COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Fitzpatrick and Annunziata 

Argued at Richmond, Virginia 

MICHAEL JOHN CANIPE 

 OPINION BY 

v. Record No. 1669-96-2 JUDGE LARRY G. ELDER 

 OCTOBER 14, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Paul M. Peatross, Jr., Judge 

 Francis McQ. Lawrence (Charles Y. Sipe; 

St. John, Bowling & Lawrence, on briefs), for 

appellant. 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

Margaret Ann B. Walker, Assistant Attorney 

General, on brief), for appellee. 

 Michael John Canipe (appellant) appeals his conviction of 

second degree murder. He contends (1) that the trial court erred 

when it prohibited him from offering testimony and making 

arguments regarding the crime of "hit and run"; (2) that the 

trial court erred when it excluded the testimony of a potential 

witness regarding the victim's character for aggression; and 

(3) that the evidence was insufficient to prove that he was 

guilty of murder. For the reasons that follow, we affirm. 

 I. 

 FACTS 

 Around 7:30 p.m. on February 14, 1995, both appellant and 

the victim were driving on the "250 bypass" near Charlottesville 

to a local shopping mall. Appellant was driving with his wife 

and child, and the victim was driving to meet his wife at the 
 -2- 

mall. 

 The cars were near each other as they approached the exit 

for Park Street, which was the road that eventually led to the 

mall. The victim was in the right lane preparing to exit onto 

Park Street. Appellant was in the left lane next to the victim, 

traveling "fast" and talking with his wife. Appellant suddenly 

realized he was passing the Park Street exit and, from the left 

lane, "made a quick right-hand turn to get over to the ramp." In 

doing so, appellant "cut off" the victim and forced the victim to 

sharply apply his brakes. Both cars proceeded up the exit ramp 

and turned right onto Park Street. 

 The portion of Park Street on which appellant and the victim 

initially traveled is a two-lane road with a painted, "double 

yellow" line separating the two lanes. Shortly after turning 

onto Park Street, the victim sped past appellant by moving his 

car across the double yellow line and into the lane designated 

for oncoming traffic. The victim then pulled his car in front of 

appellant's and slowed down to a speed of between 15 and 20 miles 

per hour. The speed limit for Park Street is at least 35 miles 

per hour. Appellant proceeded to drive close to the victim's 

rear bumper, and at one point, the victim sharply applied his 

brakes, causing appellant to sharply apply his. 

 When appellant and the victim reached the point where Park 

Street becomes a four-lane road with two lanes designated for 

traffic in each direction, appellant passed the victim in the 
 -3- 

left lane, pulled in front of him, and slowed his car down. 

Appellant and the victim then engaged in a "cat and mouse game." 

 The victim would move his car over to the left lane in an 

attempt to pass appellant, and appellant would move over to the 

left lane and block the victim's path. The victim responded by 

driving close to appellant's rear bumper. Appellant and the 

victim continued driving in this fashion until they reached the 

left hand turning lane at the intersection that led to the 

parking lot of the shopping mall. A driver who passed appellant 

and the victim during this time testified that "you could tell 

they were mad." Appellant later testified that he was upset 

because the victim had passed him by crossing a double yellow 

line. 

 When appellant and the victim reached the stoplight adjacent 

to the shopping mall, appellant pulled into the left-hand turning 

lane and stopped his car several feet short of the intersection. 

 The victim pulled in behind him. Appellant exited his car and 

walked back to the victim's car. He yelled at the victim, kicked 

his driver's side door, and told him to get out of his car. The 

victim remained in his car and motioned to the mall parking lot. 

 Appellant later testified that he was "pretty mad" and "angry" 

at the victim and "might have been ready to fight" him. 

 Appellant returned to his car and turned left into the 

parking lot of the shopping mall, which was "basically empty." 

