COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bumgardner and Frank 

Argued at Richmond, Virginia 

GARY LAMONT WALKER 

 MEMORANDUM OPINION* BY 

v. Record No. 1200-98-2 JUDGE JAMES W. BENTON, JR. 

 JUNE 15, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge 

 Gregory W. Franklin, Assistant Public 

Defender (David J. Johnson, Public Defender, 

on brief), for appellant. 

 Steven A. Witmer, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 

 A jury convicted Gary Lamont Walker of second degree murder 

and use of a firearm in the commission of murder. Walker contends 

(1) that the trial judge erred in refusing to give the jury an 

instruction explaining the effect of heat of passion and (2) that 

the evidence was insufficient to prove second degree murder. For 

the reasons that follow, we affirm the convictions. 

I. 

 Steve Stevenson testified that on the evening of October 28, 

1997, he, Gary Lamont Walker, and Ruan King were drinking beer and 

"hanging around" with several people outside an apartment 
building. Walker was "playing with" a 9mm pistol he had purchased 

that day. Stevenson, who had been shot about six months earlier, 

became nervous and repeatedly asked Walker to put the gun away. 

Stevenson testified that Walker put the gun away but then "just 

snapped" and began to argue with Stevenson. As Stevenson and 

Walker argued, Walker began referring to Stevenson, King, and the 

others in a harsh and profane manner. When King objected, Walker 

told him, "You need to just shut up." Walker then cursed, removed 

the gun from his pocket, and shot King twice, from a distance of 

five to six feet. The first shot hit King in the arm, the second 

in the chest. Walker then said "Ya'll . . . don't know me," paced 

around the men, and walked away. 

 After the shooting, Stevenson backed away until Walker left 

the area. Stevenson then lifted King's shirt to see where King 

had been shot, removed keys from King's pocket, and telephoned for 

help. Later that night, after informing King's parents of the 

shooting, Stevenson told the police what had happened. The 

autopsy report established that King's blood alcohol level was 

.12% by weight by volume and urine alcohol level was .17% by 

weight by volume. 

 Stevenson testified that the shooting shocked him because 

there was no physical contact between King and Walker before the 

shooting. Stevenson had known King for several years and was his 

friend. He had known Walker for several months and occasionally 

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"hung out" with Walker. Stevenson testified that he had not known 

of any enmity existing between King and Walker. 

 In his defense, Walker offered the testimony of six-year-old 

William Scott. The child's mother, Wanda Scott, lived with Walker 

and is the mother of Walker's child. The child testified that he 

knew Walker, King, and Stevenson, and saw them from the second 

floor of his mother's apartment. He testified that he saw King 

"fighting with [Walker] and playing." He said they were joking 

and kidding, and he characterized the encounter as "play 

fighting." He testified that King put Walker in a "headlock" and 

that Walker "wiggled" to get loose. Once loose, Walker shot King 

twice. He further testified that he saw Stevenson take keys and a 

gun from King's pocket after Walker shot King. 

 Wanda Scott testified that King was intoxicated when she saw 

him that evening. She testified that after she heard gunshots 

outside, she opened the door to Stevenson who wanted her to 

telephone 911 because King had been shot. She also testified that 

she saw Walker walk away and that she saw Stevenson lift King's 

shirt and take King's keys. She testified that Stevenson took 

something else out of King's pocket and put it under his arm. She 

admitted, however, that she did not tell the police she saw 

Stevenson take those items. When interviewed by the police after 

the shooting, she said only that Stevenson came to the door and 

said King had been shot. 

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 In the Commonwealth's case-in-rebuttal, Stevenson denied that 

Walker and King were "playing or tussling" or that King ever 

touched Walker. He also denied that King had a gun or that he 

removed a gun from King's clothing. He testified that he removed 

King's car keys so that he could drive King's nephew home. 

 At the conclusion of the evidence, the jury convicted Walker 

of murder in the second degree and use of a firearm in the 

commission of murder. This appeal followed. 

II. 

 Walker contends the trial judge erroneously refused to give 

the jury the following instruction: 

If, upon being assaulted, the passion of the 

assaulted person becomes greatly excited, 

and under that impulse, he kills his 

attacker with a deadly weapon, the offense 

is manslaughter. 

The Commonwealth argues that the instruction was redundant of 

instructions already given. We agree with the Commonwealth's 

argument. 

 "If the principles set forth in a proposed instruction are 

fully and fairly covered in other instructions that have been 

granted, a trial [judge] does not abuse [his or her] discretion 

in refusing to grant a repetitious instruction." Joseph v. 

Commonwealth, 249 Va. 78, 90, 452 S.E.2d 862, 870 (1995). The 

record establishes that the trial judge granted instructions 

that included the following language: 

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INSTRUCTION NO. 9 

* * * * * * * 

 Heat of passion excludes malice when that 

heat of passion arises from provocation that 

reasonably produces an emotional state of 

mind such as hot blood, rage, anger, 

resentment, terror or fear so as to 

demonstrate an absence of deliberate design 

to kill, or to cause one to act on impulse 

without conscious reflection. Heat of 

passion must be determined from 

circumstances as they appeared to defendant 

but those circumstances must be such as 

would have aroused heat of passion in a 

reasonable person. . . . 

