COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Bumgardner and Retired Judge Coulter*

Argued at Salem, Virginia 

ROBERT SCOTT LYNN 

 OPINION BY 

v. Record No. 0109-97-3 JUDGE SAM W. COLEMAN III 

 MAY 12, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY 

George E. Honts, III, Judge 

 Roger Groot (J. Lloyd Snook; Snook & Haughey, 

P.C., on briefs), for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 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 

 

 *Retired Judge Jack B. Coulter took part in the 

consideration of this opinion by designation pursuant to Code 

§ 17-116.01. 
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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 
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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. 
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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 
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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 
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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.1

 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 

 1Instruction 11 provided: 

 Malice is that state of mind which results in 

the intentional doing of a wrongful act to 

another without legal excuse or 

justification, at a time when the mind of the 

actor is under the control of reason. Malice 

may result from any unlawful or unjustifiable 

motive including anger, hatred or revenge. 

Malice may be inferred from any deliberate 

willful and cruel act against another, 

however sudden. 

 Heat of passion excludes malice when the heat 

of passion arises from provocation that 

reasonably produces an emotional state of 

mind such as hot blood, rage, anger, 

resentment, terror or fear so as to 

demonstrate an absence of deliberate design 

to kill, or to cause one to act on impulse 

without conscious reflection. Heat of 

passion must be determined from circumstances 

as they appeared to the defendant but those 

circumstances must be such as would have 

aroused heat of passion in a reasonable 

person. 
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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 
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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 provocation and the 

shooting; neither the Commonwealth nor the appellant was entitled 

as a matter of right to a "cooling" instruction.2

 See Potter v. 

Commonwealth, 222 Va. 606, 610, 283 S.E.2d 448, 450-51 (1981) 

(Commonwealth not entitled to "cooling" instruction where killing 

occurred in course of "continuous fight"). The court's other 

instructions fully and accurately instructed the jury as to the 

elements of murder and voluntary manslaughter under Virginia law. 

 Accordingly, the trial court did not err in refusing to give 

Instruction L. 

 

 2Appellant notes that Instruction L was an "expanded 

version" of the third paragraph of Virginia Model Jury 

Instruction No. 34.220. Appellant argues that this paragraph is 

routinely included in the instructions where the heat of passion 

defense is asserted. However, as the commentary for the model 

instruction states: "If there is no issue pertaining to cooling 

of heat of passion, the third paragraph of the instruction should 

not be given." 
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B. Instruction O

 The trial court instructed the jury that it may "infer 

malice from the deliberate use of a deadly weapon, unless from 

all of the evidence you have a reasonable doubt that malice 

existed." Citing Jones v. Commonwealth, 187 Va. 133, 142, 45 

S.E.2d 903, 911 (1948), and Bevley v. Commonwealth, 185 Va. 210, 

215, 38 S.E.2d 331, 333 (1946), appellant argues that the trial 

judge should also have instructed the jury that "one who has been 

threatened, and who reasonably apprehends a future deadly attack, 

has a right to arm himself." As to the right to arm oneself, 

appellant contends the trial judge erred by refusing 

Instruction O, which stated: 

 When a person reasonably apprehends that 

another intends to attack him or a member of 

his family for the purpose of killing him or 

a member of his family or doing him or a 

member of his family serious bodily harm, 

then such person had a right to arm himself 

for his own necessary self-protection and the 

protection of his family, and in such case, 

no inference of malice can be drawn from the 

fact that he prepared for it. 

 Although the instruction is a correct statement of Virginia 

law, appellant's reliance on Jones and Bevley is misplaced. In 

Bevley, the defendant attended a party where another guest had 

become intoxicated and violent. Bevley, 185 Va. at 213, 38 

S.E.2d at 332. When the guest threatened to disarm another guest 

and shoot Bevley and several others, Bevley obtained a handgun 

from his car. Id. During an altercation shortly thereafter, 

Bevley shot and killed the guest. At trial, Bevley was 
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confronted with the fact that his having consciously and 

deliberately armed himself could be considered as evidence of a 

malicious and premeditated killing, without an explanation that a 

person has a right to arm and defend himself or herself against a 

perceived attack. Our Supreme Court held that Bevley was 

entitled to an instruction "'that one who has been threatened 

with murderous assaults and has reason to believe that such 

assaults will be made, may arm himself in his defense and in such 

case no inference of malice can be drawn from the fact of 

preparation for it.'" Id. at 215, 38 S.E.2d at 333 (quoting with 

approval State v. Summers, 188 S.E. 873, 875 (W. Va. 1936)) 