Appellant's wife started yelling at him about the incident. 
 -4- 

Appellant drove his car by the mall, turned into an area of the 

parking lot, "circled back around," and stopped his car. He 

remained in his car with the motor running. Less than a minute 

later, the victim pulled up in his car. The victim "jumped" out 

without turning off his headlights, "threw down" his jacket, and 

started walking toward appellant's car. The victim did not 

display a weapon and was unarmed. Appellant became scared when 

he noticed that the victim was much larger than him and that the 

victim's face looked angry. 

 The victim continued to walk toward appellant's car, and 

appellant decided to abandon the confrontation and drive away 

from the parking lot. Although appellant could have left the 

scene by backing away from the victim or by driving to the left 

or right of him, appellant drove toward the victim, accelerated 

his car to a speed of 15 miles per hour, and hit him. Appellant 

did not apply the brakes or attempt to turn before striking the 

victim. The impact of the victim's right shoulder on the 

windshield made a large indention of shattered glass in the shape 

of a half moon. The victim rolled off of appellant's hood and 

landed on the pavement. He died of a "closed head" injury three 

days later. Appellant sped from the parking lot without stopping 

to check on the victim's condition. 

 Appellant drove straight to his home and parked his car in 

his driveway. He became aware of media coverage of the incident 

involving him and the victim, and the next day he parked his car 
 -5- 

in his garage and closed the garage door. A few days after the 

incident, appellant called a local glass shop to purchase a 

windshield to replace the one damaged by the impact of the 

victim's body. He later testified that he planned to install the 

windshield himself "so [he] could correct the damage before 

anybody found it." Appellant enlisted the help of a friend to 

complete this project. He told his friend that the windshield 

had been damaged "during a fight out at the mall" when his 

opponent had confronted him with a crowbar and struck his 

windshield with the tool. 

 Appellant and his friend purchased a replacement windshield 

from the glass shop on February 17. Unknown to appellant, an 

array of police officers in plain clothes and unmarked cars were 

surveilling the glass shop when he made the purchase. After 

appellant and his friend left the glass shop, several officers 

followed them as they drove to appellant's house. Appellant was 

arrested at his home later in the day on February 17 and taken to 

the police station. Later that evening, appellant falsely told a 

police officer that the victim was carrying a tire iron when he 

approached appellant in the parking lot. 

 Appellant was charged with murdering the victim. At his 

trial, appellant's lawyer made several references to the crime of 

"hit and run." During his voir dire of the jury, appellant's 

counsel asked: 

 The evidence will show that [appellant] was 

guilty of a serious crime, and that's the 

crime of hit and run, leaving the scene of a 
 -6- 

personal injury. Would any of you have 

difficulty acquitting [appellant] of any 

crime, that is finding him not guilty, even 

though you believe he committed a serious 

crime, but it's not a crime he's charged 

with? 

Appellant's counsel referred to this question during his opening 

statement. Then, during his motion to strike following the 

conclusion of the Commonwealth's evidence, appellant's counsel 

argued: 

 [W]e think even in the light most favorable 

to the Commonwealth that the Commonwealth 

fails to present a prima facie case. We have 

ample evidence in this case, Your Honor, as I 

suggested at voir dire, of a . . . serious 

charge of hit and run. 

The trial court responded by saying: 

 Hit and run is not before this Court. I 

don't think you should argue some other crime 

when we're addressing only a charge of 

murder. 

 The Commonwealth subsequently made a motion in limine to 

prohibit appellant's counsel from eliciting testimony or making 

arguments regarding the crime of "hit and run." Appellant 

conceded that he should not offer any evidence or testimony 

regarding "hit and run" but argued that prohibiting him from 

referring to this crime unduly restricted the scope of his 

closing argument. The trial court ruled that appellant's counsel 

could not use the term "hit and run" in his closing argument but 

that he could "argue that [appellant] did something else wrong." 

 Appellant's counsel objected to this ruling. The Commonwealth's 
 -7- 

attorney then moved the court to order appellant's witnesses to 

refrain from referring to "hit and run," and the trial court 

responded: 

 Well, [appellant's counsel has] already 

agreed to that and I so ruled that his 

witnesses won't address an offense of hit and 

run or use the words hit and run. 

