COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Senior Judge Hodges 

Argued at Salem, Virginia 

FREDDIE EUGENE CASEY, a/k/a 

 FREDDIE EUGENE OSBORNE 

v. Record No. 1326-94-3 MEMORANDUM OPINION* BY 

 JUDGE WILLIAM H. HODGES 

COMMONWEALTH OF VIRGINIA JULY 25, 1995 

FROM THE CIRCUIT COURT OF TAZEWELL COUNTY 

Donald R. Mullins, Judge 

 Daniel R. Bieger, (Copeland, Molinary & 

Bieger, P.C. on brief), for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 

 Freddie Eugene Casey (appellant) was convicted of first 

degree murder. On appeal, appellant contends that the trial 

court erred in refusing to instruct the jury on second degree 

murder because the testimony of two witnesses for the prosecution 

supported such an instruction. We disagree and affirm the 

judgment of the trial court. 

 I. 

 On January 23, 1991, the decomposed body of Troy Lee 

Stanford (Stanford) was discovered, covered with underbrush, a 

tire, and a leather jacket, in the woods in Russell County. At 

the autopsy, the medical examiner counted 117 stab wounds to the 

body and noted that several of the stab wounds had punctured 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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internal organs. The medical examiner determined the cause of 

death to be "very massive, rapid internal bleeding," and 

estimated that Stanford had been dead "anywhere from a week to 

three or four months." 

 Keith Stanford, the victim's brother, testified that he last 

saw Stanford alive on December 13, 1990. On that day, the 

brothers gave a ride to appellant, and appellant had borrowed 

twenty dollars from Stanford. Samuel Goodman saw Stanford alive 

between 5:00 and 6:00 p.m. on December 14, 1990. 

 Darrell Crabtree testified that he went to Brian Rowe's 

trailer on Daw Road around 1:00 a.m. on December 15, 1990. Bobby 

Shortridge opened the trailer door, but told him to come back 

later. Crabtree, however, pushed his way into the trailer and 

heard Barbie Clendenin crying. He saw another woman washing 

blood from the trailer walls and the kitchen table. When 

Crabtree asked what was going on, appellant said, "I killed the 

son of a bitch." Crabtree asked "who," to which appellant 

replied, "that narcing son of a bitching Troy Stanford." 

Crabtree did not see a body. As Crabtree was leaving the 

trailer, appellant and Brian Rowe told him that he "didn't see 

nothing," and told him not to tell anyone. Later, while 

incarcerated in the Russell County jail, Crabtree saw appellant 

again and appellant insisted that he not say anything about the 

killing. 

 Appellant told Ricky Fletcher and Yvonne Lester that he had 
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cut someone on Daw Road because he had a habit to support. 

Later, while in the Bristol jail, appellant told Fletcher that he 

had stolen $350 to $400 from the man he killed. William Lester 

testified that, while in the Bristol jail, appellant told other 

inmates that he stabbed Stanford in the chest several times. 

Appellant said that Stanford had been lured to the trailer and 

appellant had "killed the snitching bastard." 

 Richard Hurt and Robert Hill also testified in the 

Commonwealth's case in chief. Hurt stated that he had talked to 

appellant in the Russell County jail about the murder. Appellant 

told Hurt that Stanford had come to the trailer to collect some 

money that appellant owed him, and "an argument broke out." 

Appellant said he stabbed Stanford and, when he stabbed him, he 

did not want to quit. It was only the screaming of others in the 

trailer that brought appellant back to his "attention." 

Appellant told Hurt that watching someone take his last breath 

was "real excitement." Appellant also told Hurt that he required 

everyone at the trailer to cut the body at least one time so that 

no one would tell what happened. 

