                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Bumgardner
Argued at Richmond, Virginia


IAN CABILI PERTOS
                                         MEMORANDUM OPINION * BY
v.        Record No. 1664-97-2        JUDGE JERE M. H. WILLIS, JR.
                                           SEPTEMBER 22, 1998
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF HENRICO COUNTY
                      James E. Kulp, Judge
          Craig S. Cooley for appellant.

          Eugene Murphy, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.



     On appeal from his conviction for first degree murder, 1

Ian C. Pertos contends that the trial court erred:   (1) in

failing to instruct the jury properly on the term "deadly

weapon"; (2) in refusing to instruct the jury on voluntary

manslaughter; and (3) in refusing to strike the evidence as to

first degree murder.   We affirm the judgment of the trial court.

                                 I.

                             BACKGROUND

     Pertos was romantically involved with the victim, Kila

Blount, and had lived with her for nearly a year.    In the month

preceding her death, Blount began arriving home late from work

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     1
      Pertos does not appeal his convictions for grand larceny,
credit card theft and credit card fraud.
and showering upon her return.    Pertos was convinced that she was

seeing another man.    During the week prior to Blount's death, a

neighbor heard loud arguing between Pertos and Blount, and heard

Pertos threaten Blount.

        On August 9, 1996, Pertos used a cord from a pair of

undershorts to strangle Blount to death.    The medical examiner

testified that it took minutes for the strangulation to kill

Blount.    When Blount began to bleed from her nose, Pertos placed

her body on a bed.    He then left the apartment to purchase

garbage bags of a type different from those he usually kept at

his apartment.    He wrapped Blount's body and the bloody bed

linens in the new plastic garbage bags and buried them in the

woods behind the apartment building.     Within two hours following

Blount's death, Pertos used her ATM card, attempting to obtain

money from her account.
        The morning after he killed Blount, Pertos pawned her

jewelry.    He falsely told Blount's mother and a police officer

investigating a missing person report that he did not know where

Blount had gone.    Pertos stayed at a friend's home for three

days.    On the third evening, he told his friend that he was going

to play pool and never returned.    Instead, he took a taxi to

Fredericksburg and went by bus to New York.

        On August 30, 1996, Pertos was arrested in Hempstead, New

York by Detective Karlya, who was unaware of the killing in

Virginia.    Prior to his commitment to jail, Pertos underwent a




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strip search.    When he was informed that he could not bring the

drawstring from his undershorts into the jail, Pertos said, "Oh

s---, I made a mistake."   He then told Karlya that he had killed

his girlfriend.

     Thereafter, Pertos gave Karlya a statement in which he

stated that Blount had "played him."     He told Karlya he could

smell the "rubber" of a new boyfriend on Blount's body.    He told

Karlya that on the night of the murder Blount had received pages

on her beeper.    He said he thought Blount's new boyfriend,

believed by him to be Wandell Taylor, was attempting to call her.

He told Karlya he strangled Blount from behind, and pulled the

cord tighter when she received a page while he was choking her.

He opined that he had buried Blount too close to the apartment

building.
     After his extradition from New York, Pertos told Henrico

Investigator Brooks that he had been having disagreements with

Blount.   Pertos stated that on the night in question, despite her

telling him she was going out with some female friends, he

believed she was going to meet her new boyfriend.    Pertos said

that she had "played [him] for a fool" and that he was hurt.       He

told Brooks, "I was just mad."

     At trial, Pertos admitted knowing that Blount planned to

move to her mother's home and that he had discussed breaking the

lease with the apartment management.     He admitted killing Blount,

but said he only intended to scare her.    He explained that he had




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started to release the cord from around Blount's neck when her

pager sounded.   He said he saw on the pager a number that he

believed to be Taylor's.   Whereupon, he tightened his grip on the

cord and killed Blount.

                                 II.

                     "DEADLY WEAPON" INSTRUCTION

     The trial court instructed the jury as follows:
          [Y]ou 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 that is likely to
          cause death or great bodily injury because of
          the manner and under the circumstances in
          which it is used.

     Pertos contends that the trial court erred in failing to

instruct the jury that it should determine whether the cord was a

deadly weapon.   He argues that without that explicit instruction,

the instruction misled the jury to conclude presumptively that

the ligature was a deadly weapon.

     Pertos relies upon Pannill v. Commonwealth, 185 Va. 244, 38

S.E.2d 457 (1946).   In Pannill, the trial court instructed the
jury as follows:
          "[A] man is presumed to intend that which he
          does or which is the immediate or necessary
          consequence of his act, and if the prisoner,
          with a deadly weapon in his possession,
          without any, or upon very slight provocation,
          gave to the deceased a mortal wound, he, the
          prisoner, is prima facie guilty of wilful,
          deliberate, and premeditated killing, and the
          necessity rests upon him of showing the
          extenuating circumstances, and unless he
          proves such extenuating circumstances, or the
          circumstances appear from the case made by


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             the State, he is guilty of murder in the
             first degree."