Appellant's counsel did not disagree with the trial court's 

characterization of his position. 

 Near the end of his case, appellant's counsel informed the 

trial court that he had recently learned of a witness who would 

testify regarding the victim's character for aggression. He 

proffered her testimony for the record. He stated that the 

witness would testify that twice within the six months prior to 

the victim's death, the victim had followed the witness home in 

his automobile and confronted her about her driving in excess of 

the speed limit. The witness would also testify that the 

victim's demeanor was "angry and abrupt" and "confrontive and 

abusive" and that she was "frightened by what he did." Appellant 

argued that even though "[t]his is not a self-defense case," 

evidence of the victim's character for aggression is admissible 

because the issue of who was the aggressor in the mall parking 

lot -- appellant or the victim -- was a material issue for the 

jury. The trial court denied appellant's request to offer this 

evidence of the victim's character because appellant had not 

established a foundation of self-defense. 

 At the conclusion of the Commonwealth's case-in-chief and 
 -8- 

again after his evidence, appellant made a motion to strike. The 

trial court denied both motions. A jury convicted appellant of 

second degree murder and sentenced him to a prison term of ten 

years. 
 -9- 

 II. 

 TESTIMONY AND ARGUMENT REGARDING THE CRIME OF "HIT AND RUN" 

 Appellant contends that the trial court abused its 

discretion when it prohibited him from offering testimony and 

making arguments regarding the crime of "hit and run." We 

disagree. 

 First, we agree with the Commonwealth that appellant failed 

to preserve for appeal his argument that the trial court 

erroneously prohibited the introduction of testimony regarding 

the crime of "hit and run." Appellant did not object to the 

trial court's ruling excluding such testimony. See Rule 5A:18. 

During his argument on the Commonwealth's motion in limine, 

appellant's counsel conceded that witnesses should not testify 

about the crime of "hit and run" "because that's not the charge." 

 When the trial court stated that appellant agreed with its 

ruling prohibiting testimony about "hit and run," appellant's 

counsel did not object. 

 We also hold that the trial court's decision to prohibit 

appellant's counsel from referring to the specific crime of "hit 

and run" during his closing argument was not an abuse of 

discretion. 

 The purpose of closing argument is to 

summarize the evidence for the jury, to 

persuade the jury to view the evidence in the 

light most favorable to the client, and to 

apply that evidence to the law in a manner 

which will result in a verdict favorable to 

the client. 
 -10- 

Charles E. Friend, The Law of Evidence in Virginia § 21-1(b)(1) 

(4th ed. 1993). The decision regarding the appropriateness of a 

closing argument is committed to the discretion of the trial 

court. See Griffin v. Commonwealth, 22 Va. App. 622, 624, 472 

S.E.2d 285, 287 (1996); see also O'Dell v. Commonwealth, 234 Va. 

672, 703, 364 S.E.2d 491, 509 (1988) (citing Jordan v. Taylor, 

209 Va. 43, 51, 161 S.E.2d 790, 795 (1968)) (stating that a trial 

court has broad discretion in the supervision of closing 

arguments). 

 This [C]ourt will not interfere with the 

exercise of this broad discretion unless it 

affirmatively appears that such discretion 

has been abused and that the rights of the 

complaining litigant have been prejudiced. 

Cohen v. Power, 183 Va. 258, 262, 32 S.E.2d 64, 65 (1944). 

 We cannot say that the trial court abused its discretion 

when it prohibited appellant's counsel from making arguments 

regarding the crime of "hit and run" during his closing argument. 

