COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Senior Judge Hodges 

Argued at Norfolk, Virginia 

ALEX THOMAS HUNT 

 OPINION BY 

v. Record No. 1932-96-1 JUDGE SAM W. COLEMAN III 

 AUGUST 12, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY 

E. Everett Bagnell, Judge 

 H. Woodrow Crook, Jr. (Johnnie E. Mizelle; 

Crook & Edwards, on briefs), for appellant. 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 The defendant, Alex Thomas Hunt, was convicted by a jury of 

first degree murder. On appeal, he contends that the trial court 

erred by refusing to remove a juror during the trial, by failing 

to instruct the jury on second degree murder and voluntary 

manslaughter, and by misapplying the Virginia Sentencing 

Guidelines. For the reasons that follow, we affirm the 

defendant's conviction. 

I. DISQUALIFICATION OF JUROR

 On the second day of trial, a juror was observed smiling and 

nodding to a member of the victim's family. Upon defense 

counsel's request, the trial judge asked the jurors if anyone 

knew or had a familiar relationship with members of the 

appellant's family, the victim's family, or anyone in the 

courtroom that would affect his or her ability to be fair and 
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impartial. None of the jurors responded. 

 The following day, one juror sent a note to the judge 

stating that there were "some people in this courtroom [she] used 

to work with." Upon questioning, this juror responded that she 

had seen a person in the courtroom with whom she had worked 

several years earlier. She told the judge that although she 

believed that the person was a member of the victim's family, her 

ability to decide the case fairly would not be affected by her 

prior association with the family member. 

 On appeal, we defer to the trial court's decision whether to 

retain or exclude individual venire members. See Satcher v. 

Commonwealth, 244 Va. 220, 236, 421 S.E.2d 821, 831 (1992), cert. 

denied, 507 U.S. 933 (1993). 

 The standard to be applied by the trial 

court in determining whether to retain a 

venireman on the jury panel is whether his 

answers during voir dire examination indicate 

to the court something that "would prevent or 

substantially impair the performance of his 

duties as a juror in accordance with his 

instructions and his oath." 

Id. (citations omitted). The same standard applies when a 

juror's impartiality is challenged mid-trial. We will reverse 

the trial court's decision only for an abuse of discretion. 

 In view of the juror's responses to the judge's questions 

and the juror's assurance that her prior association at work with 

the victim's family member would not affect her impartiality, the 

trial judge did not err by refusing to remove the juror. 
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II. JURY INSTRUCTIONS

 "When the denial of jury instructions is challenged on 

appeal, the court must determine . . . [whether] the instructions 

cover all issues which the evidence fairly raises." Lea v. 

Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479 (1993). 

"We are bound by the principle that the accused is entitled, on 

request, to have the jury instructed on a lesser included offense 

that is supported by more than a 'scintilla of evidence' in the 

record." Bunn v. Commonwealth, 21 Va. App. 593, 599, 466 S.E.2d 

744, 746 (1996). Thus, where credible evidence exists that would 

support giving the jury an instruction on a particular theory of 

the case, the trial court's failure to give the instruction 

constitutes reversible error. McClung v. Commonwealth, 215 Va. 

654, 657, 212 S.E.2d 401, 403 (1975); Martin v. Commonwealth, 13 

Va. App. 524, 528, 414 S.E.2d 401, 403 (1992) (en banc). 

 "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, 16 Va. 

App. at 305, 429 S.E.2d at 480. To justify the trial court's 

refusal to instruct on second degree murder or voluntary 

manslaughter, every version of the evidence must prove, to the 

exclusion of any other theory, that the defendant wilfully, 

intentionally, and with premeditation killed the victim or that 

he aided and abetted the murderers, knowing that one of them 

intended to kill the victim. If any version of the evidence 
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would support a finding that the defendant acted with malice in 

killing the victim, but that he did not have the premeditated 

intent to kill his victim or that he was not aiding or abetting 

the murderers knowing that they intended to kill the victim, then 

he would be entitled to a second degree murder instruction and 

possibly a voluntary manslaughter instruction. Regardless of the 

defendant's actions and participation prior to the beating and 

the murder, under every version of the evidence, after blows were 

exchanged the defendant joined with the two murderers beating, 

choking, and striking the victim knowing that they intended to 

kill him, and the defendant then either threw or aided and 

abetted the others in throwing the victim in the river. 

