COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Overton 

Argued at Norfolk, Virginia 

DEMETRIUS O'NEAL BELL 

 MEMORANDUM OPINION* BY 

v. Record No. 0861-95-2 JUDGE JERE M. H. WILLIS, JR. 

 JUNE 11, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Von L. Piersall, Jr., Judge 

 Dianne G. Ringer, Assistant Public Defender, 

for appellant. 

 Eugene Murphy, Assistant Attorney General 

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

brief), for appellee. 

 On appeal from his jury trial convictions of second degree 

murder, attempted murder in the second degree, and two 

corresponding firearm charges, Demetrius O'Neal Bell contends (1) 

that the trial court erred in refusing his proffered jury 

instruction precluding an inference of malice from his possession 

of a deadly weapon, (2) that the trial court erred in denying his 

motion to set aside the verdict based on nondisclosure of 

additional felony convictions of a Commonwealth's witness, and 

(3) that the evidence is insufficient to support his convictions. 

 We find no error and affirm the judgment of the trial court. 

 On August 14, 1994, at approximately 6:30 p.m., Germaine 

Green confronted Bell about a gun Bell had borrowed four months 

 

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

designated for publication. 
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earlier and had not returned. Green approached Bell from behind, 

punched him in the face, put him in a choke hold, and tried to 

break his arm. Green's younger brother, Laron Gist, was present 

during this encounter. 

 Later that same evening, Green and Gist went looking for 

Bell. Green had a gun in his back pocket. Seeing a group of six 

to eight people, including Bell, standing across the street, 

Green and Gist crossed the street toward them. At that time, 

they had nothing in their hands. Seeing them, Bell fired one 

shot at Gist, killing him. He then fired three or four times at 

Green, who turned and ran. 

 Bell testified that he saw Gist "raising up like that," and 

thought Gist had a gun. He also testified that Green fired at 

him first and he returned fire. Bell had obtained his weapon 

that evening. 

 The trial court gave the following instructions: 

 Instruction 4. 

 The Court instructs the jury that you 

may infer malice from the deliberate use of a 

deadly weapon unless, from all the evidence, 

you have a reasonable doubt as to whether 

malice existed. 

 A "deadly weapon" is any object or 

instrument, not a part of the human body, 

that is likely to cause death or great bodily 

injury because of the manner, and under the 

circumstances, in which it is used. 

 Instruction 19. 

 The Court instructs the jury that if you 

believe that the defendant was without fault 

in provoking or bringing on the difficulty, 
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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. 

 Instruction 20. 

 The Court instructs the jury that if you 

believe that the defendant was without fault 

in provoking or bringing on the difficulty, 

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 attempted killing 

was in self-defense and you shall find the 

defendant not guilty. 

 Instruction 21. 

 The Court instructs the jury that in 

passing upon the danger, if any, to which the 

defendant was exposed, you will consider the 

circumstances as they reasonably appeared to 

the defendant. 

 The trial court refused the following jury instruction, 

which was proffered by Bell: 

 Instruction D-1. 

 The Court instructs that when a person 

reasonably apprehends that another intends to 

attack him for the purpose of killing him or 

doing him serious bodily harm, then such 

person has a right to arm himself for his own 

necessary self-protection, and in such case, 

no inference of malice can be drawn from the 

fact that he prepared for it. 

 Contending that the refusal of Instruction D-1 was error, 

Bell argues that this denied the jury the opportunity to assess 

all the evidence in light of his self-defense claim. 
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 On review of the refusal of a jury instruction, we view the 

evidence in the light most favorable to the proponent of the 

instruction. Martin v. Commonwealth, 13 Va. App. 524, 526, 414 

S.E.2d 401, 401 (1992). However, "'[w]hen granted instructions 

fully and fairly cover a principle of law, a trial court does not 

abuse its discretion in refusing another instruction relating to 

the same legal principle.'" Willis v. Commonwealth, 10 Va. App. 