 Such arguments were not relevant to the charge for which 

appellant was on trial and would have confused the issues before 

the jury. Consistent with the purpose of closing argument, 

appellant's counsel was entitled to make the full range of 

arguments relevant to persuading the jury that appellant was not 

guilty of the crime of which he was charged. However, appellant 

was not charged with "hit and run" and that crime is not a lesser 

included offense of murder. The argument that appellant was 

guilty of "hit and run" had no bearing on whether the 
 -11- 

Commonwealth had proven beyond a reasonable doubt that appellant 

was guilty of murder. In addition, the trial court's provision 

in its ruling that appellant's counsel could argue that 

"[appellant] did something else wrong" furnished appellant's 

counsel with sufficient latitude to advocate fully for his client 

in his closing argument. 

 III. 

EXCLUSION OF TESTIMONY 

 REGARDING THE VICTIM'S CHARACTER FOR AGGRESSION 

 Appellant contends that the trial court erred when it 

refused to admit testimony about the victim's prior aggressive 

conduct toward another driver. We disagree. 

 A criminal defendant may offer evidence regarding the 

victim's character for violence, turbulence, or aggression for 

two purposes: (1) to show "who was the aggressor" or (2) to show 

"the reasonable apprehensions of the defendant for his life and 

safety." Randolph v. Commonwealth, 190 Va. 256, 265, 56 S.E.2d 

226, 230 (1949); see also 1A, 2 John H. Wigmore, Evidence § 63, 

63.1, 246 (Tillers rev. 1983). However, it is well established 

that such evidence of the victim's character is admissible only

when the defendant "adduces evidence that he acted in 

self-defense." Jordan v. Commonwealth, 219 Va. 852, 855, 252 

S.E.2d 323, 325 (1979); see also Burford v. Commonwealth, 179 Va. 

752, 767, 20 S.E.2d 509, 515 (1942) (stating that evidence of a 

victim's character for violence "is admissible only when the 

defendant has interposed a plea of self-defense . . . , and when 
 -12- 

a proper foundation is laid by proof of some overt act justifying 

such defense"); Mealy v. Commonwealth, 135 Va. 585, 596, 115 S.E. 

528, 531 (1923) (stating that evidence of the victim's 

"quarrelsome, dangerous, and ferocious" character was not 

admissible "because there was no foundation in the case for the 

theory of self-defense"); Harrison v. Commonwealth, 79 Va. 

(4 Hans.) 374, 379 (1884) (stating that evidence of the victim's 

"brutal and ferocious" character is inadmissible "where no case 

of self-defence has been made out"). If the defendant has 

established prima facie evidence of self-defense, then the 

evidence of the victim's character must also satisfy additional 

tests of relevance. See Randolph, 190 Va. at 265, 56 S.E.2d at 

230 (stating that the test of relevance depends upon the purpose 

for which the evidence of the victim's character is offered); see 

also Barnes v. Commonwealth, 214 Va. 24, 26, 197 S.E.2d 189, 190 

(1973). 

 We hold that the trial court did not err when it excluded 

the testimony regarding the victim's prior aggressive conduct. 

The record indicates that appellant did not establish the 

foundation of self-defense that is required before evidence of 

the victim's character for aggression is admissible. At trial, 

appellant conceded that "[t]his is not a self-defense case." 

Because a review of the evidence discloses no overt act on the 

part of the victim that would justify a plea of self-defense by 

appellant, the exclusion of appellant's evidence regarding the 
 -13- 

victim's character for aggression was not erroneous. See Jordan, 

219 Va. at 855-56, 252 S.E.2d at 325-26. 
 -14- 

 IV. 

SUFFICIENCY OF THE EVIDENCE 

 It is undisputed that appellant caused the victim's death by 

hitting the victim with his car on February 14, 1995 between 7:30 

p.m. and 8:00 p.m. in the parking lot of the shopping mall. On 

appeal, appellant contends that the evidence was insufficient to 

prove that he acted with malice when he drove into the victim. 

He argues that this Court should reverse his conviction and 

remand for a new trial on a charge no greater than voluntary 

manslaughter. We disagree. 

 In Virginia, criminal homicide is divided into two 

categories: murder and manslaughter. See Moxley v. 

Commonwealth, 195 Va. 151, 157, 77 S.E.2d 389, 393 (1953). 