 Viewing the evidence in the light most favorable to the 

defendant's claim that the trial court should have instructed on 

second degree murder and voluntary manslaughter, the evidence 

proved that Truvelle Faulk and Lance Holland, unbeknownst to the 

defendant, robbed and abducted the victim from a local 7-Eleven 

store. Faulk and Holland took the victim's car and placed the 

victim in the trunk. They then drove the car to Holland's home, 

where the defendant was waiting for a ride to his girlfriend's 

house. Although Faulk said that the defendant drove the car 

after they picked him up, the defendant denied driving and 

testified that Faulk drove the car. As the three men drove 

around looking for drugs, Faulk and Holland disclosed to the 

defendant for the first time that they had robbed a man and had 
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him in the trunk of the car. Because the defendant did not 

believe them, they opened the trunk and showed the victim to the 

defendant. 

 As they were driving to the defendant's girlfriend's home, 

Holland announced that he wanted to kill the victim. Faulk 

suggested that they beat the victim but not kill him. Both Faulk 

and the defendant testified that the defendant, at that time, 

repeatedly tried to convince Faulk and Holland not to kill anyone 

and to let the victim go. The defendant further testified that, 

once Faulk and Holland began talking about killing the victim, he 

asked them to take him home. Instead, they drove to a deserted 

area that Faulk suggested and let the victim out of the trunk. 

 Faulk testified that when the victim got out of the trunk, 

the victim struck the defendant, causing the defendant to fall 

back against the car. In response, the defendant hit the victim 

on the side of the head with a rock. Had the defendant killed 

the victim at that time or continued to engage in combat with him 

until the victim was killed, the trial judge would have been 

required to instruct the jury on second degree murder and on 

voluntary manslaughter. However, under any theory that required 

giving a homicide instruction, the evidence proved that at that 

time all three men began beating the victim, punching and kicking 

him repeatedly. One of the men then took a yellow cord from the 

trunk of the car and put it around the victim's neck. Another 

used an umbrella found in the car to beat the victim. Faulk 
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testified that all three men took turns holding the cord and 

beating the victim with the umbrella handle. Faulk testified 

that after they stopped beating the victim, he and the defendant 

carried the victim to a nearby railroad trestle and pushed him 

into the river. 

 When the defendant was initially questioned by police, he 

denied being with Faulk and Holland when the murder had occurred. 

 He later told the police that Faulk and Holland had picked him 

up in the victim's car, that they told him that they had the 

victim in the trunk, and that Holland had said he wanted to kill 

the victim. The defendant told the police that he repeatedly 

urged Faulk and Holland to let the victim go, but they drove to a 

remote area and told him they were going to kill the victim with 

or without his help. At that point, according to the defendant, 

they began to beat the victim. The defendant admitted to the 

deputy that he kicked the victim a few times. He testified that 

as Faulk and Holland were throwing the victim into the river, he 

was turning the car around. 

 Charles Ennis testified that he saw the defendant the day 

after the killing and that the defendant had an injured hand. 

The defendant initially told Ennis that he had been in a fight at 

the 7-Eleven store and hurt his hand, but he later told Ennis 

that he, Faulk, and Holland had killed a man and that he had hurt 

his hand by hitting the victim. 

 The defendant testified that when Holland and Faulk began 
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talking about killing the victim, he told them to take him home. 

 Instead, they drove to a remote location, let the man out of the 

trunk and told him he could go. The defendant testified that the 

victim started walking away when Holland and Faulk tackled him 

and began beating him. According to the defendant, he did not 

participate in the beating or in throwing the victim into the 

river. Although the defendant denied any participation 

whatsoever, his version of the facts is not that which we 

consider here to support a second degree murder or voluntary 

manslaughter instruction. 

 "[A]n instruction on murder in the second degree should not 

be given unless it [is] warranted by the evidence before the 

jury." Wooden v. Commonwealth, 208 Va. 629, 634, 159 S.E.2d 623, 

627 (1968). Similarly, an involuntary manslaughter instruction 

must be warranted by the evidence. The instructions must be 

supported by more than a mere scintilla of evidence, which is an 

issue to be resolved based on the facts of each case. See

Buchanan v. Commonwealth, 238 Va. 389, 409, 384 S.E.2d 757, 769 

(1989); Brandau v. Commonwealth, 16 Va. App. 408, 411-12, 430 

S.E.2d 563, 565 (1993). 