INSTRUCTION NO. 11 

* * * * * * * 

 If you find from the evidence that the 

Commonwealth has failed to prove beyond a 

reasonable doubt that the killing was 

malicious but that the Commonwealth has 

proven beyond a reasonable doubt that the 

defendant killed Raun M. King and further: 

 (1) That the killing was the result 

 of an intentional act; and 

 (2) That the killing was committed 

 while in the sudden heat of passion 

 upon reasonable provocation; 

then you shall find the defendant guilty of 

voluntary manslaughter. . . . 

INSTRUCTION NO. 15 

 Where homicide is committed in course of 

sudden quarrel, or mutual combat, or upon 

sudden provocation, and the killing is from 

sudden passion growing out of the quarrel, 

or combat, or provocation, it is not murder, 

but is voluntary manslaughter. 

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 In its entirety, granted Instruction 9 fully and fairly 

covered the principles of heat of passion and malice. Granted 

Instruction 11 addressed the elements of first degree murder, 

second degree murder, and manslaughter. In addition, granted 

Instruction 15 addressed the principles of heat of passion and 

voluntary manslaughter. Walker's instruction essentially 

covered the same legal principles as those contained in the 

granted instructions. We also note that the language of 

Walker's instruction, which was taken from the text of Moxley v. 

Commonwealth, 195 Va. 151, 158, 77 S.E.2d 389, 393 (1953), omits 

the qualification that the use of the weapon be "justified by 

the nature of the assault." Id. Therefore, we hold that the 

trial judge did not abuse his discretion in refusing to grant 

Walker's proffered instruction. 

III. 

 "Second degree murder is defined as a 'malicious killing' 

of another person." Lynn v. Commonwealth, 27 Va. App. 336, 351, 

499 S.E.2d 1, 8 (1998) (citation omitted), aff'd, 257 Va. 239, 

___ S.E.2d ___ (1999). "Whether or not an accused acted with 

malice is generally a question of fact and may be proved by 

circumstantial evidence." Canipe v. Commonwealth, 25 Va. App. 

629, 642, 491 S.E.2d 747, 753 (1997). The trier of fact may 

infer malice "from 'conduct likely to cause death or great 

bodily harm, willfully or purposefully undertaken.'" Id.

(citation omitted). Thus, in appropriate circumstances, 

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"[m]alice may be inferred 'from the deliberate use of a deadly 

weapon.'" Doss v. Commonwealth, 23 Va. App. 679, 686, 479 

S.E.2d 92, 96 (1996) (citation omitted). 

 When a challenge is made on appeal to the sufficiency of 

evidence, "we review the evidence in the light most favorable to 

the Commonwealth, granting to it all reasonable inferences 

fairly deducible therefrom." Martin v. Commonwealth, 4 Va. App. 

438, 443, 358 S.E.2d 415, 418 (1987). So viewed, Stevenson's 

testimony established that he was an eyewitness to the events 

surrounding the killing. Stevenson testified that he repeatedly 

asked Walker to put the gun away when Walker was "playing" with 

the gun, "cocking it back." As Walker and Stevenson argued, 

Walker called Stevenson and King derogatory names and then shot 

King twice. Stevenson denied that Walker and King had physical 

contact before the shooting occurred. 

 The jury believed Stevenson's testimony regarding the 

incident. "The credibility of the witnesses and the weight 

accorded the evidence are matters solely for the fact finder who 

has the opportunity to see and hear that evidence as it is 

presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 

S.E.2d 730, 732 (1995). Stevenson's testimony was competent and 

was not inherently incredible. Further, even assuming that the 

jury accepted the child's testimony regarding the incident, the 

jury could reasonably find that Walker did not act in the heat 

of passion. The child's testimony established that Walker 

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responded to "play fighting" by deliberately shooting King twice 

with a deadly weapon. 

 From the evidence of Walker's anger and deliberate use of a 

deadly weapon, the jury could conclude beyond a reasonable doubt 

that Walker acted with malice and intentionally shot King 

"without legal justification or excuse." Williams v. 

Commonwealth, 13 Va. App. 393, 398, 412 S.E.2d 202, 205 (1991). 

See also Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382 

S.E.2d 24, 26 (1989) (holding that the amount of force used 

always must be reasonable in relation to the harm threatened). 

Therefore, we hold that the evidence was sufficient to prove 

beyond a reasonable doubt that Walker committed second degree 

murder. 

 Accordingly, we affirm the convictions for second degree 

murder and use of a firearm in the commission of murder. 

Because, however, the record reflects that the trial judge 

entered a final conviction order stating erroneously that the 

jury convicted Walker of first degree murder, we remand this 

matter to the trial judge for the sole purpose of correcting the 

final order. 

 Affirmed and remanded. 

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