Laurence Maria Smith, s/k/a Laurence Marie Smith v. Commonwealth of Virginia , 68 Va. App. 399 ( 2018 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Alston
Argued at Richmond, Virginia
PUBLISHED
LAURENCE MARIA SMITH, S/K/A
LAURENCE MARIE SMITH
OPINION BY
v. Record No. 1058-16-2 JUDGE RANDOLPH A. BEALES
JANUARY 16, 2018
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
Sarah L. Deneke, Judge
Ronald Hur, Senior Assistant Public Defender (Amr A. Ahmed,
Assistant Public Defender, on brief), for appellant.
Victoria L. Johnson, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
On June 15, 2015, the grand jury of Spotsylvania County indicted Laurence Maria Smith
(“appellant”) for first-degree murder in violation of Code § 18.2-32 for the murder of her
husband, Sean Smith (“victim”). On December 17, 2015, following a four-day trial, a jury
convicted appellant of voluntary manslaughter.
Appellant raises four assignments of error on appeal to this Court. First, appellant claims
the trial court erred by convicting her of voluntary manslaughter “as the evidence was
insufficient to prove appellant intentionally killed Sean Smith and that appellant acted in the
‘heat of passion’ and ‘upon reasonable provocation.’” Second, appellant claims the trial court
erred by denying her motion for a mistrial and her motion to set aside the verdict because
appellant was not competent throughout the trial. Third, appellant claims the trial court erred by
denying appellant’s motion for a mistrial and her motion to set aside the verdict because
“Appellant’s PTSD [Post-Traumatic Stress Disorder] flashback prevented her from meaningfully
exercising her right to be present at trial and to testify in her own defense and appellant did not
make a valid waiver of those rights.” Finally, appellant assigns error to the trial court’s denial of
her motion “to pause and continue the trial to allow her to receive mental health treatment before
waiving her right to be present at trial and to testify in her own defense.”
For the reasons that follow, we affirm appellant’s conviction of voluntary manslaughter.
I. BACKGROUND
Viewing the evidence in the light most favorable to the Commonwealth, as we must since
it was the prevailing party in the trial court, Riner v. Commonwealth, 268 Va. 296, 330, 601
S.E.2d 555, 574 (2004), the evidence in this case established that on March 16, 2015, police
responded to a 911 call at appellant’s residence. Officer Tavarez, the first officer on the scene,
was admitted to the residence by one of appellant’s daughters. Once inside, Officer Tavarez
encountered appellant whose hands were covered in blood. Officer Tavarez also heard appellant
say, “It’s my fault. I shouldn’t have been playing with it.” On the second floor of the residence,
Officer Tavarez found the victim facedown and bleeding profusely from a gunshot wound to the
head. Officer Tavarez called for the assistance of paramedics; however, the victim died despite
the efforts to save his life.
Officer Handy, the second officer on the scene, encountered appellant and her two
daughters in front of the residence. Officer Handy also observed that appellant’s hands were
covered in blood. Officer Handy testified that appellant admitted to shooting the victim. He also
testified that appellant said that she attempted to unload her handgun, and she believed it was
empty when she pulled the trigger.
At trial, the evidence showed that appellant and the victim had an argument while
removing multiple guns from an upstairs gun safe to prepare for an upcoming renovation. The
couple placed the guns on a bed, and the victim directed appellant to go downstairs and get her
-2-
“peashooter,” referring to appellant’s handgun. According to appellant, the victim told her,
“Don’t forget to uncock it and don’t fuck around.” He also said, “[Y]ou think you know how to
handle guns but you don’t.” Appellant went downstairs, as she was directed, and retrieved her
handgun. Appellant told police that while she was downstairs she “popped out the magazine,”
racked the slide back, and saw a bullet eject from the gun. Next, appellant removed the
magazine from the handgun, and she returned to the upstairs room where the victim was laying
out the guns. Appellant told police that she believed the gun was empty, and to show the victim
that she had properly unloaded it, appellant raised the gun and pulled the trigger – shooting the
victim. Appellant initially told police that she pulled the trigger without aiming. However, she
later admitted that she aimed the gun towards the room’s window, close to where the victim was
standing.
After shooting the victim, appellant told police that she dropped the gun and rushed to
help the victim, and in doing so, appellant got the victim’s blood on her hands. Next, appellant
said she picked up the gun because the children were nearby, and she took the gun downstairs,
where she called 911.
Police recovered appellant’s .380 caliber Smith and Wesson from the downstairs
bedroom. During the investigation, the weapon was examined by the Department of Forensic
Science, and, contrary to appellant’s statements, the analysis of the gun showed no traces of the
victim’s blood on the gun.
During appellant’s interview with police, appellant said that she and the victim had not
argued that evening. Appellant told police, “[W]e were fussing, but not arguing.” However,
police interviews with the couple’s two young daughters revealed that the girls heard “fighting”
and “yelling” before the shooting. After being confronted with this inconsistency, appellant
admitted that the couple “was arguing about 20 minutes before all of this went down.” Appellant
-3-
also admitted that the argument upset her; however, she said she was no longer angry when she
pulled the trigger.
In her interview with police, the eldest daughter, who was nine years old, said that
appellant told her that appellant accidentally pulled the trigger while cleaning the gun; however,
in an unsolicited statement, the eldest daughter said she was unsure if that was true. The child
also told police that she had never seen appellant clean the gun.
Detective Lunsford testified at trial about the functioning of a firearm like the appellant’s
.380 Smith and Wesson. Detective Lunsford testified that the gun was a “double action only”
handgun, meaning that it required more force to pull the trigger than would be required to pull
the trigger on a single action handgun. Also, because appellant’s weapon was “double action
only,” it required the same amount of force every time the trigger was pulled. The
Commonwealth also presented evidence that appellant had completed a pistol safety course to
obtain her concealed carry permit. Finally, during her interviews with police, appellant was able
to recall and discuss basic safety rules for handling firearms.
A. The Trial
During the Commonwealth’s case in chief, appellant became visibly upset on three
separate occasions – two of which resulted in appellant waiving her right to be present during the
presentation of the Commonwealth’s evidence.
First, during the Commonwealth’s playing of the video of appellant’s interview with
police, defense counsel informed the court that appellant needed to take a break. In response, the
court took a thirty-minute recess so appellant could compose herself. Before resuming the video,
the court spoke with appellant and her counsel about what was upsetting her. Appellant
acknowledged that watching the video was upsetting, and the court asked if appellant wanted to
continue watching it. Appellant responded, “No, please. Please no.” Appellant had discussed
-4-
with her attorneys the possibility of not being present in the courtroom while the video played,
and appellant believed that her absence during it would not hurt her ability to discuss the case
with her attorneys. Given the prospect of appellant choosing to absent herself from the trial, the
court explained that appellant had a significant constitutional right to be present during every
portion of the trial. Only appellant could choose to waive that right.1 The court then took an
early lunch recess to enable appellant to further discuss the matter with her attorney.
1
The court informed appellant of the following:
THE COURT: Okay. Ms. Smith, here is what your attorneys are
asking me to do because you know that you have an absolute right
to be present in this courtroom during every word that is taking
place in this trial. You understand that?
DEFENDANT SMITH: Yes. Yes, I do.
THE COURT: And no one can make you leave this courtroom,
and no one can continue on with this trial without you present.
DEFENDANT SMITH: Okay.
THE COURT: Unless you want me to. You understand that?
DEFENDANT SMITH: Yes, I do.
THE COURT: Because it’s your right to be present during every
part of this proceeding. You can also waive or give up that right
for all or a part of the proceedings.
DEFENDANT SMITH: Okay.
THE COURT: I mean, if what you decide after talking in private
with your attorneys is that you do not want to be present during
certain portions of this, for instance, the video, you have that right,
you can make that decision and you would not be in the courtroom
if that’s what you tell me you want to do during the continuation of
the videos, and then you can come back into the courtroom at any
time. I mean, if you just want to be out for that part and come back
you can do that. You understand?
DEFENDANT SMITH: Yes, ma’am.
-5-
The second occurrence of appellant becoming visibly upset occurred after the lunch
recess when the Commonwealth resumed showing the same video. After the jury was removed,
appellant told the court, “I waive those rights to be here when you play those videos. I can’t.”