(emphasis added). Similarly, in Jones, the Court held that the 

refusal of a similar instruction was erroneous where the 

defendant obtained a handgun from his house after the victim had 

beaten and threatened to kill the defendant fifteen minutes 

before the killing. Jones, 187 Va. at 141-42, 45 S.E.2d at 

911-12. As Jones and Bevley illustrate, the right to arm 

instruction is required only where the evidence fairly suggests 

that the accused obtained the firearm in preparation for a future

deadly attack. In both cases, the defendants consciously and 

deliberately armed themselves rather than seizing an available 

weapon to fend off an attack against themselves or family 

members. 

 Here, the evidence, viewed in the light most favorable to 

appellant, does not support giving a right to arm instruction. 
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Unlike the facts in Jones and Bevley, the evidence does not 

support the proposition that appellant armed himself with 

planning and deliberation for the purpose of being able to defend 

himself from a future attack. Rather, accepting appellant's 

account of the incident, appellant seized Nash's firearm in order 

to repel an immediate threat of harm from Nash. To disarm an 

assailant during an attack and to use the weapon against the 

attacker does not constitute exercising the right to arm oneself 

in order to avert or resist an anticipated deadly attack. Cf.

Wilson, 25 Va. App. at 274, 487 S.E.2d at 863 (right to arm 

instruction properly refused where accused brought gun to 

victim's apartment without perceiving any threat of harm from 

victim). Furthermore, considering the court's other instructions 

on the law of self-defense and defense of others, the jury 

remained free to conclude that appellant did not maliciously kill 

Nash but rather disarmed and shot Nash in order to protect 

himself or his family from an immediate threat of death or 

serious bodily harm. Accordingly, the trial judge did not err by 

refusing the right to arm instruction. 

C. Instruction S

 Instruction S, which the trial judge refused, provided in 

pertinent part that "where a killing takes place in combat, in 

determining whether or not the defendant thought that he or a 

member of his family was in danger of great bodily harm, the jury 

ought to consider the relative size and strength of the parties." 
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 The trial court did not err in rejecting Instruction S. The 

trial court fully and accurately instructed the jury regarding 

justifiable self-defense3

 and defense of certain family 

members.4 Although "[t]he court might well have told the jury 

that [the relative size and strength of the principals] might be 

considered in determining whether or not the accused did believe, 

and had reason to believe, that he stood in danger of serious 

bodily harm," its failure to further instruct the jury to 

consider this factor was not reversible error. Ballard v. 

Commonwealth, 156 Va. 980, 1005, 159 S.E. 222, 231 (1931); see 

also Hodges v. Commonwealth, 89 Va. 265, 273, 15 S.E. 513, 516 

(1892). During closing argument, the parties remained free to 

 

 3Instruction 16 provided: 

 If you believe that the defendant was without 

fault in provoking [the fight with Nash] and 

if you further believe that the defendant 

reasonably feared, under the circumstances as 

they appeared to him, that he was in danger 

of being killed or that he was in danger of 

great bodily harm, then the killing was in 

self-defense and you shall find the defendant 

not guilty. 

 4Instruction 17 provided: 

 If you believe that the Defendant reasonably 

believed under the circumstances that his 

wife and/or child were without fault in 

provoking the altercation, and if you further 

believe that the Defendant reasonably feared, 

under the circumstances as they appeared to 

him, that wife and/or child were in danger of 

being killed or that either of them were in 

danger or great bodily harm, the killing was 

in defense of another, and you shall find the 

Defendant not guilty. 
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discuss the relative size and strength of the combatants. The 

court's instructions enabled the jury to consider all relevant 

circumstances, including the relative sizes of the persons, 

without the trial judge emphasizing and isolating one particular 

factor as perhaps being more significant. 
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D. Instruction P

 Finally, we hold that the trial court did not err in 

rejecting appellant's proposed Instruction P. Instruction P 

explained the law of excusable homicide by self-defense, stating: 

 If you believe that the Defendant was to some 

degree at fault in provoking or bringing on 

the fight with [the victim], and if you 

further believe that when attacked: (1) he 

retreated as far as he safely could under the 

circumstances; (2) in a good faith attempt to 

abandon the fight; and (3) made known his 

desire for peace by word or act; and (4) he 

reasonably feared, under the circumstances as 

they appeared to him, that he was in danger 

of being killed, or that he was in danger of 

great bodily harm, then the killing was in 

self-defense, and you shall find the 

defendant not guilty. 

