I. GENERAL CONSIDERATION.

Criminal responsibility. - Unless it is otherwise stated, if a statute makes an act criminal, it imposes on all persons who are present purposely giving aid and comfort to the actual wrongdoer criminal responsibility equal to that of the wrongdoer. Spradlin v. Commonwealth, 195 Va. 523 , 79 S.E.2d 443 (1954).

If there is concert of action with the resulting crime one of its incidental probable consequences, then whether such crime was originally contemplated or not, all who participate in any way in bringing it about are equally answerable and bound by the acts of every other person connected with the consummation of such resulting crime. The question of whether the offense is the natural and probable result of the intended wrongful act is usually for the jury. Spradlin v. Commonwealth, 195 Va. 523 , 79 S.E.2d 443 (1954).

A principal in the second degree is liable for the same punishment as the person who commits the crime. Blankenship v. Commonwealth, No. 1112-99-3, 2000 Va. App. LEXIS 293 (Ct. of Appeals Apr. 25, 2000).

This section makes no exception for those who plan a crime, do not involve themselves with the details of its execution, and are not present for its consummation; this section and the cases direct that an accessory before the fact is accountable in all respects as the principal who carries out the intended crime, as well as any of its natural, probable, and incidental crimes. Charlton v. Commonwealth, 32 Va. App. 47, 526 S.E.2d 289 (2000).

The court treats concert of action as a species of accomplice liability, carrying with it the principle that the punishment imposed on each accomplice may be the same. Davis v. Commonwealth, 36 Va. App. 291, 549 S.E.2d 631, 2001 Va. App. LEXIS 445 (2001).

If there is concert of action with the resulting crime one of its incidental probable consequences, then whether such crime was originally contemplated or not, all who participate in any way in bringing it about are equally answerable and bound by the acts of every other person connected with the consummation of such resulting crime. Davis v. Commonwealth, 36 Va. App. 291, 549 S.E.2d 631, 2001 Va. App. LEXIS 445 (2001).

Concert of action instruction required. - In a second degree murder prosecution, the trial court was required to give a concert of action instruction where co-defendants were part of a group of people who kicked and stomped the victim while he was on the ground. Davis v. Commonwealth, 36 Va. App. 291, 549 S.E.2d 631, 2001 Va. App. LEXIS 445 (2001).

Accomplice may be punished despite silence of statute creating an offense. - Where the statute creating an offense fails to provide for the guilt of an accomplice, the omission is not generally considered to indicate an intent to exclude such parties from criminal responsibility. Adkins v. Commonwealth, 175 Va. 590 , 9 S.E.2d 349 (1940).

Lack of intent no defense. - Each co-actor is responsible for the acts of the others and may not interpose his personal lack of intent as a defense. Charlton v. Commonwealth, 32 Va. App. 47, 526 S.E.2d 289 (2000).

Commonwealth not required to elect between theories. - Because an accessory before the fact and a principal in the second degree may be tried in all respects as a principal in the first degree, the Commonwealth is not required to elect between those two theories, and depending on the evidence, a defendant can be convicted under either theory. Buchanan v. Commonwealth, No. 0960-88-3 (Ct. of Appeals May 8, 1990).

Applied in Simpson v. Commonwealth, 221 Va. 109 , 267 S.E.2d 134 (1980); Riddick v. Commonwealth, 226 Va. 244 , 308 S.E.2d 117 (1983); Sutton v. Commonwealth, 228 Va. 654 , 324 S.E.2d 665 (1985); Pancoast v. Commonwealth, 2 Va. App. 28, 340 S.E.2d 833 (1986); Rogers v. Commonwealth, 242 Va. 307 , 410 S.E.2d 621 (1991); Jones v. Commonwealth, 15 Va. App. 384, 424 S.E.2d 563 (1992); Barlow v. Commonwealth, 26 Va. App. 421, 494 S.E.2d 901 (1998); Hansford v. Angelone, 244 F. Supp. 2d 606, 2002 U.S. Dist. LEXIS 26217 (E.D. Va. 2002); Johnson v. Commonwealth, 53 Va. App. 608, 674 S.E.2d 541, 2009 Va. App. LEXIS 157 (2009).

II. WHO ARE PRINCIPALS AND ACCESSORIES.

A. PRINCIPAL IN FIRST DEGREE.

Principals in the first degree are those who are actors, actual perpetrators of the crime; those who are the immediate perpetrators of the act. Horton v. Commonwealth, 99 Va. 848 , 38 S.E. 184 (1901).

A principal in the first degree is the actual perpetrator of the crime. Jones v. Commonwealth, 208 Va. 370 , 157 S.E.2d 907 (1967).

One who effects a criminal act through an innocent or unwitting agent is a principal in the first degree, even if the person accused was not present at the time and place of the offense. Bailey v. Commonwealth, 229 Va. 258 , 329 S.E.2d 37 (1985).

Defendant held principal in first degree despite absence of proof defendant was actual perpetrator. - Evidence was held sufficient to prove defendant, on trial for charges of attempted capital murder by arson, was a principal in the first degree, despite absence of proof that defendant was the perpetrator who lit the fire, rather than his accomplice. Hancock v. Commonwealth, 12 Va. App. 774, 407 S.E.2d 301 (1991).

Instigation of larceny. - Where accused was the instigator and moving spirit in bringing about the larceny, procured his associates to commit the crime, and with intent to steal the property, before the event instigated and directed the acts done by his associates in the commission of the crime, and also assisted them in taking and carrying away the goods, he is guilty of actual larceny and subject to punishment as a principal in the first degree. Stapleton v. Commonwealth, 140 Va. 475 , 124 S.E. 237 (1924).

Driving the getaway car in destruction of property/mailbox case. - Defendant was properly convicted of misdemeanor destruction of property, under § 18.2-137 , as a principal in the first degree, for driving a getaway car in which those who actually damaged a victim's mailbox tried to escape, because: (1) § 18.2-18 , concerning felony principals and accessories before the fact, did not abrogate the common-law rule that, in misdemeanors, all participants were principals; and (2) defendant admitted participating in this criminal episode. Wade v. Commonwealth, 56 Va. App. 689, 696 S.E.2d 258, 2010 Va. App. LEXIS 321 (2010).

B. PRINCIPAL IN SECOND DEGREE.

To prove that one is a principal in the second degree, the Commonwealth must prove: (1) the accused's presence at the crime's commission; and (2) committing an overt act such as inciting, encouraging, advising, or assisting in the commission of the crime; or (3) sharing in the perpetrator's criminal intent. Buchanan v. Commonwealth, No. 0960-88-3 (Ct. of Appeals May 8, 1990).

To convict a principal in the second degree as one in the first degree, the Commonwealth must prove the defendant was present at the scene and shared the criminal intent of the parties who actually committed the crime or was guilty of some act in furtherance thereof. Allard v. Commonwealth, 24 Va. App. 57, 480 S.E.2d 139 (1997).

To show an accused guilty of a crime as a principal in the second degree, the Commonwealth must show that the accused was present, aiding and abetting, and intended his or her words, gestures, signals, or actions to in some way encourage, advise, urge or in some way help the person committing the crime to commit it. Porter v. Commonwealth, No. 0637-00-1, 2001 Va. App. LEXIS 176 (Ct. of Appeals Apr. 3, 2001); Painter v. Commonwealth, No. 1953-00-2, 2001 Va. App. LEXIS 190 (Ct. of Appeals Apr. 10, 2001).

Commonwealth did not need to prove that defendant actually committed the burglary and grand larceny with which he was charged as, pursuant to § 18.2-18 , a principal in the second degree was equally guilty as a principal in the first degree. The Commonwealth was only required to prove that defendant was present and that he, in some way, procured, encouraged, countenanced, or approved commission of the crime. Wilkins v. Commonwealth, No. 1297-07-1,, 2008 Va. App. LEXIS 483 (Ct. of Appeals Oct. 28, 2008).

A principal in the second degree is one not the perpetrator, but present, aiding and abetting the act done, or keeping watch or guard at some convenient distance. Brown v. Commonwealth, 130 Va. 733 , 107 S.E. 809 (1921); Spradlin v. Commonwealth, 195 Va. 523 , 79 S.E.2d 443 (1954); Ward v. Commonwealth, 205 Va. 564 , 138 S.E.2d 293 (1964). See Grant v. Commonwealth, 216 Va. 166 , 217 S.E.2d 806 (1975); Powell v. Commonwealth, No. 0549-89-2 (Ct. of Appeals Aug. 28, 1990).

A principal in the second degree, or an aider or abettor as he is sometimes termed, is one who is present, actually or constructively, assisting the perpetrator in the commission of the crime. In order to make a person a principal in the second degree actual participation in the commission of the crime is not necessary. The test is whether or not he was encouraging, inciting, or in some manner offering aid in the commission of the crime. If he was present lending countenance, or otherwise aiding while another did the act, he is an aider and abettor or principal in the second degree. Jones v. Commonwealth, 208 Va. 370 , 157 S.E.2d 907 (1967).

Principals in the second degree are those who did not with their own hands commit the act, but were present, aiding and abetting it. It is not necessary in order to make a person principal in the second degree that he be actually present when the crime was committed, or that he should have actually participated in the commission of the crime. The test as to whether or not he is a principal in the second degree is, was he encouraging, inciting, or in some manner offering aid or consent to the crime. All persons present lending countenance or otherwise aiding, while another does the act, are principals in the second degree. Horton v. Commonwealth, 99 Va. 848 , 38 S.E. 184 (1901).

A principal in the second degree is one who is not only present at a crime's commission, but one who also commits some overt act, such as inciting, encouraging, advising, or assisting in the commission of the crime or shares the perpetrator's criminal intent. Moehring v. Commonwealth, 223 Va. 564 , 290 S.E.2d 891 (1982).

A principal in the second degree is a person who is present, aiding and abetting, by helping some way in the commission of the crime. Presence or consent alone is not sufficient to constitute aiding and abetting. It must be shown that the defendant intended his words, gestures, signals or actions to in some way encourage, advise, or urge, or in some way help the person committing the crime to commit it. A principal in the second degree is equally accountable and is subject to the same punishment as the actual perpetrator. Ramsey v. Commonwealth, 2 Va. App. 265, 343 S.E.2d 465 (1986).

A person who is present at the commission of a crime, inciting, encouraging, advising or assisting in the act done, is deemed to be an aider and abettor, and is liable as principal. Taylor v. Commonwealth, 260 Va. 683 , 537 S.E.2d 592, 2000 Va. LEXIS 126 (2000).

Or if not present, within easy call. - If P. and L., at the house of the accused, by the use of false pretenses, obtained from F. the sum of $570, the accused is not guilty of the offense, unless he was present, aiding and abetting therein, or suffered or permitted the said P. and L. to use said house, with knowledge that they intended to use the same for the employing of such pretenses. But if the accused was within easy call with intent to aid or assist them in their purpose, or in escaping, or in getting rid of or misleading the person from whom such money was obtained, that is a presence, aiding and abetting, and the accused is as guilty as if he were personally present. Dull v. Commonwealth, 66 Va. (25 Gratt.) 965 (1875).

But mere presence is insufficient. - It is well settled law that mere presence is not sufficient to render one guilty of aiding and abetting the commission of crime. There must be something done or said by him showing his consent to the felonious purpose and contributing to its execution. Reynolds v. Commonwealth, 74 Va. (33 Gratt.) 834 (1880); Kemp v. Commonwealth, 80 Va. 443 (1885). See Wren v. Commonwealth, 67 Va. (26 Gratt.) 952 (1875); Horton v. Commonwealth, 99 Va. 848 , 38 S.E. 184 (1901); Brown v. Commonwealth, 130 Va. 733 , 107 S.E. 809 (1921); Spradlin v. Commonwealth, 195 Va. 523 , 79 S.E.2d 443 (1954).

Mere presence of a party when a crime is committed is not sufficient to constitute one an aider and abettor in the commission of a crime. Jones v. Commonwealth, 208 Va. 370 , 157 S.E.2d 907 (1967).

Mere presence is not sufficient to establish that one is a principal in the second degree, an aider and abettor to the commission of a crime. The prosecution must prove that the accused did or said something showing his consent to the felonious purpose and his contribution to its execution. Hall v. Commonwealth, 225 Va. 533 , 303 S.E.2d 903 (1983); Augustine v. Commonwealth, 226 Va. 120 , 306 S.E.2d 886 (1983).

Unless assembled to commit a wrongful act. - All those who assemble themselves together with an intent to commit a wrongful act, the execution whereof makes probable, in the nature of things, a crime not specifically designed, but incidental to that which was the object of the confederacy, are responsible for such incidental crime. Brown v. Commonwealth, 130 Va. 733 , 107 S.E. 809 (1921).

Mere presence during the commission of a crime and subsequent flight do not constitute sufficient evidence to convict a person as a principal in the second degree. Moehring v. Commonwealth, 223 Va. 564 , 290 S.E.2d 891 (1982).

Criminal intent must be present. - To constitute an aider or abettor it is essential that the aider and abettor share the criminal intent of the principal, and if a reasonable doubt exists as to the intention of a party, in interfering in a fight between two other persons, he cannot be found guilty as an aider and abettor. Horton v. Commonwealth, 99 Va. 848 , 38 S.E. 184 (1901).

To prove defendant was an aider and abettor, the evidence must show that the defendant was not only present but that the defendant procured, encouraged, countenanced, or approved commission of the crime. In other words, defendant must share the criminal intent of the party who actually committed the crime or be guilty of some overt act in furtherance thereof. Hall v. Commonwealth, 225 Va. 533 , 303 S.E.2d 903 (1983); Augustine v. Commonwealth, 226 Va. 120 , 306 S.E.2d 886 (1983).