The court took another recess to enable defense counsel to confer with appellant and to enable
appellant to calm down. After the recess, defense counsel informed the court that he was very
concerned and that appellant had been diagnosed as having “very severe PTSD-- as a result of
what happened here.” Defense counsel said, “It appears to me that Ms. Smith is being taken
back to the moment of what was going on there and she was distraught, she was completely
overwhelmed asking to stop the trial for the day.” Defense counsel made a motion “to pause for
today” so appellant could speak with a mental health doctor whom she had previously seen.
That doctor was a witness scheduled to testify on the following day.
The court asked appellant if she was experiencing any physical pain, and appellant
responded that she had a headache and was experiencing chest pains. Appellant said, “I’m
physically reliving everything right now.” However, appellant said that the trial could proceed if
she did not need to be present for the video. Appellant acknowledged that she understood that
THE COURT: But it’s a significant right and so I want you to
think seriously about it, Ms. Smith, because I know it’s difficult for
you to be here, but it’s also important that you’re able to see and to
hear the evidence that’s being presented against you. You have
attorneys who can do that for you and can help you, but it’s a
significant and a Constitutional Right that you’re giving up to be
present during all portions of the trial. So what I’m going to do
right now is I’m going to bring the jury out for just a minute, I
think I’m going to go ahead and send them to lunch now, we’re
just going to take an early lunch so that you have an opportunity in
privacy, relative privacy, to, number one, compose yourself and,
number two, talk to your attorneys at length about whether you
want to be in the courtroom when we come back and when we
proceed. All right. Because it’s not a decision you should make
hastily. All right. You following me, Ms. Smith?
DEFENDANT SMITH: Yes, ma’am.
-6-
she would not have another opportunity to view the video. Appellant also said that she was not
having any problem communicating with her attorneys and had no questions about their abilities
to continue in her absence. Based on appellant’s statements, the court found that she waived her
right to be present for the playing of the video and that she understood she could return to the
courtroom at any point. Over defense counsel’s objection, the court made the following finding:
I am making a finding based on the observations here today that
Ms. Smith is, first of all, competent and, secondly, that she
understands her rights, she understands the significance of those
rights, she understands how to exercise those rights and that she
has made a voluntary and an intelligent decision to waive her right
to be present in the courtroom during a certain portion of this trial.
So I certainly understand the objection, it’s noted for the record,
but I’ve made that finding.
This was the first point at which appellant was absent during the presentation of the
Commonwealth’s evidence.
The third time appellant became visibly upset was during Detective Lunsford’s testimony
and demonstration of the functioning of a handgun. Appellant informed the court that she was
upset by the sound of the gun, and she requested to absent herself during the remainder of the
demonstration. Defense counsel expressed concern that appellant was not rationally capable of
waiving her right to be present. However, the court found that appellant, while upset, was
rational, intelligent, and capable of making a decision as to whether she wanted to remain in the
courtroom.2 Thereafter, appellant left the courtroom for the remainder of the demonstration.
2
The court stated, “What I have done in each one of these circumstances is given
Ms. Smith some time by herself essentially to gather herself, and then time to speak to her
attorneys. I understand that you feel it may not be enough time, but I am convinced that even
when upset as Ms. Smith is now, I mean, she’s crying, she’s upset, but she is rational, she’s
intelligent, she’s rational, she is capable not of predicting what it is that is going to upset her but
in recognizing what it is that upsets her and in making decisions.” The court went on to make
the following finding, “And so, Mr. Johnson, your concerns are legitimate and I understand
them, but I think Ms. Smith is, and I’m finding that Ms. Smith is capable of making an intelligent
and a voluntary decision as to when she chooses to be present and not.”
-7-
At the conclusion of the Commonwealth’s case, defense counsel made a motion to strike,
which the court denied. During her case in chief, appellant opted not to testify, and defense
counsel made a renewed motion to strike, which the trial court again denied.
B. Jury Instructions and Post-Trial Matters
When the evidentiary portion of the trial concluded, the court issued jury instructions that
were jointly drafted and agreed to by counsel. The court instructed the jury on the elements of
first-degree murder as well as the lesser homicide offenses of second-degree murder, voluntary
manslaughter, and involuntary manslaughter. The language of this instruction on murder and
voluntary manslaughter mirrored Virginia’s Criminal Model Jury Instruction G33.700, “Lesser
Included Offenses.”
Instruction 6 to the jury states:
Mrs. Smith is charged with the crime of first degree murder. The
Commonwealth must prove beyond a reasonable doubt each of the
following elements of that crime:
(1) That Ms. Smith killed Sean Smith; and
(2) That the killing was done with malice; and
(3) That the killing was willful deliberate and premeditated.
If you find from the evidence that the Commonwealth has proved
beyond a reasonable doubt each of the above elements of the crime
as charged, then you shall find Mrs. Smith guilty of first degree
murder but you shall not fix the punishment until your verdict has
been returned and further evidence has been heard by you.
If you find from the evidence that the Commonwealth has proved
beyond a reasonable doubt each of the first two elements of the
offense as charged but you do not find beyond a reasonable doubt
that the killing was willful, deliberate and premeditated, then you
shall find Mrs. Smith guilty of second degree murder but you shall
not fix the punishment until your verdict has been returned and
further evidence has been heard by you.
If you find that the Commonwealth has failed to prove beyond a
reasonable doubt that the killing was malicious but that the
Commonwealth has proved beyond a reasonable doubt that
Mrs. Smith killed Sean Smith and further:
-8-
(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 Mrs. Smith guilty of voluntary manslaughter
but you shall not fix the punishment until the verdict has been
returned and further evidence has been heard by you.
If you find that the Commonwealth has failed to prove beyond a
reasonable doubt the elements of voluntary manslaughter, but you
find that the Commonwealth has proven beyond a reasonable
doubt that:
(1) That Mrs. Smith killed Sean Smith; and
(2) That the killing, although unintended, was the direct result
of negligence so gross, wanton and culpable as to show a
callous disregard of human life;
then you shall find Mrs. Smith guilty of involuntary manslaughter
but you shall not fix the punishment until your verdict has been
returned and further evidence has been heard by you.
If you find that the Commonwealth has failed to prove beyond a
reasonable doubt any one or more of the elements of involuntary
manslaughter, then you shall find Mrs. Smith not guilty. If you
find that the Commonwealth has failed to prove beyond a
reasonable doubt any of the above offenses, then you shall find the
defendant not guilty.
No jury instruction was given regarding the type of actions or conduct that can legally
give rise to a “reasonable provocation” that can negate malice – or that is insufficient to be such
a reasonable provocation.
After the case was submitted to the jury, defense counsel made a motion for a mistrial.
Defense counsel argued that appellant was not “able to make a voluntary rational decision free of
her rationality being overborne by emotion,” and, “that it would deprive her of her due process
rights to continue with this trial because she was deprived of her right to testify.” Therefore,
defense counsel argued that appellant was not capable of making a voluntary, rational decision
regarding her right to testify. Defense counsel also argued that appellant was intermittently
incompetent during the trial based upon her PTSD. The trial court denied defense counsel’s
-9-
motion and found that, while the subject matter of the trial was upsetting for everyone involved,
appellant was able to effectively communicate with the court and her counsel throughout the
trial. Furthermore, the court found that appellant was capable of making her own decision at trial
concerning the right to be present and her right to testify. Finally, the court also found that no
person associated with the government had infringed on the appellant’s rights and prevented her
from testifying.
The jury convicted appellant of voluntary manslaughter, the trial court rejected defense
counsel’s motion to set aside the verdict, and this appeal followed.
II. ANALYSIS
A. Sufficiency of the Evidence on Appellant’s Voluntary Manslaughter Conviction
On brief, appellant challenges the sufficiency of the evidence to support her conviction of
voluntary manslaughter. She argues that the evidence is insufficient because she believed the
gun was unloaded at the time she fired it; therefore, the killing was not intentional. She also
argues that the Commonwealth failed to prove voluntary manslaughter because words alone are
insufficient to give rise to a “reasonable provocation.” Appellant contends that the evidence, at
most, supported a conviction of involuntary manslaughter.