Id. at 253, 38 S.E.2d at 462.    The Supreme Court reversed the

conviction, holding that the phrase "with a deadly weapon in his

possession" misled the jury.    The Court ruled that the stick used

in the killing was not per se a deadly weapon.     It concluded

that:    "Generally, unless a weapon is per se a deadly one, the

jury should determine whether it, and the manner of its use,

places it in that category . . . ."      Id. at 254, 38 S.E.2d at

462.
        The error in Pannill was the failure of the trial court to

provide the jury a definition of "deadly weapon."       Without that

definition, the inclusion of the term "deadly weapon" in the

instruction suggested that the stick was, as a matter of law, a

deadly weapon.     See Bruce v. Commonwealth, 9 Va. App. 298,

300-01, 387 S.E.2d 279, 280 (1990).

        Here, the trial court coupled its instruction on inferring

malice with a precise definition of "deadly weapon."       See
Strickler v. Murray, 249 Va. 120, 129, 452 S.E.2d 648, 652-53,

cert. denied, 516 U.S. 850 (1995); Quintana v. Commonwealth, 224

Va. 127, 140, 295 S.E.2d 643, 649 (1982).      See also Virginia

Model Jury Instructions, Criminal § 34.240 (1993).       The trial

court also instructed the jury that "[they were] the judges of

the facts."    While the trial court could have instructed the

jurors explicitly that they were to determine whether the

ligature was a deadly weapon, see Henry v. Commonwealth, 195 Va.



                                 - 5 -
282, 288-89, 77 S.E.2d 863, 868 (1953), it was not required to do

so.   The trial court properly instructed the jury as to its duty

and provided it a correct definition of "deadly weapon."

                                 III.

                        SUFFICIENCY OF EVIDENCE

        Pertos next contends that the Commonwealth failed to prove

the premeditation necessary to sustain his conviction for first

degree murder.     We disagree.
                  To prove premeditated murder, the
             Commonwealth must establish: "(1) a killing;
             (2) a reasoning process antecedent to the act
             of killing, resulting in the formation of a
             specific intent to kill; and (3) the
             performance of that act with malicious
             intent." Premeditation requires the
             formation of a specific intent to kill.


Archie v. Commonwealth, 14 Va. App. 684, 689, 420 S.E.2d 718, 721

(1992) (quoting Rhodes v. Commonwealth, 238 Va. 480, 486, 384

S.E.2d 95, 98 (1989)).    "A design to kill may be formed only a

moment before the fatal act is committed provided the accused had

time to think and did intend to kill."     Giarratano v.
Commonwealth, 220 Va. 1064, 1074, 266 S.E.2d 94, 100 (1980)

(citation omitted).    Whether a defendant acted with such

premeditation is a question to be determined by the trier of

fact.     Morris v. Commonwealth, 17 Va. App. 575, 578, 439 S.E.2d

867, 869 (1994).

        Viewing the evidence in the light most favorable to the

Commonwealth, Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987), we find it sufficient to prove beyond a



                                 - 6 -
reasonable doubt that Pertos premeditated, deliberated and

maliciously killed Blount.

       Although Pertos testified that he intended only to frighten

Blount, the jury was entitled to reject this explanation and to

conclude that the killing was premeditated.    See Cantrell v.

Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988).

Pertos knew that his relationship with Blount was changing.       He

admitted that he killed her intentionally.    He acknowledged that

he had considered ceasing his attack on Blount, but chose to kill

her.   In the week prior to murdering Blount, he had threatened

her.
       From the testimony of the witnesses and the circumstantial

evidence, the jury could conclude that Pertos knew of Blount's

intention to move, planned her murder, and then sought to avoid

discovery of his connection to the murder.

                                 IV.

                 VOLUNTARY MANSLAUGHTER INSTRUCTION

       Finally, Pertos contends that the trial court committed

reversible error in refusing an instruction on voluntary

manslaughter.   We disagree.

       Pertos was charged with first degree murder.   The trial

court instructed the jury on the elements of first degree murder

and second degree murder.    It refused an instruction on voluntary

manslaughter. The jury convicted Pertos of first degree murder.
          [W]here the reviewing court is able to
          determine that the trial court's error in
          failing to instruct the jury could not have


                                - 7 -
          affected the verdict, that error is harmless.
           Such a determination can be made where it is
          evident from the verdict that the jury would
          have necessarily rejected the lesser-included
          offense on which it was not instructed. . . .
               By contrast, where it is impossible to
          determine from the verdict whether the jury
          would have necessarily rejected a
          lesser-included offense on which it was not
          instructed, error in refusing to instruct on
          that offense is not harmless.


Turner v. Commonwealth, 23 Va. App. 270, 276, 476 S.E.2d 504, 507

(1996), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997), cert. denied,

118 S. Ct. 1852 (1998).
     Where a jury is instructed on first degree murder and second

degree murder, rejects second degree murder, and convicts the

defendant 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.   Thus, if

we assume, which we do not, that the trial court erred in

refusing to instruct the jury on voluntary manslaughter, such

error was harmless.

     The judgment of the trial court is affirmed.
                                                    Affirmed.




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