COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Frank and Humphreys 

Argued at Richmond, Virginia 

CARLTON WILLIAM ARNOLD 

 OPINION BY 

v. Record No. 0143-01-2 JUDGE ROBERT J. HUMPHREYS 

 MARCH 26, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Paul M. Peatross, Jr., Judge 

 Francis C. Terwilliger for appellant. 

 Stephen R. McCullough, Assistant Attorney 

General (Randolph A. Beales, Attorney 

General, on brief), for appellee. 

 Carlton William Arnold appeals his conviction, after a jury 

trial, for second degree murder. Arnold contends that the trial 

court erred in: 1) refusing to instruct the jury that duress 

could be considered in determining whether the Commonwealth had 

proven the elements of murder; 2) refusing to instruct the jury 

that heat of passion negated the element of malice when there was 

evidence of duress; and 3) in refusing to instruct the jury on 

manslaughter. For the reasons that follow, we affirm the 

conviction. 

I. Background

 During the early morning hours of September 22, 1998, a gas 

station convenience store clerk, Osama Hassan, was shot ten times 
with a pistol and killed. A cash register was taken from the 

store which contained $100.03. 

 An investigation conducted by the Charlottesville Police 

Department led officers to question Arnold about the murder and 

robbery. During the questioning, Arnold volunteered information 

about the gas station robbery and admitted that he had shot 

Hassan. 

 Arnold was charged with robbery, first degree murder, 

burglary and two firearm charges. Due to his mild mental 

retardation, Arnold was given a competency evaluation and found 

competent to stand trial. 

 At trial, Arnold testified that on the night of the robbery, 

he had been drinking alcohol and smoking marijuana with friends. 

He later agreed to ride around with two of the friends, Isaac 

Shelton Brown and Dylan Tyree. Arnold stated that after pulling 

into a parking lot near a gas station, Tyree demanded that Arnold 

do a "favor" for him - specifically, that Arnold rob and kill the 

store clerk at the gas station. Arnold claimed that he refused 

and tried to get out of the car, but Tyree "threw a gun" in his 

face and threatened to kill him unless he complied with his 

demands. 

 Tyree and Brown then took Arnold to the back of the store and 

dressed him in a disguise, covering his head, arms and hands. 

Arnold stated that they again told him that if he did not comply 

with their demands, they would leave him there, dead. Tyree and 

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Brown gave Arnold a .22 caliber semi-automatic pistol. Arnold 

claimed that Tyree also had a large caliber revolver. Tyree and 

Brown then watched Arnold as he approached Hassan, who was sitting 

in a chair on the front porch of the store. Tyree ordered him to 

shoot, and Arnold shot Hassan ten times within one to two seconds. 

Arnold stated he then took the cash box and ran. 

 At that point, Tyree took the gun from him and they left in 

the car. Arnold claimed that Tyree again threatened to kill him 

if he told anyone about the shooting. Arnold testified that 

Tyree had shot at him on a separate occasion for losing stolen 

watches he was trying to sell for Tyree. 

 A psychiatrist for the defense testified that Arnold is 

mentally retarded and that, although he had been promoted at 

school, he had been a part of the special education curriculum 

since he was seven years old. Because of his condition, Arnold 

often attempted to please persons in authority, and had 

difficulty with solving complex problems and in determining 

alternative courses of action. The psychiatrist also testified 

that Arnold would often "believe[] threats he [had] heard." 

 At the close of the evidence, Arnold requested that the jury 

be instructed as follows: 

Duress is not a defense to the charge of 

murder. However, you may consider evidence 

of duress, together with all other evidence 

in the case, in determining whether or not 

the Commonwealth has proven all the elements 

of murder beyond a reasonable doubt. 

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The Commonwealth objected to the duress instruction on the murder 

charge. 

 Arnold next requested that the jury be instructed on heat of 

passion, arguing there was heat of passion because Arnold was in 

"terror" or "fear" of Tyree. Finally, Arnold requested that the 

court instruct the jury on voluntary manslaughter. The court 

denied Arnold's requests, holding that duress is not a defense to 

murder, nor its "selective elements," and that "there was no 

provocation other than from insulting words and threats . . . ." 

 After retiring for deliberation, the jury returned with two 

questions: 1) "If we find that the defendant acted under duress, 

is it still possible to find him guilty of first degree murder?" 

and 2) "Does the elimination of the robbery charge by finding him 

not guilty by reason of duress not allow us to consider the third 

element for a first degree murder conviction?"1 After hearing 

argument, the trial court responded, "[y]es," to the first 

question and, "[n]o, you may consider it," to the second question. 

Thereafter, the jury returned its verdict, finding Arnold guilty 

of second degree murder and acquitting him of the remaining 

charges. 

