw. He

woke the man and asked him to leave. A scuffle ensued. Barnes and the man “got locked up or

tangled up, fists were flying, open hands were flying.” Childers “woke up . . . while [Barnes]

and [the other man were] tussling, [and] some kind of way she got hit” when she sat up in the

bed during the commotion. After the struggle, the man grabbed his clothes and ran from the

room. Barnes talked with Childers, trying to get an explanation, and then left the apartment.

Barnes testified the room was “dim and lit from the light on the TV” during these events. He

further testified that he did not “see [Childers] get hit.” He denied stomping on her face. He also

testified that the events related to the card game had happened a week before the events of March

25, 2005.

       During a discussion regarding jury instructions, Barnes’s attorney asked the judge to

instruct the jury that, “[u]nder ordinary circumstances[,] malice may not be inferred from a blow

with a fist.” The trial judge refused to give the instruction, ruling that the statement “seems to

                                                -4-
contradict the law” and that there was “evidence of a foot stomping should the jury choose to

believe it.” Barnes’s attorney also asked the judge to instruct the jury on heat of passion. The

judge ruled that no evidence was presented by either party that supported the giving of such an

instruction. The trial judge gave a finding instruction that set out the requisite elements of

malicious wounding, unlawful wounding, and assault and battery.

        The jury subsequently convicted Barnes of maliciously causing bodily injury, as charged.

This appeal followed.

                                     II. PEREMPTORY STRIKE

        On appeal, Barnes contends the Commonwealth’s use of a peremptory strike to remove

Pettaway was racially discriminatory in violation of Batson v. Kentucky, 476 U.S. 79 (1986).

Specifically, he contends the trial judge erred in ruling the prosecutor’s stated reason for striking

Pettaway was race neutral. We disagree.

        The United States Supreme Court held in Batson, that, “[a]lthough a prosecutor ordinarily

is entitled to exercise permitted peremptory challenges ‘for any reason at all, as long as that

reason is related to his view concerning the outcome’ of the case to be tried, the Equal Protection

Clause forbids the prosecutor to challenge potential jurors solely on account of their race.” 476

U.S. at 89 (quoting United States v. Robinson, 421 F. Supp. 467, 473 (Conn. 1976)).

                        When a defendant raises a challenge based on Batson, he
                must make a prima facie showing that the peremptory strike was
                made on racial grounds. At that point, the burden shifts to the
                prosecution to produce race-neutral explanations for striking the
                juror. The defendant may then provide reasons why the
                prosecution’s explanations were pretextual and the strikes were
                discriminatory regardless of the prosecution’s stated explanations.
                Whether the defendant has carried his burden of proving
                purposeful discrimination in the selection of the jury is then a
                matter to be decided by the trial court.

Jackson v. Commonwealth, 266 Va. 423, 436, 587 S.E.2d 532, 542 (2003).



                                                  -5-
        In assessing whether the prosecutor’s explanation for striking the potential juror is race

neutral as a matter of law, “‘the issue is the facial validity of the prosecutor’s explanation.

Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will

be deemed race neutral.’” Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam) (quoting

Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality opinion)). Indeed, “[a]lthough the

prosecutor must present a comprehensible reason” for the strike, the justification proffered by the

prosecutor need not be “‘persuasive, or even plausible’; so long as the reason is not inherently

discriminatory, it suffices.” Rice v. Collins, 126 S. Ct. 969, 973-74 (2006) (quoting Purkett, 514

U.S. at 767-68).

        If the prosecutor provides a race neutral reason for the peremptory strike, “the court must

then determine whether the defendant has carried his burden of proving purposeful

discrimination.” Id. at 974. “This final step involves evaluating ‘the persuasiveness of the

justification’ proffered by the prosecutor . . . .” Id. (quoting Purkett, 514 U.S. at 768). It is at

this stage of the inquiry that “implausible or fantastic justifications may (and probably will) be

found to be pretexts for purposeful discrimination.” Purkett, 514 U.S. at 768. “[T]he ultimate

burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent

of the strike.” Id. Hence, “[t]he burden of ‘proving that the prosecution engaged in purposeful

discrimination’ remains with the defendant and may not be shifted to the trial court” in “‘the

absence of defense counsel’s identification of a false or pretextual reason for the peremptory

strike[].’” Robertson v. Commonwealth, 18 Va. App. 635, 638, 445 S.E.2d 713, 715 (1994)

