                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Annunziata and Humphreys
Argued at Alexandria, Virginia


JASON A. MORANT
                                           MEMORANDUM OPINION * BY
v.   Record No. 2559-00-4                JUDGE ROSEMARIE ANNUNZIATA
                                             JANUARY 22, 2002
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                       F. Bruce Bach, Judge

          Daniel T. Lopez, Senior Assistant Public
          Defender, for appellant.

          John H. McLees, Jr., Senior Assistant
          Attorney General (Randolph A. Beales, Acting
          Attorney General, on brief), for appellee.


     Appellant, Jason Morant, was convicted of first degree

murder by a jury and sentenced to forty years imprisonment.    He

contends on appeal that the trial court erroneously refused to

grant his proffered instruction on voluntary manslaughter as a

lesser-included offense and that it improperly responded to

certain jury questions during its deliberations on guilt.    For

the reasons that follow, we affirm.

                            Background

     "Although the Commonwealth prevailed at trial, the

appropriate standard of review requires that we view the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
evidence with respect to the refused instruction in the light

most favorable to the defendant."   Boone v. Commonwealth, 14 Va.

App. 130, 131, 415 S.E.2d 250, 251 (1992).   The evidence proved

that Robin Kehrer, the victim in this case, and Morant were

engaged in an intense but unstable romantic relationship for

approximately six and one-half years before the offense at

issue.   Kehrer had two children, at least one of which was

purportedly Morant's child.   They worked for the same company,

Inacom, and lived together for various periods of time, up to

the last several months before Kehrer was killed.

     On October 6, 1999, the Wednesday evening before the

killing, Morant and Kehrer had a dispute that resulted in each

moving out of the townhouse in which they had been living with

the two children.   Kehrer did not return to work until Monday,

October 11, 1999.   She appeared to be upset and asked a

co-worker to warn her if Morant appeared.    When she was advised

he had arrived, Kehrer "snuck" into her cubicle.

     Kehrer and Morant were later observed talking together in

an alcove leading to an entrance to an interior stairwell.    A

few minutes later, Inacom employees heard a scream, which one

described as sounding like a call for help or an expression of

surprise.

     Morant told police detective Boyle in an interview that

Kehrer "just went off, told him that she was going to ruin him,

destroy him, kick him out of the house, [sic] he was going to

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wish he had never been born."   He told Boyle that "he just

snapped."   He said he felt dizzy, saw white flakes, and just

lost it all in one day.   "'[Kehrer] was the mother of my

children.   I can't believe what happened.   I wish I had hurt

myself instead.'"   Morant measured more than six feet in height

and weighed over 220 pounds.    Kehrer was five feet tall, and at

autopsy, weighed 126 pounds.

     Morant testified to his relationship with Kehrer, the

difficulties he had with her family, the reasons for their

separation, the Monday confrontation before her death, and

threats Kehrer allegedly made to him.   According to Morant,

Kehrer told him:

            You're crazy. I'm going to tell everybody
            you're crazy. You're never going to see the
            kids again. I spoke with Wayna and she's
            not going to let you see Kyle either. . . .
            I'm going to get you fired from the job, you
            know, I'm going to tell everybody that you
            tried to commit suicide and, you know,
            they're not going to want you here.

Morant described his response as follows:

            And it hit me like a shock. . . . [M]y heart
            started beating really, really fast. And at
            that point it just -- emotionally, I was
            surprised and hurt. And there was [sic] all
            the things that I had shared with her about
            how I felt, she just went right down the row
            and hit like each one of them.

     Morant started down the stairway but Kehrer grabbed him

about his waist to stop him.    When he turned around, he had

"another flash and felt like the pain in my stomach again.      I


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saw her standing like with her finger in my face.    And I didn't

hear what she was saying . . . ."   The next thing he remembered

was "kneeling down on the stairs with my hands around [Kehrer's]

neck, choking her."

     He sat Kehrer up but she was "totally flaccid."     He took

off his belt and put it around her neck and tied it to the

banister because he did not want to leave her on the ground and

"it made sense at the time to hang her there."     He did not try

to revive her or call for help.

     Asked why he killed her, Morant testified that "when she

confronted me with all the things she was going to do to me,

something just snapped. . . . Anger was the least of what I

felt."   Morant gave varying explanations about his motivation,

stating and then retracting that the things that Kehrer said to

him that morning triggered the killing.

     Kehrer's body was found at the bottom of the stairwell,

hanging by a belt wrapped around her throat and tied to the

handrail.   She had socks on but no shoes.   Police investigating

the crime scene found Kehrer hanging 50 steps below the fourth

floor.   There was an earring loose in her hair.   The medical

examiner testified that she had suffered bruises to the inside

of her lower lip, the front of her tongue, and the insides of

both sides of the front of her scalp.   The latter bruises were

consistent with having been punched or having banged her head

against hard surfaces.   She had two abrasions on the outside of

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her left foot consistent with having been dragged and abrasions

on her left knee and lower leg and back of her left shoulder.     A

pierced earring hole in her left ear was bruised and bloodied.

     The cause of death was strangulation; signs of both

strangulation by hand and by the belt were manifest.       The

medical examiner was of the opinion that Kehrer could have been

revived if she had been given CPR within minutes of

asphyxiation.

     The trial court gave a finding instruction allowing

possible verdicts of first or second-degree murder or not

guilty.   It refused to give Morant's proffered finding

instruction and related instruction on voluntary manslaughter

and heat of passion.    The jury was given Instruction H, which

reads:

             Willful, deliberate, and premeditated means
             a specific intent to kill adopted at some
             time before the killing, but which need not
             exist for any particular length of time.