In order to properly assess appellant’s argument, it is necessary to review the law in
Virginia on the crime of voluntary manslaughter. Code § 18.2-35 classifies voluntary
manslaughter as a Class 5 felony; however, the statute does not define the offense. Accordingly,
because the General Assembly has not statutorily defined the offense of voluntary manslaughter,
we must look to the common law. See Code § 1-200 (“The common law of England, insofar as
it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth,
shall continue in full force within the same, and be the rule of decision, except as altered by the
General Assembly.”).
- 10 -
In 1769, in his Commentaries on the Laws of England, Sir William Blackstone defined
the offense of manslaughter as follows: “Manslaughter is therefore thus defined, the unlawful
killing of another, without malice either express or implied: which may be either voluntarily,
upon a sudden heat; or involuntarily, but in the commission of some unlawful act.” 4 William
Blackstone, Commentaries on the Laws of England *190-91 (1769) [hereafter “Blackstone”]
(emphasis added). The Supreme Court of Virginia adopted this definition in M’Whirt’s Case, 44
Va. (3 Gratt.) 594, 605 (1846). Almost fifty years later, in Byrd v. Commonwealth, 89 Va. 536,
538, 16 S.E. 727, 728 (1893) (citing 4 Blackstone *190), the Supreme Court continued to rely on
Blackstone’s definition of voluntary manslaughter as arising “from the sudden heat of the
passions.”
Blackstone also commented on the difference between murder and manslaughter. He
explained:
[W]e may take it for a general rule, that all homicide is malicious,
and of course amounts to murder, unless where [1] justified by the
command or permission of the law; [2] excused on the account of
accident or self-preservation; [3] or alleviated into manslaughter,
by being either the involuntary consequence of some act, not
strictly lawful, or (if voluntary) occasioned by some sudden and
sufficiently violent provocation.
4 Blackstone *201 (emphasis added). The Supreme Court also recognized this distinction in
M’Whirt’s Case, stating, “The difference between the crimes of murder and manslaughter,
consists in this, that manslaughter, (where voluntary,) arises from the sudden heat of the
passions, murder from the wickedness of the heart. Malice aforethought is the grand criterion
which distinguishes murder from other killings.” M’Whirt’s, 44 Va. (3 Gratt.) at 605 (citing 4
Blackstone *198).
Both of Virginia’s appellate courts have also continued to use this language when
discussing voluntary manslaughter in more recent cases. See Jenkins v. Commonwealth, 244
- 11 -
Va. 445, 457, 423 S.E.2d 360, 368 (1992) (“To reduce homicide from murder to voluntary
manslaughter, the killing must have been done in the heat of passion and upon reasonable
provocation.” (quoting Barrett v. Commonwealth, 231 Va. 102, 105-06, 341 S.E.2d 190, 192
(1986))); Rhodes v. Commonwealth, 41 Va. App. 195, 200, 583 S.E.2d 773, 775 (2003) (“A
killing done in the heat of passion and upon reasonable provocation will reduce a homicide from
murder to voluntary manslaughter.”).
The Commonwealth also continues to follow the common law principle that words alone
are not sufficient to engender a reasonable provocation that incites passion and negates the
presence of malice. See, e.g., Martin v. Commonwealth, 184 Va. 1009, 1016-17, 37 S.E.2d 43,
46 (1946) (“It has long been the settled rule in Virginia that words alone, however grievous or
insulting, cannot justify taking human life with a deadly weapon . . . .”); McCoy v.
Commonwealth, 133 Va. 731, 740, 112 S.E. 704, 707 (1922) (“[M]ere words or gestures,
however insulting or irritating they may be by reason of their abusive, contemptuous or indecent
character, do not constitute adequate provocation in law for such passion or heat of blood as will
reduce an intentional homicide from murder to manslaughter.”); Rhodes, 41 Va. App. at 201,
583 S.E.2d at 776 (“Words alone, no matter how insulting, are never sufficient to constitute heat
of passion.”).
Appellant argues that her conviction must be reversed, contending that Virginia case law
defines voluntary manslaughter as a homicide committed in the heat of passion upon reasonable
provocation (and requiring more than words to constitute sufficient provocation).3 Appellant
argues this because she claims that heat of sudden passion is an element of the offense of
voluntary manslaughter that must be established by the Commonwealth beyond a reasonable
3
The jurors were not instructed that “words alone” cannot give rise to such a reasonable
provocation. However, as explained above, settled Virginia case law supports the common law
principle that words alone would not be enough for reasonable provocation.
- 12 -
doubt and that, here, the Commonwealth failed to prove that “element.” Given the requirement
that we should decide cases on the best and narrowest grounds, see Commonwealth v. White,
293 Va. 411, 419, 799 S.E.2d 494, 498 (2017) (recognizing that “[t]he doctrine of judicial
restraint dictates that we decide cases ‘on the best and narrowest grounds available’” (quoting
Commonwealth v. Swann, 290 Va. 194, 196, 776 S.E.2d 265, 267 (2015))), we need not decide
in this case whether heat of passion upon reasonable provocation is an element of voluntary
manslaughter because the jurors in this case were instructed that, in order to find appellant guilty
of voluntary manslaughter, the Commonwealth must prove “[t]hat the killing was committed
while in the sudden heat of passion upon reasonable provocation.” As stated supra, there was no
objection by appellant’s counsel to the jury instructions at trial, nor did appellant assign error to
that instruction on appeal. In fact, the jury instructions were submitted to the trial court by the
agreement of counsel of both parties. As a result, neither the accuracy of the jury instructions
nor the propriety of their submission to the jury is now before us on appeal. Knight v.
Commonwealth, 18 Va. App. 207, 216, 443 S.E.2d 165, 170 (1994) ([“O]ur consideration of
these issues on appeal is barred because appellant failed to object properly at trial.”). See
Owens-Illinois, Inc. v. Thomas Baker Real Estate, Ltd., 237 Va. 649, 652, 379 S.E.2d 344, 346
(1989) (“It is well settled that instructions given without objection become the law of the case
and thereby bind the parties in the trial court and this Court on review.”); see also Wagoner v.
Commonwealth, 289 Va. 476, 485 n.2, 770 S.E.2d 479, 484 n.2 (2015) (noting that where neither
party objected to the jury instruction defining proximate cause, that “definition of proximate
cause is the law of the case, binding on the parties as well as this Court”); Wintergreen Partners,
Inc. v. McGuirewoods, LLP, 280 Va. 374, 379, 698 S.E.2d 913, 916 (2010) (“Because
Wintergreen neither objected nor assigned error to the instructions or the verdict form [regarding
respondeat superior and premises liability], they became the law of the case.”). Consequently,
- 13 -
the model jury instruction, which appears to have been modeled from Virginia Supreme Court
case law, required the Commonwealth to prove beyond a reasonable doubt “(1) [t]hat the killing
was the result of an intentional act; and (2) [t]hat the killing was committed while in the sudden
heat of passion upon reasonable provocation.” 4
Assuming without deciding that reasonable provocation is an element of voluntary
manslaughter in this case, given the jury instruction here, we do not need to actually decide
whether the evidence was sufficient for voluntary manslaughter because of the rule expressed by
the Supreme Court in Blankenship v. Commonwealth, 193 Va. 587, 70 S.E.2d 335 (1952), and in
Connell v. Commonwealth, 144 Va. 553, 131 S.E. 196 (1926); see Taylor v. Commonwealth,
186 Va. 587, 590, 43 S.E.2d 906, 908 (1947) (“For nearly fifty years the rule so declared has
been followed consistently.”); see also Puckett v. Commonwealth, 182 Va. 237, 28 S.E.2d 619(1944); Fleming v. Commonwealth, 170 Va. 636, 196 S.E. 696 (1938); Maxwell v.