Aiders or abettors must either share the perpetrator's criminal intent or commit an overt act in furtherance of the crime, thereby making the offense "more likely" to occur. Whether an accused aided and abetted in the commission of an offense is a question of fact to be determined from the circumstances of each case. Lyne v. Commonwealth, No. 2428-94-2 (Ct. of Appeals Mar. 26, 1996).

Section 18.2-18 cannot be interpreted to mean that any overt act that is advantageous to the principal's criminal plan is sufficient; to be guilty as a principal in the second degree the defendant must also share in the principal's criminal intent. McMorris v. Commonwealth, 276 Va. 500 , 666 S.E.2d 348, 2008 Va. LEXIS 91 (2008).

And presence, plus encouragement, will suffice. - An aider and abettor is one who is present, actually or constructively, and participates in the crime of the principal; but any encouragement or act of assistance is a participation in the crime. Horton v. Commonwealth, 99 Va. 848 , 38 S.E. 184 (1901); Spradlin v. Commonwealth, 195 Va. 523 , 79 S.E.2d 443 (1954).

If a person is present at the commission of a crime inciting, encouraging, advising or assisting in the act done, he is deemed to be an aider and abettor, and is liable as principal. Snyder v. Commonwealth, 202 Va. 1009 , 121 S.E.2d 452 (1961); Tasker v. Commonwealth, 202 Va. 1019 , 121 S.E.2d 459 (1961).

Whether a person does in fact aid or abet another in the commission of a crime is a question that may be determined by circumstances as well as by direct evidence. - See Tuck v. Commonwealth, No. 3376-02-3, 2003 Va. App. LEXIS 623 (Ct. of Appeals Dec. 9, 2003).

Incapacity to commit the offense is no defense. - The mere fact of incapacity to commit an offense as a principal in the first degree does not prevent one who aids and abets the principal offender from being held criminally liable as a principal in the second degree. Adkins v. Commonwealth, 175 Va. 590 , 9 S.E.2d 349 (1940).

A principal in the second degree is held as culpable as one in the first degree. Briley v. Commonwealth, 221 Va. 563 , 273 S.E.2d 57 (1980).

It is well established that a "principal in the first degree is the actual perpetrator of the crime." A principal in the second degree is a person present at the scene of the offense, either actively or constructively, aiding or abetting its commission through "words, gestures, signals or actions to in some way encourage advise, . . . urge, or . . . help" the primary actor. A principal in the second degree "may be indicted, tried, convicted and punished in all respects as if a principal in the first degree." Lyne v. Commonwealth, No. 2428-94-2 (Ct. of Appeals Mar. 26, 1996).

In the case of a felony, every principal in the second degree may be indicted, tried, convicted, and punished as if a principal in the first degree. Allard v. Commonwealth, 24 Va. App. 57, 480 S.E.2d 139 (1997).

Evidence was sufficient to establish that defendant was principal in the second degree to malicious wounding where the defendant and others acted in concert in attacking the victim and one of the defendant's coperpetrators struck the victim in the head with a glass bottle, knocking him unconscious. Simmons v. Commonwealth, No. 1624-97-3 (Ct. of Appeals July 14, 1998).

Evidence was sufficient to establish that defendant was principal in the second degree in both the manufacture and distribution of cocaine where: (1) the defendant accompanied her coperpetrator on trips to purchase cocaine; (2) she provided him with the use of her apartment to cook cocaine, was present when he cooked powder cocaine into crack cocaine, and directly assisted him with cooking the cocaine; (3) she knowingly allowed him to use her apartment as a distribution center for cocaine; (4) she was present in her apartment when he transferred cocaine to others to pass along to customers and was also present when he sold cocaine directly to customers in her apartment; and (5) she was unemployed, and he paid the rent and damages fees for her apartment. Timbers v. Commonwealth, No. 2249-97-2 (Ct. of Appeals August 18, 1998).

Evidence was sufficient to establish that defendant was principal in the second degree where defendant admitted knowing the plan to steal items from victim's home, he was present and watched while the others took the items, thereby approving of the principals' actions and sharing in their criminal intent, and he was aware of the location of some of the stolen items after the theft. Cooke v. Commonwealth, No. 1603-99-1, 2000 Va. App. LEXIS 410 (Ct. of Appeals May 30, 2000).

Appellate court affirmed defendant's conviction for robbery as a principal in the second degree because the evidence was sufficient to prove defendant aided and abetted in the commission of a robbery, as defendant knew the perpetrators were going to commit a robbery, he waited for them in the get-away vehicle to facilitate their escape, during the escape he tried to hide the clothing they wore during the robbery by placing it in the glove compartment or at his feet, and a reasonable person could conclude that defendant shared the intent to commit a robbery. Bradner v. Commonwealth, No. 2640-00-3, 2001 Va. App. LEXIS 572 (Ct. of Appeals Oct. 23, 2001).

Defendant's presence at the scene, coupled with the fact that he remained at the scene, fled with the actual perpetrators and shared in the fruits of the crime, was sufficient to prove his guilt of the charged offenses as a principal in the second degree. Toney v. Commonwealth, No. 1024-01-2, 2002 Va. App. LEXIS 254 (Ct. of Appeals Apr. 30, 2002).

Actual presence at the scene of the commission of a crime was not required to convict an accused as a principal in the second degree, and defendant, in the instant case, was constructively present at the crime's commission and was aiding and abetting by helping in the commission of the crime, under § 18.2-18 . Paige v. Commonwealth, No. 1444-02-4, 2003 Va. App. LEXIS 492 (Ct. of Appeals Sept. 30, 2003).

There was ample evidence from which a jury could have reasonably found that defendant was a principal in the second degree in violation of § 18.2-35 because by the defendant's words, gestures, and actions, viewed in the light most favorable to the Commonwealth, defendant explicitly demonstrated that the defendant shared a friend's criminal intent to kill the victim; immediately prior to the killing, defendant specifically commanded the friend to shoot the victim and did nothing to dissuade the friend. McKinney v. Commonwealth, No. 1202-07-3,, 2008 Va. App. LEXIS 344 (Ct. of Appeals July 8, 2008).

There was sufficient evidence to support defendant's conviction as a principal in the second degree of abduction and felony murder, in violation of §§ 18.2-48 and 18.2-32 , where he and others lured the victim to a co-defendant's home with the purpose of robbing the victim of drugs and money, they restrained the victim while attempting to determine the whereabouts of the drugs, walked him out to the trunk of his car, drove him away, and fatally shot him; although there was blood in the house, the fact that the victim was "walked" outside to his car and that he "squirmed like a worm" when he was shot supported the finding that he was not killed in the house and accordingly, that defendant participated in abducting defendant while he was still alive. Brooks v. Commonwealth, No. 1629-03-2, 2004 Va. App. LEXIS 284 (Ct. of Appeals June 15, 2004).

Trial court did not err in finding that the evidence proved beyond a reasonable doubt that defendant acted as a principal in the second degree to use of a firearm in the commission of a robbery as the evidence showed that defendant aided in the commission of and shared the main actor's intent to rob a clothing retail store during normal business hours, where he was likely to encounter both store employees and customers. The evidence showed that defendant transported the main actor to and from the immediate area where he committed the robbery and abduction; that defendant remained in her SUV at a nearby apartment complex, where neither she nor the main actor lived, when the main actor departed the vehicle to commit the robbery; that she tried to assist him in eluding police, and that she tried to provide him with an alibi when questioned about the offenses, and that she gave false and contradictory statements to officers when questioned about her part in the robbery. Wade v. Commonwealth, No. 2115-11-2,, 2012 Va. App. LEXIS 161 (Ct. of Appeals May 15, 2012).

Sufficient evidence supported defendant's § 18.2-53.1 conviction as the victim observed that the accomplice had a semi-automatic gun, felt the cold, hard barrel of the gun that defendant placed against his neck, and saw the tip of that gun; further, defendant was guilty as a principal in the second degree of possessing the firearm used by his accomplice. Gibbs v. Commonwealth, No. 1726-11-1, 2012 Va. App. LEXIS 324 (Ct. of Appeals Oct. 16, 2012).

Defendant was properly convicted of carjacking as a principal in the second degree because the evidence was sufficient to allow a reasonable fact finder to conclude that defendant countenanced, approved, and assisted in the accomplice's actions and thereby aided and abetted the accomplice in the carjacking; the facts supported the reasonable conclusion that defendant was more than merely present, and the evidence showed that he knew of the accomplice's intent to conduct a drug deal and willingly accompanied him. Johnson v. Commonwealth, No. 1894-16-2, 2017 Va. App. LEXIS 287 (Nov. 14, 2017).

Evidence was insufficient. - Assuming the driver of the truck in which defendant had been riding stole a handgun, since there was neither proof that defendant failed to oppose the theft, nor proof of other circumstances upon which to find he acted as a principal in the second degree, his conviction of grand larceny on an aiding and abetting theory was not supported by sufficient evidence. Myers v. Commonwealth, 43 Va. App. 113, 596 S.E.2d 536, 2004 Va. App. LEXIS 238 (2004).

Defendant was not a principal in the second degree pursuant to § 18.2-18 because the defendant could not have procured, encouraged, countenanced, approved or knowingly committed an overt act in furtherance of a robbery without the knowledge that the crime was occurring. McMorris v. Commonwealth, 276 Va. 500 , 666 S.E.2d 348, 2008 Va. LEXIS 91 (2008).

Invited error. - Trial court did not err in finding defendant guilty of petit larceny, a misdemeanor under § 18.2-96 , when she was indicted as a principal in the second degree to third offense petit larceny, a felony under §§ 18.2-104 and 18.2-18 , where defendant requested the trial court to treat her actions as misdemeanor petit larceny, and she was subject to the misdemeanor finding that her counsel requested, as she was precluded from raising the same on appeal under the invited error doctrine; additionally, misdemeanor petit larceny was a lesser-included offense of a violation of § 18.2-104 . Brumfield v. Commonwealth, No. 0794-04-3, 2004 Va. App. LEXIS 625 (Ct. of Appeals Dec. 21, 2004).

Evidence sufficient to support conviction. - Defendant's convictions for first-degree murder and use of a firearm in the commission of a felony were appropriate because the jury was entitled to disbelieve defendant's assertion that she did not know that her boyfriend had a weapon when they entered the victim's home. Further, there was sufficient evidence of concert of action because defendant and her boyfriend arrived at the home of defendant's father knowing that they were forbidden to be there; they gained entrance through the back door; they were intent upon forcing her father to surrender the welfare checks; and when defendant's father refused, they pursued him up the stairs where he was shot and brutally beaten. Thomas v. Commonwealth, 279 Va. 131 , 688 S.E.2d 220, 2010 Va. LEXIS 11, cert. denied, 131 S. Ct. 143, 178 L. Ed. 2d 8, 2010 U.S. LEXIS 6109 (U.S. 2010).

Defendant was properly convicted of robbery and use of a firearm in the commission of a felony because defendant acted, at the very least, as a principal in the second degree. When a police officer responded to a call of an armed robbery with one man wearing a ski mask, the officer saw four individuals who ran from the officer and were found hiding in a culvert, the victim's stolen cell phone was found in the immediate vicinity, defendant lied about not knowing the other individuals, and a mask was found in defendant's pocket. Jackson v. Commonwealth, No. 1457-16-2, 2017 Va. App. LEXIS 203 (Aug. 8, 2017).

C. ACCESSORY BEFORE THE FACT.

Elements of crime. - In order for a person to be an accessory before the fact, the Commonwealth is required to prove: (1) commission of the crime by the principal, and (2) prior to the crime's commission, the accessory was in someway concerned as a contriver, instigator or advisor. Buchanan v. Commonwealth, No. 0960-88-3 (Ct. of Appeals May 8, 1990).

An accessory before the fact is one who, being absent at the time the crime is committed, procures, counsels, or commands another to commit a crime. Absence is necessary to make one an accessory. See Rasnick v. Commonwealth, 4 Va. (2 Va. Cas.) 356 (1823).

To be guilty of accessory before the fact, the accused must either know or have reason to know of the principal's criminal intention and must intend to encourage, incite or aid the principal's commission of the crime. Charlton v. Commonwealth, 32 Va. App. 47, 526 S.E.2d 289 (2000).

In the trial of an accessory before the fact the Commonwealth must establish the following elements beyond a reasonable doubt: the commission of the crime by the principal, the accessory's absence at the commission of the offense and that before the commission of the crime, the accessory was in some way concerned therein as a contriver, instigator or advisor. McGhee v. Commonwealth, 221 Va. 422 , 270 S.E.2d 729 (1980).

Although conviction of a principal in the first degree is not a condition precedent to conviction of an accessory, before the accessory to a crime can be convicted as such, it must be shown that the crime has been committed by the principal. Dusenbery v. Commonwealth, 220 Va. 770 , 263 S.E.2d 392 (1980).

Procedure. - Trial court did not err in submitting a murder charge to the jury based on the theory that defendant was "an accessory before the fact or co-conspirator" in the commission of the charged murder; the Commonwealth is entitled to an accessory-before-the-fact instruction on a felony indictment even when the defendant is not charged in the indictment with being an accessory before the fact to the felony. Schwartz v. Commonwealth, 45 Va. App. 407, 611 S.E.2d 631, 2005 Va. App. LEXIS 156 (2005).