     During deliberations, the jury sent out two written

questions:    "Can 'premeditation' occur during the act of

'killing?'" and "Does 'killing' mean the act, i.e.,

strangulation, or the moment of death?"    In response, the trial

court first re-read to the jury Instruction "H" defining

"willful, deliberate and premeditated."    It then said,

             Is that the killing you're talking about, in
             that context? And in the context of this
             case, and in the context of this


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             instruction, that means the time of death,
             adopted before the time of death, but need
             not exist for any particular length of time,

             "Can premeditation occur during the act of
             killing?" If what you mean by that is
             during the act of the strangulation, yes, as
             long as it's before it's completed.

                               Analysis

       A.   Refusal to Grant Voluntary Manslaughter Instruction

       Assuming without deciding that the trial court erred by

refusing to instruct the jury on voluntary manslaughter, any

such error was harmless beyond a reasonable doubt.      See Turner

v. Commonwealth, 23 Va. App. 270, 275-78, 476 S.E.2d 504, 507-08

(1996) (holding that failure to instruct jury on voluntary

manslaughter was harmless because jury had rejected second

degree murder conviction), aff'd, 255 Va. 1, 492 S.E.2d 447

(1997).     In Turner, we reasoned that by rejecting the

lesser-included offense of second degree murder, "the jury found

beyond a reasonable doubt that appellant acted not only

maliciously, but also willfully, deliberately, and

premeditatedly."    Id. at 277, 476 S.E.2d at 508.    Because

"premeditation and reasonable provocation can not co-exist,"

id., "[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.   Bound by our decision in Turner, we affirm the trial

court's refusal to instruct the jury on voluntary manslaughter.


                                 - 6 -
                     B.   Response to Jury Question

     Morant contends that the court's response to the jury's

questions misrepresented the law, improperly usurped the fact

finding task of the jury, and effectively instructed the jury

that all strangulations are first degree murder.       We disagree.

     It is elemental that the trial court must "give a direct

and correct repose to an inquiry by the jury and its failure to

do so is ground for reversal."     Shepperson v. Commonwealth, 19

Va. App. 586, 591, 454 S.E.2d 5, 8 (1995); accord Jimenez v.

Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991).       In

this case, the jury inquired "Can 'premeditation' occur during

the act of 'killing?'" and "Does 'killing' mean the act, i.e.,

strangulation, or the moment of death?"       The trial court

responded that "[I]f what you mean by that is during the act of

the strangulation, yes, as long as it's before it's completed."

     In effect, the trial court told the jury that premeditation

may occur during the act that causes death, but before the

victim actually died.     This instruction is consistent with

Virginia case law.    It is well settled that premeditation may

arise "at the time of the murder."        Beck v. Commonwealth, 2 Va.

App. 170, 176, 342 S.E.2d 642, 646 (1986); accord Clozza v.

Commonwealth, 228 Va. 124, 134, 321 S.E.2d 273, 279 (1984)

(holding that the intention to kill need not exist for any

specified length of time prior to the actual killing but may be

formed "only a moment before the fatal act is committed provided

                                  - 7 -
that the accused had time to think and did intend to kill"

(emphasis added)); Akers v. Commonwealth, 216 Va. 40, 48, 216

S.E.2d 28, 33 (1975) ("The intent to kill may spring into

existence for the first time at the time of the killing

. . . ."); Bradshaw v. Commonwealth, 174 Va. 391, 398-99, 4

S.E.2d 752, 755 (1939) (holding that premeditation may "come

into existence for the first time at the time of [the] killing

. . ." (citation omitted)).

     Consistent with this rule, it is settled that a defendant's

prolonged physical effort to cause death is relevant to

determine the existence of premeditation.   Lenz v. Commonwealth,

261 Va. 451, 469, 544 S.E.2d 299, 309 (2001) (holding that

defendant's act of repeatedly stabbing the victim in the chest

entitled jury to find he acted with premeditation); Whitley v.

Commonwealth, 223 Va. 66, 72, 286 S.E.2d 162, 165 (1982)

(holding that defendant had ample time to meditate because the

evidence proved that he choked his victim with his hands,

strangled her with a rope and cut her throat with a knife);

Shell v. Commonwealth, 11 Va. App. 247, 257, 397 S.E.2d 673, 679

(1990) (finding that evidence that defendant killed victim by

kicking, striking, stabbing, and tying him with wire and

electric cord sufficiently demonstrated time and opportunity for

premeditation); Beck, 2 Va. App. at 176, 342 S.E.2d at 646

(holding that defendant's prolonged effort to strangle and

suffocate victim was properly considered as evidence of

                              - 8 -
premeditation).    Therefore, it is implicit that premeditation

can occur during the act that causes death, as the trial court

properly instructed the jury.

     Morant also contends that the trial court's reference to

"strangulation" rather than to "the act of killing" usurped the

jury's role as fact finder such that the court, and not the

jury, determined the cause and manner of death.   See Clozza, 228

Va. at 134, 321 S.E.2d at 279 (holding that premeditation is a

jury question).    We find no merit in this contention.   In its

inquiry, the jury referred to the act of killing as

"strangulation."   Furthermore, the only evidence of the act

resulting in the victim's death in this case was that of

strangulation, and defendant never contended otherwise.    We

conclude, therefore, that the trial court did not err in its

response to the jury's question and did not improperly provide

"any suggestion in the jury instructions as to the conclusion

[to be drawn]."    Terry v. Commonwealth, 5 Va. App. 167, 171, 360

S.E.2d 880, 882 (1987).

     For the foregoing reasons, we affirm the conviction.

                                                           Affirmed.




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