COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Frank and Senior Judge Bray 

Argued at Chesapeake, Virginia 

KEVIN JARARD MARTIN 

 MEMORANDUM OPINION* BY 

v. Record No. 0470-02-1 JUDGE ROSEMARIE ANNUNZIATA 

 APRIL 8, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Christopher W. Hutton, Judge 

 Charles E. Haden for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 Kevin Jarard Martin, appellant, appeals his conviction by 

jury as a principal in the first degree for second-degree 

murder, shooting into an occupied vehicle, discharging a firearm 

from a vehicle, three counts of attempted maiming, and four 

counts of use of a firearm in the commission of a felony. He 

cites as grounds for appeal the trial court's error 1) in 

refusing to strike a juror, Erma Mitchell, for cause, 2) in 

denying his request that the jury be instructed on manslaughter, 

3) in denying his request to instruct the jury on attempted 

unlawful wounding and unlawfully shooting into an occupied 

 

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

designated for publication.
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vehicle and 4) in denying his request to instruct the jury on 

justifiable homicide. For the reasons that follow, we affirm. 

 On appeal, when the issue is a refused jury instruction, we 

view the evidence in the light most favorable to Martin, the 

proponent of the instruction. Lynn v. Commonwealth, 27 Va. App. 

336, 344, 499 S.E.2d 1, 4-5 (1998). So viewed, the record shows 

that an altercation occurred on the evening of March 2, 2001 

that resulted in the killing of a fourteen-year-old bystander, 

Stephanie McSweeney. On the evening in question, roommates, 

Orrien Hymes, Frank Massey and Brian Bennett went to the Plaza 

Roller Skating Rink in Hampton. Martin and Audry Lawrence 

Williams also went to the skating rink that evening. Massey, 

who was skating "pretty fast," accidentally bumped into Williams 

and knocked him to the floor of the rink. Massey continued 

skating, unaware that he had knocked down another skater, but 

Hymes, skating ten feet behind Massey, stopped to make sure 

Williams was not injured. 

 Williams was "pretty hot about being knocked down" and 

began screaming at Hymes. Martin joined them and began 

exchanging words with Hymes, stating "You don't know who you're 

messing with" and making "threatening gestures." Massey skated 

around the rink and returned to the place where he had knocked 

Williams down. He and Hymes tried to apologize, but "[Williams] 

took it as we were threatening him." Massey and Hymes decided 

to keep skating, but Martin "kept coming up at [them]," and 
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followed them around the rink while they skated. After a 

subsequent encounter between Hymes, Martin and Williams, 

described by Bennett as a "struggle," the three roommates 

decided to leave the rink. 

 The hostilities continued in the parking lot. As Hymes and 

Massey walked into the lot and toward Hymes's car, Martin, 

accompanied by Williams, continued to threaten Massey and Hymes, 

stating "We are going to get you." Hymes testified that "[I]t 

was possible [Massey] was making threats" to Williams and 

Martin. Upon reaching his car, Hymes picked up a black plastic 

toolbox, held it up and said to Martin and Williams, "We got 

something in this box that will take care of you." Martin 

responded that he had something in his car that would take care 

of Hymes, walked toward Williams's car, entered the car and 

drove toward the exit. The cars of each group arrived at the 

exit at roughly the same time. As each waited to pull out of 

the lot into traffic, Williams's car stalled, and Hymes and 

Massey saw Martin reach for something under the front seat. 

 As Hymes sped away, he and his two roommates, Massey and 

Bennett, heard gunfire, and Bennett saw Martin firing at them. 

Massey saw "somebody grab their chest" and fall down and hit the 

ground. The victim was fourteen-year-old Stephanie McSweeney, 

who was crossing the street to use a pay phone. McSweeney died 

from a single gunshot wound to her chest. 
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 Martin was arrested the next morning and questioned about 

the shooting. He stated that he did not mean to shoot 

McSweeney, but believed that one of the bullets he fired hit her 

"because [he] was shooting that way." 