(quoting Buck v. Commonwealth, 247 Va. 449, 453, 443 S.E.2d 414, 416 (1994)). The trial

court’s finding that the prosecutor’s explanation for the strike is not pretextual or false is entitled

to great deference and that determination will not be reversed on appeal unless it is clearly

erroneous. Id. at 639, 445 S.E.2d at 715. “This standard of review logically recognizes the trial

                                                 -6-
court’s unique opportunity to observe and evaluate ‘the prosecutor’s state of mind based on

demeanor and credibility’ in the context of the case then before the court.’” Id. (quoting

Hernandez, 500 U.S. at 365).

       Here, the prosecutor’s reasoning for the peremptory strike related to Pettaway’s last

name. The prosecutor explained that, in light of Hopewell’s small size and the Commonwealth’s

Attorney’s office’s familiarity with the name Pettaway, she was concerned that Pettaway might

be related to the “many” Pettaways who had had dealings with the Hopewell Commonwealth’s

Attorney’s office. Implicit in this explanation is the prosecutor’s concern that Pettaway might have

harbored a bias against the prosecution because of her family ties. That concern, according to the

prosecutor’s explanation, was based strictly on Pettaway’s last name. Plainly, having the same last

name as others who have been prosecuted by the Commonwealth’s Attorney’s office is not peculiar

to any race. Likewise, concern about a potential juror’s bias against the Commonwealth, based on

family ties to criminal defendants, transcends the race or ethnic background of the juror. Thus,

taken as true, the prosecutor’s explanation indicates the peremptory strike was not based on the

intention to exclude an African-American from the jury panel, but rather on the intention to exclude

a potential juror whose impartiality may have been tainted by their family connections. Such

reasoning would apply to exclude all similarly situated jurors regardless of their race. Additionally,

the prosecutor’s explanation was not manifestly based on impermissible generalizations or

stereotypical assumptions regarding racial groups. We conclude, therefore, that the prosecutor’s

explanation was not inherently discriminatory. Hence, the trial judge correctly deemed it race

neutral.

       Moreover, Barnes failed to meet his burden of proving purposeful discrimination. After

the prosecutor presented her explanation for striking Pettaway from the jury panel, Barnes’s

counsel made no attempt to show that the prosecutor’s explanation was merely a pretext for a

                                                 -7-
racially motivated strike. Instead, he argued solely that “[t]hey [were] not good reasons” for

removing Pettaway. Having been provided no basis to conclude otherwise, the trial judge found

that the prosecutor’s explanation for striking Pettaway was not pretextual. Upon our review of

the record, we cannot say that finding was clearly erroneous.1

       Accordingly, we hold the trial judge did not err in overruling the defense’s Batson

objection to the prosecutor’s use of a peremptory strike to remove Pettaway from the jury panel.

                                   II. JURY INSTRUCTIONS

       On appeal, Barnes argues that, because the evidence permitted the jury to conclude that

he struck Childers only once in the face with his hand, the jury should have been instructed that,

“[u]nder ordinary circumstances[,] malice may not be inferred from a blow with a fist.”2 He also

argues that, because the evidence permitted the jury to conclude that he wounded Childers as a

result of the sudden rage he experienced in finding his live-in girlfriend naked in bed with

another man, the jury should have been instructed on the defense of heat of passion. In refusing

to give those instructions, the jury was not afforded the opportunity to find he lacked the

requisite intent to convict him of malicious wounding, he maintains. Thus, he concludes, the

trial court erred in refusing to give the two jury instructions he requested concerning malice. We

disagree.




       1
         On appeal, Barnes argues that the prosecutor’s basis for removing Pettaway was “based
on conjecture and speculation” because no evidence obtained during voir dire suggested
Pettaway was related to anyone who had had dealings with the Commonwealth’s Attorney’s
office. However, Barnes’s “failure to raise these arguments before the trial court precludes him
from raising them for the first time on appeal.” Buck, 247 Va. at 452-53, 443 S.E.2d at 416;
Rule 5A:18.
       2
         The Commonwealth does not contest Barnes’s claim that the evidence supports a
finding that he hit Childers in the face with his hand only once. Thus, for purposes of resolving
the present issue, we will assume, without deciding, that Barnes’s claim is correct.
                                                 -8-
        “When reviewing a trial court’s refusal to give a proffered jury instruction, we view the

evidence in the light most favorable to the proponent of the instruction.” Commonwealth v.

Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221 (2002). “‘The trial judge has broad discretion in

giving or denying instructions requested.’” Gaines v. Commonwealth, 39 Va. App. 562, 568,

574 S.E.2d 775, 778 (2003) (en banc) (quoting John L. Costello, Virginia Criminal Law and

Procedure § 60.6-8, at 810 (2d ed. 1995)).

        In reviewing a jury instruction, we have the responsibility “‘to see that the law has been

clearly stated and that the instructions cover all issues which the evidence fairly raises.’” Darnell

v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting Swisher v.

Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). “No instruction should be given that

‘incorrectly states the applicable law or which would be confusing or misleading to the jury.’”

Mouberry v. Commonwealth, 39 Va. App. 576, 582, 575 S.E.2d 567, 569 (2003) (quoting Bruce

v. Commonwealth, 9 Va. App. 298, 300, 387 S.E.2d 279, 280 (1990)). “A party is entitled to

have the jury instructed according to the law favorable to his or her theory of the case if evidence in

the record supports it.” Foster v. Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200

(1991). However, “it is not error to refuse an instruction when there is no evidence to support it.”

Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001). In other words, even if

the requested jury instruction contains an accurate statement of the law, “a trial court does not

abuse its discretion by refusing the instruction if it ‘is not applicable to the facts and

circumstances of the case,’ Hatcher v. Commonwealth, 218 Va. 811, 813-14, 241 S.E.2d 756,

758 (1978), or if it ‘would have created confusion and would have been misleading[,]’ Hubbard

v. Commonwealth, 243 Va. 1, 15, 413 S.E.2d 875, 883 (1992).” Juniper v. Commonwealth, 271

Va. 362, 431, 626 S.E.2d 383, 426 (2006).




                                                  -9-
                         A. Inference of Malice from a Blow with a Fist

                       Malice inheres in the intentional doing of a wrongful act
               without legal justification or excuse. Malice is not confined to ill
               will, but includes any action flowing from a wicked or corrupt
               motive, done with an evil mind or wrongful intention, where the
               act has been attended with such circumstances as to carry in it the
               plain indication of a heart deliberately bent on mischief. Malice is
               implied from any willful, deliberate and cruel act against another.

Williams v. Commonwealth, 13 Va. App. 393, 398, 412 S.E.2d 202, 205 (1991). Addressing the

question whether malice may be inferred from a blow with a fist, the Supreme Court stated in

Roark v. Commonwealth, 182 Va. 244, 28 S.E.2d 693 (1944), as follows:

                       Ordinarily, the fist is not regarded as a dangerous or deadly
               weapon. Hence, usually, death is not held to be a natural and
               probable result of a blow with the bare fist. Under ordinary
               circumstances no malice may be inferred from such a blow even
               though death results. However, an assault with the bare fist may
               be attended with such circumstances of violence and brutality that
               an intent to kill will be presumed.

182 Va. at 250, 28 S.E.2d at 695-96 (citations omitted).

       In Roark, the victim and the appellant got into an argument. Id. at 246, 28 S.E.2d at 694.

The appellant, who was right-handed, struck the victim with his left fist and knocked him to the

ground. Id. at 246, 252, 28 S.E.2d at 694, 696. The victim suffered a cracked skull when his

head hit the sidewalk. Id. at 246, 28 S.E.2d at 694. The victim was taken to the hospital where

he died later that day. Id. All of the doctors who examined the victim agreed “that death

resulted from the fractures and that the fractures were the result of the fall on the sidewalk and

not the blow” by the defendant. Id. at 247, 28 S.E.2d at 694. The Supreme Court held that the

circumstances of that case would not support an inference of malice, as a matter of law. Id. at

247, 28 S.E.2d at 694.