 Even when viewed in the light most favorable to the 

defendant, the evidence does not support giving an instruction 

for second degree murder or voluntary manslaughter. Had the jury 

believed the defendant's version of events in its entirety, the 

only verdict they could have reached would have been not guilty. 
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 If the jury had believed the Commonwealth's witnesses in their 

entirety, the only verdict they could have returned was guilty of 

first degree murder. See Wooden, 208 Va. at 634-35, 159 S.E.2d 

at 627; Frye v. Commonwealth, 231 Va. 370, 388-89, 345 S.E.2d 

267, 280-81 (1986). However, in determining whether the 

defendant is entitled to a jury instruction, we must review all 

the evidence and determine whether a version of the facts exists 

that the jury could have believed which would support a finding 

that the defendant participated in the homicide but that his 

participation did not rise to the level of a wilful, premeditated 

killing of the victim. 

 Although the evidence could support a finding that the 

defendant did not participate in the robbery and initially tried 

to convince Faulk and Holland not to kill the victim, the 

uncontradicted evidence proved that after the victim struck the 

defendant he assisted Faulk and Holland in beating the victim 

knowing that one of them intended to kill the victim. The 

defendant may have been entitled to a second degree murder or 

voluntary manslaughter instruction had his initial response 

killed the victim; nevertheless, when the defendant joined Faulk 

and Holland in striking and kicking the victim, choking him with 

a cord, and striking him with an umbrella, knowing that Faulk or 

Holland intended to kill him, the only theory supported by that 

evidence is that the defendant aided and abetted first degree 

murder. Furthermore, assuming that Faulk and Holland were the 
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two who threw the victim into the river, and that the defendant 

knew or thought that the victim was alive at the time, the 

defendant was still an accomplice in the beating and aided and 

abetted in the final act of murder by readying the car to flee 

the murder scene. Thus, as a matter of law the defendant became 

a principal in the second degree to first degree murder because 

he was present, he knew the others intended to kill the victim 

and he aided, abetted, and encouraged their commission of the 

crime. See Wooden, 208 Va. at 634-35, 159 S.E.2d at 627; 

Pugliese v. Commonwealth, 16 Va. App. 82, 93, 428 S.E.2d 16, 24 

(1993); Rollston v. Commonwealth, 11 Va. App. 535, 539, 399 

S.E.2d 823, 825 (1991) ("When the alleged accomplice is actually 

present and performs overt acts of assistance or encouragement, 

he has communicated to the perpetrator his willingness to have 

the crime proceed and has demonstrated that he shares the 

criminal intent of the perpetrator.") (quoting R. Groot, Criminal 

Offenses and Defenses in Virginia 183 (1984)). Once the 

defendant struck the victim and the other two men joined in, the 

only conclusion the fact finder could draw is that the defendant 

was assisting in the premeditated murder of the victim. Whether 

the defendant personally formed an intent to kill the victim or 

initially acted in the heat of passion when he struck the victim 

is irrelevant. The uncontradicted evidence proved that he 

assisted the other two men, who intended to kill the victim, in 

beating and choking him and in throwing him into the river. 
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Thus, the trial court did not err by refusing to instruct the 

jury on second degree murder and voluntary manslaughter. 

III. SENTENCING GUIDELINES

 Finally, we address the defendant's contention that the 

trial court misapplied the Virginia Sentencing Guidelines when 

sentencing him to life in prison. 

 The sentencing guidelines are not binding on the trial 

judge. Belcher v. Commonwealth, 17 Va. App. 44, 45, 435 S.E.2d 

160, 161 (1993). Rather, they are a tool designed to assist the 

judge in fixing an appropriate punishment. Id. It is 

well-settled that "[i]f the sentence was within the range set by 

the Legislature [for the crime with which the defendant was 

convicted], an appellate court will not interfere with the 

judgment." Hudson v. Commonwealth, 10 Va. App. 158, 160-61, 390 

S.E.2d 509, 510 (1990). Moreover, Code § 19.2-298.01(F) states: 

"The failure to follow any or all the provisions of [the 

sentencing guidelines] or the failure to follow any or all the 

provisions of this section in the prescribed manner shall not be 

reviewable on appeal or the basis of any other post-conviction 

relief." 

 Thus, we will not interfere with the trial court's judgment 

fixing sentence. 

 Accordingly, we affirm the defendant's conviction for first 

degree murder. 

Affirmed.