D. CAPITAL MURDER.

Only immediate perpetrator may be convicted of capital murder. - Except in the case of murder for hire, only the immediate perpetrator of a homicide, the one who fired the fatal shot, and not an accessory before the fact or a principal in the second degree, may be convicted of capital murder under the provisions of § 18.2-31 , as qualified by this section. Coppola v. Commonwealth, 220 Va. 243 , 257 S.E.2d 797 (1979), cert. denied, 444 U.S. 1103, 100 S. Ct. 1069, 62 L. Ed. 2d 788 (1980).

It is essential in a prosecution for capital murder, except in the case of murder for hire, that the heretofore unnecessary distinction be drawn between principals in the first and second degree, assuring that only the person who is the immediate perpetrator may be a principal in the first degree and thus liable to conviction for capital murder. Johnson v. Commonwealth, 220 Va. 146 , 255 S.E.2d 525 (1979), cert. denied, 454 U.S. 920, 102 S. Ct. 422, 70 L. Ed. 2d 231 (1981).

When the offense constituting the charge of capital murder is the willful, deliberate and premeditated killing of a person in the commission of robbery while armed with a deadly weapon, only the actual perpetrator of the crime may be convicted of capital murder. Johnson v. Commonwealth, 220 Va. 146 , 255 S.E.2d 525 (1979), cert. denied, 454 U.S. 920, 102 S. Ct. 422, 70 L. Ed. 2d 231 (1981).

This section does not permit a principal in the second degree to be convicted of capital murder. Cortner v. Commonwealth, 222 Va. 557 , 281 S.E.2d 908 (1981).

Except in the case of murder for hire, "only the actual perpetrator of the crime may be convicted of capital murder." Thus, neither an accessory before the fact nor a principal in the second degree may be so convicted. Cheng v. Commonwealth, 240 Va. 26 , 393 S.E.2d 599 (1990).

And instruction to contrary is reversible error. - Harmful, reversible error occurred in a capital murder prosecution when the trial court instructed the jury in such a manner that the jury could have believed that it could convict the defendant of capital murder though it was unable to determine who fired the fatal shots, or if it determined that the defendant's brother fired the fatal shots; the error was compounded when the Commonwealth was permitted to argue to the jury that it could convict the defendant regardless of who pulled the trigger. Johnson v. Commonwealth, 220 Va. 146 , 255 S.E.2d 525 (1979), cert. denied, 454 U.S. 920, 102 S. Ct. 422, 70 L. Ed. 2d 231 (1981).

Construction with § 18.2-31 . - Defendant gave a direction or order sufficient to satisfy the requirements of § 18.2-18 such that even if he were a criminal actor ordinarily demonstrating culpability as a principal in the second degree, he was nonetheless guilty of capital murder under subdivision 13 of § 18.2-31 and § 18.2-18 ; the record showed defendant directed and ordered his companion in the entire criminal enterprise, defendant had the military background in shooting and snipering skills, and it was defendant who provided the weapons. Muhammad v. Commonwealth, 269 Va. 451 , 611 S.E.2d 537, 2005 Va. LEXIS 39 (2005), cert. denied, 547 U.S. 1136, 126 S. Ct. 2035, 164 L. Ed. 2d 794 (2006), and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Failure to establish presence of another perpetrator. - In a capital case, defendant unsuccessfully argued that the evidence was insufficient to convict him as an immediate perpetrator or triggerman, which was required under § 18.2-18 for his conviction as a principal in the first degree, making him eligible for the death penalty. There was no conclusive evidence of the presence of another perpetrator, and the evidence was overwhelming that defendant was the sole perpetrator of the murders. Prieto v. Commonwealth, 278 Va. 366 , 682 S.E.2d 910, 2009 Va. LEXIS 94 (2009), cert. denied, 177 L. Ed. 2d 332, 2010 U.S. LEXIS 4926 (U.S. 2010); appeal after remand, decision reached on appeal by, 283 Va. 149 , 721 S.E.2d 484, 2012 Va. LEXIS 20 (2012).

III. PROSECUTION.

A. INDICTMENT.

Indictment against accessory need not aver conviction of principal. - It is not necessary that the indictment against the accessory should aver the conviction of the principal, for they may be jointly indicted. Commonwealth v. Williamson, 4 Va. (2 Va. Cas.) 211 (1820).

Refusal to furnish bill of particulars. - The defendant was deprived of no substantial right by the trial court's refusal to require the Commonwealth to furnish a bill of particulars stating whether defendant was being tried as a principal in the first degree or second degree, particularly where the motion for bill of particulars was not made until the time of trial. Tasker v. Commonwealth, 202 Va. 1019 , 121 S.E.2d 459 (1961).

Amendment to indictment by adding "or an accessory before the fact." - Where the indictment returned by the grand jury charged that appellant did, as a principal in the second degree, deliberately, and with premeditation kill victim during a killing for hire, in violation of this section and § 18.2-31 and where prior to the trial, the Commonwealth requested and received the trial court's permission to amend the indictment by adding the words "or an accessory before the fact" between "second degree," and "unlawfully," trial court did not err in failing to grant defendant's motion for a bill of particulars, and by permitting the Commonwealth to amend the indictment over his objection; the indictment sufficiently informed defendant of the charge upon which he was to be tried and moreover, under the indictment he could be convicted either as a principal in the first or second degree or as an accessory before the fact. Harris v. Commonwealth, 8 Va. App. 424, 382 S.E.2d 292 (1989).

The Commonwealth was not required to elect whether it would prosecute the defendant on a charge of aiding and abetting or being a principal in the first degree since the indictment contained but one single count and charged only one homicide. Ward v. Commonwealth, 205 Va. 564 , 138 S.E.2d 293 (1964).

B. EVIDENCE.

Aiding and abetting may be shown by circumstantial evidence. - Whether a person does in fact aid or abet another in the commission of a crime is a question which may be determined by circumstances as well as by direct evidence. Brown v. Commonwealth, 130 Va. 733 , 107 S.E. 809 (1921); Spradlin v. Commonwealth, 195 Va. 523 , 79 S.E.2d 443 (1954).

Circumstantial evidence was sufficient to support conclusion that defendant was an aider and abetter in a purse snatching and was the driver of the "getaway" car. Powell v. Commonwealth, No. 0549-89-2 (Ct. of Appeals Aug. 28, 1990).

Where defendant robbed the victim after the victim was distracted by another person with a gun, the evidence was sufficient to prove that defendant acted in concert with the other person in using a firearm to commit a felony. Nelson v. Commonwealth, No. 1868-02-2, 2003 Va. App. LEXIS 363 (Ct. of Appeals June 24, 2003).

Evidence was sufficient to support defendant's conviction for attempting to obtain money by false pretenses and uttering a forged check drawn on the account of her employer in violation of §§ 18.2-178 and 18.2-172 because the only reasonable hypothesis flowing from the direct and circumstantial evidence was that defendant shared in an accomplice's intent to utter a forged check and to attempt to obtain money by false pretenses; defendant, who worked across the hall from the victim and had access to her office, admitted to the victim that she had possessed the check at issue, defendant accompanied the accomplice to a check cashing business and admitted knowing that the accomplice was there to cash a check, and defendant, the only one of the three people at the business that day who had a direct tie to the employer, remained in the car during the transaction, fabricated a reason to enter the business after police arrived and entered, and attempted to flee the scene alone after learning that the accomplice had been handcuffed. Bell v. Commonwealth, No. 0482-10-1,, 2010 Va. App. LEXIS 461 (Ct. of Appeals Nov. 30, 2010).

Conviction as accessory before the fact by totality of evidence. - While no single piece of evidence, standing alone, tied the defendant directly to the killing, the totality of the evidence supported the jury's finding that the defendant was an accessory before the fact of first degree murder. Cirios v. Commonwealth, 7 Va. App. 292, 373 S.E.2d 164 (1988).

Jury does not have to accept defendant's testimony. - Although defendant's testimony could have absolved himself of any complicity in the robbery/murder, circumstances leading up to and after the crimes were such that the jury could reasonably have concluded that defendant participated in the robbery and aided and abetted in the murder; jury did not have to accept defendant's statement. Pugliese v. Commonwealth, 16 Va. App. 82, 428 S.E.2d 16 (1993).

Abduction by prisoners. - Evidence was sufficient to establish that the defendant was a principal in the second degree to abduction by prisoners where, inter alia, he came twice to a breezeway with other inmates more directly involved in the incident, remained present while the inmates subdued two correctional officers, stood within three feet of one officer as he lay restrained on the ground, and assisted in dealing with another officer. Wicker v. Commonwealth, No. 2607-97-2 (Ct. of Appeals Dec. 22, 1998).

Driving the getaway car. - Evidence was sufficient to sustain a burglary conviction where defendant drove the other participants to the crime scene, waited for their return from a safe distance across the street in the dark, and then provided the transportation for their flight from the scene of the crime by driving the getaway car. Defendant admitted on cross-examination to knowing before the burglary that "something bad was going to happen at the burglary scene." Thomas v. Commonwealth, No. 2765-04-2,, 2006 Va. App. LEXIS 73 (Ct. of Appeals Feb. 28, 2006).

Videotape properly admitted. - For a case upholding admission of partially unintelligible videotape of drug transaction in conviction of defendant as principal in second degree, see Brooks v. Commonwealth, 15 Va. App. 407, 424 S.E.2d 566 (1992).

Evidence held sufficient. - In a prosecution for malicious wounding, the evidence was sufficient to show that defendant's actions caused the victim's wounds as the evidence showed that defendant, at a minimum, acted as a principal, within the meaning of § 18.2-18 , in the malicious wounding of the victim, in that the evidence showed that defendant was present during the malicious wounding of the victim and performed an overt act of assistance by striking the initial blow against the victim. Johnson v. Commonwealth, 58 Va. App. 303, 709 S.E.2d 175, 2011 Va. App. LEXIS 185 (2011).

Evidence proving that defendant, acting with the requisite intent, encouraged and incited his girlfriend to commit the murder, helped her plan it, and thereby induced her to act was sufficient to support the jury's verdict that defendant was an accessory before the fact to the murder and firearm offenses. Chewning v. Commonwealth, No. 2204-12-4, 2014 Va. App. LEXIS 82 (Mar. 11, 2014).

There was sufficient evidence to support the jury's finding that defendant encouraged and assisted the principal in the commission of the crime of larceny and was, therefore, guilty as a principal. Defendant and the principal together entered a grocery store, selected some deli sandwiches and beer, and together walked out of the store without paying for them. Wright v. Commonwealth,, 2014 Va. App. LEXIS 376 (Nov. 18, 2014), aff'd in part and rev'd in part, 292 Va. 386 , 789 S.E.2d 611, 2016 Va. LEXIS 109 (2016).

Trial court did not err in denying defendant's motion to strike evidence of manufacturing methamphetamine on the ground of insufficient evidence she was responsible for the manufacture as an accessory before the fact because having found she lied about her knowledge of the "one-pot" reaction vessel for manufacturing methamphetamine, it could infer her involvement; a rational trier of fact could have found defendant aided and abetted an accomplice's manufacture by buying him pseudoephedrine. Denson v. Commonwealth, No. 1971-16-3, 2018 Va. App. LEXIS 80 (Mar. 27, 2018).

Evidence was sufficient for a rational fact finder to conclude that defendant acted as a principal in the second degree with regard to attempted robbery, malicious wounding, and use of a firearm in the commission of a felony, as it showed that he was present during the commission of the crimes, shared an accomplice's criminal intent, fled from the scene to his home, where police found clothing matching that of the suspects, a gun used in the shooting, and defendants DNA on the gun. Humphrey v. Commonwealth, No. 1678-19-1, 2020 Va. App. LEXIS 258 (Oct. 27, 2020).

C. OTHER MATTERS.

Verdict should determine degree of accessory. - A verdict which finds a person indicted as being an accessory to a murder guilty thereof, but does not determine whether he is guilty as accessory to the murder in the first or second degree, is erroneous, and ought to be set aside, and a venire facias de novo awarded. Commonwealth v. Williamson, 4 Va. (2 Va. Cas.) 211 (1820).

To convict accessory, commission of offense by principal must be shown. - In order to convict an accessory, although it is not necessary now to show that the principal felon has been convicted, it is necessary to show that the substantive offense, to which he is charged as having been accessory, has been committed by the principal felon. Hatchett v. Commonwealth, 75 Va. 925 (1882); Snyder v. Commonwealth, 202 Va. 1009 , 121 S.E.2d 452 (1961).

Before an accessory to a crime can be convicted as such, it must be shown that the crime has been committed by the principal, but it is not necessary that the principal should be convicted of the basic offense. Taylor v. Commonwealth, 260 Va. 683 , 537 S.E.2d 592, 2000 Va. LEXIS 126 (2000).

Although the commonwealth must prove a principal in the first degree committed the underlying offense, conviction of the principal in the first degree is not a condition precedent to convicting the accessory. Blankenship v. Commonwealth, No. 1112-99-3, 2000 Va. App. LEXIS 293 (Ct. of Appeals Apr. 25, 2000).

New trial required for accessory where principal acquitted. - M. is prosecuted for subornation of perjury, found guilty, and judgment rendered against him. At the same term of the court, but after the conviction of M., G. is tried for the perjury, and is acquitted. M. then moves the court for a new trial. G. having been acquitted of the perjury, M. should have a new trial, for if G. was not guilty of the perjury, M. could not be guilty of subornation. Maybush v. Commonwealth, 70 Va. (29 Gratt.) 857 (1878).

