COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Humphreys and Senior Judge Hodges 

Argued at Chesapeake, Virginia 

GREGORY WARREN FOX 

 MEMORANDUM OPINION* BY 

v. Record No. 1717-02-1 JUDGE ROBERT P. FRANK 

 JUNE 24, 2003 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Randolph T. West, Judge 

 Joseph A. Migliozzi, Jr. (Hooker & Migliozzi, 

on brief), for appellant. 

 Robert H. Anderson, III, Senior Assistant 

Attorney General (Jerry W. Kilgore, Attorney 

General, on brief), for appellee. 

 Gregory Warren Fox (appellant) appeals his convictions after 

a jury trial of second-degree murder, in violation of Code 

§ 18.2-32, and use of a firearm during the commission of a felony, 

in violation of Code § 18.2-53.1. He argues the trial court erred 

(1) in refusing to permit a jury instruction on manslaughter and 

(2) in overruling his motion for a mistrial, based on a witness's 

reference to appellant's silence after his arrest. For the 

reasons stated below, we reverse the convictions. 

 After both parties had presented evidence, the trial court 

considered the instructions that the parties wanted submitted to 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
the jury. The court allowed instructions on self-defense. 

Appellant then offered a jury instruction defining voluntary 

manslaughter. Neither party made any argument as to this 

instruction. The court denied the instruction, stating 

"[t]here's no manslaughter instruction with a plea of 

self-defense." 

 Appellant argues the trial court erred in refusing his 

instruction for voluntary manslaughter, arguing the court's 

reasoning was incorrect and the evidence supported the 

instruction. The Commonwealth concedes the trial court's reason 

for excluding the instruction was incorrect. However, the 

Commonwealth contends appellant did not preserve this argument 

and, further, the trial court should be affirmed under "right 

result, wrong reason" analysis. 

 Appellant did preserve his argument for a voluntary 

manslaughter instruction. He presented the instruction to the 

trial court, and the instruction is in the record. When 

presenting the instruction to the trial court, defense counsel 

said, "[M]y client doesn't feel like it's justified under the 

evidence." The Commonwealth interprets this statement to mean 

appellant did not actually want a voluntary manslaughter 

instruction. However, this interpretation is incorrect, given 

appellant tendered the instruction to the court. Although 

counsel's statement may be vague, appellant wanted the jury 

instructed on manslaughter. The trial court clearly understood 

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that appellant was offering the instruction for presentation to 

the jury, not that appellant withdrew it from consideration. 

The trial court further expressed his reasons for not granting 

the instruction. 

 The Commonwealth also argues appellant's presentation of 

this instruction, after the instruction for first-degree and 

second-degree murder were accepted by the trial court, was 

untimely and did not preserve the issue for appeal.1 However, 

the dialogue between counsel and the trial court concerning the 

instructions had not concluded when appellant offered his 

voluntary manslaughter instruction. The trial court had an 

adequate and timely opportunity to rule on the instruction, 

which he did. Appellant did preserve his argument for a 

manslaughter instruction. 

 The Commonwealth concedes the trial court's exclusion of 

the manslaughter instruction, because "[t]here's no manslaughter 

instruction with a plea of self-defense," was wrong.2 The 

Commonwealth instead contends the evidence did not support the 

giving of the instruction to the jury. See Commonwealth v. 

Vaughn, 263 Va. 31, 36, 557 S.E.2d 220, 222-23 (2002). The 

 1

 Appellant objected to the first-degree murder instruction 

on the ground that the evidence was insufficient to support such 

an instruction. His objection was overruled. 

2

 "'The plea of self-defense and of passion . . . are not in 

conflict with each other.'" McClung v. Commonwealth, 215 Va. 

654, 657, 212 S.E.2d 290, 293 (1975) (quoting Wilkins v. 

Commonwealth, 176 Va. 580, 583, 11 S.E.2d 653, 655 (1940)). 

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Commonwealth argues this Court should apply the principle of 

"right result, wrong reason" in this case. However, the 

Commonwealth ignores the requirements of this rule. 

"An appellate court may affirm the judgment 

of a trial court when it has reached the 

right result for the wrong reason." 

[Driscoll v. Commonwealth, 14 Va. App. 449, 

452, 417 S.E.2d 312, 313 (1992)]. However, 

The rule does not always apply. It 

may not be used if the correct 

reason for affirming the trial 

court was not raised in any manner 

at trial. In addition, the proper 

application of this rule does not 

include those cases where, because 

the trial court has rejected the 

right reason or confined its 

decision to a specific ground, 

further factual resolution is 

needed before the right reason may 

be assigned to support the trial 

court's decision. 

Id. at 452, 417 S.E.2d 313-14 (citation 

omitted). 

 Here, the right reason was never presented to the trial 

court. The Commonwealth never argued at trial that the evidence 

did not support a manslaughter instruction. The Commonwealth 

concedes the trial court's rationale for the exclusion of the 

manslaughter instruction was erroneous. Since the Commonwealth 

did not argue at trial that the evidence did not support the 

instruction, we are obligated to find the trial court erred in 

excluding the instruction.3

 3

 The Commonwealth did not argue harmless error, either in 

its brief or at oral argument. 

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CONCLUSION

 As the trial court improperly excluded a jury instruction, 

we reverse the convictions and remand for a new trial if the 

Commonwealth be so inclined. In so doing, we need not address 

the mistrial issue, since the issue is unlikely to arise in a 

new trial. 

Reversed and remanded.

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