"Murder" is the unlawful killing of another with malice. See

Thomas v. Commonwealth, 186 Va. 131, 139, 41 S.E.2d 476, 480 

(1947) (citing Scott v. Commonwealth, 143 Va. 510, 519, 129 S.E. 

360, 363 (1925)). "Manslaughter, on the other hand, is the 

unlawful killing of another without malice." Barrett v. 

Commonwealth, 231 Va. 102, 105, 341 S.E.2d 190, 192 (1986) 

(citation omitted). 

 Malice is an essential element of murder and is what 

distinguishes it from the crime of manslaughter. See Rhodes v. 

Commonwealth, 238 Va. 480, 485, 384 S.E.2d 95, 98 (1989) (citing 

Moxley, 195 Va. at 157, 77 S.E.2d at 393). The element of malice 

requires the Commonwealth to prove that the accused committed the 
 -15- 

homicide "wilfully or purposefully." See Essex v. Commonwealth, 

228 Va. 273, 280, 322 S.E.2d 216, 220 (1984) (citing Williamson 

v. Commonwealth, 180 Va. 277, 280, 23 S.E.2d 240, 241 (1942)). 

 Malice may be either express or implied 

. . . . "Express malice is evidenced when 

'one person kills another with a sedate, 

deliberate mind, and formed design.' . . . 

Implied malice exists when any purposeful, 

cruel act is committed by one individual 

against another without any, or without great 

provocation; . . . ." 

Id. (citation omitted). Implied malice may be inferred from 

"conduct likely to cause death or great bodily harm, wilfully or 

purposefully undertaken." Id. at 281, 322 S.E.2d at 220. 

Whether or not an accused acted with malice is generally a 

question of fact and may be proved by circumstantial evidence. 

See Pugh v. Commonwealth, 223 Va. 663, 667, 292 S.E.2d 339, 341 

(1982); Painter v. Commonwealth, 210 Va. 360, 364-65, 171 S.E.2d 

166, 170 (1969) (citing Bradshaw v. Commonwealth, 174 Va. 391, 

401, 4 S.E.2d 752, 756 (1939)). 

 In making the determination whether malice 

exists, the fact-finder must be guided by the 

quality of the defendant's conduct, its 

likelihood of causing death or great bodily 

harm, and whether it was volitional or 

inadvertent . . . . 

Essex, 228 Va. at 282, 322 S.E.2d at 221. 

 "To reduce a homicide from murder to voluntary manslaughter, 
 -16- 

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

reasonable provocation." Barrett, 231 Va. at 105-06, 341 S.E.2d 

at 192 (citing Martin v. Commonwealth, 184 Va. 1009, 1016-17, 37 

S.E.2d 43, 46 (1946)). "Malice and heat of passion are mutually 

exclusive; malice excludes passion, and passion presupposes the 

absence of malice." Id. at 106, 341 S.E.2d at 192 (citations 

omitted). 

 "Heat of passion" refers to "the furor brevis which renders 

a man deaf to the voice of reason." Hannah v. Commonwealth, 153 

Va. 863, 870, 149 S.E. 419, 421 (1929). In order to show that a 

killing occurred in the heat of passion, the evidence must prove 

the simultaneous occurrence of both "reasonable provocation" and 

"passion." See Martin, 184 Va. at 1016, 37 S.E.2d at 46. "Heat 

of passion is determined by the nature and degree of the 

provocation and may be founded upon rage, fear, or a combination 

of both." Barrett, 231 Va. at 106, 341 S.E.2d at 192 (citations 

omitted). 

 A reasonable provocation is always necessary 

to reduce a felonious homicide, committed 

upon sudden provocation, from the degree of 

murder . . . to that of manslaughter; . . . . 

 Words alone, however insulting or 

contemptuous, are never a sufficient 

provocation to have that effect . . . . 

Read v. Commonwealth, 63 Va. (22 Gratt) 924, 938 (1872). 

