                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Lemons
Argued at Richmond, Virginia


LAMAR ANTHONY PENDERGRASS
                                              MEMORANDUM OPINION * BY
v.   Record No. 2969-97-2                     JUDGE DONALD W. LEMONS
                                                 FEBRUARY 23, 1999
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                   James F. D'Alton, Jr., Judge

          Jay "C" Paul (Johnson & Paul, P.C., on brief),
          for appellant.

          Kathleen B. Martin, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.

     Lamar Anthony Pendergrass appeals his conviction for

malicious wounding and use of a firearm in the commission of

malicious wounding.   On appeal, he argues that the trial court

erred in refusing his requested jury instruction on self-defense.

Because we hold that the trial court did not err in refusing his

instruction, we affirm.

                            I.   BACKGROUND
     On August 2, 1996, between 7:45 and 8:00 a.m., Mark Brown,

the victim, was shot while entering his vehicle that was parked

in the parking lot of a hotel in the City of Petersburg.        Brown

testified that he was seated in his car, and "just when . . .

[he] was about to turn the ignition on" he heard a shot.        He

"looked down" and "saw the blood."     He looked up and saw Lamar
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116-010,
this opinion is not designated for publication.
Anthony Pendergrass.   Pendergrass shot him two more times.   Brown

testified that he did not have a gun in his possession that

morning.

     Pendergrass stated that on the evening of August 1, 1996,

the night before the shooting, he was drinking heavily.

Pendergrass’ wife was involved in a hotly contested custody

dispute with Brown, with whom she had a seven-year-old child,

D’Angelo.    By court order, D’Angelo was to be turned over by the

Pendergrasses to Brown on August 2, 1996.   Pendergrass testified

that he drank "two bottles of Hennesy" at his house but

"[e]ventually that wasn’t enough so he left his house and went to

a store where he purchased "two twelve packs of beer."

Pendergrass testified that he continued drinking until he "was

about out of beer" sometime between 2:00 and 2:30 a.m. on August

2, 1996.

     Pendergrass stated that he went with a friend to downtown

Petersburg, where he obtained more alcohol.   Pendergrass

testified that he was "uncomfortable" in that neighborhood and

that he took his gun out of his trunk and placed it in his

waistband.   He drove through the city and parked on Sycamore

Street where he "passed out."
     Pendergrass woke up between 7:00 and 7:15 a.m. that morning.

He started to drive home, when he saw Brown’s vehicle in a hotel

parking lot and "went crazy."   He drove into the lot and saw

Brown getting into his car.   Pendergrass admitted that when he

saw Brown, "I just went off."   Pendergrass alleged that Brown



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pulled a gun on him and that the two men yelled obscenities at

each other.   Pendergrass stated that he "turned around" and

"panicked" and that he was "scared."       Pendergrass said that Brown

made a comment about Pendergrass never seeing D’Angelo again, and

Pendergrass admitted that he then shot Brown.

                           II.    JURY INSTRUCTION

     Upon review of jury instructions given or refused at trial,

an appellate court is charged with seeing that "the law has been

clearly stated and 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) (citations omitted).      The

evidence relied on to support a proffered instruction must amount

to "more than a scintilla."       Morse v. Commonwealth, 17 Va. App.

627, 633, 440 S.E.2d 145, 149 (1994) (citations omitted).      "An

instruction that is not supported by the evidence, however, is

properly refused."     Lea v. Commonwealth, 16 Va. App. 300, 304,

429 S.E.2d 477, 479-80 (1993) (citations omitted).

     "Homicide [or wounding] in self-defense may be either

justifiable or excusable.    If it is either, it entitles the

prisoner to an acquittal."       Peeples v. Commonwealth, 28 Va. App.

360, 366, 504 S.E.2d 870, 873 (1998) (alterations in original)

(citations omitted).    When an accused has been charged with

malicious wounding, he or she is entitled to request an

instruction on self-defense if it is supported by the evidence.

See Foster v. Commonwealth, 13 Va. App. 380, 412 S.E.2d 198

(1991).   Justifiable self-defense occurs when the accused has



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acted totally without fault.    See Foote v. Commonwealth, 11 Va.

App. 61, 67, 396 S.E.2d 851, 855 (1990).   "Fault" is defined as

"any conduct on the part of an accused which a jury may

reasonably infer from the evidence to have contributed to an

affray."    Bell v. Commonwealth, 2 Va. App. 48, 58, 341 S.E.2d

654, 659 (1986) (citations omitted).    "If a defendant is even

slightly at fault, the killing is not justifiable homicide."

Perricllia v. Commonwealth, 229 Va. 85, 94, 326 S.E.2d 679, 685

(1995).    Excusable homicide in self-defense, however,

            occurs where the accused, although in some
            fault in the first instance in provoking or
            bringing on the difficulty, when attacked
            retreats as far as possible, announces his
            desire for peace, and kills his adversary
            from a reasonably apparent necessity to
            preserve his own life or [to] save himself
            from great bodily harm.

Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416

(1993).

      At trial, Pendergrass requested the following instruction

on justifiable self-defense:

            If you believe that the defendant was without
            fault in provoking or bringing on the fight
            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.

     The testimony at trial revealed that Pendergrass had been

drinking excessively on the night of August 1, 1996 and the

morning of August 2, 1996.   He brought a gun to the confrontation




                                - 4 -
with Brown.    He and Brown exchanged hostile words about the

custody of D’Angelo.   Pendergrass testified that Brown "pulled a

gun" on him.   Pendergrass stated that he then "turned around" and

that he "was walking real fast away from [Brown]."      Pendergrass

stated, "[w]e both were still screaming" and that Brown made a

remark stating that Pendergrass would never see D’Angelo again.

     Pendergrass stated "[w]hen he said that to me, I don’t know

. . . I just went crazy."    Pendergrass testified "I just felt

like I snapped.   I went crazy.    I realized I had my gun inside my

waist.   I just pulled it out, turned around and I fired.     He was

just getting into his car at the time.      After I fired the shots,

I stood there, because I couldn’t, I just freaked [sic]."

Pendergrass testified that he shot Brown in response to his

statements about D’Angelo.   Furthermore, Pendergrass testified

that he shot Brown more than one time because he was "enraged

. . . by what he said, all [the] things that were going on."

     Pendergrass requested an instruction on justifiable

self-defense which requires that he be without fault.      By his own

testimony at trial, Pendergrass was not without fault in

provoking or bringing on the fight.       The trial court did not err

in refusing the instruction on justifiable self-defense, and the

conviction is affirmed.
                                                             Affirmed.




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