Commonwealth, 165 Va. 860, 183 S.E. 452 (1936); Tucker v. Commonwealth, 159 Va. 1038,
167 S.E. 253 (1933); Burton & Conquest v. Commonwealth, 108 Va. 892, 62 S.E. 376 (1908).
4
The concurrence offers intriguing points and thoughtful comments on the crime of
voluntary manslaughter and on the rather unique nature of this case on appeal. As the
concurrence explains, there is some support for viewing heat of passion as a mitigating
circumstance, often argued by the defendant, rather than as an element that the Commonwealth
must prove beyond a reasonable doubt – as the jury instructions in this case provide and as the
Virginia Supreme Court case law seems to dictate. See McCoy, 133 Va. at 738, 112 S.E. at 707
(“The court, therefore, very properly told the jury by Commonwealth’s instruction 4 . . . ‘that
manslaughter is the intentional killing of one person by another upon sudden heat and upon
reasonable provocation without malice.’”); Byrd, 89 Va. at 538, 16 S.E. at 728 (“[M]anslaughter,
when voluntary, arises from the sudden heat of the passions . . . .”). In this unusual case,
appellant never argued to the trial court or to the jury that appellant’s indictment for murder
should be reduced to voluntary manslaughter because the killing occurred in the heat of passion
upon reasonable provocation. However, we need not resolve these potential discrepancies
because in this case, we are bound by the jury instructions and because we must follow the
precedent set by the Supreme Court of Virginia in Blankenship v. Commonwealth, 193 Va. 587,
70 S.E.2d 335 (1952), and its predecessors, including Connell v. Commonwealth, 144 Va. 553,
131 S.E. 196 (1926).
- 14 -
In Blankenship, the Supreme Court explained:
[T]he rule supported by the weight of authority seems to be that if
the evidence demands or warrants a conviction of a higher degree
of homicide than that found by the verdict, and there is either no
evidence in support of acquittal or, if there is, it is not sufficient to
warrant or require acquittal, or is disbelieved by the jury, the
defendant is not entitled to a reversal or a new trial on the ground
that the court instructed on the lower degree of homicide, as to
which there was no evidence, the theory being that he is not
prejudiced thereby and cannot complain.
Blankenship, 193 Va. at 593, 70 S.E.2d at 338.
In Blankenship, a wife was charged with first-degree murder for shooting her husband as
he slept. Wife initially lied to the police, telling them an unidentified intruder shot her husband.
Id. at 588, 70 S.E.2d at 335. Wife subsequently changed her story and admitted to waking in the
morning to find her husband shot with the pistol lying near her hand. Id. at 588-89, 70 S.E.2d at
336. She claimed to have no recollection of shooting her husband. Id. at 589, 70 S.E.2d at 336.
Testimony from numerous witnesses supported the fact that husband and wife were a loving
couple and that wife had a reputation in the community for being truthful. Id. At the close of the
evidence, the jury was instructed on the lesser homicide offenses, including involuntary
manslaughter. Id. at 590, 70 S.E.2d at 336. Subsequently, the jury convicted wife of involuntary
manslaughter. Id. at 588, 70 S.E.2d at 335. On appeal, wife challenged the trial court’s
instructing the jurors on the lesser homicide offenses, and claimed that the evidence was
insufficient to find her guilty of any offense. Id. at 590, 70 S.E.2d at 336. There was no
evidence in Blankenship to support the jury’s finding of involuntary manslaughter. Id. at
591-92, 70 S.E.2d at 337. In upholding the conviction, the Supreme Court stated as follows:
[T]he verdict of a jury finding an accused guilty of a lesser degree
of homicide would not be disturbed, even though the evidence
adduced tended to prove murder in the first degree and none other.
. . . [U]nless this practical application of the principles of law [is]
upheld, “owing to the tenderness of juries and their reluctance to
impose the highest penalty, many crimes would go wholly
- 15 -
unpunished, and thus the rigor of the law would tend rather to the
promotion than to the prevention of crime.”
Id. at 592, 70 S.E.2d at 337-38 (quoting Burton & Conquest, 108 Va. at 900, 62 S.E. at 379).
Given the standard of review we must apply in sufficiency cases and the rule in
Blankenship (and the line of Supreme Court cases that are its predecessors), the appropriate line
of analysis is not only whether any rational factfinder could have found the evidence sufficient
for voluntary manslaughter but also whether any rational factfinder could have found the
evidence sufficient for second-degree murder. See Crowder v. Commonwealth, 41 Va. App.
658, 663, 588 S.E.2d 384, 387 (2003) (“We must instead ask whether ‘any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.’” (quoting
Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc));
Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (“The issue upon
appellate review is ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979))). As with
all sufficiency questions on appeal, we undertake this analysis without engaging in
impermissible appellate fact-finding. See Perry v. Commonwealth, 280 Va. 572, 579, 701
S.E.2d 431, 435 (2010).
Here the record shows that appellant freely admitted to responding police officers that
she shot and killed the victim. The record also shows that appellant intentionally raised the gun,
pointed it in the victim’s direction, and pulled the trigger. Appellant admitted in her statements
to police that she and the victim had been arguing, as both her daughters also told the police –
and that the argument had upset her – although she claimed that she was no longer angry when
she pulled the trigger. In addition, the Commonwealth established (and appellant does not
dispute) that appellant had completed a training course on pistol safety and knew the safety
- 16 -
rules for handling a firearm. Furthermore, “malice may be inferred ‘from the deliberate use of a
deadly weapon.’” See Knight v. Commonwealth, 61 Va. App. 148, 156, 733 S.E.2d 701, 705
(2012) (internal quotes and citations omitted). Therefore, applying the Supreme Court’s rule in
Blankenship, based on the permissible inferences that a rational factfinder could draw from the
evidence in the record, we cannot conclude that no rational factfinder could have found
appellant guilty of second-degree murder. As in Blankenship, appellant was not prejudiced by
the jury’s reluctance to convict her of murder. Therefore, appellant is not entitled to a reversal
of her voluntary manslaughter conviction or a new trial.
The concurrence disagrees with the necessity of our applying the rule in Blankenship
and its predecessors.5 However, an analysis of Connell illustrates the need for us to utilize the
rule in Blankenship. In Connell, the appellant was convicted of voluntary manslaughter. 144
Va. at 554, 131 S.E. at 197. The Commonwealth’s evidence established that Garnett Connell
killed the victim when they were working for a lumber company. Id. Connell approached the
victim, and when he was approximately sixteen feet away, he picked up an axe, which was
lying on the ground. Id. at 555, 131 S.E. at 197. Connell continued to approach, and when he
5
The concurrence claims our reliance on Blankenship is unnecessary, and states that
Blankenship is “likely no longer valid precedent.” The concurrence arrives at this conclusion in
part based on its argument that the analysis in Blankenship is dependent upon a burden-shifting
presumption that was deemed unconstitutional in Mullaney v. Wilbur, 421 U.S. 684 (1975).
However, in Hodge v. Commonwealth, 217 Va. 338, 228 S.E.2d 692 (1976), the Supreme Court
of Virginia considered the constitutionality of the law dealing with presumption in light of the
United States Supreme Court’s decision in Mullaney, and found that Virginia’s law simply did
not violate Mullaney. The Supreme Court in Hodge stated that what had been referred to as a
“presumption” in Virginia was actually only a permissible inference. The Supreme Court
concluded, “We believe that the presumption of second degree murder employed in Virginia is
the type [of] procedural device permitted by Mullaney.” Id. at 342, 228 S.E.2d at 695.
Recognizing that the presumption of second-degree murder is actually an inference rather
than a presumption, the rule in Blankenship would still apply to this case. Furthermore, as the
Supreme Court has not overturned Blankenship and its predecessor decisions in that long line of
cases, we continue to be bound by the Supreme Court’s decisions in these cases.
- 17 -
was close enough, he struck the deceased twice with the head of the axe and the third time with
its blade, burying it in his skull. Id.
Claiming self-defense, Connell testified that, as he approached the victim, the victim
threatened to kill him while running his hand to his hip pocket and bringing it out again while
approaching Connell. Id. Connell claimed that it was only then that he struck the victim with
the axe. Id. Connell also testified that, at the time he hit the victim, he could see something in
the victim’s hand, and the victim had previously told him that the victim carried a razor and a
pistol with him. Id.
After reviewing the evidence, the Court stated, “By their [the jury’s] verdict they
rejected the defense of the accused, but, somewhat illogically, found him guilty of voluntary
manslaughter, instead of murder.” Id. at 556, 131 S.E. at 197. On appeal, Connell argued that
the evidence justified either a conviction of murder, or an acquittal based on self-defense.