Generally, whether a killing was done in the heat of passion upon 

reasonable provocation is a question of fact. See Barrett, 231 

Va. at 106, 341 S.E.2d at 192. 

 Only when the trial court, giving the 
 -17- 

defendant the benefit of every reasonable 

inference from the evidence, can say that the 

minds of reasonable men could not differ does 

the question become a question of law. 

McClung v. Commonwealth, 215 Va. 654, 656, 212 S.E.2d 290, 292 

(1975) (citations omitted). 

 When considering the sufficiency of the evidence on appeal 

to support a criminal conviction, this Court views the evidence 

in the light most favorable to the Commonwealth. Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On 

review, this Court does not substitute its judgment for that of 

the trier of fact. Cable v. Commonwealth, 243 Va. 236, 239, 415 

S.E.2d 218, 220 (1992). Instead, the jury's verdict will not be 

set aside unless it appears that it is plainly wrong or without 

supporting evidence. Code § 8.01-680; Traverso v. Commonwealth, 

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

 We hold that the evidence was sufficient to support the 

jury's conclusion that appellant acted with malice when he struck 

the victim with his car. The evidence regarding appellant's 

conduct before, during, and after the incident established that 

appellant willfully and deliberately engaged in a cruel act that 

was likely to cause great bodily harm to the victim. Prior to 

the incident in the mall parking lot, appellant and the victim 

had angered each other while engaging in a "cat and mouse game" 

of aggressive driving. When appellant confronted the victim at 

the stoplight near the entrance to the mall, the victim motioned 

toward the mall parking lot. Appellant then drove into the 
 -18- 

parking lot, parked his car, and remained in it with the motor 

running. The victim pulled up in his car less than a minute 

later, "jumped" out, and started walking toward appellant's car. 

 Appellant responded to the victim's approach by driving his car 

straight toward the victim and striking him. Appellant neither 

applied his brakes nor attempted to turn before hitting the 

victim. The evidence established that the parking lot was 

"basically empty" and that appellant could have avoided the 

victim by backing up or by driving to the left or right of him. 

Appellant's decision to drive toward the victim when he could 

have exited the parking lot by driving in other directions and 

the fact that he never applied his brakes support the conclusion 

that he deliberately struck the victim with his car. 

 Appellant's actions after hitting the victim further support 

the conclusion that he acted with malice. Rather than stopping 

his car to check on the victim's condition, appellant sped from 

the parking lot and drove home. He then attempted to conceal his 

role in the incident by attempting to purchase and install a 

windshield to replace the one damaged by the impact of the 

victim's body. He also falsely told both his friend and a police 

officer that the victim was carrying a crowbar as he approached 

appellant in the parking lot. 

 In addition, the evidence supports the jury's conclusion 

that appellant was not acting in the heat of passion when he 

drove his car into the victim. The victim's approach toward 
 -19- 

appellant in the parking lot did not constitute the reasonable 

provocation that establishes a heat-of-passion defense and 

reduces a charge of murder to manslaughter. The evidence proved 

that the victim merely walked toward appellant after exiting his 

car. The victim did not display a weapon and, other than his 

large size and infuriated expression, did not appear threatening 

to appellant. In addition, appellant was sitting in the driver's 

seat of a running automobile in a sparsely-occupied parking lot 

at the time of the victim's approach. The record established 

that appellant could have driven to the right or to the left of 

the victim or backed the car away from him. Although appellant 

and the victim had minutes earlier been enmeshed in a fit of 

"road rage" spurred by each other's aggressive driving, such 

conduct alone does not render a reasonable person "deaf to the 

voice of reason." Hannah, 153 Va. at 863, 149 S.E. at 421. 

Moreover, the evidence of the victim's nonviolent, nonthreatening 

confrontation of appellant in the parking lot supports the jury's 

conclusion that appellant was not reasonably provoked to drive 

his car into the victim. 

 For the foregoing reasons, we affirm the conviction of 

second degree murder. 

 Affirmed.