430, 444, 393 S.E.2d 405, 412 (1990) (citation omitted). 

 Instructions 19 and 20 directed the jury to acquit Bell of 

the murder and attempted murder charges if it found that he was 

not at fault in bringing on the difficulty and "reasonably 

feared" that he was in danger. Instruction 21 directed the jury 

to examine the circumstances from Bell's perspective. These 

instructions fully covered the self-defense issue. The 

Commonwealth made no contention that malice or criminal intent 

should be imputed to Bell simply by virtue of his being armed. 

Thus, Instruction D-1 addressed no issue in the case. 

 Bell next contends that the trial court erred in denying his 

motion to set aside the verdict when a Commonwealth's witness 

testified falsely about his prior record. At trial, Eugene 

Ransom admitted that he had been convicted of two habitual 

offender offenses, possession of cocaine, possession of heroin, 

possession of a firearm, and petit larceny. Subsequent to Bell's 

trial in February, 1995, but prior to sentencing, Bell's counsel 

discovered that Ransom had pled guilty in December, 1994 to 
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forgery, uttering, and grand larceny. He had not yet been 

sentenced on the charges. The Commonwealth failed to disclose 

the December 24 pleas despite a proper motion for discovery. 

 [T]he Commonwealth must turn over evidence 

favorable to an accused that is material to 

either guilt or punishment. In United States 

v. Bagley, 473 U.S. 667 (1985), the Court set 

forth the test for materiality, finding that 

evidence is material, "only if there is a 

reasonable probability that, had the evidence 

been disclosed to the defense, the result of 

the proceeding would have been different." 

Id. at 682. 

Hughes v. Commonwealth, 18 Va. App. 510, 525, 446 S.E.2d 451, 

460-61 (1994) (en banc) (citation omitted). We have held that a 

witness becomes a convicted felon, for impeachment purposes, when 

a court accepts his voluntary guilty plea. This is true even 

though the witness has not yet been sentenced. Fields v. 

Commonwealth, 5 Va. App. 229, 234, 361 S.E.2d 359, 362 (1987). 

"The non-disclosure of such evidence requires reversal, however, 

only if it is material within the meaning of that term as defined 

in Bagley." Jeffries v. Commonwealth, 6 Va. App. 21, 28, 365 

S.E.2d 773, 777 (1988). 

 The trial court ruled that the undisclosed additional 

convictions could not "in any reasonable likelihood have affected 

the judgment of the jury in this case based on all the evidence 

that was presented as well as the impeachment evidence that was 

in fact presented of this particular witness." The record 

supports this holding. Ransom was subjected to substantial 

impeachment on his extensive criminal record. No reasonable 
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likelihood exists that disclosure of his other felony convictions 

would have affected the jury's judgment. See Fitzgerald v. Bass, 

6 Va. App. 38, 52-55, 366 S.E.2d 615, 623-24 (1988), cert. 

denied, 493 U.S. 945 (1989). 

 Finally, Bell contends that the evidence was insufficient to 

support his convictions. In addressing this issue, we view the 

evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 

S.E.2d 534, 537 (1975). "The jury's verdict will not be 

disturbed on appeal unless it is plainly wrong or without 

evidence to support it." Traverso v. Commonwealth, 6 Va. App. 

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

 It is undisputed that Gist was not armed when he was shot 

and killed by Bell. Green testified that he had not drawn his 

weapon or fired at Bell when Bell shot Gist. The jury rejected 

Bell's claim of self-defense. "The weight which should be given 

to evidence and whether the testimony of a witness is credible 

are questions which the fact finder must decide." Bridgeman v. 

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986). 

The testimony of Green and Ransom was competent, was not 

inherently incredible, and was sufficient to prove beyond a 

reasonable doubt that Bell was guilty of second degree murder of 

Gist, attempted second degree murder of Green, and the attendant 

firearm charges. 
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 The judgment of the trial court is affirmed. 

 Affirmed.