 As previously noted, the trial court instructed the jury 

that a defendant who is without fault in bringing about an 

altercation has the right to use lethal force to defend himself 

or certain family members. We concur in the trial court's 

finding that no credible evidence supported the theory that the 

killing was excusable self-defense. Excusable self-defense may 

be asserted when the accused, who was at some fault in 

precipitating the confrontation with the victim, abandons the 

fight and retreats as far as he or she safely can before 

attempting to repel the attack. See McCoy v. Commonwealth, 125 

Va. 771, 776, 99 S.E. 644, 646 (1919). Appellant neither 

abandoned the fight nor retreated. Appellant testified that he 

broke free from Nash's hold and tackled Nash. Cf. Smith v. 

Commonwealth, 17 Va. App. 68, 72, 435 S.E.2d 414, 417 (1993) 
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(excusable self-defense where defendant used deadly force after 

fleeing from armed intruders and being cornered in kitchen). 

Thus, viewing the evidence in the light most favorable to 

appellant, the evidence did not support a finding by the jury 

that appellant "retreated as far as he safely could under the 

circumstances." The trial judge did not err in rejecting 

Instruction P. 

III. SUFFICIENCY OF THE EVIDENCE

 Second degree murder is defined as a "malicious killing" of 

another person. Turner v. Commonwealth, 23 Va. App. 270, 274, 

476 S.E.2d 504, 506 (1996). It is undisputed that appellant 

intentionally shot the victim, James Nash. Appellant contends 

the evidence is insufficient to prove that he acted with malice. 

 He argues that the evidence proved he killed Nash in selfdefense or in defense of his wife and, therefore, he was entitled 

to an acquittal as a matter of law. Alternatively, he asserts 

that the jury could not have convicted him for an offense greater 

than voluntary manslaughter because the evidence proved as a 

matter of law that he killed Nash in the heat of passion and in 

mutual combat. 

 When the sufficiency of the evidence is challenged on 

appeal, we review the evidence in the light most favorable to the 

Commonwealth and grant to it all reasonable inferences fairly 

deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 

352, 218 S.E.2d 534, 537 (1975). In a jury trial, the 
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credibility of the witnesses and the weight accorded to their 

testimony are matters solely within the province of the jury. 

Coppola v. Commonwealth, 220 Va. 243, 252, 257 S.E.2d 797, 803 

(1979). Under familiar principles of appellate review, we may 

not disturb the jury's verdict unless it is plainly wrong or 

unsupported by the evidence. Traverso v. Commonwealth, 6 Va. 

App. 172, 176, 366 S.E.2d 719, 721 (1988). 

A. Malice 

 The element of malice requires the Commonwealth to prove 

that the accused "wilfully or purposefully" killed another. 

Essex v. Commonwealth, 228 Va. 273, 280, 322 S.E.2d 216, 220 

(1984). 

 Malice may be either express or 

implied. . . . "Express malice is evidenced 

when one person kills another with a sedate, 

deliberate mind, and formed design. . . . 

Implied malice exists when any purposeful, 

cruel act is committed by one individual 

against another without any, or without 

great[,] provocation. . . ." 

Canipe v. Commonwealth, 25 Va. App. 629, 642, 491 S.E.2d 747, 753 

(1997) (quoting Essex, 228 Va. at 280, 322 S.E.2d at 220). 

Implied malice may be inferred from "conduct likely to cause 

death or great bodily harm, wilfully or purposefully undertaken." 

Essex, 228 Va. at 281, 322 S.E.2d at 220 (emphasis added). 

 Viewed in the light most favorable to the Commonwealth, the 

evidence is sufficient to prove that appellant maliciously shot 

and killed Nash. Appellant admitted that he intentionally shot 

Nash. The jury could infer malice from appellant's deliberate 
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use of a deadly weapon. See Morris v. Commonwealth, 17 Va. App. 

575, 579, 439 S.E.2d 867, 869-70 (1994). Other evidence 

substantiated the finding that appellant acted with malice. 