       Relying on Roark, Barnes contends the trial judge should have instructed the jury that,

“[u]nder ordinary circumstance[,] malice may not be inferred from a blow with a fist.” However,

                                               - 10 -
the facts in this case are unlike the situation in Roark where the victim’s injuries were the result

of the fall rather than the blow with the fist itself. The facts here are more analogous to those in

Fletcher v. Commonwealth, 209 Va. 636, 166 S.E.2d 269 (1969).

       In Fletcher, the appellant hit the victim in the face with his fist while the victim was

sleeping. 209 Va. at 638, 166 S.E.2d at 271.

               As a result of the assault on [the victim], blood ran out of his eyes,
               nose and mouth. He sustained cuts on his forehead, over the side
               of his mouth, and on his cheek. There were bruises below the
               lower lid of his right eye and a moderate superficial hemorrhage in
               the eye, and a definite depression of the left eye. He had double
               vision in “all fields of gaze.” He also suffered what his doctor
               described as a “blow-out fracture of the orbital floor with
               incarceration of muscle and the orbital tissue in the fracture.” The
               doctor testified that a blow or blows with a fist could have caused
               the injuries suffered by [the victim].

Id. at 638, 166 S.E.2d at 271-72. Addressing the appellant’s claim that the trial court erred in

refusing to instruct the jury that “an intent to permanently maim, disable, disfigure or kill cannot

be presumed by a blow from a fist,” the Supreme Court held:

                       Under ordinary circumstances, an intent to maim may not
               be presumed from a blow with a bare fist. But an assault with a
               bare fist may be attended with such circumstances of violence and
               brutality that an intent to kill may be presumed.
                       Here the evidence shows that the assault with the bare fist
               was attended with such circumstances of violence and brutality
               that an intent to maim, disfigure or kill may be presumed. The
               evidence did not justify giving the instruction in the form offered,
               and it would have been misleading to the jury. Thus it was
               properly refused.

Id. at 640-41, 166 S.E.2d at 273 (citations omitted).

       As in Fletcher, the evidence presented in this case, even when viewed in the light most

favorable to Barnes, supports the finding that the circumstances of violence and brutality that

attended the assault were extraordinary. Indeed, the uncontradicted medical evidence presented

in this case established that Childers’s cheekbone, jawbone, and “two bones deeper inside the

                                                - 11 -
face” were fractured as a result of the assault by Barnes. The doctor who examined Childers

testified that the fractures were the result of “very significant trauma to her face” caused by blunt

force. The doctor further testified that Childers “was so swollen and bruised,” he could not tell

whether the injuries had been caused by one punch or multiple punches. Thus, unlike in Roark,

the evidence presented in this case shows that the assault was attended with such circumstances

of violence and brutality that malice could properly be inferred from the blow with a fist.

       Accordingly, Barnes’s proffered instruction was an incomplete statement of the

applicable law. While it would have correctly informed the jury that malice may not ordinarily

be inferred from a blow with a bare fist, it would have neglected to inform the jury that a blow

with a bare fist may be attended with such circumstances of violence and brutality that malice

may be inferred from it.

       We conclude, therefore, that the evidence presented in this case “did not justify giving the

instruction in the form offered, and it would have been misleading to the jury.” Id. at 641, 166

S.E.2d at 273. Hence, the trial judge did not abuse his discretion in refusing the instruction.

                                        B. Heat of Passion

       Barnes contends the trial judge should have given the jury the proffered instruction on

heat of passion because the evidence adduced at trial supports a finding that he wounded Childers

in the heat of passion when he returned home and found her in bed with another man. The

Commonwealth contends the requested instruction was not applicable to the facts and

circumstances of this case because Barnes did not testify that he hit Childers. We agree with the

Commonwealth.

       “Heat of passion . . . may be founded upon rage, fear, or a combination of both. Malice

and heat of passion are mutually exclusive; malice excludes passion, and passion presupposes the

absence of malice.” Barrett v. Commonwealth, 231 Va. 102, 106, 341 S.E.2d 190, 192 (1986)

                                               - 12 -
(citations omitted). Heat of passion “‘is the furor brevis which renders a man deaf to the value

of reason, so that, although the act done was intentional . . . , it was not the result of malignity of

heart, but imputable to human infirmity.’” Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1,

5 (1958) (second emphasis added) (quoting Brown v. Commonwealth, 86 Va. 466, 473, 10 S.E.