 1

 The third element referred to by the jury was whether "the 

killing occurred in the commission or attempted commission of 

robbery, or that said killing was willful, deliberate and 

premeditated." 

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II. Analysis

 On appeal, Arnold first argues that the trial court erred in 

refusing to provide the jury with his proffered instruction 

concerning duress. We disagree. 

 "A reviewing court's responsibility in reviewing jury 

instructions is 'to see that the law has been clearly stated and 

that the instructions cover all issues which the evidence fairly 

raises.'"2 "A defendant is entitled to have the jury instructed 

only on those theories of the case that are supported by 

evidence. The evidence to support an instruction 'must be more 

than a scintilla.'"3 "[F]or purposes of resolving the issue of 

the trial court's jury instruction, we are concerned with 

[appellant's] version of the events surrounding the crime[] and 

not a determination of its truthfulness."4 However, "[a] jury 

instruction, even though correctly stating the law, should not 

be given if it is not applicable to the facts in evidence."5

 2 Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 

717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 503, 

290 S.E.2d 856, 858 (1982)). 

3 Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 

280 (1986) (quoting LaVasseur v. Commonwealth, 225 Va. 564, 581, 

304 S.E.2d 644, 653 (1983), cert. denied 464 U.S. 1063 (1984)) 

(other citations omitted). 

4 Sam v. Commonwealth, 13 Va. App. 312, 322, 411 S.E.2d 832, 

837 (1991). 

5 Bolyard v. Commonwealth, 11 Va. App. 274, 277, 397 S.E.2d 

894, 896 (1990). 

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 "Duress excuses criminal behavior 'where the defendant shows 

that the acts were the product of threats inducing a reasonable 

fear of immediate death or serious bodily injury.'"6 

"The rationale of the defense of duress is 

that, for reasons of social policy, it is 

better that the defendant, faced with a 

choice of evils, choose to do the lesser 

evil (violate the criminal law) in order to 

avoid the greater evil threatened by the 

other person." Thus, a person subject to 

duress may justifiably violate the literal 

language of the criminal law in order to 

avoid a harm of greater magnitude.7 

"Where it is properly shown, duress is a complete defense to a 

crime."8 "[However,] [i]t is this balancing of harms that 

generally precludes the use of duress as a defense to murder."9 

"An exception to the rule that duress is not available as a 

defense to murder is in felony murder cases, where one 

confederate is held responsible for a killing committed by his 

co-actor during the commission of the underlying felony."10 

 Here, there was no evidence that a co-actor committed the 

murder. Thus, Arnold was not entitled to the duress instruction 

on the murder charge. Further, the defense of duress "[i]s not 

 6 Graham v. Commonwealth, 31 Va. App. 662, 674, 525 S.E.2d 

567, 573 (2000) (quoting Pancoast v. Commonwealth, 2 Va. App. 

28, 33, 340 S.E.2d 833, 836 (1986)). 

7 Sam, 13 Va. App. at 323, 411 S.E.2d at 838 (quoting 1 W. 

LaFave & A. Scott, Substantive Criminal Law 614 (1986)). 

8 Pancoast, 2 Va. App. at 33, 340 S.E.2d at 836. 

9 Pugliese v. Commonwealth, 16 Va. App. 82, 95, 428 S.E.2d 

16, 26 (1993). 

10 Id.

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available to negate only selected elements, as urged by 

appellant. Such an argument misconceives the nature of the 

defense."11 

"The rationale of the defense is not that 

the defendant, faced with the unnerving 

threat of harm unless he does an act which 

violates the literal language of the 

criminal law, somehow loses his mental 

capacity to commit the crime in question. 

Rather, it is that, even though he has the 

mental state which the crime requires, his 

conduct which violates the literal language 

of the criminal law is justified because he 

has thereby avoided a harm of greater 

magnitude."12

Accordingly, we find no error in the trial court's decision to 

refuse the instruction. 

 Arnold next argues that the trial court erred in refusing to 

instruct the jury that heat of passion negated the element of 

malice, when the evidence demonstrated that Arnold was in "terror" 

or "in fear for his life" at the time he shot Hassan. Again, we 

disagree. 13

 11 Pancoast, 2 Va. App. at 33, 340 S.E.2d at 836. 

12 Id. (quoting W. LaFave & A. Scott, Criminal Law 374 (3d 

ed. 1983). 

13 Neither the voluntary manslaughter instruction nor the 

heat of passion instruction were made a part of the record. 

