                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia


GARY LAMONT WALKER
                                         MEMORANDUM OPINION * BY
v.   Record No. 1200-98-2              JUDGE JAMES W. BENTON, JR.
                                              JUNE 15, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Robert W. Duling, Judge

          Gregory W. Franklin, Assistant Public
          Defender (David J. Johnson, Public Defender,
          on brief), for appellant.

          Steven A. Witmer, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     A jury convicted Gary Lamont Walker of second degree murder

and use of a firearm in the commission of murder.   Walker contends

(1) that the trial judge erred in refusing to give the jury an

instruction explaining the effect of heat of passion and (2) that

the evidence was insufficient to prove second degree murder.   For

the reasons that follow, we affirm the convictions.

                                I.

     Steve Stevenson testified that on the evening of October 28,

1997, he, Gary Lamont Walker, and Ruan King were drinking beer and

"hanging around" with several people outside an apartment

    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
building.    Walker was "playing with" a 9mm pistol he had purchased

that day.    Stevenson, who had been shot about six months earlier,

became nervous and repeatedly asked Walker to put the gun away.

Stevenson testified that Walker put the gun away but then "just

snapped" and began to argue with Stevenson.    As Stevenson and

Walker argued, Walker began referring to Stevenson, King, and the

others in a harsh and profane manner.    When King objected, Walker

told him, "You need to just shut up."    Walker then cursed, removed

the gun from his pocket, and shot King twice, from a distance of

five to six feet.    The first shot hit King in the arm, the second

in the chest.    Walker then said "Ya'll . . . don't know me," paced

around the men, and walked away.

        After the shooting, Stevenson backed away until Walker left

the area.    Stevenson then lifted King's shirt to see where King

had been shot, removed keys from King's pocket, and telephoned for

help.    Later that night, after informing King's parents of the

shooting, Stevenson told the police what had happened.    The

autopsy report established that King's blood alcohol level was

.12% by weight by volume and urine alcohol level was .17% by

weight by volume.

        Stevenson testified that the shooting shocked him because

there was no physical contact between King and Walker before the

shooting.    Stevenson had known King for several years and was his

friend.    He had known Walker for several months and occasionally



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"hung out" with Walker.    Stevenson testified that he had not known

of any enmity existing between King and Walker.

     In his defense, Walker offered the testimony of six-year-old

William Scott.   The child's mother, Wanda Scott, lived with Walker

and is the mother of Walker's child.    The child testified that he

knew Walker, King, and Stevenson, and saw them from the second

floor of his mother's apartment.   He testified that he saw King

"fighting with [Walker] and playing."    He said they were joking

and kidding, and he characterized the encounter as "play

fighting."   He testified that King put Walker in a "headlock" and

that Walker "wiggled" to get loose.     Once loose, Walker shot King

twice.   He further testified that he saw Stevenson take keys and a

gun from King's pocket after Walker shot King.

     Wanda Scott testified that King was intoxicated when she saw

him that evening.   She testified that after she heard gunshots

outside, she opened the door to Stevenson who wanted her to

telephone 911 because King had been shot.    She also testified that

she saw Walker walk away and that she saw Stevenson lift King's

shirt and take King's keys.   She testified that Stevenson took

something else out of King's pocket and put it under his arm.     She

admitted, however, that she did not tell the police she saw

Stevenson take those items.   When interviewed by the police after

the shooting, she said only that Stevenson came to the door and

said King had been shot.



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     In the Commonwealth's case-in-rebuttal, Stevenson denied that

Walker and King were "playing or tussling" or that King ever

touched Walker.   He also denied that King had a gun or that he

removed a gun from King's clothing.     He testified that he removed

King's car keys so that he could drive King's nephew home.

     At the conclusion of the evidence, the jury convicted Walker

of murder in the second degree and use of a firearm in the

commission of murder.   This appeal followed.

                                 II.

     Walker contends the trial judge erroneously refused to give

the jury the following instruction:

            If, upon being assaulted, the passion of the
            assaulted person becomes greatly excited,
            and under that impulse, he kills his
            attacker with a deadly weapon, the offense
            is manslaughter.

The Commonwealth argues that the instruction was redundant of

instructions already given.   We agree with the Commonwealth's

argument.

     "If the principles set forth in a proposed instruction are

fully and fairly covered in other instructions that have been

granted, a trial [judge] does not abuse [his or her] discretion

in refusing to grant a repetitious instruction."      Joseph v.