745, 747 (1890)); see also Hodge v. Commonwealth, 217 Va. 338, 345, 228 S.E.2d 692, 697

(1976) (noting that the issue of heat of passion arises only after there is “a prima facie showing

that malice exists” (emphasis omitted)); Williams, 13 Va. App. at 398, 412 S.E.2d at 205

(“Malice inheres in the intentional doing of a wrongful act without legal justification or excuse.”

(emphasis added)). Thus, Barnes was entitled to a heat of passion instruction if the record

contains affirmative evidence showing that Barnes intentionally wounded Childers and that the

wounding was done in the heat of passion. See generally Hughes v. Commonwealth, 43 Va. App.

391, 403, 598 S.E.2d 743, 748 (2004) (“In evaluating whether the trial court erred in failing to grant

an instruction, the appellate courts review the record for ‘affirmative evidence’ that supports the

instruction, rather than basing the review upon ‘the jury’s ability to reject evidence . . . .’” (quoting

Vaughn, 263 Va. at 37, 557 S.E.2d at 223)). Conversely, Barnes was not entitled to a heat of

passion instruction if the record reveals the issue of heat of passion was not properly raised by the

evidence.3 See Rhodes v. Commonwealth, 41 Va. App. 195, 200, 202, 483 S.E.2d 773, 775-76

(2003) (holding that a jury instruction on heat of passion is properly refused if it is not supported by

the evidence).

        As previously noted, the parties presented very different versions of events. Barnes relies

exclusively on his version of events to support his claim of heat of passion. We find, however,

no affirmative evidence in Barnes’s version of events that suggests that Barnes intentionally


        3
         Barnes does not argue on appeal, and did not argue at trial, that the doctrine of
transferred intent supports the giving of a heat of passion instruction in this case. Accordingly,
that matter is not before us here.
                                                - 13 -
wounded Childers. Indeed, Barnes gave no indication at trial that he intentionally hit or

otherwise made physical contact with Childers. According to Barnes’s testimony, he assaulted

the man he found in bed with Childers, but he never testified that he assaulted Childers. Rather,

he testified that she somehow got hit when she woke up while he and the other man were

tussling. In fact, he stated that he never even saw her get hit. Viewed in the light most favorable

to Barnes, this evidence establishes, at most, that Barnes attacked the other man in the heat of

passion and, in the course of that struggle, Childers was accidentally hit and wounded. As the

trial judge noted, however, Barnes was “not on trial for hitting the other man. He [was] on trial

for hitting [Childers] and he [said] he doesn’t know what happened to her.” Thus, Barnes’s

version of the events, if believed, supports an acquittal, but it does not support a heat of passion

instruction.

       Likewise, nothing in the Commonwealth’s evidence supports a heat of passion

instruction.

       We hold, therefore, that the evidence in this case is insufficient, as a matter of law, to

support a heat of passion instruction. Accordingly, the trial judge did not abuse his discretion in

refusing to give the heat of passion instruction requested by Barnes.

                                        III. CONCLUSION

       For these reasons we affirm the trial court’s judgment and Barnes’s conviction.

                                                                                      Affirmed.




                                                - 14 -
Benton, J., dissenting.

       I concur with the majority’s holdings regarding the Batson issue and the inference of

malice. I dissent, however, from the holding that approves the trial judge’s refusal to instruct the

jury on heat of passion. I believe sufficient facts exist from which a jury could conclude Jerry

Lamont Barnes struck Andra Childers during a passionate rage provoked by his discovery of her

in bed with another man.

       It is well settled that a trial judge has a “‘duty . . . to instruct the jury[, when requested to

do so,] on all principles of law applicable to the pleadings and the evidence.’” Dowdy v.

Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508 (1979) (quoting Taylor v.

Commonwealth, 186 Va. 587, 592, 43 S.E.2d 906, 909 (1947)). As a general rule, whether an

accused acted “in the heat of passion upon reasonable provocation is a jury question.” Barrett v.

Commonwealth, 231 Va. 102, 106, 341 S.E.2d 190, 192 (1986).