New trial for accessory not required where principal acquitted. - Where the evidence was sufficient to support a finding that the defendant's brother committed the charged offenses as a principal in the first degree and that the defendant actively aided and abetted his brother's commission of the offenses, the fact that the jury acquitted the defendant's brother did not render the defendant's conviction improper. Blankenship v. Commonwealth, No. 1112-99-3, 2000 Va. App. LEXIS 293 (Ct. of Appeals Apr. 25, 2000).

Aiding and abetting robbery incurs same punishment as being actual robber. - Upon a plea of guilty to aiding and abetting in the robbery, the court is authorized to impose the same punishment upon the defendant as if he were the actual robber. Hern v. Cox, 212 Va. 644 , 186 S.E.2d 85 (1972).

CIRCUIT COURT OPINIONS

Lookout during petit larceny guilty of petit larceny. - Defendant, who served as a lookout while another person broke into cars and stole electronic components, was guilty of petit larceny. Commonwealth v. Howlett, 61 Va. Cir. 509, 2003 Va. Cir. LEXIS 136 (Norfolk 2003).

I. GENERAL CONSIDERATION.

Legislative intent as to phrase "an offense which is punishable with death." - The General Assembly intended the phrase "an offense which is punishable with death" to incorporate by reference the substantive offenses to which the highest penalty for attempt would attach. Evans v. Commonwealth, 214 Va. 694 , 204 S.E.2d 413 (1974).

Attempt penalty not dependent on existence of death penalty. - There was no legislative intent to make the attempt penalty dependent upon the existence or nonexistence of the death penalty attached to the substantive offenses incorporated by reference. Evans v. Commonwealth, 214 Va. 694 , 204 S.E.2d 413 (1974).

An attempt is an offense of a lower grade than the consummated felony. - The intention to commit a felony, and the doing of some act towards its commission without actually committing it, is an attempt and is, from its very nature, an offense of a lower grade than the consummated felony. Cates v. Commonwealth, 111 Va. 837 , 69 S.E. 520 (1910).

This article supersedes the common law. - This article, providing for punishment for attempts to commit crime, supersedes the common law. But it does not change the common law as to the grade of the offense, so far as murder is concerned, except as to murder in the first degree. Lee v. Commonwealth, 144 Va. 594 , 131 S.E. 212 (1926).

But does not change the common-law definition of attempt. Merritt v. Commonwealth, 164 Va. 653 , 180 S.E. 395 (1935).

For this article does not undertake to state what shall constitute an attempt to commit a crime. Merritt v. Commonwealth, 164 Va. 653 , 180 S.E. 395 (1935).

Double jeopardy considerations. - Section 19.2-294 is not a bar to prosecution for attempted murder after a conviction of obstructing justice; while obstructing justice may be a statutory offense, attempted murder is a common-law offense. Martin v. Commonwealth, 242 Va. 1 , 406 S.E.2d 15, cert. denied, 502 U.S. 945, 112 S. Ct. 388, 116 L. Ed. 2d 339 (1991).

Where defendant was first convicted of, inter alia, obstruction of justice by threats or force (a misdemeanor) and later convicted of attempted murder (a felony), the "same conduct" rule enunciated in Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), did not apply to bar prosecution of the charge of attempted murder on principles of double jeopardy. Martin v. Commonwealth, 242 Va. 1 , 406 S.E.2d 15, cert. denied, 502 U.S. 945, 112 S. Ct. 388, 116 L. Ed. 2d 339 (1991).

Multiple punishments for the crimes of attempted murder and malicious wounding do not violate the double jeopardy clause when the convictions are obtained in a single trial. Creamer v. Commonwealth, No. 1298-91-3 (Ct. of Appeals Dec. 15, 1992).

Defendant's conviction in city for the rape that occurred there did not bar proof of that rape as a predicate offense in his prosecution in neighboring county for attempted capital murder. Curtis v. Commonwealth, 13 Va. App. 622, 414 S.E.2d 421 (1992).

Double jeopardy not a bar. - Defendant's double jeopardy rights were not violated in a case where defendant pled guilty to solicitation to commit murder in violation of § 18.2-29 and a jury then convicted defendant in a trial of attempted capital murder for hire in violation of subdivision 2 of § 18.2-31 and § 18.2-25 . Double jeopardy did not apply because: (1) defendant's offenses were considered in a single proceeding and, thus, there were not successive prosecutions for the same offense; and (2) solicitation to commit murder and attempted capital murder for hire were not the same offenses and, thus, defendant could be convicted and punished for both offenses since solicitation for murder required that a defendant solicit another person whereas attempted capital murder for hire did not require such proof. Ostrander v. Commonwealth, 51 Va. App. 386, 658 S.E.2d 346, 2008 Va. App. LEXIS 126 (2008).

II. ELEMENTS OF ATTEMPT.

Common law. - While the punishments for attempts to commit felonies are fixed by statute, what constitutes an attempt must be ascertained from the common law. Johnson v. Commonwealth, 209 Va. 291 , 163 S.E.2d 570 (1968).

An attempt consists of intent plus a direct act. - An attempt to commit a crime consists of: (1) the intent; (2) a direct, ineffectual act towards its commission; and that act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. Hicks v. Commonwealth, 86 Va. 223 , 9 S.E. 1024 (1889); Barrett v. Commonwealth, 210 Va. 153 , 169 S.E.2d 449 (1969); Sizemore v. Commonwealth, 218 Va. 980 , 243 S.E.2d 212 (1978).

An attempt in criminal law is an unfinished crime and is composed of two elements, the intent to commit the crime and the doing of some direct act toward its consummation, but falling short of the accomplishment of the ultimate design. Martin v. Commonwealth, 195 Va. 1107 , 81 S.E.2d 574 (1954); Johnson v. Commonwealth, 209 Va. 291 , 163 S.E.2d 570 (1968).

Intent necessary. - A person cannot be guilty of an attempt to commit murder unless he has a specific intent to kill. Merritt v. Commonwealth, 164 Va. 653 , 180 S.E. 395 (1935).

The necessary intent is the intent in fact, as distinguished from an intent in law. Epps v. Commonwealth, 216 Va. 150 , 216 S.E.2d 64 (1975); Nobles v. Commonwealth, 218 Va. 548 , 238 S.E.2d 808 (1977).

Under this article "attempt" embraces the full meaning of "intent," and may be, and frequently is, shown by circumstances. It is a state of mind which may be proved by a person's conduct or by his statements. Barrett v. Commonwealth, 210 Va. 153 , 169 S.E.2d 449 (1969); Nobles v. Commonwealth, 218 Va. 548 , 238 S.E.2d 808 (1977).

Intent in fact is the purpose formed in a person's mind which may be shown by his conduct. Epps v. Commonwealth, 216 Va. 150 , 216 S.E.2d 64 (1975).

State of mind is the subject of any inquiry concerning whether an intent to kill exists in an attempted murder case. Nobles v. Commonwealth, 218 Va. 548 , 238 S.E.2d 808 (1977).

Presumption of intention. - A person is presumed to intend the immediate, direct, and necessary consequences of his voluntary act. Nobles v. Commonwealth, 218 Va. 548 , 238 S.E.2d 808 (1977).

Whether the required intent exists is generally a question for the trier of fact. Nobles v. Commonwealth, 218 Va. 548 , 238 S.E.2d 808 (1977).

Preparation and attempt distinguished. - Preparation consists in devising or arranging the means or measures necessary for the commission of the offense and the attempt is a direct movement towards the commission after the preparations are made. Martin v. Commonwealth, 195 Va. 1107 , 81 S.E.2d 574 (1954).

The act must amount to the commencement of the consummation. - The act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. Thacker v. Commonwealth, 134 Va. 767 , 114 S.E. 504 (1922). See Dixon v. Commonwealth, 162 Va. 798 , 173 S.E. 521 (1934). See also Merritt v. Commonwealth, 164 Va. 653 , 180 S.E. 395 (1935), holding that where the intent appears as a part of the act alleged it need not be expressly stated.

But need not be last proximate act prior to the consummation. - The overt act, composing one of the two essential elements of an attempt, need not be the last proximate act prior to the consummation of the felony attempted to be perpetrated. Uhl v. Commonwealth, 47 Va. (6 Gratt.) 706 (1849); Glover v. Commonwealth, 86 Va. 382 , 10 S.E. 420 (1889).

An attempt need not be the last proximate act towards the consummation of the crime in contemplation, but is sufficient if it be an act apparently adopted to produce the result intended; mere preparation is not sufficient. Martin v. Commonwealth, 195 Va. 1107 , 81 S.E.2d 574 (1954).

Sufficient evidence to show attempted capital murder for hire. - Defendant asked two people to kill his wife, formulated diagrams of his wife's house, explained when she would be at home, and paid two thousand dollars to the hit man. The evidence was sufficient to convict defendant of attempted capital murder for hire, in violation of §§ 18.2-25 and 18.2-31 , and solicitation of capital murder for hire in violation of §§ 18.2-29 and 18.2-31 ; the Commonwealth did not err by failing to elect between the charges, because the solicitation and attempt were both parts of a common scheme or plan. Ashford v. Commonwealth, 47 Va. App. 676, 626 S.E.2d 464, 2006 Va. App. LEXIS 70 (2006).

III. PROSECUTION.

A. INDICTMENT.

The Supreme Court has been liberal in sustaining indictments charging an attempt to commit a crime under this section. Merritt v. Commonwealth, 164 Va. 653 , 180 S.E. 395 (1935).

The allegations of an indictment must be read as a whole. Fields v. Commonwealth, 129 Va. 774 , 106 S.E. 333 (1921).

Indictments must allege act that constitutes an attempt. - It is an elementary rule of criminal pleading that an indictment for an attempt to commit an offense must allege some act done by the defendant of such a nature as to constitute an attempt, in a legal sense, to commit the contemplated offense, otherwise the indictment will not be sufficient. Commonwealth v. Clark, 47 Va. (6 Gratt.) 675 (1849). See Hicks v. Commonwealth, 86 Va. 223 , 9 S.E. 1024 (1889); Cunningham v. Commonwealth, 88 Va. 37 , 13 S.E. 309 (1891).

But need not allege intent. - Where the statute under which the indictment is found expressly makes the "intent" descriptive of the offense, the prevailing rule is that the indictment must expressly allege the "intent," but this is not true of this section on attempts to commit crime. Broaddus v. Commonwealth, 126 Va. 733 , 101 S.E. 321 (1919).

If it is an attempt to do an act in its nature evil. - An indictment under this section charged that accused made an assault upon a woman and he feloniously did attempt to ravish and carnally know, against her will and by force. The indictment thus followed the statute in the use of the word "attempt," without further expansion. It charged, however, an assault, and that the "attempt" was "to ravish and carnally know" the prosecutrix "against her will and by force." This was an act in its nature evil, and an act, therefore, "prima facie evil also in intent; so this intent need not be alleged," since the statute under which the indictment was found has not made the intent "affirmatively or descriptively an element of the offense." Broaddus v. Commonwealth, 126 Va. 733 , 101 S.E. 321 (1919).

But intent must be alleged if it would not be inferred. - The indictment should charge the intent as well as the overt act unless the specific intent to commit the crime charged might be inferred, either from the nature of the act alleged or from the use of the word "attempt" in the indictment, as "attempt" embraces the full meaning of "intent"; the only distinction between an "intent" and an "attempt" is that the former implies purpose only, while the latter implies both purpose and the effort to carry that purpose into effect. Merritt v. Commonwealth, 164 Va. 653 , 180 S.E. 395 (1935).

An indictment charging an attempt to commit a crime should charge both the intent and the overt act; but it has been held that where the intent appeared as a part of the act alleged, it need not be expressly stated. Johnson v. Commonwealth, 209 Va. 291 , 163 S.E.2d 570 (1968).

Indictment need not specify degree of attempted murder. - The indictment is not invalid because it failed to specify that the murder alleged to have been attempted was murder in the first degree. Fields v. Commonwealth, 129 Va. 774 , 106 S.E. 333 (1921).

Indictment held good. - An indictment under this section alleged that accused "did feloniously attempt to commit the crime of murder by then and there" with a loaded pistol, which pistol accused feloniously, willfully, and of malice aforethought did discharge and shoot off at and towards one David Tabb, the accused being close enough to said Tabb to be within carrying distance of the pistol. It was held that the indictment sufficiently charged the overt acts done towards the commission of the offense. The indictment followed the statute in its use of the word "attempt," and both charged the assault and descended into the particulars of that charge. Fields v. Commonwealth, 129 Va. 774 , 106 S.E. 333 (1921).

B. EVIDENCE.

To sustain a conviction of attempted murder, the evidence must establish both a specific intent to kill the victim and an overt but ineffectual act committed in furtherance of this criminal purpose. Nobles v. Commonwealth, 218 Va. 548 , 238 S.E.2d 808 (1977); Howard v. Commonwealth, 221 Va. 904 , 275 S.E.2d 602 (1981).

Evidence showing preparation only. - The evidence in this case shows only a procurement of the poison and an ineffectual solicitation of a third party to put it in the drink of the intended victim, which acts constitute not an attempt, but only a preparation. Goin v. Absher, 189 Va. 372 , 53 S.E.2d 50 (1949).

Evidence not brought before Supreme Court. - Where accused was convicted of an attempt to commit murder in the first degree and the evidence introduced at the trial was not brought before the Supreme Court, that court must presume that it was sufficient to establish that the attempted murder was murder in the first degree. Fields v. Commonwealth, 129 Va. 774 , 106 S.E. 333 (1921).