Buddy and Kay Ayers testified that appellant charged Nash and 

began punching him violently when Nash stood after falling into 

the woodpile. Appellant shot Nash at least five times from 

behind, one of which was from a distance of approximately two 

feet while Nash was lying face down on the ground. Indeed, 

appellant testified that he "emptied" the firearm, firing bullets 

into Nash until he hit the ground. From the foregoing evidence, 

the jury could have reasonably concluded that appellant willfully 

and purposefully shot Nash several times in the back and killed 

him. See Waller v. Commonwealth, 178 Va. 294, 313, 16 S.E.2d 

808, 815 (1941); Branch v. Commonwealth, 14 Va. App. 836, 841, 

419 S.E.2d 422, 426 (1992). 

B. Affirmative Defenses

 We next consider whether the evidence proved as a matter of 

law the appellant's affirmative defenses: 

1. Self-defense/Defense of Others

 Self-defense and defense of others are affirmative defenses 

for which the accused has the burden of persuading the fact 

finder that he or she acted in defense of self or another to the 

degree necessary to raise a reasonable doubt about his or her 

guilt. See Smith, 17 Va. App. at 71, 435 S.E.2d at 416; Foster 

v. Commonwealth, 13 Va. App. 380, 385, 412 S.E.2d 198, 201-02 
- 18 - 

(1991) (recognizing defense of others "is commensurate with 

self-defense"). Although undisputed facts may establish 

self-defense as a matter of law, see, e.g., Hensley v. 

Commonwealth, 161 Va. 1033, 170 S.E. 568 (1933), whether the 

accused establishes that he or she acted in either respect is 

generally a question of fact. See Yarborough v. Commonwealth, 

217 Va. 971, 979, 234 S.E.2d 286, 292 (1977). 

 A claim of self-defense may be either justifiable or 

excusable; if it is either, the accused is entitled to an 

acquittal. See Bailey v. Commonwealth, 200 Va. 92, 96, 104 

S.E.2d 28, 31 (1958). "Justifiable homicide in self-defense 

occurs [when] 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." Id. (emphasis added). "If an accused 'is even 

slightly at fault' at creating the difficulty leading to the 

necessity to kill, 'the killing is not justifiable homicide.'" 

Smith, 17 Va. App. at 71, 435 S.E.2d at 416. 

 Excusable homicide in self-defense occurs 

where the accused, although in some fault in 

the first instance in provoking or bringing 

on the difficulty, when attacked retreats as 

far as possible, announces his desire for 

peace, and kills his adversary from a 

reasonably apparent necessity to preserve his 

own life or save himself from great bodily 

harm. 

Bailey, 200 Va. at 96, 104 S.E.2d at 31 (citations omitted). 

 "[A] person asserting a claim of defense of others may do so 
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only where the person to whose aid he or she went would have been 

legally entitled to defend himself or herself." Foster, 13 Va. 

App. at 385, 412 S.E.2d at 201 (citing with approval 40 Am. Jur. 

2d Homicide § 171 (1968)). Thus, one may be justified in using 

deadly force to defend another person where he or she reasonably 

believes that the person defended faces an imminent threat of 

serious bodily harm or death and that such person was not at 

fault in bringing about the necessity to use the deadly force. 

See Foster, 13 Va. App. at 385-86, 412 S.E.2d at 201-02; see also

1 Wayne R. LaFave, Substantive Criminal Law § 5.8 (1986). 

 Viewed in the light most favorable to the Commonwealth, the 

evidence is insufficient to prove as a matter of law that 

appellant killed Nash in self-defense or in defense of others. 

"[I]n order that [a homicide] may be justifiable as self-defense, 

the defendant must have been free from all fault or wrong-doing 

on his part which had the effect to provoke or bring on the 

difficulty." Bell v. Commonwealth, 2 Va. App. 48, 56, 341 S.E.2d 

654, 658 (1986) (citation omitted). Considering Buddy and Kay 

Ayers' testimony that appellant initiated the altercation by 

attacking Nash at the woodpile, the jury could have reasonably 

concluded that appellant was "at fault" in provoking the 

difficulty with Nash. On this basis, the jury could have found 

that appellant, as the instigator of the affray, was not entitled 

to an acquittal based on justifiable self-defense.5

 

 5Because, as we held in Part II(D), the evidence, viewed in 

the light most favorable to appellant, is insufficient to support 
- 20 - 

 In addition, the jury could reasonably have found that 

appellant did not kill Nash upon the reasonable belief that Nash 

posed a threat of serious bodily harm or death to either 

appellant or his wife. As the trier of fact, the jury had the 

 right to reject that part of the evidence 

believed by them to be untrue and to accept 

that found by them to be true. In so doing, 

they have broad discretion in applying the 

law to the facts and in fixing the degree of 

guilt, if any, of a person charged with a 

crime. 