 Martin did not testify at trial. He was tried and found 

guilty by a jury of second-degree murder in violation of Code 

§§ 18.2-30 and 18.2-32(a), three counts of attempt to maim, in 

violation of Code §§ 18.2-51 and 18.2-26, four counts of use of 

a firearm in the commission of a felony in violation of Code 

§ 18.2-53.1, one count of shooting from a vehicle, in violation 

of Code § 18.2-286.1, and one count of shooting at an occupied 

vehicle in violation of Code § 18.2-154. He was sentenced to 

serve forty years in prison, with twenty-nine years suspended on 

the murder conviction, and to three years in prison on the 

attending firearm conviction. On each of the three remaining 

firearm convictions, he was sentenced to serve five years in 

prison. He received suspended sentences on his other 

convictions, for an active sentence of twenty-nine years. 

I. Jury Selection

 On appeal, Martin first contends that that trial court 

erred when it refused to strike a juror, Erma Mitchell, for 

cause. We find no error and affirm. 

 Martin's claim on appeal is based on the following colloquy 

during voir dire. 
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THE COURT: Have any of you expressed or 

formed any opinion as to the guilt or 

innocence of the accused in this case? 

THE JURORS: No. 

THE COURT: Are any of you [sensible] of any 

bias or prejudice against either the 

Commonwealth or the accused? 

THE JURORS: No. 

THE COURT: The defendants are presumed to 

be innocent. Is there anyone who does not 

understand that? 

THE JURORS: No. 

THE COURT: The Commonwealth must prove the 

defendants' guilt beyond a reasonable doubt. 

Does anyone not understand that? 

THE JURORS: No. 

THE COURT: The defendants in this case are 

not required to produce any evidence. Is 

there anyone who does not understand that? 

THE JURORS: No. 

THE COURT: Is there anyone who does not 

know of any reason whatsoever why you cannot 

give a fair and impartial trial to both the 

Commonwealth and to the accused based solely 

on the law? 

THE JURORS: No. 

 The jurors were questioned individually, and Erma Mitchell 

was asked if she had received any information about the case 

from any source. She replied, "All I recall is just, you know, 

when it happened on the TV and the newspaper." Mitchell told 

the court she had seen news reports about the shooting and had 
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some questions. The following colloquy occurred, inter alia, 

between Mitchell, defense counsel and the court: 

MR. CLANCY [Appellant's attorney]: "[I]f it 

is shown that the young lady that was killed 

is an innocent bystander, but it is also 

shown that Mr. Martin acted reasonably under 

the circumstances as presented to him, could 

you find him not guilty of the murder of 

that young lady? 

MITCHELL: Well, that could be - - I would 

have some questions in my own mind, you 

know? You don't want me to say, do you? 

MR. CLANCY: Actually, I do. This is 

absolutely the time that you need to say. 

We need to hear it from you. 

MITCHELL: Well, why did he have a gun down 

there in the first place that would be one 

of the things. Accidentally shot is one 

thing, but having a gun there I mean you are 

asking for trouble. 

MR. CLANCY: Did you learn about the gun 

from the newspaper or media? 

MITCHELL: The media. 

THE COURT: Could you find Kevin Martin not 

guilty if you find he acted reasonably under 

the circumstances as believed by him . . . 

despite the fact that an innocent bystander 

was killed? 

MITCHELL: That's a difficult question. Do 

you want to go over that one more time . . . 

I suppose so. 

 

THE COURT: You could find him not guilty? 

 

MITCHELL: Yes, sir. 

MR. CLANCY: You seem like you have some 

hesitancy. Would this be difficulty [sic] 

for you because the law may tell you that 

you have to do this, but you have personal 
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beliefs or feelings that will make that 

difficult? 

MITCHELL: Yes, I guess it would be a little 

difficult, but I still think I could, you 

know, render a not guilty verdict. 

MR. CLANCY: If the judge said under the law 

you would have to do that. 

MITCHELL: Right. 

MRS. CURTIS [Commonwealth's Attorney]: 

Judge, I just think the problem here is the 

way the question is asked because he 

emphasis on the question should be if she 

found that he acted reasonably. If she 

found, in fact, that he acted reasonably 

then could she find him not guilty even 

though an innocent bystander was killed. 