Instead of upholding Connell’s conviction for voluntary manslaughter because the evidence was
sufficient to show the intentional killing of another (but without malice), assuming that those
elements are all that is necessary for a voluntary manslaughter conviction, the Supreme Court
held that the evidence was sufficient for murder, and “one convicted of a crime, sufficiently
charged but less in degree than the evidence justifies, cannot complain of such an error in his
own favor.” Id. at 557, 131 S.E. at 197 (citing State v. Lindsey, 5 P. 822 (Nev. 1885)). In this
case, we are presented with the same options as the Supreme Court was in Connell, and we are
bound by that precedent. Therefore, for all the reasons noted, we must apply the rule in
Blankenship and Connell, and affirm appellant’s conviction by recognizing that appellant is not
prejudiced by the jury’s decision to find her guilty of voluntary manslaughter.
- 18 -
B. The Denial of Appellant’s Motion for a Mistrial and Motion to Set Aside the Verdict
We choose to address together appellant’s second and third assignments of error because
both deal with the question of appellant’s competency during the trial, and whether she
voluntarily and intelligently waived her right to be present during certain portions of the trial and
her right to testify.
“The determination whether a criminal defendant is competent to stand trial is a question
of fact that will not be disturbed on appeal unless plainly wrong.” Orndorff v. Commonwealth,
271 Va. 486, 500, 628 S.E.2d 344, 351 (2006). “In conducting our review, we consider the
evidence in the light most favorable to the Commonwealth, the prevailing party on this issue in
the circuit court.” Id. at 500, 628 S.E.2d at 352.
Here, viewing the evidence in that light, as we must on appeal, the record is clear that
appellant was upset on numerous occasions at trial by the Commonwealth’s evidence. On two
such occasions, the appellant freely chose to remove herself from the courtroom. Before
allowing the appellant to temporarily leave the courtroom during the trial, the trial court went to
great lengths to ensure that appellant understood that she was giving up a significant
constitutional right. Also, the trial court explained that the matter could only proceed without
her if appellant freely chose to be absent. The court also explained that appellant could return to
the courtroom at any time.
The trial judge had the ability to observe and speak with appellant during the trial. Also,
on two separate occasions the trial judge found that appellant was competent, fully understood
her rights, and was able to communicate with the court and her counsel, and ultimately that
appellant chose to waive both her right to be present for the presentation of certain evidence –
and her right to testify. Accordingly, we affirm the trial court’s decisions as the evidence
showed that the trial court went to significant lengths to give appellant breaks to compose herself
- 19 -
– and went to considerable effort to make sure appellant understood what rights she was waiving
– and to make sure that she could communicate intelligently with her counsel and the court. We
hold that the trial court’s conclusion and decision were not plainly wrong.
C. Appellant’s Motion to Pause the Trial
“A motion for a continuance . . . is addressed to the sound discretion of the trial court
whose decision will not be reversed unless the record affirmatively shows an abuse of such
discretion.” Smith v. Commonwealth, 16 Va. App. 630, 634, 432 S.E.2d 2, 5 (1993) (quoting
Shifflett v. Commonwealth, 218 Va. 25, 30, 235 S.E.2d 316, 319 (1977)).
Appellant claims that the trial court erred by denying her motion to pause the hearing
until the following day to enable her to seek mental health treatment. Appellant argues that the
trial court’s denial of the motion subjected the appellant to a trial that she lacked the requisite
competency to understand. As discussed supra, the trial court went to great lengths to ensure
that appellant understood her rights. Appellant chose to waive her rights and was found to be
competent by the trial court on two separate occasions. Given the record before us, we cannot
say that the trial court abused its discretion by denying appellant’s motion.
III. CONCLUSION
Here, appellant was convicted of voluntary manslaughter, a lesser homicide than murder.
Because the jury was instructed that in order to convict appellant of voluntary manslaughter, the
Commonwealth must prove “[t]hat the killing was committed while in the sudden heat of passion
upon reasonable provocation,” we are bound by that instruction on appeal. While appellant
claims that she is entitled to a reversal of her conviction and a new trial on involuntary
manslaughter because the Commonwealth failed to prove this “element,” the longstanding rule
stated by the Supreme Court in Blankenship, in Connell, and in a long line of cases holds
otherwise. Here, we cannot say that no rational factfinder could find the evidence sufficient to
- 20 -
conclude that the elements necessary for a higher level of homicide – second-degree murder –
were present. Therefore, we cannot say the jury did not simply decide to show mercy or that
appellant has been prejudiced by being convicted of the lesser homicide offense of voluntary
manslaughter.
Looking to appellant’s other assignments of error, we note that the trial court went to
great lengths to ensure that appellant was aware of her significant constitutional right to be
present at trial and her right to testify in her own defense. After being repeatedly reminded of
her rights (and given breaks to compose herself), appellant freely decided to temporarily leave
the courtroom during the presentation of some evidence that upset her – and not to testify at trial.
The trial court went to great lengths to give appellant additional time to compose herself and to
communicate in relative privacy with her counsel at numerous points in the trial prior to
appellant’s freely choosing to temporarily leave the courtroom. Therefore, we find that the trial
court also did not abuse its discretion by denying appellant’s motion to continue the trial to
another day.
For all of these reasons, we affirm appellant’s conviction for voluntary manslaughter.
Affirmed.
- 21 -
Humphreys, J., concurring in the judgment.
I join my colleagues in affirming the judgment in this case. I also join in Parts B and C
of the majority’s analysis with respect to appellant’s latter three assignments of error regarding
the circuit court’s denial of her motions for a mistrial and to set aside the verdict because of her
alleged sporadic incompetency during her trial; the denial of her motions for a mistrial and to set
aside the verdict due to her alleged PTSD flashback; and her motion to “pause” the trial pending
her receipt of mental health treatment.
However, regarding appellant’s first assignment of error with respect to the sufficiency of
the evidence to support her conviction of voluntary manslaughter, I must respectfully depart
from the analysis of my colleagues in Part A of the majority opinion.
The parties and the majority concede that the model jury instruction that was used in this
case, defining the possible verdicts and the elements the Commonwealth was required to prove
for each, was unobjected to and permitted the jury to render a verdict of guilty to voluntary
manslaughter. Those two facts should be dispositive of this assignment of error since, by failing
to object to the instruction, appellant conceded in the circuit court that the Commonwealth’s
evidence was legally sufficient to support a potential verdict of voluntary manslaughter and also
waived appellate review with respect to any defects in the wording of that instruction or whether
it should have been given at all. Thus, on appeal, she may not adopt an inconsistent legal
position in that regard. See Rule 5A:18; see also Dufresne v Commonwealth, 66 Va. App. 644,
653, 791 S.E.2d 335, 339 (2016) (en banc). This analysis would be the narrowest and best basis
for the disposition of this assignment of error. However, although my colleagues in the majority
acknowledge these facts and our duty is to decide cases on the narrowest and best grounds, they
nevertheless elect to proceed with an analysis that, in my view, is both erroneous and further
- 22 -
confuses an already murky legal landscape with respect to the nature of the offense of voluntary
manslaughter.
In fairness to my colleagues, I concede that there are conflicting cases from both this
Court and our Supreme Court that paint a rather confusing picture of how “heat of passion”
factors into a sufficiency of the evidence analysis with respect to the crime of voluntary
manslaughter. However, because the majority’s entirely superfluous analysis will add to that
confusion and create a host of entirely unnecessary problems for prosecutors and trial court
judges and furthermore, because I believe the majority’s analysis to be seriously flawed, I feel
compelled to offer my view in response. In addition, I fervently disagree with the majority
insofar as it finds it necessary to apply our Supreme Court’s holding in Blankenship v.
Commonwealth, 193 Va. 587, 70 S.E.2d 335 (1952), to the facts of this case.
As the majority notes, appellant’s first assignment of error is essentially that because the
jury was instructed that in order for them to convict her of voluntary manslaughter, the
Commonwealth was required to prove beyond a reasonable doubt that she acted in “heat of
passion upon reasonable provocation” and she contends that since the Commonwealth presented
no evidence that the law recognizes as legally provocative, since words alone are never legally
sufficient to constitute “reasonable provocation,” the evidence supporting the verdict was
necessarily insufficient as a matter of law.6
I begin my response to the majority’s flawed analysis where my colleagues begin
theirs—with Code § 1-200, which stipulates that “[t]he common law of England, insofar as it is
not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth,
6
Again, I reiterate and note that this assignment of error should be procedurally defaulted
for the reasons already stated since by appellant’s failure to object to the voluntary manslaughter
portion of the instruction, she was conceding that the evidence presented to the jury was
sufficient to support that possible verdict.