       When we review the trial judge’s refusal of the jury instruction, we must view the

evidence in the light most favorable to Barnes, the proponent of the instruction. Commonwealth

v. Cary, 271 Va. 87, 99, 623 S.E.2d 906, 907 (2006). Viewed in this light, the evidence at trial

proved Childers received medical treatment at a hospital emergency room on the evening of

March 26, 2005, for “significant trauma to her face” caused by blunt force. The medical report

indicated Childers’s “cheekbone, the jawbone and two bones deeper inside the face were

fractured.” The doctor who treated Childers testified Childers reported she was “assaulted by

male subject, closed fist” the previous day. The doctor also testified he could not recall any

other complaints. He further testified the trauma to her face could have been caused by one

punch or multiple punches.

       According to Barnes’s testimony, he and Childers had a romantic relationship and

cohabitated in an apartment. When he returned home from work on the night of March 25, he

                                                 - 15 -
found Childers asleep in bed with another man who lived in their building. Barnes testified he

had earlier spoken to a police officer about this man visiting his apartment and also had told the

man to stay away. Barnes explained he became “frustrated” by what he saw. Childers and the

man were nude and appeared to be highly intoxicated. Childers had urinated and defecated in

their bed. Frustrated, Barnes woke the man and asked him to leave, causing a struggle. Barnes

and the man “got locked up or tangled up, fists were flying, open hands were flying.” Barnes

said Childers “woke up . . . while [he] and [the man] was tussling, [and] some kind of way she

got hit” in the bed during the commotion.

       Barnes testified the room was “dim and lit from the light on the TV” as these events

occurred. Barnes testified he did not see Childers get hit and denied stomping on her face. After

the man grabbed his clothes and ran from the room, Barnes talked with Childers, trying to get an

explanation, and then left the apartment.

       Barnes also testified this altercation occurred a week after another event. On the earlier

occasion, he arrived home and found Childers in an embrace with the same man. Childers was

intoxicated that night and hugging the man in another apartment where a card game was being

held. Barnes said he asked Childers to leave the apartment. He denied having a physical

altercation with her that evening.

       Although Childers and Barnes described different events, they both testified the events

occurred on March 25. Two of the Commonwealth’s witnesses contradicted Childers’s

testimony that she had reported Barnes stepped on her face. Contrary to Childers’s testimony

and consistent with Barnes’s testimony, both the doctor and a police officer testified Childers

only reported being punched. The police officer also testified that Childers was in bed when he

arrived at her apartment and that blood splatters were on the bed.




                                               - 16 -
        During the discussions concerning the appropriate jury instructions, the trial judge

removed a definition of heat of passion from the proffered instruction on malice. Denying

Barnes’s objection to removing heat of passion from the finding instruction, the trial judge ruled

the evidence was insufficient to raise an issue of heat of passion. The judge said:

                He assaulted the other man. . . . He’s not on trial for hitting the
                other man. He’s on trial for hitting this lady and he says he doesn’t
                know what happened to her. . . .

                I don’t see any evidence under the Commonwealth’s or the
                defense’s case that gives rise--I’m not sure there is even evidence
                on the Commonwealth’s side to give rise to heat of passion,
                certainly not the defense’s.

        This view of the evidence fails to account for Barnes’s testimony that Childers was injured

by blows she received while Barnes fought the man in the bed next to her. The evidence is

uncontroverted that Childers suffered injury to her face and that she suffered the injury during a

commotion involving Barnes. According to Barnes’s testimony, “some kind of way [Childers] got

hit” while he was enraged and fighting the man in their bed. Consistent with Barnes’s testimony,

the doctor testified Childers reported being injured when she was punched. Similarly, the police

officer testified Childers told him she had been hit in the face with a fist but did not say Barnes

stepped on her or kicked her. The officer’s report indicated “Childers stated . . . Barnes . . . had

punched her in the face several times with his fist.” Also consistent with Barnes’s testimony of

events, the officer testified that he saw blood splatter on the bed where Childers was sitting in her

apartment. Thus, the jury might well have rejected Childers’s version of events, believing instead

the evidence proving she had not been kicked and believing she was not willing to admit she was in

bed with the other man.