MITCHELL: Yes. 

MRS. CURTIS: And your answer to that is, 

yes, and you can say that without 

hesitation? 

MITCHELL: Yes, I guess. 

 On appeal, we accord great deference to a trial court's 

decision to deny a motion to exclude a juror for cause, and the 

decision will not be disturbed on appeal absent manifest error. 

Green v. Commonwealth, 262 Va. 105, 115, 546 S.E.2d 446, 451 

(2001). "[D]oubts as to the impartiality of a juror should 

always be resolved in favor the accused[,]" Educational Books, 

Inc. v. Commonwealth, 3 Va. App. 384, 385, 349 S.E.2d 903, 906 

(1986), but the fact that a prospective juror has some knowledge 

of the case is not, in itself, a basis for disqualification. 

Pope v. Commonwealth, 234 Va. 114, 124, 360 S.E.2d 352, 358 
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(1987). "Even though a prospective juror may hold preconceived 

views, opinions, or misconceptions . . .," nothing more is 

required than the prospective juror's ability to "lay aside 

[her] preconceived views and render a verdict based solely on 

the law and evidence presented at trial." Griffin v. 

Commonwealth, 19 Va. App. 619, 621, 454 S.E.2d 363, 364 (1995) 

(citations omitted). 

As a fact finder, the trial court must weigh 

the meaning of the answers given in light of 

the phrasing of the question posed, the 

inflections, tone and tenor of the dialogue, 

and the general demeanor of the prospective 

juror. We are aware that, while the words 

employed, may, when transcribed and read in 

retrospect, appear ambivalent, the judge who 

heard them uttered was uniquely positioned 

to assess their ultimate import. 

Smith v. Commonwealth, 219 Va. 455, 464-65, 248 S.E.2d 135, 141 

(1978); see also People v. Kubat, 447 N.E.2d 247, 275 (Ill. 

1983) (finding that a prospective juror's use of phrases during 

voir dire, such as "I don't think" or "I don't know" is not 

necessarily indicative of doubt and "a venireman [is not 

expected] to express himself with meticulous preciseness 

. . ."). To determine a prospective juror's qualifications to 

reach a fair and impartial verdict, the trial court must 

consider the totality of a juror's responses to voir dire, 

including the manner in which the prospective juror responds as 

well as the content and substance of the response. See Vinson 
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v. Commonwealth, 258 Va. 459, 467, 522 S.E.2d 170, 176 (1999) 

(citations omitted). 

 In the case at bar, the record shows that Mitchell advised 

the court that she had seen news reports about the shooting. 

The news reports she read raised questions about the reason 

Martin and Williams were carrying a gun on the evening in 

question. When further questioned, Mitchell informed the trial 

court that she could set aside any concerns and decide the case 

based on the law and the evidence presented. The court found 

that any hesitation with which Mitchell answered the inquiries 

regarding her ability to be fair and impartial to be a 

reflection of her effort to answer complicated questions 

truthfully. The court specifically found that Mitchell's 

answers did not reflect an inability to be impartial. Because 

the trial court was in a unique position to assess the 

prospective juror's responses, we find no abuse of discretion in 

its determination that Mitchell could render a fair and 

impartial verdict in the case. 

II. Jury Instructions

 Martin further contends the trial court erred in refusing 

to give the jury an instruction on voluntary manslaughter, 

unlawful wounding, and unlawful shooting at an occupied vehicle 

on the ground that the facts support a finding that he acted in 

the heat of passion and in the absence of malice. We disagree. 
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 Jury instructions are properly refused if not supported by 

more than a scintilla of evidence. Commonwealth v. Donkor, 256 

Va. 443, 445, 507 S.E.2d 75, 76 (1998). On appeal, when the 

issue is a refused jury instruction, "[the evidence is viewed] 

in the light most favorable to the proponent of the 

instruction." Lynn, 27 Va. App. at 344, 499 S.E.2d at 4-5 

(citation omitted). "'A jury instruction, even though correctly 

stating the law, should not be given if it is not applicable to 

the facts in evidence.'" Arnold v. Commonwealth, 37 Va. App. 

