OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Frank and Senior Judge Bray 

Argued at Chesapeake, Virginia 

AUDRY LAWRENCE WILLIAMS, III 

 MEMORANDUM OPINION* BY 

v. Record No. 0552-02-1 JUDGE ROSEMARIE ANNUNZIATA 

 APRIL 8, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Christopher W. Hutton, Judge 

 Peter S. Economou (Weisbrod & Phillips, on 

brief), for appellant. 

 Amy L. Marshall, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 Audry Lawrence Williams, III, appellant, appeals his 

conviction by jury as a principal in the second degree of 

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 denying his request that the jury be instructed on 

manslaughter and 2) in denying his request to instruct the jury 

on attempted unlawful wounding and unlawfully shooting into an 

occupied vehicle. For the reasons that follow, we affirm. 

 

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

designated for publication.
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 On appeal, when the issue is a refused jury instruction, we 

view the evidence in the light most favorable to Williams, 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. 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. Williams's friend, Kevin 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 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. 
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 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, Bennett and 

Massey, 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. 

 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." 
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Jury Instructions

 On appeal, Williams contends the trial court erred in 

refusing to instruct the jury on voluntary manslaughter, 

unlawful wounding, and unlawful shooting at an occupied vehicle. 

He contends that the evidence, viewed in the light most 

favorable to him, supports a finding that he acted in the heat 

of passion and in the absence of malice. We disagree. 

 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). "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)). We view the evidence in the light most 

favorable to Williams, the proponent of the instruction. Lynn, 

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

 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 
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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 is devoid of provocation 

evidence. Specifically, the evidence fails to support the 

conclusion Williams urges us to accept: that Martin shot in the 

heat of passion, without reflection, due to fear or anger. 

 Williams was convicted as a principal in the second degree, 

having been "present, aiding and abetting [Martin in the 

commission of the crime]" and having "intended his . . . words, 

gestures, signals, or actions to in some way encourage, advise, 

urge, or in some way help [Martin] committing the crime to 

commit it." McGill v. Commonwealth, 24 Va. App. 728, 733, 485 

S.E.2d 173, 175 (1997). The Commonwealth need only show, 

therefore, that Williams was guilty of some overt act in 

furtherance of the crime. Augustine v. Commonwealth, 226 Va. 

120, 124, 306 S.E.2d 886, 889 (1983). Because Williams did not 

shoot the victim, the Commonwealth was not required to prove 

Williams acted with malice in loading his gun, permitting Martin 

to use his gun, and driving the car as Martin shot at Hymes's 

vehicle. Convicted as a principal in the second degree, 

Williams's intent is irrelevant to the issue of his guilt. See

Hunt v. Commonwealth, 25 Va. App. 395, 403-04, 488 S.E.2d 672, 

677 (1997) (finding defendant was not entitled to a voluntary 

manslaughter instruction where his actions did not kill the 
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victim and, therefore, whether he acted in the heat of passion 

was irrelevant). Therefore, under the facts of this case, the 

trial court did not err when it refused to give a heat of 

passion voluntary manslaughter instruction.1 

 To the extent Williams premises his contention of error on 

the trial court's refusal to give a voluntary manslaughter 

instruction concerning codefendant Martin, we find there is not 

a scintilla of evidence to support the instruction. The record 

shows that Martin did not act in the heat of passion. 

 First, although there was an argument in the parking lot 

between the parties, words alone are never sufficient to 

constitute heat of passion. Canipe v. Commonwealth, 25 Va. App. 

629, 645, 491 S.E.2d 747, 754 (1997); see also McCoy v. 

Commonwealth, 133 Va. 731, 739, 112 S.E. 704, 707 (1922) ("[T]he 

 1

 The Commonwealth contends the issue of whether the trial 

court erred in refusing to give a heat of passion instruction is 

barred procedurally under Rule 5A:18 because the appellant 

failed to make clear to whom the instruction applied. The 

Commonwealth contends that, because the defendants failed to 

inform this Court whether the instruction applied to Williams, 

Martin or both, Williams is barred from raising the issue on 

appeal. See Rule 5A:18; see also Lee v. Lee, 12 Va. App. 512, 

516, 404 S.E.2d 736, 738-39 (1991) (en banc). We are not 

persuaded by this argument. The record shows that the heat of 

passion instruction was to apply to both defendants. Ruling on 

the instruction, the trial judge referenced both defendants and 

stated "[t]he first issue is whether or not these defendants are 

entitled to an instruction of the lesser included offense of 

voluntary manslaughter." The judge specifically noted that "the 

defendants [sic] appellate rights, should they be necessary to 

be invoked, are fully preserved in this area" and "To that 

ruling, I note the exception of both defendants." Thus, we find 

the issue was properly preserved. 
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law is so tender in its regard for human life that it does not 

permit a man to defend himself against the charge of 

murder . . . unless his victim has done something more than to 

merely offer him a verbal insult."). In addition, the fact that 

Hymes knocked Williams down accidentally while skating at the 

rink would not render a reasonable person "deaf to the voice of 

reason." Canipe, 25 Va. App. at 645, 491 S.E.2d at 754. In any 

event, the facts belie a contention to the contrary. By 

Williams's own testimony, Martin was "all right," stating to 

Williams "[Y]eah, them guys talking a lot of junk but I ain't 

worried about it." 

 Second, Martin told Detective Thurman Clark that he did 

not shoot directly at the car; he shot in the air once "to make 

them put the gun back down," and then he shot two more times. 

The conduct described evinces reflection and deliberate, 

purposeful action, not one borne out of the heat of passion. 

 Third, the events that occurred while the parties were 

driving from the parking lot were likewise insufficient to 

warrant the heat of passion instruction. According to Martin, 

someone from Hymes's car pointed a gun at Williams's head, not 

at him. Therefore, assuming arguendo that act constituted 

provocation, it was directed at Williams, not Martin, the 

individual who shot the gun. 

 Finally, the evidence in the record demonstrates that there 

was reasonable opportunity for Martin to cool. His conduct in 
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shooting the victim, therefore, cannot be attributed to the heat 

of passion. 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, 25 Va. App. at 645, 491 S.E.2d at 

754.2

 For these reasons, we hold that the trial court did not err 

in refusing Williams's heat of passion instruction, and we 

affirm the decision of the trial court. 

 Affirmed.

 2

 Williams 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." 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 Williams's contention.