Lynn v. Com.

• Citation: 27 Va. App. 336,499 S.E.2d 1
• Decision Date: 12 May 1998
• Docket Number: Record No. 0109-97-3.
• Parties: Robert Scott LYNN v. COMMONWEALTH of Virginia.
• Court: Court of Appeals of Virginia

499 S.E.2d 1

27 Va. App. 336

Robert Scott LYNN v. COMMONWEALTH of Virginia.

Record No. 0109-97-3.

Court of Appeals of Virginia, Salem.

May 12, 1998.

Roger Groot, Buena Vista (J. Lloyd Snook; Snook & Haughey, P.C., Charlottesville, on briefs), for appellant.

Leah A. Darron, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Present: COLEMAN and BUMGARDNER, JJ., and COULTER, Retired Judge.¹ COLEMAN, Judge.

Robert Scott Lynn was convicted by a jury for second degree murder and use of a firearm in the commission of murder. On appeal, he contends: (1) the trial court erred in refusing to grant certain proffered jury instructions, and (2) the evidence is insufficient to support the convictions. We disagree and affirm the convictions.

I. BACKGROUND

Appellant and his wife attended a holiday party hosted by appellant's brother-in-law, Stuart Fitzgerald. James Nash, the victim, also attended the party. Most of the guests, including appellant and Nash, consumed a substantial amount of alcohol. At one point during the evening, Nash displayed two firearms that he had carried with him, a .44 Magnum pistol and a 9 millimeter semi-automatic pistol with a laser sight that produced a red dot on the directed target.

At about 2:00 a.m., Fitzgerald's wife told the guests the party was ending and asked Nash to leave. She asked Buddy Ayers, Nash's co-worker, to assist in getting Nash to leave the party. When Ayers touched Nash's shoulder to get his attention, Nash lifted Ayers "cradle-style" and fell backward with Ayers off the porch into a woodpile. Ayers stood up and was reaching to help Nash from the woodpile when appellant charged by Ayers and began punching Nash. Buddy Ayers testified that he was unable to recall the ensuing events because someone "whacked" him across the face with a large stick.

Kay Ayers testified that appellant and Fitzgerald ran over and started throwing punches at Nash and Ayers as the latter two men helped each other from the woodpile. She went into the house to call the police. When she looked outside, Fitzgerald was astraddle Ayers punching him while appellant was fighting with someone else. She saw Nash go to his truck and return holding a gun at his side. As she turned to tell Fitzgerald's wife to call the police, she heard two gunshots, a pause, and then several more gunshots in rapid succession. She testified that after the firing ended, she looked out and saw Nash lying face down on the lawn.

Rockbridge County Police Sergeant Steve Webb testified that when he arrived at the scene he found Nash lying on the front lawn next to several parked cars. Appellant admitted to Webb that he had shot Nash, stating, "I did it. I'm the one you want." In a statement to Deputy Sheriff Christopher Blalock, appellant stated that Nash grabbed his wife by the neck and fired two gunshots by her head. Appellant recounted that he thought his wife was dead. He told Blalock that he jumped the victim, grabbed the gun, and "emptied the son-of-a-bitch."

Dr. William Massello, a forensic pathologist, testified that Nash was shot at least five times from behind. One of the wounds was consistent with the victim being shot while lying on the ground. Special Agent Jerry Humphries, an expert in blood spatter analysis, testified that the blood spatters found on the vehicles parked near Nash's body indicated that Nash was shot several times while moving toward the spot where his body was found and at least once while lying on the ground. David Gibbs, a forensic firearms expert, testified that at least one of the bullets was fired into Nash at a distance of less than two feet. Police officers found eleven shell casings at the scene that had been fired from Nash's firearm.

In appellant's defense, Donna Fitzgerald testified that after Ayers and Nash fell off the porch she saw her husband, Stuart Fitzgerald, fighting with appellant. Appellant and his brother knocked Fitzgerald to the ground and kicked and beat him while he lay unconscious. After checking on her husband, Mrs. Fitzgerald saw Nash holding appellant with one hand and holding a gun to his neck. She tried to pull the gun away, but Nash told her that if she grabbed the wrong finger the gun would go off. She saw the red dot from the laser sight on appellant's face and ran toward the house. When she looked back, she saw three people struggling and then two gunshot flashes, followed by four more gunshots. She testified that she saw Nash take a step and fall and that appellant was standing a few feet away from Nash and was holding a gun at his side.

