COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Lemons 

Argued at Richmond, Virginia 

LAMAR ANTHONY PENDERGRASS 

 MEMORANDUM OPINION* BY 

v. Record No. 2969-97-2 JUDGE DONALD W. LEMONS 

 FEBRUARY 23, 1999 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

James F. D'Alton, Jr., Judge 

 Jay "C" Paul (Johnson & Paul, P.C., on brief), 

for appellant. 

 Kathleen B. Martin, Assistant Attorney General 

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

for appellee. 

 

On August 2, 1996, between 7:45 and 8:00 a.m., Mark Brown, 

the victim, was shot while entering his vehicle that was parked 

in the parking lot of a hotel in the City of Petersburg. Brown 

testified that he was seated in his car, and "just when . . . 

[he] was about to turn the ignition on" he heard a shot. He 

"looked down" and "saw the blood." He looked up and saw Lamar 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116-010, 

this opinion is not designated for publication. 

 Lamar Anthony Pendergrass appeals his conviction for 

malicious wounding and use of a firearm in the commission of 

malicious wounding. On appeal, he argues that the trial court 

erred in refusing his requested jury instruction on self-defense. 

Because we hold that the trial court did not err in refusing his 

instruction, we affirm. 

I. BACKGROUND 
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Anthony Pendergrass. Pendergrass shot him two more times. Brown 

testified that he did not have a gun in his possession that 

morning. 

Pendergrass stated that on the evening of August 1, 1996, 

the night before the shooting, he was drinking heavily. 

Pendergrass’ wife was involved in a hotly contested custody 

dispute with Brown, with whom she had a seven-year-old child, 

D’Angelo. By court order, D’Angelo was to be turned over by the 

Pendergrasses to Brown on August 2, 1996. Pendergrass testified 

that he drank "two bottles of Hennesy" at his house but 

"[e]ventually that wasn’t enough so he left his house and went to 

a store where he purchased "two twelve packs of beer." 

Pendergrass testified that he continued drinking until he "was 

about out of beer" sometime between 2:00 and 2:30 a.m. on August 

2, 1996. 

 Pendergrass stated that he went with a friend to downtown 

Petersburg, where he obtained more alcohol. Pendergrass 

testified that he was "uncomfortable" in that neighborhood and 

that he took his gun out of his trunk and placed it in his 

waistband. He drove through the city and parked on Sycamore 

Street where he "passed out." 

Pendergrass woke up between 7:00 and 7:15 a.m. that morning. 

He started to drive home, when he saw Brown’s vehicle in a hotel 

parking lot and "went crazy." He drove into the lot and saw 

Brown getting into his car. Pendergrass admitted that when he 

saw Brown, "I just went off." Pendergrass alleged that Brown 
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pulled a gun on him and that the two men yelled obscenities at 

each other. Pendergrass stated that he "turned around" and 

"panicked" and that he was "scared." Pendergrass said that Brown 

made a comment about Pendergrass never seeing D’Angelo again, and 

Pendergrass admitted that he then shot Brown. 

II. JURY INSTRUCTION 

Upon review of jury instructions given or refused at trial, 

an appellate court is charged with seeing that "the law has been 

clearly stated and the instructions cover all issues which the 

evidence fairly raises." Darnell v. Commonwealth, 6 Va. App. 

485, 488, 370 S.E.2d 717, 719 (1988) (citations omitted). The 

evidence relied on to support a proffered instruction must amount 

to "more than a scintilla." Morse v. Commonwealth, 17 Va. App. 

627, 633, 440 S.E.2d 145, 149 (1994) (citations omitted). "An 

instruction that is not supported by the evidence, however, is 

properly refused." Lea v. Commonwealth, 16 Va. App. 300, 304, 

429 S.E.2d 477, 479-80 (1993) (citations omitted). 

 "Homicide [or wounding] in self-defense may be either 

justifiable or excusable. If it is either, it entitles the 

prisoner to an acquittal." Peeples v. Commonwealth, 28 Va. App. 

360, 366, 504 S.E.2d 870, 873 (1998) (alterations in original) 

(citations omitted). When an accused has been charged with 

malicious wounding, he or she is entitled to request an 

instruction on self-defense if it is supported by the evidence. 

See Foster v. Commonwealth, 13 Va. App. 380, 412 S.E.2d 198 

(1991). Justifiable self-defense occurs when the accused has 
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acted totally without fault. See Foote v. Commonwealth, 11 Va. 

App. 61, 67, 396 S.E.2d 851, 855 (1990). "Fault" is defined as 

"any conduct on the part of an accused which a jury may 

reasonably infer from the evidence to have contributed to an 

affray." Bell v. Commonwealth, 2 Va. App. 48, 58, 341 S.E.2d 

654, 659 (1986) (citations omitted). "If a defendant is even 

slightly at fault, the killing is not justifiable homicide." 

Perricllia v. Commonwealth, 229 Va. 85, 94, 326 S.E.2d 679, 685 

(1995). Excusable homicide in self-defense, however, 

occurs where the accused, although in some 

fault in the first instance in provoking or 

bringing on the difficulty, when attacked 

retreats as far as possible, announces his 

desire for peace, and kills his adversary 

from a reasonably apparent necessity to 

preserve his own life or [to] save himself 

from great bodily harm. 

Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 

(1993). 

 At trial, Pendergrass requested the following instruction 

on justifiable self-defense: 

If you believe that the defendant was without 

fault in provoking or bringing on the fight 

and if you further believe that the defendant 

reasonably feared, under the circumstances as 

they appeared to him, that he was in danger 

of being killed or that he was in danger of 

great bodily harm, then the killing was in 

self-defense and you shall find the defendant 

not guilty. 

 The testimony at trial revealed that Pendergrass had been 

drinking excessively on the night of August 1, 1996 and the 

morning of August 2, 1996. He brought a gun to the confrontation 
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with Brown. He and Brown exchanged hostile words about the 

custody of D’Angelo. Pendergrass testified that Brown "pulled a 

gun" on him. Pendergrass stated that he then "turned around" and 

that he "was walking real fast away from [Brown]." Pendergrass 

stated, "[w]e both were still screaming" and that Brown made a 

remark stating that Pendergrass would never see D’Angelo again. 

 Pendergrass stated "[w]hen he said that to me, I don’t know 

. . . I just went crazy." Pendergrass testified "I just felt 

like I snapped. I went crazy. I realized I had my gun inside my 

waist. I just pulled it out, turned around and I fired. He was 

just getting into his car at the time. After I fired the shots, 

I stood there, because I couldn’t, I just freaked [sic]." 

Pendergrass testified that he shot Brown in response to his 

statements about D’Angelo. Furthermore, Pendergrass testified 

that he shot Brown more than one time because he was "enraged 

. . . by what he said, all [the] things that were going on." 

 Pendergrass requested an instruction on justifiable 

self-defense which requires that he be without fault. By his own 

testimony at trial, Pendergrass was not without fault in 

provoking or bringing on the fight. The trial court did not err 

in refusing the instruction on justifiable self-defense, and the 

conviction is affirmed. 

Affirmed.