 Robert Hill testified that, while in the Tazewell County 

jail, appellant showed him a "forensic picture" of Stanford's 

body, showing the stab wounds. Appellant told Hill that he had 

borrowed money from Stanford and, when Stanford came to collect 

it, appellant did not have the money. Appellant said they had an 

argument, a knife was pulled, and there was a struggle. 
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Appellant said he "just kept stabbing him," and then he and Brian 

Rowe took the body to the woods and covered it with brush and 

tires. 

 Several witnesses testified for the defense that appellant 

was not present at Brian Rowe's trailer on the evening of 

December 14 and early morning of December 15, 1990. Other 

witnesses testified as to appellant's whereabouts at that time. 

Appellant testified that he did not kill Stanford and had no 

knowledge of how Stanford was killed. Appellant claimed that the 

witnesses for the prosecution were lying and were receiving some 

benefit from the Commonwealth for their false testimony. 

 Appellant tendered jury instructions which included a 

finding of second degree murder. The Commonwealth objected to 

the instructions and the court refused them. 

II. 

 Appellant's theory at trial was that he was not responsible 

for Stanford's death and was not present at Rowe's trailer the 

night of December 14 through the morning of December 15. 

However, he contends on appeal, as he did at trial, that he was 

entitled to a second degree murder instruction because 

Commonwealth witnesses Hurt and Hill testified that he said he 

and Stanford argued before he stabbed him, and Hill stated that 

he said there was a struggle.1

 1On brief, appellant also argues that the presence of 117 

stab wounds "provides a credible basis for an inference that the 

stabbing was committed insanely, or in a heat of passion, and not 

as a result of a premeditated act." Appellant, however, did not 
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 Although the Commonwealth prevailed in the trial court, we 

must review the evidence relevant to appellant's refused 

instructions in the light most favorable to him. Martin v. 

Commonwealth, 13 Va. App. 524, 526, 414 S.E.2d 401, 401 (1992) 

(en banc) (citing Blondel v. Hays, 241 Va. 467, 469, 403 S.E.2d 

340, 341 (1991)). Moreover, it has long been established that a 

jury need not accept "in toto" the theory of the Commonwealth or 

the defendant, but may reject parts of the evidence it believes 

to be untrue and accept the parts it believes to be true. Belton 

v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958). 

 An accused, however, "is entitled to have the jury 

instructed only on those theories of the case that are supported 

by evidence." Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 

267, 280 (1986). Evidence asserted in support of a lesser 

included instruction "'must amount to more than a scintilla.'" 

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

(1989), cert. denied, 493 U.S. 1063 (1990) (citations omitted). 

See Brandau v. Commonwealth, 16 Va. App. 408, 411, 430 S.E.2d 

563, 564-65 (1993). 

 If the jury based its verdict only on the evidence of Hill 

and/or Hurt, the evidence does not require the giving of an 

instruction on second degree murder. 

 

make this argument to the trial court and we will not consider it 

for the first time on appeal. See Jacques v. Commonwealth, 12 

Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule 

5A:18). 
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 Neither witness testified that appellant claimed that he was 

provoked into killing Stanford, or that he did not intend to kill 

Stanford when he stabbed him. "A design to kill may be formed 

only a moment before the fatal act is committed provided the 

accused had time to think and did intend to kill." Giarratano v. 

Commonwealth, 220 Va. 1064, 1074, 266 S.E.2d 94, 100 (1980). 

 The fact that a killer and his victim argue prior to the 

murder does not, of itself, mandate that a second degree murder 

instruction be given. See Buchanan, 238 Va. at 409-12, 384 

S.E.2d at 769-71. Nor does testimony that there was a struggle, 

without more, provide more than a scintilla of evidence that the 

accused lacked premeditation. The evidence on which appellant 

relies falls short of establishing "provocation, anger, passion, 

or any other fact that might serve to convince a jury that [he] 

acted without premeditation." Id. at 412, 384 S.E.2d at 771. 

Thus, the trial court did not err in refusing to instruct the 

jury on second degree murder. The judgment of the trial court is 

affirmed. 

 Affirmed.