781, 787, 560 S.E.2d 915, 919 (2002) (quoting Darnell v. 

Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988)). 

 To reduce a homicide from murder to voluntary manslaughter, 

the killing must have been done in the heat of passion and upon 

reasonable provocation. Barrett v. Commonwealth, 231 Va. 102, 

105-06, 341 S.E.2d 190, 192 (1986) (citing Martin v. 

Commonwealth, 184 Va. 1009, 1016-17, 37 S.E.2d 43, 46 (1946)). 

"Heat of passion excludes malice when provocation reasonably 

produces fear [or anger] that causes one to act on impulse 

without conscious reflection." Graham v. Commonwealth, 31 

Va. App. 662, 671, 525 S.E.2d 567, 571 (2000). 

 We find the record in this case does not support Martin's 

argument that the court erred in refusing his proffered 

instructions. The evidence fails to support Martin's contention 

that he shot in the "heat of passion" and without reflection 

because he was afraid or angry. Instead, the evidence shows 
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that he acted in a calculated and purposeful manner. In 

response to his observation that someone in Hymes's car was 

pointing a gun at his companion Williams's head, Martin shot his 

gun in the air one time "in order to make them put the gun 

down." Thereafter, he shot two more times, until someone in 

Hymes's car fired at Williams, at which point he fired all the 

shots in his clip. When Martin spoke to the police about the 

shooting, he stated that the three men "shouldn't have messed 

with us"; the statement reflects deliberation and intent, rather 

than the "heat of passion." 

 Moreover, the evidence in the record shows that there was 

reasonable opportunity for Martin to cool. His conduct in 

shooting the victim, therefore, cannot be attributed to the heat 

of passion. See Miller v. Commonwealth, 5 Va. App. 22, 25, 359 

S.E.2d 841, 842 (1987). Martin and Williams stated they were 

the first to leave the skating rink and the first to enter the 

car to drive away. By the time the shooting incident occurred, 

sufficient time had passed for the provocation caused by the 

incident, if any existed, to cool. In short, the evidence fails 

to support the conclusion that Martin was "rendered deaf to the 

voice of reason." Canipe v. Commonwealth, 25 Va. App. 629, 645, 

491 S.E.2d 747, 754.1

 1

 Martin further contends the trial court erred in refusing 

a jury instruction on the lesser offenses of attempted unlawful 

wounding and unlawfully shooting into an occupied vehicle, on 

the ground that there was evidence of "heat of passion." 
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 Martin also contends the trial court erred in refusing to 

instruct the jury that he acted in self-defense.2 His contention 

is without merit. Martin offered the following justifiable 

homicide instruction: 

If you believe that the defendants were 

without fault in provoking or bringing on 

the difficulty, and if you further believe 

that the defendants reasonably feared, under 

the circumstances as they appeared to them, 

that they were in danger of being killed or 

that they were in danger of great bodily 

harm, then the killing was in self-defense, 

and you shall find the defendants not 

guilty. The defendants must be totally free 

from fault, and must not have even remotely 

contributed to the cause of the difficulty. 

 To warrant an instruction on the theory of justifiable 

homicide, the defendant must be "totally free" from fault and 

must not have "even remotely" contributed to the affray, as 

noted in the proposed instruction. If the accused is "even 

slightly at fault at creating the difficulty leading to the 

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

Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 

(1993) (internal quotations and citations omitted). After 

Williams was knocked down, Martin admitted that he approached 

Hymes and threatened him. Martin was therefore not "totally 

 

Because we find, for the reasons set forth in this opinion, that 

there was not a scintilla of evidence to support a "heat of 

passion" instruction, we reject Martin's contention. 

2

 Martin's proffered instruction on excusable homicide was 

granted. 
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free from fault" and was not entitled to the justifiable 

homicide instruction. 

 Finding no error in the trial court's decision, we affirm 

Martin's convictions. 

 Affirmed.