Commonwealth, 249 Va. 78, 90, 452 S.E.2d 862, 870 (1995).      The

record establishes that the trial judge granted instructions

that included the following language:



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              INSTRUCTION NO. 9

    *     *     *     *     *      *       *

   Heat of passion excludes malice when that
heat of passion arises from provocation that
reasonably produces an emotional state of
mind such as hot blood, rage, anger,
resentment, terror or fear so as to
demonstrate an absence of deliberate design
to kill, or to cause one to act on impulse
without conscious reflection. Heat of
passion must be determined from
circumstances as they appeared to defendant
but those circumstances must be such as
would have aroused heat of passion in a
reasonable person. . . .


              INSTRUCTION NO. 11

    *     *     *     *     *      *       *

   If you find from the evidence that the
Commonwealth has failed to prove beyond a
reasonable doubt that the killing was
malicious but that the Commonwealth has
proven beyond a reasonable doubt that the
defendant killed Raun M. King and further:

     (1) That the killing was the result
         of an intentional act; and

     (2) That the killing was committed
         while in the sudden heat of passion
         upon reasonable provocation;

then you shall find the defendant guilty of
voluntary manslaughter. . . .


              INSTRUCTION NO. 15

   Where homicide is committed in course of
sudden quarrel, or mutual combat, or upon
sudden provocation, and the killing is from
sudden passion growing out of the quarrel,
or combat, or provocation, it is not murder,
but is voluntary manslaughter.


                    - 5 -
     In its entirety, granted Instruction 9 fully and fairly

covered the principles of heat of passion and malice.     Granted

Instruction 11 addressed the elements of first degree murder,

second degree murder, and manslaughter.     In addition, granted

Instruction 15 addressed the principles of heat of passion and

voluntary manslaughter.    Walker's instruction essentially

covered the same legal principles as those contained in the

granted instructions.    We also note that the language of

Walker's instruction, which was taken from the text of Moxley v.

Commonwealth, 195 Va. 151, 158, 77 S.E.2d 389, 393 (1953), omits

the qualification that the use of the weapon be "justified by

the nature of the assault."     Id.   Therefore, we hold that the

trial judge did not abuse his discretion in refusing to grant

Walker's proffered instruction.

                                 III.

     "Second degree murder is defined as a 'malicious killing'

of another person."     Lynn v. Commonwealth, 27 Va. App. 336, 351,

499 S.E.2d 1, 8 (1998) (citation omitted), aff'd, 257 Va. 239,

___ S.E.2d ___ (1999).    "Whether or not an accused acted with

malice is generally a question of fact and may be proved by

circumstantial evidence."     Canipe v. Commonwealth, 25 Va. App.

629, 642, 491 S.E.2d 747, 753 (1997).     The trier of fact may

infer malice "from 'conduct likely to cause death or great

bodily harm, willfully or purposefully undertaken.'"      Id.

(citation omitted).   Thus, in appropriate circumstances,

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"[m]alice may be inferred 'from the deliberate use of a deadly

weapon.'"     Doss v. Commonwealth, 23 Va. App. 679, 686, 479

S.E.2d 92, 96 (1996) (citation omitted).

     When a challenge is made on appeal to the sufficiency of

evidence, "we review the evidence in the light most favorable to

the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom."     Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987).    So viewed, Stevenson's

testimony established that he was an eyewitness to the events

surrounding the killing.    Stevenson testified that he repeatedly

asked Walker to put the gun away when Walker was "playing" with

the gun, "cocking it back."    As Walker and Stevenson argued,

Walker called Stevenson and King derogatory names and then shot

King twice.    Stevenson denied that Walker and King had physical

contact before the shooting occurred.

     The jury believed Stevenson's testimony regarding the

incident.   "The credibility of the witnesses and the weight

accorded the evidence are matters solely for the fact finder who

has the opportunity to see and hear that evidence as it is

presented."     Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455

S.E.2d 730, 732 (1995).    Stevenson's testimony was competent and

was not inherently incredible.    Further, even assuming that the

jury accepted the child's testimony regarding the incident, the

jury could reasonably find that Walker did not act in the heat

of passion.    The child's testimony established that Walker

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responded to "play fighting" by deliberately shooting King twice

with a deadly weapon.

     From the evidence of Walker's anger and deliberate use of a

deadly weapon, the jury could conclude beyond a reasonable doubt

that Walker acted with malice and intentionally shot King

"without legal justification or excuse."    Williams v.

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

See also Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382

S.E.2d 24, 26 (1989) (holding that the amount of force used

always must be reasonable in relation to the harm threatened).

Therefore, we hold that the evidence was sufficient to prove

beyond a reasonable doubt that Walker committed second degree

murder.

     Accordingly, we affirm the convictions for second degree

murder and use of a firearm in the commission of murder.

Because, however, the record reflects that the trial judge

entered a final conviction order stating erroneously that the

jury convicted Walker of first degree murder, we remand this

matter to the trial judge for the sole purpose of correcting the

final order.

                                           Affirmed and remanded.




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