- 23 -
shall continue in full force within the same, and be the rule of decision, except as altered by the
General Assembly.” The General Assembly has not seen fit to alter the common law definition
of voluntary manslaughter and thus trial judges and litigants in homicide cases must rely on
precedent to frame jury instructions.
At common law, manslaughter was defined simply as “[t]he unlawful killing of another
without malice either express or implied.” 4 William Blackstone, Commentaries *190. The
model jury instruction used in this case adds as a required element that the killing be
accomplished “in the heat of passion upon reasonable provocation.” This instruction is based
upon several cases cited by the majority that, in my view, incorrectly suggest that what
historically was a mitigating circumstance at common law is actually an element of the offense.
“The distinctions between manslaughter and murder, consists in the following. In the
former, though the act which occasions the death be unlawful, or likely to be attended with
bodily mischief, yet the malice, either express or implied, which is the very essence of murder, is
presumed to be . . . manslaughter.” 1 Sir Edward Hyde East, A Treatise of the Pleas of the
Crown 218 (London, A. Strahan ed. 1803). English common law historically classed
manslaughter as “those [killings] which take place in consequence of, 1. Provocation. 2. Mutual
combat. 3. Resistance to public officers. 4. Killing in the prosecution of an unlawful or wanton
act. 5. Killing in the prosecution of a lawful act, improperly performed, or performed without
lawful authority.” Manslaughter, A Law Dictionary Adapted to the Constitution and Laws of the
United States of America, and the Several States of the American Union; with References to the
Civil and Other Systems of Foreign Law (T. & J.W. Johnson, Law Booksellers ed. 1843).
The common law initially did not classify voluntary or involuntary manslaughter as
separate categories of homicide and simply considered any killing lacking malice as
manslaughter. This included an unintentional killing due to gross negligence, which was just
- 24 -
another factor negating the element of malice in reducing murder to manslaughter. “When death
ensues from the performance of a lawful act, it may, in consequence of the negligence of the
offender, amount to manslaughter. For instance, if the death has been, occasioned by negligent
driving.” 1 East, P. C. 263; 1 C. & P. 320 S. C. 9 E. C. L. R. 408; 6 C. & P. 629; S. C. 25 E. C.
L. R. 569. Again, “when death ensues, from the gross negligence of a medical or surgical
practitioner, it is manslaughter.” 1 Hale, P. C. 429; 3 C. & P. 632; S. C. 14 E, C. L. R. 495.
Eventually, manslaughter was categorized as either “voluntary” upon sudden heat and
provocation or “involuntary” but in the commission of some unlawful act. See 4 William
Blackstone, Commentaries *190-93 (“As to the first or voluntary branch: if upon a sudden
quarrel two persons fight and one of them kills the other, this is manslaughter . . . for this is one
continued act of passion.” (emphasis added)); see also 1 Hawk, P. C. 82.
My point here is that, at common law, malice was presumed to exist in every homicide
based upon yet another common law presumption that every killing was intentional.7 Thus, the
burden on the defendant to establish sufficient provocation to reduce the offense from murder to
manslaughter at common law was a response to the presumption of malice, which the common
law raised in every case of homicide. “[I]t is therefore no answer when express malice is
proved . . . and to be available the provocation must have been reasonable and recent, for no
words or slight provocation will be sufficient, and if the party has had time to cool, malice will
be inferred.” Id. (citing 1 Russ. Cr, 440; 1 East, P. C. 239).
7
See, e.g., Rex v. Holt, 7 C. & P. 518 (1836) (“A man must be taken to intend the
consequences of his acts.”); see also Jordan v. Commonwealth, 181 Va. 490, 493, 25 S.E.2d 249,
250 (1943) (“A man is presumed to intend the natural consequences of his act.”); Reese v. Bates,
94 Va. 321, 330, 26 S.E. 865, 869 (1897) (“Every man is presumed to intend the consequences
of his own act.”).
- 25 -
To complicate matters further, because the common law presumed the existence of
malice, the common law practice did not permit manslaughter to be directly charged.8 This was
because the common law also presumed every killing to be murder, with the defendant required
to rebut the presumption of malice by demonstrating that one of the recognized factors negating
malice existed. See 1 Hale, P. C. 455; see also Lewis v. Commonwealth, 78 Va. 732, 733 (1884)
(“[M]alice is presumed from the fact of the killing, unaccompanied with circumstances of
extenuation; and the burden of disproving malice is upon the accused.”).9
The phrase “heat of passion” seems to originate in the words of Sir William Blackstone.
In his Commentaries, Blackstone notes that “the difference [between murder and manslaughter]
principally consists in this, that manslaughter, when voluntary, arises from the sudden heat of the
passions, murder from the wickedness of the heart.” Byrd v. Commonwealth, 89 Va. 536, 538,
16 S.E. 727, 728 (1893) (quoting 4 William Blackstone, Commentaries *138). However, in
describing what constitutes his “voluntary” category of manslaughter, Blackstone includes as
examples of “heat of passion” not only a man finding his wife in adultery with another man but
also “chance-medley.” 4 William Blackstone, Commentaries *139-45 (citing 24 Henry VIII, ch.
5 (1532) (publicizing the first official statement addressing what amounts to, in modern terms,
imperfect self-defense)).
8
The General Assembly statutorily modified this common law concept that manslaughter
was an offense only derivative of murder and could not be directly charged. See Code
§ 19.2-221 (“A grand jury may, in case of homicide, which in their opinion amounts to
manslaughter only, and not to murder, find an indictment against the accused for manslaughter
. . . .”).
9
In England, the presumption of malice was abolished by The Homicide Act, 1957, 5 &
6 Eliz. 2, c.11, 1 (Eng.).
- 26 -
However, over the last two centuries, “heat of passion upon reasonable provocation” has
evolved into the only currently legally recognized factor in the Commonwealth that negates
malice.10
Our Supreme Court has occasionally reiterated the historically understood relationship
between murder and manslaughter.
All homicide, is in presumption of law, malicious; and of course
amounts to murder, unless justified, excused or alleviated; and it is
incumbent upon the prisoner to make out, to the satisfaction of the
Court and jury, the circumstances of justification, excuse and
alleviation. 4 Bl. Com. 201; Honeyman’s Case, Add. 148; Bell’s
Case, Add. 162; M’Fall’s Case, Add. 257; Lewis’ Case, Add. 282.
This presumption of malice, which makes the homicide to be
murder, may be repelled by the accused, where the act, though
intentional of death, or great bodily harm, was not the result of a
cool, deliberate judgment, and previous malignity of heart; but is
imputable to human infirmity alone, when death ensues from
sudden transport of passion or heat of blood, if upon reasonable
provocation, and without malice: for on such proofs, the homicide
will be manslaughter.
M’Whirt’s Case, 44 Va. (3 Gratt.) 594, 605 (1846).
The majority cites M’Whirt’s Case, 44 Va. (3 Gratt.) 594, in support of its analysis and
that case and many which follow it accurately reflect the common law as it historically applied.
However, both our Supreme Court and this Court have also “defined” voluntary manslaughter in
10
The other common law factors that historically negated the element of malice have
either been subsumed within the crime of involuntary manslaughter or are no longer recognized
at all. For example, notwithstanding its ancient common law roots, imperfect self-defense is not
recognized in the Commonwealth to negate the element of malice. See Jackson v.
Commonwealth, 98 Va. 845, 848, 36 S.E. 487, 488 (1900) (“With regard to the necessity that
will justify the slaying of another in self-defence, it should seem that the party should not have
wrongfully occasioned the necessity; for, a man shall not in any case justify the killing of another
by a pretence of necessity, unless he were without fault in bringing that necessity upon
himself.”).
Ironically, England abolished “heat of passion upon sudden provocation” as a mitigatory
defense sufficient to convert murder to manslaughter through § 56(1) of the Coroners and Justice
Act, which substituted “diminished capacity” and “loss of control” as mitigating factors. See
Coroners and Justice Act, 2009, § 56(1) (UK).