Appellant's wife testified that she saw Nash point the gun at appellant and tell him, "I'm going to kill you." She saw the red dot from the laser sight fixed on appellant's face and neck. She testified that she tried to grab the gun but Nash started choking her. She claimed she heard the gun discharge and afterward was able to get free from Nash. She testified that she thought that she had somehow shot Nash. She did not see her husband shoot Nash.

Appellant testified that Nash grabbed him around the neck and held the gun to his face. When a "commotion" distracted Nash, he loosened his grip and appellant was able to break free. Appellant testified that he heard his wife scream and that he looked back and saw Nash fire two shots by her head while holding her by the neck. Appellant said he charged Nash from a distance of about five to eight feet, knocked him off balance, grabbed the gun, and started shooting. Appellant stated that he did not know where he shot Nash or how many times he pulled the trigger.

Appellant was arrested and charged with first degree murder and use of a firearm in the commission of murder. At trial, the judge refused to grant four of appellant's tendered jury instructions. The jury convicted appellant of second degree murder and use of a firearm in the commission of murder.

II. JURY INSTRUCTIONS

"Both the Commonwealth and the defendant are entitled to appropriate instructions to the jury of the law applicable to each version of the case, provided such instructions are based upon the evidence adduced." Stewart v. Commonwealth, 10 Va.App. 563, 570, 394 S.E.2d 509, 514 (1990) (citation omitted). "An instruction is properly refused when it is unsupported by the evidence." Wilson v. Commonwealth, 25 Va.App. 263, 274, 487 S.E.2d 857, 863 (1997). On appeal, when the issue is a refused jury instruction, we view the evidence in the light most favorable to the proponent of the instruction. See Turner v. Commonwealth, 23 Va.App. 270, 275, 476 S.E.2d 504, 507 (1996).

A. Instruction L

The trial judge granted several instructions pertaining to the malice requirement for first or second degree murder and the lack of malice as an element for the lesser-included offense of voluntary manslaughter. Instruction 9 instructed the jury to find the appellant guilty of voluntary manslaughter if it found the Commonwealth had failed to prove that the killing was malicious but had proved the killing was intentional and "committed while in a sudden heat of passion upon reasonable provocation or in mutual combat." Instruction 11 defined the difference between malice and heat of passion.² Instruction 14 informed the jury that "the difference between murder and manslaughter is malice, when malice is present the killing is murder. When it is absent, the killing can be no more than manslaughter."

The trial judge refused appellant's proffered Instruction L. Instruction L stated:

If you believe from the evidence that the conduct of the deceased was such as to reasonably provoke the passion and anger of the defendant and as a result, before a reasonable time had elapsed for the defendant's passion to subside and while still in the heat of said passion and anger and before his reason returned, he killed the deceased, you cannot find him guilty of a higher grade of offense than voluntary manslaughter.

Generally, a "cooling off" instruction is sought by the Commonwealth to enable the jury to find that an accused's passion kindled by an act of provocation had "cooled" so as to enable the accused to regain his or her reason before committing the homicide. See Miller v. Commonwealth, 5 Va.App. 22, 25, 359 S.E.2d 841, 842 (1987) ("If [the Commonwealth] demonstrates that the accused reflected or deliberated, that his passion cooled, or that there was reasonable time or opportunity for cooling, then the [offense] is attributable to malice and not heat of passion."). In the present case, appellant requested the instruction to enable the jury to find the converse—that he acted in the heat of passion and that sufficient time had not elapsed for his passion to "cool" before he shot Nash.

The giving of a "cooling off" instruction is discretionary. The instruction is generally given to explain how a person may be under the control of reason when performing a malicious act even though the person's actions were recently controlled by rage, anger, or the heat of passion. Although it may not be error for the court to instruct the jury in a proper case that they can find the killing occurred during the heat of passion if insufficient time had elapsed for "cooling off," it is not error to refuse the instruction when the evidence does not support a need for explaining the concept. The trial court may not have erred had it granted Instruction L; however, it did not err by refusing it. No version of the evidence established that a period elapsed during the confrontation which reasonably could have been viewed by the jury as a "cooling off" period. At the time of the killing, appellant was either acting maliciously or was controlled by rage and killed in the heat of passion. Viewed in the light most favorable to the appellant, the evidence proved that appellant grabbed Nash's gun and shot him in immediate response to Nash's firing shots over appellant's wife's head. Very little time elapsed between the alleged...