Sufficient evidence of knowledge of presence of contraband. - Evidence was sufficient to convict defendant of possession of a controlled substance because a police officer smelled marijuana coming from a vehicle that had been stopped for a traffic violation, defendant, a passenger in the vehicle, appeared extremely nervous, a cigarette pack with a "blunt" was found in defendant's pocket, and eight baggies of a white, flaky, powdery substance were found in the pack. Waller v. Commonwealth, No. 0070-14-2, 2015 Va. App. LEXIS 73 (Mar. 10, 2015).

Sufficient evidence. - Where the defendant pointed a loaded rifle at a state trooper and threatened to kill him, the evidence was sufficient to support a conviction for attempted murder, even though the defendant did not pull or attempt to pull the trigger. Sizemore v. Commonwealth, 218 Va. 980 , 243 S.E.2d 212 (1978).

Evidence was sufficient to support defendant's attempted robbery conviction, in violation of §§ 18.2-58 and 18.2-25 , when the victims testified that defendant said he would "take your stuff, " did not appear to be joking, and, when they ran from him, lifted his shirt and displayed a firearm, as this showed defendant intended to take, with intent to steal, the personal property of another, from his person or in his presence, against his will, by violence or intimidation, and engaged in a direct, ineffectual, act towards its commission. Jones v. Commonwealth, No. 1730-03-1, 2004 Va. App. LEXIS 300 (Ct. of Appeals June 29, 2004).

Court did not make an error of law in ruling that the evidence had been sufficient to support a habeas petitioner's conviction for attempted murder; the inmate's driving a truck, armed with a deadly weapon, from Florida to within one-half mile of the intended victim's workplace in Virginia was the overt act that supported his conviction. Littlefield v. Hinkle,, 2005 U.S. Dist. LEXIS 31344 (W.D. Va. Nov. 22, 2005).

Because defendant swerved a car toward a police officer rather than driving straight ahead to escape, the evidence was sufficient to prove premeditation and the specific intent to kill; consequently, defendant was properly convicted of violating § 18.2-25 . Coles v. Commonwealth, 270 Va. 585 , 621 S.E.2d 109, 2005 Va. LEXIS 88 (2005).

Sufficient evidence supported defendant's conviction under § 18.2-25 and subdivision 6 of § 18.2-31 of attempted capital murder of a police officer because the specific intent required for the crime could be inferred by defendant veering the defendant's automobile from the defendant's path of travel directly towards a second police officer, resulting in defendant striking the second officer at about 40 to 50 mph, knocking the second officer to the ground, and running over the officer's foot. Piggott v. Commonwealth, No. 1797-07-1,, 2008 Va. App. LEXIS 432 (Ct. of Appeals Sept. 23, 2008).

Evidence that defendant did not brake or attempt to avoid the collision and collided head-on with the officer while still accelerating, supported the finding that defendant had the specific intent to kill the officer and thus, was sufficient to convict defendant of attempted capital murder. McMillan v. Commonwealth, No. 2074-07-2,, 2009 Va. App. LEXIS 118 (Ct. of Appeals Mar. 17, 2009).

Evidence was sufficient to convict defendant of attempted capital murder of a law-enforcement officer because, while no witness actually saw defendant shoot the gun at the deputy, a rational fact finder could find from the evidence presented that defendant was the shooter as the evidence showed defendant was in the area, he possessed a gun, and he had the opportunity to commit the offenses; no evidence suggested that any person other than defendant was in the area at the time of the shooting; the evidence showed that defendant shot the gun at the deputy with the intent to kill him as a natural consequence of shooting a gun numerous times in the direction of someone was that person's death; and a ricochet hit the deputy in the leg. Williams v. Commonwealth, No. 1700-14-3, 2015 Va. App. LEXIS 321 (Nov. 10, 2015).

C. VERDICT.

Need not show degree of murder attempted. - In a prosecution for an attempt to commit murder, the jury found the accused guilty as charged in the indictment and fixed her punishment at two years confinement in the penitentiary (now state correctional facility). It was held that the verdict was not invalid because it did not expressly appear therefrom that the jury found the accused guilty of the attempt to commit murder in the first degree. Fields v. Commonwealth, 129 Va. 774 , 106 S.E. 333 (1921).

Improper conviction where offense not lesser included one. - Defendant was improperly convicted of assault on a law-enforcement officer where that crime was not a lesser-included offense of attempted capital murder of an officer. Edwards v. Commonwealth, 40 Va. App. 529, 580 S.E.2d 450, 2003 Va. App. LEXIS 298 (2003).

I. IN GENERAL.

Constitutionality. - Virginia's capital murder statutes are not unconstitutional. Clark v. Commonwealth, 220 Va. 201 , 257 S.E.2d 784 (1979), cert. denied, 444 U.S. 1049, 100 S. Ct. 741, 62 L. Ed. 2d 736 (1980); Pope v. Commonwealth, 234 Va. 114 , 360 S.E.2d 352 (1987), cert. denied, 485 U.S. 1015, 108 S. Ct. 1489, 99 L. Ed. 2d 716 (1988).

Section is constitutional under U.S. Const., Amends. V and XIV, and Va. Const., Art. I, § 2. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

The capital murder statutes are not unconstitutional. Edmonds v. Commonwealth, 229 Va. 303 , 329 S.E.2d 807, cert. denied, 474 U.S. 975, 106 S. Ct. 339, 88 L. Ed. 2d 324 (1985).

The Virginia Capital Murder Statute is constitutional. Poyner v. Commonwealth, 229 Va. 401 , 329 S.E.2d 815, cert. denied, 474 U.S. 865, 106 S. Ct. 189, 88 L. Ed. 2d 158 (1985), , 474 U.S. 888, 106 S. Ct. 208, 88 L. Ed. 2d 178 (1985), 506 U.S. 958, 113 S. Ct. 419, 121 L. Ed. 2d 342 (1992).

The death sentence is not unconstitutional on grounds that it is cruel and unusual. Beaver v. Commonwealth, 232 Va. 521 , 352 S.E.2d 342, cert. denied, 483 U.S. 1033, 107 S. Ct. 3277, 97 L. Ed. 2d 781 (1987).

Where the evidence showed that two murders were committed at the same location, about the same time, and under the same circumstances, defendant, given his conduct, reasonably should have been on notice that this section applied to his actions when it defined capital murder as killing "more than one person as a part of the same act or transaction." Thus, this section satisfied the constitutional requirement of definiteness and complied with the standard forbidding arbitrary and erratic law enforcement. Woodfin v. Commonwealth, 236 Va. 89 , 372 S.E.2d 377 (1988), cert. denied, 490 U.S. 1009, 109 S. Ct. 1649, 104 L. Ed. 2d 163 (1989).

Virginia terrorism statutes, subdivision 13 of § 18.2-31 and § 18.2-46.4 were not unconstitutionally overbroad and vague, as claimed by defendant; nothing in the words of the statutes evinced an intent to limit their application to criminal actors with political motives, and the statutes provided notice sufficient for ordinary people to understand what conduct they prohibited, and did not authorize and/or encourage arbitrary and discriminatory enforcement. Muhammad v. Commonwealth, 269 Va. 451 , 611 S.E.2d 537, 2005 Va. LEXIS 39 (2005), cert. denied, 547 U.S. 1136, 126 S. Ct. 2035, 164 L. Ed. 2d 794 (2006), and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Terrorism statutes, subdivision 13 of § 18.2-31 and § 18.2-46.4 , were not unconstitutionally overbroad and vague; by referencing established criminal offenses as acts of violence subject to the statutory scheme, the legislature included offenses with previously defined elements and mens rea requirements. Muhammad v. Commonwealth, 269 Va. 451 , 619 S.E.2d 16 (2005), cert. denied, 126 S. Ct. 2035, 164 L. Ed. 2d 794 (2006) and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Subdivision 12 of § 18.2-31 was not unconstitutional because it exposed some murders to the death penalty because there was a rational basis for imposition of the death penalty on persons over the age of 21 who murdered a child, that such persons should have sufficient maturity and judgment to be held responsible for conduct that might be excusable in a younger person; rational basis, not strict scrutiny, was proper standard of review for such a claim. Gray v. Commonwealth, 274 Va. 290 , 645 S.E.2d 448, 2007 Va. LEXIS 94 (2007), cert. denied, 128 S. Ct. 1111, 2008 U.S. LEXIS 1072, 169 L. Ed. 2d 826 (U.S. 2008).

Defendant, who was sentenced under Virginia law to life in prison without parole for capital crimes committed while a juvenile, was entitled to habeas relief because the sentence violated defendant's constitutional right to a proportional sentence in that the trial court did not determine at a hearing whether the circumstances surrounding defendant's actions reflected irreparable corruption on the one hand, or the transient immaturity of youth on the other hand. Malvo v. Mathena, 254 F. Supp. 3d 820, 2017 U.S. Dist. LEXIS 87914 (E.D. Va. 2017), aff'd, 893 F.3d 265 (4th Cir. 2018).

Joinder of capital murder with predicate murder. - In adopting subdivision 8 of § 18.2-31 , making the murder of more than one person within three years a capital offense, the Virginia General Assembly implicitly modified Va. Sup. Ct. Rule 3A:6(b), concerning the joinder of offenses for trial, to the extent that the meaning of the words "connected crimes," i.e. "so intimately connected and blended with the main facts adduced in evidence, that they cannot be departed from with propriety," no longer applied, since, to establish the required connection for a joint trial of offenses under the statute, it is only necessary to show that the capital murder and the predicate murder(s) occurred within three years. Commonwealth v. Smith, 263 Va. 13 , 557 S.E.2d 223, 2002 Va. LEXIS 8 (2002).

A prisoner is not entitled to use habeas corpus to circumvent the trial and appellate processes for an inquiry into an alleged non-jurisdictional defect of a judgment of conviction. Strickler v. Murray, 249 Va. 120 , 452 S.E.2d 648, cert. denied, 516 U.S. 850, 116 S. Ct. 146, 133 L. Ed. 2d 92 (1995).

For case adhering to prior rulings upholding constitutionality of this section, classifying capital offenses, and of §§ 19.2-264.2 to 19.2-264.4, outlining sentencing procedures in capital cases, see Frye v. Commonwealth, 231 Va. 370 , 345 S.E.2d 267 (1986).

Section enacted to conform to decision in Furman v. Georgia. - This section, defining capital murder, was first enacted by the General Assembly in 1975 as part of a statutory scheme enacted to eliminate the unbridled choice between the death penalty and a lesser sentence prohibited by Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972); Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, reh'g denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

For brief history of first-degree murder statutes and death sanction, see Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

Purpose of murder statutes is gradation. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

General Assembly grades murder in order to assign punishment consistent with prevailing societal and legal views of what is appropriate and procedurally fair. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

Capital murder statute is not overbroad in failing to distinguish capital from felony murder. Briley v. Bass, 584 F. Supp. 807 (E.D. Va.), aff'd, 742 F.2d 155 (4th Cir.), cert. denied, 469 U.S. 893, 105 S. Ct. 270, 83 L. Ed. 2d 206 (1984).

No intent to eliminate punishment for other offenses included in murder statutes. - The overriding purpose of the murder statutes being gradation, there was no legislative intent to eliminate punishment for other offenses which were included in the murder statutes solely for the purpose of categorizing the murder. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

The legislature did not intend any elimination of underlying sentencing authority for rape and robbery when it modified the murder statutes in 1975, or on any prior occasion. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

Commonwealth Attorney may seek death penalty. - State Supreme Court granted the petition for writ of mandamus filed by the Commonwealth Attorney, as the trial court did not have the discretion to prohibit the Commonwealth Attorney from seeking the death penalty; the Commonwealth Attorney was entitled to seek that penalty pursuant to statutory law and the trial court erred by exercising an executive function in determining that the Commonwealth Attorney was prohibited from seeking it in defendant's case where defendant was charged with capital murder pursuant to § 18.2-31 . In re Horan, 271 Va. 258 , 634 S.E.2d 675, 2006 Va. LEXIS 23 (2006).

Bill of particulars not required. - In a capital murder case, defendant failed to establish that the trial court erred by denying his request for a bill of particulars and by convicting him of capital murder based upon the theory that he drowned or suffocated the child victim because the record showed that defendant had notice of the existence of an alternate theory of the case that the victim died from suffocation rather than drowning in time to satisfy any due process right to notice of the precise manner in which he was alleged to have caused the victim's death; and he established no constitutional entitlement to notice of the precise manner in which the Commonwealth alleged that he caused the victim's death. Rams v. Commonwealth, 70 Va. App. 12, 823 S.E.2d 510, 2019 Va. App. LEXIS 45 (2019).

