                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bumgardner and Agee
Argued at Salem, Virginia


DARRYL CARNEAL LAW
                                           MEMORANDUM OPINION * BY
v.   Record No. 1573-00-3              JUDGE RUDOLPH BUMGARDNER, III
                                               OCTOBER 23, 2001
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF HENRY COUNTY
                     David V. Williams, Judge

          Joseph R. Winston, Special Appellate Counsel
          (Public Defender Commission, on brief), for
          appellant.

          Richard B. Smith, Senior Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     A jury convicted Darryl Carneal Law of second degree

murder, use of a firearm in the commission of a felony, and

maliciously discharging a firearm in an occupied building.    On

appeal, he contends the trial court erred in refusing his

proffered instruction of justifiable self-defense.     We conclude

the defendant was at fault in bringing about the dispute, and

the trial court properly refused the instruction.

     The defendant concedes he and the victim got into a verbal

argument that ended when he shot and killed the victim, but he

claims he shot in self-defense.    The trial court instructed the

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
jury on excusable self-defense, but refused to instruct on

justifiable self-defense because it found the defendant was at

fault in bringing about the altercation.       On appeal, we view the

evidence in the light most favorable to the defendant who

proposed the refused instruction.        Commonwealth v. Alexander,

260 Va. 238, 240, 531 S.E.2d 567, 568 (2000).

        The defendant lived with his elderly aunt, Lilly Watkins,

who suffered from Alzheimer's disease.       The victim, Ernest

Eggleston, was her 77-year-old brother who used portable oxygen

for severe emphysema but still managed his sister's financial

affairs.    On the day of the murder, the defendant and the victim

installed a new phone in Watkins' sitting room, but then they

got into an argument over whether to discontinue the caller

identification service.    The argument shifted to payment for

long distance charges made by the defendant and continued to

whether the defendant should pay rent.       The defendant accused

Eggleston of failing to take care of his sister, of infidelity,

and of not being the father of his children.       Eggleston told him

to mind his own business, and the defendant replied, "I think I

am minding my damn business."

        Eventually, Eggleston ordered the defendant to leave the

house if he could not pay rent and said, "I will fix your damn

ass."    Eggleston backed into a nearby room and put his hand in

his pocket.    The defendant testified that he felt "real fear"

when Eggleston said, "I will kill your damn ass" because he

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understood the victim carried a weapon.    The defendant thought

Eggleston "had something in his pocket" and "was aiming to do me

bodily harm."   The defendant grabbed a gun, fired it twice, and

killed Eggleston.

       "Justifiable homicide in self-defense occurs where a

person, without any fault on his part in provoking or bringing

on the difficulty, kills another under reasonable apprehension

of death or great bodily harm to himself."     Bailey v.

Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, 31 (1958)

(citations omitted).   If an accused "is even slightly at fault"

in creating the difficulty leading to the necessity to kill,

"the killing is not justifiable homicide."     Perricllia v.

Commonwealth, 229 Va. 85, 94, 326 S.E.2d 679, 685 (1985) (citing

Dodson v. Commonwealth, 159 Va. 976, 981, 167 S.E. 260, 261

(1933)).

       Verbal statements may constitute fault that defeats a claim

of justifiable self-defense.   In Scott v. Commonwealth, 143 Va.

510, 129 S.E. 360 (1925), the victim's father, the town

policeman, arrested companions of the defendant.    The defendant

confronted the victim and started insulting his father calling

him a bootlegger and a gambler.   The victim told the defendant

not to say such things; the defendant dared the victim to stop

him.   The court held misconduct "includes . . . violent and

indecent language . . . calculated to provoke a breach of the

peace."    Id. at 516, 129 S.E. at 362.   Though the victim struck

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the first blow, the defendant was at fault which eliminated his

claim of justifiable self-defense.

     Though the victim may have started a verbal argument,

continuing it may constitute fault that defeats a claim of

justifiable self-defense.    In Adams v. Commonwealth, 163 Va.

1053, 178 S.E. 29 (1935), the victim remarked to a group that

included the defendant, "You sons of bitches certainly can

sing."     Id. at 1057, 178 S.E. at 30.   The defendant took

exception to the remark, and the two began to curse each other.

The defendant challenged the victim to continue the argument out

in the street.    There the victim threw the first blow, but the

defendant was not justified in slaying him because the defendant

was at fault.     Id. at 1058, 178 S.E. at 31.

         Continuing a long standing conflict may constitute fault.

In Smith v. Commonwealth, 165 Va. 776, 182 S.E. 124 (1935), the

ongoing feud was so bitter the defendant armed himself in case

of a chance encounter with the victim.     On the day of the

murder, the defendant refused to leave when asked and though the

victim struck first, the bitterness of the feud was sufficient

to constitute fault.    Continuing the bitter feud prevented the

defendant from being free from fault "in the minutest degree."

Id. at 785, 182 S.E. at 128.    The trial court properly refused

to instruct on justifiable self-defense.

     In this case, the defendant's own testimony supports the

finding that he was not free from fault.     The defendant

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testified, "We was talking kind of loud . . . .   It got kind of

rowdy and everything."    They were arguing and cussing each

other, and the defendant said offensive things.   He concluded,

"that particular day both of us was acting crazy."   The

defendant's aunt, Dorothy Barksdale, presented the same

characterization of the disagreement.   She testified the

defendant told Eggleston, "Me and you got something to settle"

and told her "this is going to get violent."

     The defendant relentlessly continued the argument each time

it subsided.   When the victim attempted to end it by saying,

"just drop it," the defendant changed the subject of dispute and

renewed the argument.    He continued that course of conduct until

the tragic end.   Any form of conduct by the accused from which

the fact finder may reasonably infer that the accused

contributed to the affray constitutes "fault."    Bell v.

Commonwealth, 2 Va. App. 48, 58, 341 S.E.2d 654, 659 (1986).

"The law of self-defense is the law of necessity, and the

necessity relied upon must not arise out of defendant's own

misconduct."   McGhee v. Commonwealth, 219 Va. 560, 562, 248

S.E.2d 808, 810 (1978).

     We conclude the defendant was at fault in bringing about

the difficulty, and the trial court properly refused to instruct

on justifiable self-defense.   Accordingly, we affirm the

convictions.

                                                            Affirmed.

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