- 27 -
a manner that confusingly and erroneously suggests to some, apparently including the drafters of
the model jury instruction used in this case and my colleagues in the majority, that “heat of
passion upon reasonable provocation” is actually an element of the offense of voluntary
manslaughter. See, e.g., Read v. Commonwealth, 63 Va. (22 Gratt.) 924, 937-38 (1872)
(“Voluntary manslaughter is defined as an intentional killing committed while in the sudden heat
of passion upon reasonable provocation.”); see also Turner v. Commonwealth, 23 Va. App. 270,
274, 476 S.E.2d 504, 506 (1996) (citing Read, 63 Va. (22 Gratt.) at 937-38); Barrett v.
Commonwealth, 231 Va. 102, 105-06, 341 S.E.2d 190, 192 (1986). This reference to “heat of
passion upon sudden provocation” as part of a so-called definition of voluntary manslaughter
was technically correct as long as one remembers that, at the time Read was decided, the burden
of proving its existence was the defendant’s and thus any such “definition” did not equate to a
list of elements that the prosecution was required to prove beyond a reasonable doubt and in any
event, made little, if any, difference until 1975 and the United States Supreme Court’s decision
in Mullaney v. Wilbur, 421 U.S. 684 (1975).
Mullaney specifically addressed the common law’s presumption of malice, holding that it
was unconstitutional to require a defendant charged with murder to prove that he acted “in the
heat of passion on sudden provocation” to reduce the homicide to manslaughter. See id. at
703-04. The Supreme Court in Mullaney held that such burden shifting presumptions violated
the due process requirement of the Fourteenth Amendment and that the prosecution bears the
burden to prove every element of the offense(s) charged. See id.; see also Sandstrom v.
Montana, 442 U.S. 510, 520-24 (1979).
Post-Mullaney, the test is simple in concept if not always in application—with respect to
any and all elements of a crime, the prosecution bears the sole burden of proof to establish the
existence of each of those elements beyond a reasonable doubt. However, with respect to
- 28 -
affirmative defenses, such as insanity or self-defense, the burden of persuasion to establish the
defense to the extent it raises a reasonable doubt remains the defendant’s. See, e.g., Patterson v.
New York, 432 U.S. 197 (1977); Rivera v. Delaware, 429 U.S. 877 (1976).
In my view, in the wake of Mullaney, the “definition” of voluntary manslaughter from
Read, Barrett, and Turner now immortalized in a model jury instruction, has injected some
confusion into the Commonwealth’s case law. Specifically, post-Mullaney, these cases muddle
whether “heat of passion upon reasonable provocation” is an element of voluntary manslaughter
that the prosecution bears the burden of proving beyond a reasonable doubt or more in the nature
of a partial affirmative defense to murder for which a defendant has the burden of persuasion. I
conclude that in “defining” voluntary manslaughter “as an intentional killing committed while in
the sudden heat of passion upon reasonable provocation,” Read, Barrett, and Turner were merely
restating the historical common law formula for an offense that, until Mullaney, required an
element that only the defendant had the burden to prove, namely “heat of passion upon sudden
provocation.” Post-Mullaney, I do not read any of these cases as changing the common law
burden of proof placed upon the Commonwealth and, for the reasons that follow, I believe that
the model jury instruction used in this case was erroneous in suggesting otherwise.
Our Supreme Court dealt expeditiously with the issue raised in Mullaney by announcing
that:
[T]he Virginia presumption [of malice] does not cast upon the
accused the burden of proving by a fair preponderance of the
evidence that he acted in the heat of passion in order to put that
critical fact in issue and to require the Commonwealth to negate
passion beyond a reasonable doubt. The Virginia burden is
satisfied when the accused produces some credible evidence that
he acted in the heat of passion. But even if he produces no
evidence, he may rely upon the Commonwealth’s evidence to
secure a manslaughter instruction and an acquittal on the charge of
murder, if that evidence indicates he acted in the heat of passion.
In practical effect, therefore, the Virginia presumption amounts to
- 29 -
no more than an inference which the trier of fact is permitted, but
is not required, to draw from proven facts.
Hodge v. Commonwealth, 217 Va. 338, 343, 228 S.E.2d 692, 695-96 (1976).
Declaring that presumptions—enshrined in centuries of common law jurisprudence—
were all along only permissive inferences may have solved the constitutional problem Mullaney
raised for the Commonwealth. However, such re-labeling leaves at least one non-constitutional
question unanswered that is relevant to the resolution of this appeal selected by the majority:
Since the entire foundation of the crime of manslaughter at common law rested upon two
presumptions that are now no more than permissive inferences—the presumptions that every
killing of another is both intentional and malicious—what are the elements of voluntary
manslaughter that require proof of beyond a reasonable doubt?
In answering that question, it seems logical to begin with what is pretty clearly to me not
an element of voluntary manslaughter—“heat of passion upon reasonable provocation.” In my
view, there are at least two reasons why.
First, as already noted, because of the pre-Mullaney presumptions of intent and malice,
the burden of establishing “heat of passion upon sudden provocation” at common law has always
been a burden placed on the defendant and has never been the responsibility of the prosecution to
prove. Only the model jury instruction used in this case has ever expressly stated otherwise and I
do not read any post-Mullaney case from our Supreme Court, to have placed any burden on the
Commonwealth to negate beyond a reasonable doubt, an element of murder in order to obtain a
conviction for the lesser-included offense of voluntary manslaughter. Although the model jury
instruction cites Read and its progeny as its source, as already noted, the “definition” found in
Read et al. cannot be synonymous with the elements for which the Commonwealth has the
burden of proof. This is because, at the time Read was decided and initially created the
“definition” of voluntary manslaughter that has been carried forward by both appellate courts of
- 30 -
the Commonwealth into the jury instruction used in this case, the burden to establish the
“definitional” element of “heat of passion upon sudden provocation” was clearly still the burden
of the defendant.
Second, it seems to me that an even more dispositive argument that “heat of passion upon
reasonable provocation” is not properly an element of voluntary manslaughter is that, if such
were the case, the model jury instruction used here is infirm for yet another reason. If “heat of
passion upon reasonable provocation” is an element they are required to prove, the prosecutors
of the Commonwealth will be startled to learn that the offense of voluntary manslaughter is no
longer an option as a possible alternative verdict in a murder case since voluntary manslaughter
can no longer fill its centuries long role as a lesser-included offense of murder under the
Blockberger test. See Blockberger v. United States, 284 U.S. 299, 304 (1932) (“The applicable
rule is that, where the same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two offenses or only one is
whether each provision requires proof of an additional fact which the other does not.”). For both
of these reasons, I conclude that the “definition” of voluntary manslaughter offered up by Read
and its progeny is not a laundry list of the elements of voluntary manslaughter that the
Commonwealth must prove beyond a reasonable doubt.
Applying the statutory mandate for construction of the common law found in Code
§ 1-200, coupled with the constitutionally mandated removal of the presumptions of intent to kill
and malice in every homicide, I conclude that the definitional elements of voluntary
manslaughter compatible with the common law as circumscribed by the Constitution through
Mullaney are, to only slightly paraphrase Blackstone: “[t]he [intentional] killing of another [in
the absence of sufficient evidence of] malice[.]” See 4 William Blackstone, Commentaries *190.
Since the existence of malice either express or implied is the only difference between
- 31 -
second-degree murder and voluntary manslaughter and it would be absurd to suggest that the
Commonwealth is ever required to establish a lack of evidence beyond a reasonable doubt, it
follows that an intent to kill and the resulting death of the victim are the only elements the
Commonwealth actually needs to prove beyond a reasonable doubt to convict of voluntary
manslaughter. For these reasons, I conclude that the model jury instruction used in this case did
not correctly state the law regarding the elements of voluntary manslaughter because “heat of
passion upon reasonable provocation” is not properly an element of voluntary manslaughter that
need be proven beyond a reasonable doubt by the Commonwealth. Rather, “heat of passion” is
properly relevant only to a charge of murder and operates only as a partial affirmative defense to
offset any inference of malice—an element only of murder and not manslaughter.
This brings me to the manner in which the majority resolves this assignment of error.