Applied in Briley v. Commonwealth, 221 Va. 532 , 273 S.E.2d 48 (1980); Patterson v. Commonwealth, 222 Va. 653 , 283 S.E.2d 212 (1981); Whitley v. Commonwealth, 223 Va. 66 , 286 S.E.2d 162 (1982); Coleman v. Commonwealth, 226 Va. 31 , 307 S.E.2d 864 (1983); Wall Distribs., Inc. v. City of Newport News, 228 Va. 358 , 323 S.E.2d 75 (1984); Evans v. Commonwealth, 228 Va. 468 , 323 S.E.2d 114 (1984); Jones v. Commonwealth, 228 Va. 427 , 323 S.E.2d 554 (1984); Bradshaw v. Commonwealth, 228 Va. 484 , 323 S.E.2d 567 (1984); Washington v. Commonwealth, 228 Va. 535 , 323 S.E.2d 577 (1984); Briley v. Bass, 750 F.2d 1238 (4th Cir. 1984); Clanton v. Blair, 619 F. Supp. 1491 (E.D. Va. 1985); Gray v. Commonwealth, 233 Va. 313 , 356 S.E.2d 157 (1987); Harris v. Commonwealth, 8 Va. App. 424, 382 S.E.2d 292 (1989); Mu'Min v. Commonwealth, 239 Va. 433 , 389 S.E.2d 886 (1990); Cheng v. Commonwealth, 240 Va. 26 , 393 S.E.2d 599 (1990); George v. Commonwealth, 242 Va. 264 , 411 S.E.2d 12 (1991); Stamper v. Muncie, 944 F.2d 170 (4th Cir. 1991); George v. Angelone, 901 F. Supp. 1070 (E.D. Va. 1995); Roach v. Angelone, 176 F.3d 210 (4th Cir. 1999); Williams v. Commonwealth, 30 Va. App. 378, 517 S.E.2d 246 (1999); Abraham v. Commonwealth, 32 Va. App. 22, 526 S.E.2d 277 (2000); Barnabei v. Angelone, 214 F.3d 463, 2000 U.S. App. LEXIS 12183 (4th Cir.); Powell v. Commonwealth, 261 Va. 512 , 552 S.E.2d 344, 2001 Va. LEXIS 86 (2001); Edwards v. Commonwealth, 41 Va. App. 752, 589 S.E.2d 444, 2003 Va. App. LEXIS 637 (2003); Flanders v. Commonwealth, 298 Va. 345 , 838 S.E.2d 51, 2020 Va. LEXIS 8 (2020).

II. ELEMENTS.

Generally, only immediate perpetrator may be convicted. - Except in the case of murder for hire, only the immediate perpetrator of a homicide, the one who fired the fatal shot, and not an accessory before the fact or a principal in the second degree, may be convicted of capital murder under the provisions of this section, as qualified by § 18.2-18 . Coppola v. Commonwealth, 220 Va. 243 , 257 S.E.2d 797 (1979), cert. denied, 444 U.S. 1103, 100 S. Ct. 1069, 62 L. Ed. 2d 788 (1980).

In a prosecution for willful, deliberate and premeditated killing of any person in the commission of robbery while armed with a deadly weapon, only the triggerman can be a principal in the first degree to capital murder. Harrison v. Commonwealth, 220 Va. 188 , 257 S.E.2d 777 (1979).

When the offense constituting the charge of capital murder is the willful, deliberate and premeditated killing of a person in the commission of robbery while armed with a deadly weapon, only the actual perpetrator of the crime may be convicted of capital murder. Johnson v. Commonwealth, 220 Va. 146 , 255 S.E.2d 525 (1979), cert. denied, 454 U.S. 920, 102 S. Ct. 422, 70 L. Ed. 2d 231 (1981).

A defendant who was found not to be the "triggerman" in the willful, deliberate and premeditated killing of a person in the commission of robbery while armed with a deadly weapon, could not be convicted of capital murder under this section, but could be convicted of first-degree murder punishable as a Class 2 felony. Harrison v. Commonwealth, 220 Va. 188 , 257 S.E.2d 777 (1979).

Under the "triggerman" rule, only the actual perpetrator of a crime delineated in this section may be convicted of capital murder and subjected to the penalty of execution, except in the case of murder for hire. Frye v. Commonwealth, 231 Va. 370 , 345 S.E.2d 267 (1986).

And instruction to contrary is reversible error. - Harmful, reversible error occurred in a capital murder prosecution when the trial court instructed the jury in such a manner that the jury could have believed that it could convict the defendant of capital murder though it was unable to determine who fired the fatal shots or if it determined that the defendant's brother fired the fatal shots; the error was compounded when the Commonwealth was permitted to argue to the jury that it could convict the defendant regardless of who pulled the trigger. Johnson v. Commonwealth, 220 Va. 146 , 255 S.E.2d 525 (1979), cert. denied, 454 U.S. 920, 102 S. Ct. 422, 70 L. Ed. 2d 231 (1981).

Triggerman instruction not required. - The trial court was not required to instruct the jury on the Commonwealth's burden to prove beyond a reasonable doubt that defendant was the triggerman or principal in the first degree, where defendant's defense was that he was not at the scene of the murder, while the Commonwealth's evidence was that defendant and co-defendant acted jointly to murder the victim. Hash v. Commonwealth, No. 1290-01-4, 2002 Va. App. LEXIS 541 (Ct. of Appeals Sept. 3, 2002).

Defendant need not be triggerman in both murders under subdivision 8. - Subdivision 8 requires proof only that the defendant was the triggerman in the principal murder charged and that he was at least an accomplice in the murder of an additional person or persons within a three-year period; the Commonwealth is not required to prove that the defendant was the triggerman in both murders. Burlile v. Commonwealth, 32 Va. App. 796, 531 S.E.2d 26, 2000 Va. App. LEXIS 532 (2000), aff'd, 261 Va. 501 , 544 S.E.2d 360 (2001).

One who is present, aiding and abetting actual murder, but who does not actually fire fatal shot, is a principal in the second degree and may be convicted of no greater offense than first-degree murder. Frye v. Commonwealth, 231 Va. 370 , 345 S.E.2d 267 (1986).

When joint participant is "immediate perpetrator." - Where two or more persons take a direct part in inflicting fatal injuries, each joint participant is an "immediate perpetrator" for the purposes of the capital murder statutes. Strickler v. Commonwealth, 241 Va. 482 , 404 S.E.2d 227, cert. denied, 502 U.S. 944, 112 S. Ct. 386, 116 L. Ed. 2d 337 (1991).

Defendant, a prison inmate, was properly convicted of capital murder for participating in the fatal stabbing of another prison inmate; the evidence established that defendant jointly participated in the stabbing and that all the victim's stab wounds contributed to the victim's death. Remington v. Commonwealth, 262 Va. 333 , 551 S.E.2d 620, 2001 Va. LEXIS 107 (2001), cert. denied, 535 U.S. 1062, 122 S. Ct. 1928, 152 L. Ed. 2d 834 (2002).

Proof was sufficient to establish beyond a reasonable doubt that defendant acted as a principal in the first degree, as an immediate perpetrator, in the death of a victim in a shooting; the "sniper theory" advanced by the Commonwealth was supported through expert testimony, the ample evidence of such a methodology, and prior decisions. As an immediate perpetrator of the death of the victim in a murder that qualified as an act of violence under § 19.2-297.1 , defendant was a principal in the first degree in the willful, deliberate, and premeditated killing of a person in the commission of an act of terrorism. Muhammad v. Commonwealth, 269 Va. 451 , 611 S.E.2d 537, 2005 Va. LEXIS 39 (2005), cert. denied, 547 U.S. 1136, 126 S. Ct. 2035, 164 L. Ed. 2d 794 (2006), and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Evidence was sufficient to convict defendant of capital murder for the willful, deliberate, and premeditated killing of the victim in the commission of an act of terrorism as defined in § 18.2-46.4 . Defendant was a principal in the first degree and was a criminal actor in the second degree who gave an order or direction to the shooter, who was firing from inside the trunk of the car defendant was driving, to kill the victim. Muhammad v. Commonwealth, 269 Va. 451 , 619 S.E.2d 16 (2005), cert. denied, 126 S. Ct. 2035, 164 L. Ed. 2d 794 (2006) and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Jury instructions given by the trial court accurately conveyed the applicable law, without confusion to the jury, by requiring that defendant be a principal in the first degree for the jury to convict for capital murder. The evidence supported the Commonwealth's theory of a shooter and a spotter and the direction by the spotter to shoot at the opportune time. Muhammad v. Commonwealth, 269 Va. 451 , 619 S.E.2d 16 (2005), cert. denied, 126 S. Ct. 2035, 164 L. Ed. 2d 794 (2006) and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Instructions, premised on theory that killing was accomplished by sole perpetrator, correctly refused. - Where the weight and dimensions of the 69-pound bloodstained rock, which was introduced in evidence as an exhibit, made it apparent that a single person could not have lifted it and dropped or thrown it while simultaneously holding victim down, and where the bloodstains on coperpetrator's jacket as well as on defendant's clothing further tended to corroborate the Commonwealth's theory that two men had been in the immediate presence of the victim's body when the fatal blows were struck and, hence, had jointly participated in the killing, trial court correctly refused defendant's tendered instructions which were premised upon the theory that the killing was accomplished by a sole perpetrator. Strickler v. Commonwealth, 241 Va. 482 , 404 S.E.2d 227, cert. denied, 502 U.S. 944, 112 S. Ct. 386, 116 L. Ed. 2d 337 (1991).

Defendant held principal in first degree despite absence of proof defendant was perpetrator. - Evidence was held sufficient to prove defendant, on trial for charges of attempted capital murder by arson, was a principal in the first degree, despite absence of proof that defendant was the perpetrator who lit the fire, rather than his accomplice. Hancock v. Commonwealth, 12 Va. App. 774, 407 S.E.2d 301 (1991).

Sufficient evidence to convict defendant of attempted capital murder for hire. - Defendant asked two people to kill his wife, formulated diagrams of his wife's house, explained when she would be at home, and paid two thousand dollars to the hit man. The evidence was sufficient to convict defendant of attempted capital murder for hire, in violation of §§ 18.2-25 and 18.2-31 , and solicitation of capital murder for hire, in violation of §§ 18.2-29 and 18.2-31 ; the Commonwealth did not err by failing to elect between the charges, because the solicitation and attempt were both parts of a common scheme or plan. Ashford v. Commonwealth, 47 Va. App. 676, 626 S.E.2d 464, 2006 Va. App. LEXIS 70 (2006).

Sufficient evidence of attempted capital murder of officer. - Sufficient evidence supported defendant's conviction under §§ 18.2-25 and 18.2-31(6) of attempted capital murder of a police officer because the specific intent required for the crime could be inferred by defendant veering the defendant's automobile from the defendant's path of travel directly toward a second police officer, resulting in defendant striking the second officer at about 40 to 50 mph, knocking the second officer to the ground, and running over the officer's foot. Piggott v. Commonwealth, No. 1797-07-1,, 2008 Va. App. LEXIS 432 (Ct. of Appeals Sept. 23, 2008).

Malice is element of murder but not manslaughter. - Malice, a requisite element for murder of any kind, is unnecessary in manslaughter cases and is the touchstone by which murder and manslaughter cases are distinguished. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Neither premeditation nor an intent to kill is an element of felony murder; only malice is required. Goodson v. Commonwealth, 22 Va. App. 61, 467 S.E.2d 848 (1996).

Willfulness, deliberation, and premeditation are jury questions. - The question whether a defendant is guilty of a willful, deliberate, and premeditated killing of the victim is usually a question for the jury to determine from all the facts and circumstances. Clozza v. Commonwealth, 228 Va. 124 , 321 S.E.2d 273 (1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1233, 84 L. Ed. 2d 370 (1985).

Factors considered as to willfulness, deliberation, and premeditation. - In deciding the question of whether the killing was willful, deliberate, and premeditated, the jury properly may consider the brutality of the attack, whether more than one blow was struck, the disparity in size and strength between the accused and the victim, the concealment of the victim's body, and the defendant's efforts to avoid detection. Clozza v. Commonwealth, 228 Va. 124 , 321 S.E.2d 273 (1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1233, 84 L. Ed. 2d 370 (1985).

Where witness testified that defendant in a robbery-murder prosecution had had problems with the victim before and that defendant had a motive to kill the victim, witness's testimony was crucial in the Commonwealth's proof that the killing was "willful, deliberate, and premeditated." Ortega v. Commonwealth, No. 0713-94-2 (Ct. of Appeals Jan. 30, 1996).

A capital murder instruction that did not refer to specific intent and required proof only that the attempted killing was "willful, deliberate and premeditated" was insufficient; the inclusion of language in a later instruction defining "willful, deliberate and premeditated" as "a specific intent to kill" was likewise insufficient to compensate for the absence of intent language from the earlier instruction. Herbert v. Commonwealth, No. 0888-00-4, 2001 Va. App. LEXIS 184 (Ct. of Appeals Apr. 10, 2001).

Intention to kill need not exist for any specified length of time prior to the actual killing. Clozza v. Commonwealth, 228 Va. 124 , 321 S.E.2d 273 (1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1233, 84 L. Ed. 2d 370 (1985).

Evidence showed that defendant committed the underlying offense of robbery while armed with a deadly weapon where, although when the robbery began defendant was unarmed, he rendered victim helpless by physical force, then took from his person what items of value could be found, and subsequently, after the beating and stabbing of the victim with knife removed from his car, defendant and his accomplices fled the scene in the car they had earlier commandeered, as only at this point was the taking of the car consummated and the robbery completed, so that defendant was clearly armed with the knife during the commission of a portion of the robbery. Correll v. Commonwealth, 232 Va. 454 , 352 S.E.2d 352, cert. denied, 482 U.S. 931, 107 S. Ct. 3219, 96 L. Ed. 2d 705 (1987).

Whether killing was accidental or intentional and premeditated is a question of fact and, absent eyewitness testimony or a voluntary confession, that question necessarily turns upon the import of circumstantial evidence. Edmonds v. Commonwealth, 229 Va. 303 , 329 S.E.2d 807, cert. denied, 474 U.S. 975, 106 S. Ct. 339, 88 L. Ed. 2d 324 (1985).

To establish premeditation, the intention to kill need only exist for a moment. Peterson v. Commonwealth, 225 Va. 289 , 302 S.E.2d 520, cert. denied, 464 U.S. 865, 104 S. Ct. 202, 78 L. Ed. 2d 176 (1983).