Although Rule 5A:7(a)(2) states that the record on appeal from 

the trial court must include "each instruction marked 'given' or 

'refused' and initialed by the judge," the record in this case 

contains no explanation why the trial judge did not make the 

refused instructions a part of this record. Indeed, the 

Commonwealth does not contend that this fact precludes Arnold's 

appeal on the instructions. Further, "[t]he purpose of [Rule 

5A:18] is to allow the trial court to cure any error called to 

its attention, thereby avoiding unnecessary appeals and 

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"Every malicious homicide is murder."14 However, a homicide 

is reduced from murder to voluntary manslaughter if the 

defendant acted "in the heat of passion and upon reasonable 

provocation."15 "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."16 While it is true that "[m]alice and 

heat of passion are mutually exclusive,"17 we have held that 

where it is not the victim of the crime who invoked the 

defendant's heat of passion, there was no evidence to support a 

finding of heat of passion.18 Thus, since there was no evidence 

that Hassan, the victim, committed any action invoking fear 

and/or rage in Arnold, we find no error in the trial court's 

refusal of the instruction. 

 

retrials." Herring v. Herring, 33 Va. App. 281, 286, 532 S.E.2d 

923, 926 (2000) (citation omitted). Here, the colloquy between 

defense counsel and the trial judge adequately satisfied the 

purpose of Rule 5A:18. The trial judge knew of the instruction 

and had the issues and arguments before him so that he could 

make an informed decision. Thus, the lack of the precise 

written instruction in the record before us does not engender a 

situation where the rationale of Rule 5A:18 applies. 

14 Barrett v. Commonwealth, 231 Va. 102, 105, 341 S.E.2d 

190, 192 (1986). 

15 Id. at 105-06, 341 S.E.2d at 192. 

16 Id. at 106, 341 S.E.2d at 192. 

17 Id. 

18 Peeples v. Commonwealth, 30 Va. App. 626, 634-35, 519 

S.E.2d 382, 386 (1999). 

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 Arnold also contends the trial court erred in refusing to 

provide the jury with his proffered instruction of manslaughter, 

as well as a corresponding verdict form. We disagree. 

 As stated above, "[t]o reduce a homicide from murder to 

voluntary manslaughter, the killing must have been done in the 

heat of passion and upon reasonable provocation."19 Here, it is 

clear from the evidence that Hassan neither provoked Arnold, nor 

engaged him in mutual combat. Instead, Arnold argues that 

because Tyree and Brown placed him in a state of fear, the jury 

could have found that he acted out of "fear for his life" 

instead of "malice." 

"Malice aforethought" implies a mind under 

the sway of reason, whereas "passion" whilst 

it does not imply a dethronement of reason, 

yet is the furor brevis, which renders a man 

deaf to the voice of reason; so that, 

although the act was intentional of death, 

it was not the result of malignity of heart, 

but imputable to human infirmity. Passion 

and malice are, therefore, inconsistent 

motive powers, and hence an act which 

proceeds from the one, cannot also proceed 

from the other.20

Arnold contends that because he feared for his life, he acted 

out of a sense of self-preservation. Thus, although he may have 

been in fear, Arnold's own testimony established that he made 

the conscious choice to kill Hassan, rather than risk injury to 

 19 Barrett, 231 Va. at 105-06, 341 S.E.2d at 192. 

20 Hannah v. Commonwealth, 153 Va. 863, 870, 149 S.E. 419, 

421 (1929). 

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himself. Accordingly, the circumstances in evidence clearly 

proved a malicious act, with no suggestion of the provocation or 

passion necessary to support an instruction on voluntary 

manslaughter. 

 Moreover, Arnold's claim that his deficient mental capacity 

and alleged intoxication negated his ability to reason is of no 

consequence. Evidence of a criminal defendant's mental state at 

the time of the offense is, in the absence of an insanity 

defense, irrelevant to the issue of guilt.21 Further, voluntary 

intoxication is not an excuse for any crime. At most, it may 

negate the deliberation and premeditation required for first 

degree murder.22 We further note that, despite Arnold's 

persistent attempts to provide the jury with an instruction 

negating the element of malice, the jury had the option of 

finding Arnold acted without malice by finding him not guilty of 

either first or second degree murder. 

 Finally, although Arnold correctly asserts that the trial 

court erred in finding there was no evidence Arnold was 

confronted with overt threats by Tyree and Brown, given the 

above discussion, we find that the error was harmless.23 

 21 See Stamper v. Commonwealth, 228 Va. 707, 717, 324 S.E.2d 

682, 688 (1985). 

22 See Downing v. Commonwealth, 26 Va. App. 717, 721, 496 

S.E.2d 164, 166 (1998). 

23 See Davies v. Commonwealth, 15 Va. App. 350, 353, 423 

S.E.2d 839, 840 (1992) (noting that an error is harmless "'if a 

reviewing court can conclude, without usurping the jury's fact 

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Therefore, we find no error in the trial court's refusal to 

offer the voluntary manslaughter instruction, nor to offer the 

jury a corresponding verdict form. 

Affirmed.

 

finding function, that, had the error not occurred, the verdict 

would have been the same'" (quoting Lavinder v. Commonwealth, 12 

Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc))). 

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