The majority avoids having to decide the question of whether reversal is required when the
evidence is insufficient to establish that the Commonwealth failed to prove the existence of an
“element” that negates another element that the Commonwealth was required to prove for a
greater offense—namely malice. The majority accomplishes this by concluding that the jury
instruction is “the law of the case”11 and relying upon our Supreme Court’s decisions in a
number of cases decided before Mullaney, in particular, Blankenship v. Commonwealth, 193 Va.
587, 70 S.E.2d 335 (1957), and Connell v. Commonwealth, 144 Va. 553, 131 S.E. 196 (1925).
In essence, Blankenship and Connell hold that, in a murder case where no evidence
whatever was presented to warrant a reduction in the offense from murder, reversal of a
11
The majority relies upon our Supreme Court’s decision in Wintergreen Partners, Inc. v.
McGuirewoods, LLP, 280 Va. 374, 379, 698 S.E.2d 913, 916 (2010), for this proposition. In that
case the Court held that by failing to object to a jury instruction, the appellant could not complain
that the jury had followed it. But, I do not read the Supreme Court’s holding in that case to
require reversal when, as here, the converse is true and the evidence is sufficient as a matter of
law as it actually exists.
- 32 -
conviction for a less serious offense than the jury was instructed on is not warranted because the
defendant suffered no prejudice by being convicted of a lesser offense than the law should have
permitted. See Blankenship, 193 Va. at 593, 70 S.E.2d at 338; Connell, 144 Va. at 556-57, 131
S.E. at 197.
Applying Blankenship, the majority begins its analysis by noting that it undertakes its
“analysis without engaging in impermissible appellate fact-finding” and then proceeds to do
exactly that by concluding that “based on the permissible inferences that a rational factfinder
could draw from the evidence in the record, we cannot conclude that no rational factfinder could
have found appellant guilty of second-degree murder.” What seems to have escaped the majority
here is the fact that a rational factfinder declined to draw those permissive inferences and reach
the verdict my colleagues in the majority evidently would have preferred.
“In determining whether credible evidence exists, the appellate court does not retry the
facts, reweigh the preponderance of the evidence, or make its own determination of the
credibility of the witnesses.” Smith-Adams v. Fairfax Cty. Sch. Bd., 67 Va. App. 584, 590, 798
S.E.2d 466, 469 (2017) (quoting Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407
S.E.2d 32, 35 (1991)). Despite this admonition, the majority relies upon Blankenship, Connell,
and the permissible inference that “malice may be inferred from the deliberate use of a deadly
weapon” to opine that “we cannot conclude that no rational factfinder could have found appellant
guilty of second degree murder.”
In doing so, the majority apparently overlooks the fact that in this case, a rational
factfinder actually rejected the inference that the majority relies upon thereby implicitly
transforming the permissible inference back into a de facto pre-Mullaney unrebutted
presumption. The majority also ignores the standard of review in legal sufficiency cases which
is to view the evidence in the light most favorable to the prevailing party, in this case the
- 33 -
Commonwealth, only insofar as it supports the verdict. Appellate courts may not consider
evidence that was expressly or implicitly rejected by the factfinder. See, e.g., Courtney v.
Commonwealth, 281 Va. 363, 368, 706 S.E.2d 344, 347 (2011) (“As we have said on many
occasions, . . . the reviewing court is not permitted to substitute its own judgment, even if its
opinion might differ from the conclusions reached by the finder of fact at the trial.’”); Cobb v.
Commonwealth, 152 Va. 941, 953, 146 S.E. 270, 274 (1929) (“[I]t is not for this court to say that
the evidence does or does not establish his guilt beyond a reasonable doubt because as an
original proposition it might have reached a different conclusion.”). This deferential appellate
standard “applies not only to findings of fact, but also to any reasonable and justified inferences
the fact-finder may have drawn from the facts proved.” Sullivan v. Commonwealth, 280 Va.
672, 676, 701 S.E.2d 61, 63-64 (2010).
The verdict in this case implicitly indicates that the jury was not satisfied that the element
of malice was proven beyond a reasonable doubt. Thus, the starting point for any sufficiency
analysis must be based upon the sufficiency of the evidence for the crime that the appellant was
actually convicted of—not what the appellant might have been convicted of if my colleagues had
been sitting in the jury box. By ignoring that fact in its analysis and deciding that because the
Commonwealth presented sufficient evidence from which the jury could have found the
defendant guilty of the greater offense of second-degree murder and despite its disclaimer to the
contrary, the majority’s analysis necessarily assumes that malice was presumed rather than
merely inferred by the use of the deadly weapon and further that this presumption could not have
been rebutted by evidence of “heat of passion upon reasonable provocation” since there was
none. However, as already explained, the majority’s analytical approach is no longer compatible
with due process. The majority’s Blankenship based analysis assumes that the jury either
ignored the instruction regarding heat of passion or based its verdict entirely on a desire for some
- 34 -
measure of leniency toward the appellant.12 My colleagues’ analysis ignores Mullaney and the
fact that the evidence of malice in this case was entirely based upon the use of a deadly weapon
from which the jury could have drawn an inference of malice but was not required to do so
irrespective of whether there was any evidence of “heat of passion upon reasonable
provocation.” The fact that the jury chose not to draw a permissive inference is binding upon us
as we conduct our sufficiency review, and the majority is not entitled to do otherwise on appeal.
Our standard of review constrains us from considering the use of the weapon as evidence of
malice, even in the light most favorable to the Commonwealth. Moreover, I note that the
holdings of Connell and Blankenship are likely no longer valid precedent because their analysis
is necessarily dependent upon a burden-shifting presumption later deemed unconstitutional by
Mullaney and its progeny. See Blankenship, 193 Va. at 591, 70 S.E.2d at 337 (“[T]he burden
was on the accused to produce evidence showing justification or excuse for the homicide.”). I
see no need to head down the slippery slope that the majority’s reliance on Blankenship creates
for future sufficiency of the evidence analyses where we will now consider all the evidence
presented, including evidence implicitly, or perhaps even explicitly, rejected by the factfinder,
and apply a “no harm, no foul” analysis if the verdict might have been one of guilty of a more
serious crime.
For the reasons previously stated, I conclude that the model jury instruction defining the
offense of voluntary manslaughter is an erroneous statement of the law. However, I would
nevertheless affirm the judgment for two reasons, one of which I have already stated—appellate
12
While it is certainly possible that the jury simply chose to overlook overwhelming
evidence that the appellant was guilty of murder in what amounts to an act of grace or leniency
to the appellant, such speculation has no place in a sufficiency analysis. “[B]ecause we are more
careful than most states to protect the inviolability and secrecy of jurors’ deliberations, a court, in
a case like this [involving internally inconsistent verdicts], is unlikely to discover what motivated
the jury.” Reed v. Commonwealth, 239 Va. 594, 598, 391 S.E.2d 75, 77 (1990) (internal
quotation marks and citation omitted); see also United States v. Powell, 469 U.S. 57, 65 (1984).
- 35 -
review has been waived because the appellant has taken inconsistent legal positions in the circuit
court and on appeal.
The second reason I would affirm is that, even if we were able to address this assignment
of error, it seems to me that when appellate courts review a trial record to determine if the
evidence is sufficient as a matter of law, the “law” that ought to frame that review is the law as it
actually existed at the time of the offense, not the “law” as erroneously conceded by the parties
as I believe the situation to be here. See Moonlight Enters. v. Mroz, 293 Va. 224, 234 n.5, 797
S.E.2d 536, 541 n.5 (2017) (“[W]e are not bound by a party’s concession of law, or the parties’
agreement on an issue of law, . . . Simply put, litigants cannot define Virginia law by their
concessions.” (internal citations omitted)). To hold otherwise would result in either reversal and
dismissal based upon insufficient evidence to support a non-existent crime or reversal and
remand for a new trial on the grounds that the jury departed from its incorrect instructions,
despite reaching a verdict consistent with the law as it actually exists, with the ideal result of the
new trial being that a second jury would apply the same law the first jury was reversed for
applying.
For all of these reasons and because of the presumably unintended mischief that I predict
will be created by the analysis of the majority, I decline to join my colleagues but would
nevertheless affirm the judgment below.
- 36 -