A design to kill may be formed only a moment before the fatal act is committed, provided the accused had time to think and did intend to kill. Clozza v. Commonwealth, 228 Va. 124 , 321 S.E.2d 273 (1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1233, 84 L. Ed. 2d 370 (1985); Barnes v. Commonwealth, 234 Va. 130 , 360 S.E.2d 196 (1987), cert. denied, 484 U.S. 1036, 108 S. Ct. 763, 98 L. Ed. 2d 779 (1988), cert. denied, 499 U.S. 913, 111 S. Ct. 1123, 113 L. Ed. 2d 231 (1991).

The question of premeditation is usually one for determination by the trier of fact from all the facts and circumstances of the case. Barnes v. Commonwealth, 234 Va. 130 , 360 S.E.2d 196 (1987), cert. denied, 484 U.S. 1036, 108 S. Ct. 763, 98 L. Ed. 2d 779 (1988).

Intent to interfere with officer's performance of duties. - Sufficient evidence showed defendant's intent to interfere with a victim's performance of official duties because (1) the uniformed victim was in a marked cruiser with emergency lights activated, and (2) the only reasonable explanation for the victim pulling over was to assist defendant on the roadside, an act within the victim's official duties. Brown v. Commonwealth, 68 Va. App. 746, 813 S.E.2d 557, 2018 Va. App. LEXIS 140 (2018).

Double jeopardy not a bar. - Defendant's double jeopardy rights were not violated in a case where defendant pled guilty to solicitation to commit murder in violation of § 18.2-29 and a jury then convicted defendant in a trial of attempted capital murder for hire in violation of subdivision 2 of § 18.2-31 and § 18.2-25 . Double jeopardy did not apply because: (1) defendant's offenses were considered in a single proceeding and, thus, there were not successive prosecutions for the same offense; and (2) solicitation to commit murder and attempted capital murder for hire were not the same offenses and, thus, defendant could be convicted and punished for both offenses since solicitation for murder required that a defendant solicit another person whereas attempted capital murder for hire did not require such proof. Ostrander v. Commonwealth, 51 Va. App. 386, 658 S.E.2d 346, 2008 Va. App. LEXIS 126 (2008).

Court of Appeals properly found that two of defendant's three separate punishments for murder did not violate the Double Jeopardy Clause of the Fifth Amendment because defendant was not put in jeopardy "twice" for the "same offence" where he killed two victims at two different times in two different places, which constituted two different criminal acts, there was no temporal restriction mandating that the first of the two murders was a predicate murder and only the second was a capital murder, defendant conceded that the Commonwealth could charge separate murders separately, and it necessarily followed that each charge could result in a separate conviction under the statute at issue. Severance v. Commonwealth, 295 Va. 564 , 816 S.E.2d 277, 2018 Va. LEXIS 94 (2018).

III. UNDERLYING FELONY.

A. ROBBERY.

This section does not require proof that a defendant charged with murder during the commission of a robbery or a rape was a principal in the first degree to the crimes of robbery or rape. It is only necessary that the Commonwealth prove that the defendant was the triggerman in the murder and an accomplice in the robbery or rape to convict him of capital murder. Briley v. Commonwealth, 221 Va. 563 , 273 S.E.2d 57 (1980).

When robbery involved, all elements to convict of first-degree murder must be established. - To convict of capital murder under subsection (d) (now subdivision 4) of this section, the Commonwealth must establish all the elements necessary to convict of first-degree murder, i.e., that the killing was willful, deliberate and premeditated and, in addition, all the elements necessary to convict of an armed robbery. Johnson v. Commonwealth, 221 Va. 736 , 273 S.E.2d 784, cert. denied, 454 U.S. 920, 102 S. Ct. 422, 70 L. Ed. 2d 231 (1981).

Murder in an attempted robbery violates § 18.2-32 , but not this section, the capital-murder statute. Ball v. Commonwealth, 221 Va. 754 , 273 S.E.2d 790 (1981).

Murder in the commission of a robbery is a killing which takes place before, during, or after the robbery and is so closely related thereto in time, place, and causal connection as to make the killing part of the same criminal enterprise as the robbery; under Virginia law, the robbery must have been one of the motivating factors for the killing. George v. Angelone, 100 F.3d 353 (4th Cir. 1996), cert. denied, 519 U.S. 1103, 117 S. Ct. 854, 136 L. Ed. 2d 829 (1997).

To support a capital murder conviction under subdivision 4, the Commonwealth is not required to prove the robbery was a motivating factor for the homicide that was committed; rather, it is sufficient if the killing and robbery were interdependent objects of a common criminal design. Winckler v. Commonwealth, 32 Va. App. 836, 531 S.E.2d 45, 2000 Va. App. LEXIS 526 (2000).

Subsections (d) and (e) (now subdivisions 4 and 5) expand the definition of capital murder to include the "willful, deliberate and premeditated killing" of any person "in the commission of, or subsequent to, rape," and "in the commission of robbery while armed with a deadly weapon." Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

Evidence showed that defendant committed the underlying offense of robbery while armed with a deadly weapon where, although when the robbery began defendant was unarmed, he rendered victim helpless by physical force, then took from his person what items of value could be found, and subsequently, after the beating and stabbing of the victim with knife removed from his car, defendant and his accomplices fled the scene in the car they had earlier commandeered, as only at this point was the taking of the car consummated and the robbery completed, so that defendant was clearly armed with the knife during the commission of a portion of the robbery. Correll v. Commonwealth, 232 Va. 454 , 352 S.E.2d 352, cert. denied, 482 U.S. 931, 107 S. Ct. 3219, 96 L. Ed. 2d 705 (1987).

"During the commission of." - For case where evidence was held sufficient to establish a murder during the commission of a robbery, see Bunch v. Thompson, 949 F.2d 1354 (4th Cir. 1991), cert. denied, 505 U.S. 1230, 112 S. Ct. 3056, 120 L. Ed. 2d 922 (1992).

In Virginia, conviction of capital murder during the commission of a robbery was sufficient by itself to support defendant's death sentence, pursuant to § 18.2-31(4). Hedrick v. True,, 2004 U.S. Dist. LEXIS 4600 (W.D. Va. Mar. 23, 2004), aff'd, 443 F.3d 342 (4th Cir. 2006).

Sufficient nexus between predicate offenses and murders. - A sufficient nexus was present between the defendant's murder of three victims and the related offenses of robbery and rape where, although the defendant may not have entered the house where the crimes occurred with the specific intent to kill all three victims and to rob all three and rape one of them, and while the victims perhaps may not have technically died simultaneously with the commission of a robbery or rape, they were in fact raped and robbed as part of the same criminal enterprise which surrounded the murders. Beck v. Angelone, 113 F. Supp. 2d 941, 2000 U.S. Dist. LEXIS 14194 (E.D. Va. 2000).

Both robbery and deliberate, premeditated killing required under subsection (d) (now subdivision 4). - Subsection (d) (now subdivision 4) of this section limits capital murder; murder committed in the course of a robbery, standing alone, is not capital murder; nor is murder committed with deliberation and premeditation standing alone capital murder. Rather, capital murder is an appropriate finding only while both an ongoing robbery with a deadly weapon and a premeditated murder are present simultaneously, only where the defendant while engaged in the robbery with the use of a deadly weapon has killed willfully, with premeditation, and with deliberation. Briley v. Bass, 584 F. Supp. 807 (E.D. Va.), aff'd, 742 F.2d 155 (4th Cir.), cert. denied, 469 U.S. 893, 105 S. Ct. 270, 83 L. Ed. 2d 206 (1984).

Robbery need not be the sole motive to sustain a charge of capital murder during the commission of a robbery. To prove a defendant guilty, the prosecution must show that the murder and the robbery were interdependent objects of a common criminal design. Savino v. Murray, 82 F.3d 593 (4th Cir.), cert. denied, 518 U.S. 1036, 117 S. Ct. 1, 135 L. Ed. 2d 1098 (1996); Winckler v. Commonwealth, 32 Va. App. 836, 531 S.E.2d 45, 2000 Va. App. LEXIS 526 (2000).

Where killing and taking of property are so closely related in time, place, and causal connection as to make them parts of the same criminal enterprise, the predicates for capital murder under subsection (d) (now subdivision 4) are established. Further, these relationships need not necessarily be jury questions. They may, in a proper case, be determined as a matter of law. Pope v. Commonwealth, 234 Va. 114 , 360 S.E.2d 352 (1987).

The fact that stealing occurs after a killing does not prove that the decision to steal was an afterthought and that the two crimes were unrelated so as to preclude a conviction for capital murder. Beck v. Angelone, 113 F. Supp. 2d 941, 2000 U.S. Dist. LEXIS 14194 (E.D. Va. 2000).

Possession of property as proof of single criminal enterprise. - The defendant's possession of some fruit of the robbery may show conclusively that the violence against the victim and the trespass to his property were so closely related in time, place and causal connection as to make the killing, as a matter of law, a part of the same criminal enterprise as the robbery. Winckler v. Commonwealth, 32 Va. App. 836, 531 S.E.2d 45, 2000 Va. App. LEXIS 526 (2000).

Distinction between crimes in subsection (d) (now subdivision 4) of this section and § 18.2-32 is plain: To be found guilty of capital murder, a defendant must be proved, beyond a reasonable doubt, not only to have killed during the commission of a robbery, but to have killed willfully, deliberately, and with premeditation and while armed with a deadly weapon. The defendant found guilty of first degree murder is the defendant who killed during the course of a robbery, but did not kill with willfulness, deliberation, and premeditation. Briley v. Bass, 584 F. Supp. 807 (E.D. Va.), aff'd, 742 F.2d 155 (4th Cir.), cert. denied, 469 U.S. 893, 105 S. Ct. 270, 83 L. Ed. 2d 206 (1984).

Capital murder in commission of robbery without being principal in first degree. - Under this section, a defendant may be convicted of capital murder in the commission of a robbery without being a principal in the first degree to the crime of robbery. The Commonwealth need only prove that the defendant actually committed the murder and was an accomplice in the robbery. Watkins v. Commonwealth, 229 Va. 469 , 331 S.E.2d 422 (1985), cert. denied, 475 U.S. 1099, 106 S. Ct. 1503, 89 L. Ed. 2d 903 (1986).

Corpus delicti held adequately established both as to robbery and cause of death. - Williams v. Commonwealth, 234 Va. 168 , 360 S.E.2d 361 (1987), cert. denied, 484 U.S. 1020, 108 S. Ct. 733, 98 L. Ed. 2d 681 (1988).

For case dealing with the mandatory death penalty for the killing by an inmate of an employee or other person in a penal institution under a provision contained in provisions of former § 53-291 and subsequently incorporated into § 18.2-10 , see notes under § 18.2-10 .

B. RAPE.

Sequence of rape and murder not dispositive. - A defendant was properly convicted of capital murder under subdivision 5 where the sequence of events were sufficient to establish that the rape of the victim and the murder of the victim were interconnected as part of the same criminal enterprise; it was not necessary for the Commonwealth to show that the rape occurred before the murder. Beck v. Angelone, 113 F. Supp. 2d 941, 2000 U.S. Dist. LEXIS 14194 (E.D. Va. 2000).

Defense of consent not advanced by not guilty plea. - In a prosecution for capital murder following rape, the defense of consent is not advanced solely by a plea of not guilty. That plea could be grounded upon the defendant's belief that the Commonwealth is unable to prove identification, opportunity, or the physical elements of carnal knowledge. The defense of consent can be "advanced" only by evidence adduced by one of the parties. Whether the evidence is sufficient for that purpose necessarily is a question of law. Smith v. Commonwealth, 219 Va. 455 , 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967, 99 S. Ct. 2419, 60 L. Ed. 2d 1074 (1979), aff'd, 477 U.S. 527, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986).

Proof of unchaste character of victim in murder following rape case. - Rape is an essential element of the crime of capital murder charged under this section. Thus, where consent is advanced as a defense, the previous unchaste character of the victim may be shown by proof of general reputation. Smith v. Commonwealth, 219 Va. 455 , 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967, 99 S. Ct. 2419, 60 L. Ed. 2d 1074 (1979), aff'd, 477 U.S. 527, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986).

Testimony of victim's daughter. - In a prosecution for capital murder following rape, the admission of testimony of the victim's daughter which supplemented a testimonial narrative of the sequence of events preceding and following the commission of the crime was not improper. Smith v. Commonwealth, 219 Va. 455 , 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967, 99 S. Ct. 2419, 60 L. Ed. 2d 1074 (1979), aff'd, 477 U.S. 527, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986).

Evidence sufficient for finding murder following rape. - See Keil v. Commonwealth, 222 Va. 99 , 278 S.E.2d 826 (1981).

Introduction of evidence of three other similar crimes upheld. - In trial in which defendant was convicted of capital murder and rape, introduction of evidence of three other similar crimes would be upheld in view of the similarities between the offenses, particularly the indications of a common modus operandi and the scientific evidence that the defendant was the common criminal agent. Spencer v. Commonwealth, 240 Va. 78 , 393 S.E.2d 609, cert. denied, 498 U.S. 908, 111 S. Ct. 281, 112 L. Ed. 2d 235 (1990).

Double Jeopardy Clause did not bar second trial. - After petitioner's conviction for the capital murder of a murder victim during or subsequent to the rape of the murder victim's sister was reversed, a state court did not unreasonably apply federal law in concluding that the Double Jeopardy Clause of the Fifth Amendment did not bar petitioner's second trial for capital murder during the commission of rape or attempted rape of the murder victim because under Virginia law, a defendant could be prosecuted for multiple violations of § 18.2-31 where there was a single murder victim but different gradation crime victims. Powell v. Kelly, 562 F.3d 656, 2009 U.S. App. LEXIS 7867 (4th Cir. 2009), cert. denied, 2010 U.S. LEXIS 1011 (U.S. 2010).

