COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Fitzpatrick 

Argued at Richmond, Virginia 

WILLIAM L. McKEITHAN 

v. Record No. 1960-94-2 MEMORANDUM OPINION* BY 

 JUDGE RICHARD S. BRAY 

COMMONWEALTH OF VIRGINIA APRIL 2, 1996 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Thomas N. Nance, Judge 

 Patricia P. Nagel, Assistant Public Defender 

(David J. Johnson, Public Defender, on 

brief), for appellant. 

 John Byrum (James S. Gilmore, III, Attorney 

General; Thomas C. Daniel, Assistant Attorney 

General, on brief), for appellee. 

 William L. McKeithan (defendant) was convicted by a jury for 

second degree murder. On appeal, defendant complains that the 

trial court erroneously refused to instruct the jury on the 

lesser included offense of voluntary manslaughter. We disagree 

and affirm the judgment of the trial court. 

 The parties are fully conversant with the record, and we 

recite only those facts necessary to a disposition of this 

appeal. 

 In reviewing the ruling of the trial court, we consider the 

evidence relating to the disputed instruction in the light most 

favorable to defendant. Martin v. Commonwealth, 13 Va. App. 524, 

526, 414 S.E.2d 401, 401 (1992) (en banc). The refusal of the 

 

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

designated for publication. 
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proffered instruction is reversible error, provided it was 

supported by "more than a mere scintilla of evidence." Boone v. 

Commonwealth, 14 Va. App. 130, 132, 415 S.E.2d 250, 251 (1992). 

"[T]he weight of the credible evidence that will amount to more 

than a mere scintilla of evidence is a matter to be resolved on a 

case-by-case basis." Brandau v. Commonwealth, 16 Va. App. 408, 

412, 430 S.E.2d 563, 565 (1993). 

 On the morning of April 19, 1994, Tasheana1 Lashell Ricks, 

then ten years of age, discovered the body of her mother, Sheila 

Ricks (decedent), on the floor of decedent's bedroom. A forensic 

pathologist testified that the body was covered with "bed clothes 

. . . partially soaked" with ammonia. A blood-stained baseball 

bat was discovered "underneath [a] dresser," approximately two 

feet from the decedent's body. The subsequent autopsy identified 

"blunt trauma to the head and face," inflicted by "some heavy 

blunt object," "consistent" with a baseball bat, as the cause of 

death. A related analysis of decedent's body chemistries 

revealed a blood alcohol concentration of .16 and "breakdown 

products of cocaine." 

 During the preceding evening, Tasheana, decedent, and 

defendant had watched television together. Tasheana retired at 

approximately 9:00 p.m. and was awakened by someone pressing a 

towel, which smelled of ammonia, against her mouth and nose. 

Tasheana successfully resisted the attack and recognized 

 

 1Also spelled in the record "Tasheena." 
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defendant's voice when the assailant uttered an obscenity. Later 

that evening, Tasheana observed defendant pass her door and enter 

decedent's room, leaving "foot print[s] in blood." Tasheana 

recalled that she once witnessed defendant strike decedent and, 

on another occasion, heard him threaten decedent's life. She 

also testified that the baseball bat was not usually kept in 

decedent's room. 

 "'Every malicious homicide is murder. Manslaughter, on the 

other hand, is the unlawful killing of another without malice.'" 

Jenkins v. Commonwealth, 244 Va. 445, 457, 423 S.E.2d 360, 368 

(1992), cert. denied, 507 U.S. 1036 (1993) (citation omitted). 

"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). "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. 

 Defendant contends that the violence which precipitated 

decedent's death, together with the evidence of their turbulent 

relationship and the presence of alcohol and drugs in her body, 

infers that he killed decedent without malice, acting upon 

reasonable provocation and with passion. To the contrary, 

however, the brutality of the crime, the assault on Tasheana, and 

other circumstances in evidence clearly proved a malicious act, 
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with no suggestion of the provocation or passion necessary to 

voluntary manslaughter. 

 Accordingly, we find no evidence in the record to justify a 

voluntary manslaughter instruction, and affirm the conviction. 

 Affirmed.