Fedrico M. Gilmore v. Commonwealth ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bray and
Senior Judge Overton ∗
Argued at Norfolk, Virginia
FEDRICO M. GILMORE
MEMORANDUM OPINION ∗∗ BY
v. Record No. 0709-98-1 JUDGE NELSON T. OVERTON
FEBRUARY 16, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Westbrook J. Parker, Judge
Barrett R. Richardson (Richardson & Rosenberg
LLC, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Fedrico M. Gilmore (defendant) appeals his conviction for
the second degree murder of Laura Joyner. He contends that the
trial court erred by refusing to instruct the jury on the
elements of voluntary manslaughter. Because we hold the evidence
did not warrant such an instruction, we affirm.
The parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedental
value, no recitation of the facts is necessary.
∗Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
"It is well settled that a trial court must instruct the
jury on a lesser-included offense if more than a scintilla of
evidence supports it." Donkor v. Commonwealth, 26 Va. App. 325,
330, 494 S.E.2d 497, 500 (1998) (citing Boone v. Commonwealth, 14
Va. App. 130, 132, 415 S.E.2d 250, 251 (1992)). "In determining
whether to instruct the jury on a lesser-included offense, the
evidence must be viewed in the light most favorable to the
accused's theory of the case." Lea v. Commonwealth, 16 Va. App.
300, 305, 429 S.E.2d 477, 480 (1993) (citing Barrett v.
Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986)).
Therefore, we must examine the record for evidence that the
defendant committed voluntary manslaughter.
To reduce a homicide from murder to manslaughter, the
killing must have been committed in the heat of passion, upon
reasonable provocation and without malice. See Barrett, 231 Va.
at 105-06, 341 S.E.2d at 192. Defendant asserts on appeal that
he killed Ms. Joyner because she called out the name of her
boyfriend during intercourse and this drove him into a jealous
rage. The record, however, belies his assertion. Ms. Joyner
allegedly called out the name of her boyfriend while they were
engaged in intercourse, yet defendant waited until after they had
finished intercourse in order to strangle her. Defendant
testified that Joyner's calling of another man's name didn't
anger him, it "didn't really like tick me off, like tick me off,
I could care, I could really care less, but it was just the
point." Moreover, defendant and Ms. Joyner did not share a close
- 2 -
or emotional bond. Defendant described their relationship as
"bam, bam, gone, that type."
According to defendant's own testimony he did not kill Ms.
Joyner because he was angry, but just to make "the point." In
these circumstances, we can discern no reasonable provocation for
his actions nor find even a "scintilla" of evidence that
defendant acted in the heat of passion. Because the evidence
supports the trial court's decision to refuse the jury
instruction, we affirm defendant's conviction.
Affirmed.
- 3 -