Painter v. Commonwealth, 210 Va. 360, 367, 171 S.E.2d 166, 171 

(1969). The jury could have disbelieved appellant's evidence 

that Nash held a gun to appellant's neck, grabbed appellant's 

wife, and fired two shots by her head. See Montgomery v. 

Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980) 

("[E]ven if the defendant's [evidence] was not inherently 

incredible, the trier of fact need not have believed the 

explanation. . . ."). Thus, the jury could have reasonably 

concluded that Nash committed no "overt act indicating [his] 

imminent intention to kill or seriously harm the accused" or his 

wife, as is required before one may lawfully use deadly force to 

defend oneself or others. Smith, 17 Va. App. at 71-72, 435 

S.E.2d at 417. Furthermore, even if the jury had believed 

appellant's account of the events, it could have reasonably 

(..continued) 

a jury instruction on excusable self-defense, the evidence, when 

viewed in the light most favorable to the Commonwealth, is 

palpably insufficient to prove that appellant committed excusable 

homicide in self-defense. 
- 21 - 

concluded that appellant had quelled any danger to him or his 

wife once he had disarmed Nash. Accordingly, we cannot say as a 

matter of law that appellant killed Nash in self-defense or in 

defense of others. 
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2. Heat of Passion

 We further hold that the evidence does not prove as a matter 

of law that appellant killed Nash in the heat of passion. To the 

contrary, the evidence is sufficient to support the jury's 

conclusion that appellant did not shoot Nash in the heat of 

passion. "Malice and heat of passion are mutually exclusive; 

malice excludes passion, and passion presupposes the absence of 

malice." Barrett v. Commonwealth, 231 Va. 102, 106, 341 S.E.2d 

190, 192 (1986) (citations omitted). "Heat of passion" refers to 

"the furor brevis which renders a man deaf to the voice of 

reason." Canipe, 25 Va. App. at 643, 491 S.E.2d at 753. To show 

that a homicide occurred in the heat of passion, the evidence 

must prove that the accused killed while motivated by "passion" 

and upon "reasonable provocation." Id. Although undisputed 

facts may prove as a matter of law that a killing was in the heat 

of passion and, thus, no more than involuntary manslaughter, see

Tillman v. Commonwealth, 185 Va. 46, 53, 37 S.E.2d 768, 773 

(1946), whether an accused killed in the heat of passion is 

generally a question of fact. See Canipe, 25 Va. App. at 643, 

491 S.E.2d at 754. 

 As noted in Part III(B)(1), the jury could have disbelieved 

any or all of the evidence presented by appellant asserting that 

Nash grabbed appellant's wife around the neck and fired gunshots 

by her head. See Durham v. Commonwealth, 214 Va. 166, 169, 198 

S.E.2d 603, 606 (1973); Rollston v. Commonwealth, 11 Va. App. 
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535, 547, 399 S.E.2d 823, 830 (1991). Moreover, the jury could 

have reasonably concluded that any of Nash's other purported 

actions, namely refusing to leave the party and accidently 

knocking over Fitzgerald's woodpile, did not constitute 

"reasonable provocation" for killing him. Accordingly, the jury 

could have reasonably concluded that appellant acted with malice 

and did not kill Nash in the heat of passion. 

C. Mutual Combat

 Finally, we hold that the evidence fails to support 

appellant's contention that he killed Nash in the course of 

mutual combat. For combat to be "mutual," it must have been 

voluntarily and mutually entered into by both or all parties to 

the affray. See Smith, 17 Va. App. at 72, 435 S.E.2d at 417. It 

is settled that "[o]ne who is assaulted may and usually does 

defend himself, but the ensuing struggle cannot be accurately 

described as mutual combat." Harper v. Commonwealth, 165 Va. 

816, 820, 183 S.E. 171, 173 (1936). In this case, the evidence, 

viewed in the light most favorable to the Commonwealth, 

established at most that Nash started fighting with appellant 

after appellant struck Nash by the woodpile. The jury could have 

reasonably concluded that Nash, if he did enter the altercation 

with appellant, did not do so voluntarily. 

 For the foregoing reasons, we hold that the trial court did 

not err in refusing appellant's Instructions L, O, P and S. We 

further conclude that the evidence is sufficient to support the 
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second degree murder and use of a firearm in the commission of 

murder convictions. Accordingly, we affirm the convictions. 

 Affirmed.