        On the evidence in the record, the jury could have found that Barnes caused Childers’s

injuries while in a rage and fighting the man laying next to her or that Barnes intentionally hit

Childers in the midst of his rage at seeing her in their bed with another man. Either finding would

                                                 - 17 -
raise a reasonable inference supporting the defense theory that Barnes’s actions, which caused

Childers’s injuries, were directed by passion, brought on by rage, rather than reason. See McClung

v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975) (noting that rage can support a

finding of heat of passion); Brown v. Commonwealth, 86 Va. 466, 473-74, 10 S.E. 745, 747-48

(1890) (holding that “passion . . . is the furor brevis, which renders a man deaf to the voice of

reason”). In refusing to instruct the jury about heat of passion, the trial judge failed to account for

the jury’s role in assessing Barnes’s testimony that Childers’s injury resulted from blows she

received while Barnes in an uncontrollable rage fought the man in the bed.

        “Where a defendant produces evidence that he acted in the heat of passion, he is entitled to

an instruction on the lesser offense of unlawful wounding.” Miller v. Commonwealth, 5 Va. App.

22, 25, 359 S.E.2d 841, 842 (1987). Though the trial judge instructed the jury on unlawful

wounding, the instructions did not distinguish malice from heat of passion. This omission deprived

Barnes of the benefit of a “correct statement of the law,” which this Court and the Supreme Court

have recognized as “one of the ‘essentials of a fair trial.’” Darnell v. Commonwealth, 6 Va. App.

485, 488, 370 S.E.2d 717, 719 (1988) (quoting Dowdy, 220 Va. at 116, 255 S.E.2d at 508); see also

Honsinger v. Egan, 266 Va. 269, 274, 585 S.E.2d 597, 600 (2003) (“The purpose of jury

instructions ‘is to fully and fairly inform the jury as to the law of the case applicable to the particular

facts, and not to confuse them.’” (quoting H. W. Miller Trucking Co. v. Flood, 203 Va. 934, 936,

128 S.E.2d 437, 439 (1962))).

        As fact finder, “the jury has wide latitude” in applying the law to the facts. Bradshaw v.

Commonwealth, 174 Va. 391, 401, 4 S.E.2d 752, 756 (1939). “A jury, not the trial court, weighs

the evidence and assesses the credibility of the witnesses.” Barrett, 231 Va. at 107, 341 S.E.2d at

193.

                        The jury is not required to accept, in toto, either the theory
                of the Commonwealth or that of an accused. They have the right
                                                  - 18 -
                to reject that part of the evidence believed by them to be untrue
                and to accept that found by them to be true. In so doing, they have
                broad discretion in applying the law to the facts and in fixing the
                degree of guilt, if any, of a person charged with a crime.

Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958).

        In summary, Barnes and Childers each recounted events that occurred on March 25,

albeit different ones, leading to Childers’s injury. Barnes was entitled to have the jury instructed

on heat of passion because the jury could have concluded his description of events caused

Childers to suffer injury. Indeed, in view of the evidence in this record, the jury could have

convicted Barnes of malicious wounding, believing he hit Childers and the man in the midst of

his rage at seeing her in their bed with the man. Thus, the trial judge improperly rejected the

hypotheses that the jury (1) could have accepted Barnes’s testimony about the events that

precipitated his conduct, (2) could have believed Barnes hit Childers when “some kind of way

she got hit,” and (3) could have believed from the extent of Childers’s injuries that Barnes

intentionally hit her.

        “[W]hen a principle of law is vital to a defendant in a criminal case, a trial court has an

affirmative duty properly to instruct a jury about the matter.” Jimenez v. Commonwealth, 241

Va. 244, 250, 402 S.E.2d 678, 681 (1991). Therefore, when, as here, the trial judge refused such

an instruction, “[t]he decisive question is not whether the evidence supports the verdict of the

jury, but whether under all the facts and circumstances the jury was properly instructed on the

pertinent principles of law and, therefore, whether the accused has had a fair and impartial trial.”

Belton, 200 Va. at 8, 104 S.E.2d at 4. The evidence in this case presented more than a scintilla

of independent evidence to support an instruction on heat of passion. Had they been instructed

on heat of passion, they could have found that Barnes acted while in that state of mind. By

removing the definition of heat of passion from the malice instruction, the trial judge denied

Barnes a fair and impartial trial.
                                                - 19 -
       For these reasons, I dissent. I would reverse the conviction for malicious wounding and

remand for a new trial.




                                             - 20 -