C. OTHERS.

General Assembly's classification of murder for hire as a capital offense does not deny the accused either due process or equal protection of the law. Stockton v. Commonwealth, 227 Va. 124 , 314 S.E.2d 371, cert. denied, 469 U.S. 873, 105 S. Ct. 229, 83 L. Ed. 2d 158 (1984).

Section 18.2-33 and its companion, § 18.2-32 , codify the common-law doctrine of felony-murder, a doctrine developed to elevate to murder a homicide committed during the course of a felony by imputing malice to the killing. King v. Commonwealth, 6 Va. App. 351, 368 S.E.2d 704 (1988).

The word "purpose" in subsection (f) (now subdivision 6) of this section equates with intent, rather than motive. Martin v. Commonwealth, 221 Va. 436 , 271 S.E.2d 123 (1980).

By its clear terms, this section makes purpose a key factor in any prosecution thereunder; the death penalty may be imposed only where the Commonwealth proves beyond a reasonable doubt that the killing of a law-enforcement officer is accompanied by the purpose of interfering with the performance of his official duties and is not unconstitutionally vague. Martin v. Commonwealth, 221 Va. 436 , 271 S.E.2d 123 (1980).

The "purpose of interfering" language of subsection (f) (now subdivision 6) of this section does not change the established rule of law that motive is not an essential element of murder, although proof of motive may tend to establish intent in cases of circumstantial evidence. Martin v. Commonwealth, 221 Va. 436 , 271 S.E.2d 123 (1980).

A person of ordinary intelligence would also conclude that the term "to defile" is interchangeable with the phrase intent to "sexually molest." Swisher v. Commonwealth, 256 Va. 471 , 506 S.E.2d 763 (1998), cert. denied, 528 U.S. 812, 120 S. Ct. 46, 145 L. Ed. 2d 41 (1999).

The Commonwealth must prove that the accused was a convict at the time of the homicide in order to convict him of the murder of a guard under this section. Brown v. Commonwealth, 132 Va. 606 , 111 S.E. 112 (1922).

Although victim killed elsewhere, hiring of killer in Virginia sufficient. - It was without consequence that the defendant intended for the killing to take place in the Philippines, because the hiring of the killer took place in Virginia and that was sufficient to violate this section. United States v. Morin, 80 F.3d 124 (4th Cir. 1996).

Defendant need not be principal in first degree in each murder. - Subdivision 8 of this section does not require proof that a defendant charged with capital murder in the premeditated killing of more than one person within a three-year period was a principal in the first degree in each murder referenced in the indictment; the jury need be instructed only that they must find the defendant was a principal in the first degree, or triggerman, in the principal murder charged, and that he was at least an accomplice in the murder of one or more persons other than the victim within a three-year period. Burlile v. Commonwealth, 261 Va. 501 , 544 S.E.2d 360, 2001 Va. LEXIS 56 (2001).

What constitutes "armed with a deadly weapon." - A person is criminally armed with a deadly weapon from the moment he seizes a weapon with intent to use it for a criminal purpose. Quintana v. Commonwealth, 224 Va. 127 , 295 S.E.2d 643 (1982), cert. denied, 460 U.S. 1029, 103 S. Ct. 1280, 75 L. Ed. 2d 501, rehearing denied, 461 U.S. 940, 103 S. Ct. 2113, 77 L. Ed. 2d 316 (1983).

Evidence insufficient that defendant intended to murder officers. - Where from the Commonwealth's evidence, it was just as likely, if not more likely, that defendant attempted to avoid police apprehension by driving toward their cars, indifferent to the consequences in risking a collision, because he believed that he could crash through any vehicle in his way or that the police would move out of his way, which they did, because the Commonwealth presented no direct evidence that defendant in running the road blocks intended to murder the police officers and because its circumstantial evidence did not exclude a reasonable hypothesis of innocence, defendant's convictions for attempted murder under this section were reversed. Haywood v. Commonwealth, 20 Va. App. 562, 458 S.E.2d 606 (1995).

Sufficient evidence of attempt to kill officer. - Evidence of intent to kill a police officer in violation of subdivision 6 held sufficient where the officer testified that after the defendant's companion, who was being pursued by the officer, entered the vehicle that was waiting for him in the back of the alley, the defendant revved the engine and drove toward toward the officer and the officer saw the tires of the vehicle turn completely in his direction and away from the alley exit; and where the defendant's assertion that he only struck the officer with his vehicle while attempting to escape was belied by the evidence that the defendant could have driven from the scene without steering toward the officer or without hitting the retaining wall. Salaam v. Commonwealth, No. 1694-99-2, 2000 Va. App. LEXIS 609 (Ct. of Appeals Aug. 22, 2000).

Because defendant swerved a car toward a police officer rather than driving straight ahead to escape, the evidence was sufficient to prove premeditation and the specific intent to kill; consequently, defendant was properly convicted of violating subdivision 6 of § 18.2-31 and § 18.2-25 . Coles v. Commonwealth, 270 Va. 585 , 621 S.E.2d 109, 2005 Va. LEXIS 88 (2005).

Evidence that defendant operated vehicle that tried to run down police officer. - Although the incident occurred very quickly while the vehicle sped past the officer, brushing up against his leg, and while the officer was firing three rounds into the vehicle, the officer's identification of the defendant was not inherently incredible; the officer had an unobstructed view of the defendant as he drove past him in the vehicle, the officer positively identified the defendant as the driver and testified that only two people were in the vehicle, neither that officer nor another officer saw a third person occupying the vehicle or flee from the vehicle after it crashed, as the defendant claimed, and the defendant was irrefutably an occupant of the vehicle. Salaam v. Commonwealth, No. 1694-99-2, 2000 Va. App. LEXIS 609 (Ct. of Appeals Aug. 22, 2000).

Sufficient evidence of abduction for pecuniary benefit. - Where transporting of murder victim from robbery scene was a detention separate and apart from, and not merely incidental to, the robbery, and was greater than the restraint intrinsic in a robbery, and further, the evidence clearly supported a finding that the abduction was committed to protect the fruits of the robbery and to escape an arrest, the evidence supported the charge of an abduction with the intent to extort a pecuniary benefit. Cardwell v. Commonwealth, 248 Va. 501 , 450 S.E.2d 146 (1994), cert. denied, 514 U.S. 1097, 115 S. Ct. 1826, 131 L. Ed. 2d 747 (1995).

Single indictment under subsection (g) (now subdivision 7) will support only one conviction and sentence. - When a defendant is charged under only one indictment for capital murder in violation of subsection (g) (now subdivision 7), he cannot be sentenced to two life sentences on that one indictment. Whether the indictment charges one offense or two, the result is the same. If only one offense is charged, the indictment can support only one conviction and sentence; but even if two offenses are charged, because they are contained in a single count, only one conviction and one sentence are permissible. Morris v. Commonwealth, 228 Va. 206 , 321 S.E.2d 633 (1984).

Single trial for two murders if committed within three years not contradicted by federal law. - Certificate of appealability was granted under 28 U.S.C.S. § 2253 on the habeas petitioner's claim that the Sixth Amendment right to effective assistance of counsel was violated when counsel did not challenge a single trial for two murders under subdivision 8 of § 18.2-31 , but on the merits the district court's dismissal of that claim was affirmed because the Supreme Court of Virginia had held that two murder counts could be joined under subdivision 8 of § 18.2-31 despite any prejudice if the murders occurred within three years and the United States Supreme Court had never addressed the issue; thus, there was no clearly established federal law for the state court to contradict. Walker v. True,, 2003 U.S. App. LEXIS 8557 (4th Cir. May 6, 2003).

Where four people were killed, it was theoretically possible that the defendant could have been convicted of two capital murders since it takes the killing of at least two people as part of the same act or transaction to constitute one capital murder under this section. Buchanan v. Commonwealth, 238 Va. 389 , 384 S.E.2d 757 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990).

The theoretical limitation on the number of possible capital murder convictions that can be supported by four murders does not control the way in which the Commonwealth can frame indictments, since the Commonwealth is free to indict an individual for as many separate crimes as the Commonwealth, in good faith, thinks it can prove and the Commonwealth is free to charge the commission of a single offense in several different ways in order to meet the contingencies of proof. Buchanan v. Commonwealth, 238 Va. 389 , 384 S.E.2d 757 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990).

If all four individuals were killed in one act or transaction, defendant could only be convicted of one capital murder but if two individuals were killed as part of one act or transaction and the two others were killed as part of a second, different act or transaction, then defendant could be convicted of two capital murders. Buchanan v. Commonwealth, 238 Va. 389 , 384 S.E.2d 757 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990).

Burden of proof as to killing of law-enforcement officer. - The burden the statute imposes upon the Commonwealth is the burden of proving that the killing of a law-enforcement officer is accompanied by the purpose of interfering with the performance of his official duties. The crucial inquiry contemplated by the statute is not whether the officer was in fact engaged at the time he was killed in performing a law-enforcement duty but, rather, whether the killer acted with the purpose of interfering with what he perceived to be an officer's performance of a law-enforcement duty. DeLong v. Commonwealth, 234 Va. 357 , 362 S.E.2d 669 (1987), cert. denied, 485 U.S. 929, 108 S. Ct. 1100, 99 L. Ed. 2d 263 (1988).

In a habeas corpus proceeding, evidence was sufficient to establish beyond a reasonable doubt that petitioner killed a police officer for the purpose of interfering with the performance of his official duties, an essential element of capital murder. DeLong v. Thompson, 790 F. Supp. 594 (E.D. Va. 1991), aff'd, 985 F.2d 553 (4th Cir. 1993).

Killing and theft held objects of common criminal design. - Where the jury properly could have found that the theft occurred during or sometime after the first shot was fired but before the victim was submerged in the water where he drowned, and, even if the wallet was taken from the truck after the victim expired, the homicide was a capital offense because the evidence supported the conclusion that the killing and the theft were interdependent objects of a common criminal design. Wise v. Commonwealth, 230 Va. 322 , 337 S.E.2d 715 (1985), cert. denied, 475 U.S. 1112, 106 S. Ct. 1524, 89 L. Ed. 2d 921 (1986), cert. denied, 508 U.S. 964, 113 S. Ct. 2940, 124 L. Ed. 2d 689 (1993).

IV. TRIAL.

A. IN GENERAL.

Defendant implicitly acknowledged fair notice that indictment charged him with capital murder at the pretrial hearings when he moved to quash the indictment, assigning only challenges to the facial constitutionality of the capital statutes. Boggs v. Commonwealth, 229 Va. 501 , 331 S.E.2d 407 (1985), cert. denied, 475 U.S. 1031, 106 S. Ct. 1240, 89 L. Ed. 2d 347 (1986).

Indictment for capital murder following arrest and hearing for noncapital murder. - Where the defendant was originally detained on a noncapital charge of first-degree murder, was granted a preliminary hearing on that charge, and was certified to the grand jury, and where the Commonwealth's attorney then obtained indictments for both capital murder and first-degree murder and proceeded to trial on the capital but not the noncapital offense, the procedure employed in obtaining the indictment was not manipulative, and it did not work a denial of any statutory right to which the defendant was entitled, since the defendant was not arrested on the charge of capital murder, but was indicted on that charge directly by the grand jury. Waye v. Commonwealth, 219 Va. 683 , 251 S.E.2d 202, cert. denied, 442 U.S. 924, 99 S. Ct. 2850, 61 L. Ed. 2d 292 (1979).

No additional peremptory strikes. - There is no basis in Virginia law for additional peremptory strikes in a capital murder trial. Buchanan v. Commonwealth, 238 Va. 389 , 384 S.E.2d 757 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990).

Instruction on "force and violence" in murder following rape case. - In a prosecution for capital murder following rape, an instruction to the jury that the Commonwealth was required to prove that the act of intercourse was accomplished "by force and violence" was not improper. Smith v. Commonwealth, 219 Va. 455 , 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967, 99 S. Ct. 2419, 60 L. Ed. 2d 1074 (1979), aff'd, 477 U.S. 527, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986).

Defendant held not entitled to first-degree murder instruction. - Where the sole issue presented by the evidence was whether it was defendant or his codefendant who killed state trooper, and defendant was either guilty or innocent of the capital offense, he was not entitled to an instruction on first-degree murder. Frye v. Commonwealth, 231 Va. 370 , 345 S.E.2d 267 (1986).

Instructions on intent proper. - As the jury was instructed that defendant's act had to have been "willful, deliberate, and premeditated," that willful, deliberate and premeditated meant a specific intent to kill, and that an attempted crime required a specific intent to commit the completed crime, the trial court instructed the jury exactly as subdivision 6 of § 18.2-31 directed. Jordan v. Commonwealth, 50 Va. App. 322, 649 S.E.2d 709, 2007 Va. App. LEXIS 327 (2007).

Accused is not entitled to instructions on lesser included offenses solely because the case is one of murder. A second-degree murder instruction is appropriate only where there is evidence to support it. Bunch v. Commonwealth, 225 Va. 423 , 304 S.E.2d 271, cert. denied, 464 U.S. 977, 104 S. Ct. 414, 78 L. Ed. 2d 352 (1983), , 505 U.S. 1230, 112 S. Ct. 3056, 120 L. Ed. 2d 922 (1992).

It is well established that a defendant accused of capital or first degree murder is not entitled to an instruction on second degree murder based on the legal presumption that all homicides are second degree murder. Williams v. Commonwealth, No. 2584-96-1 (Ct. of Appeals Feb. 10, 1998).

Entitlement to lesser included offense instructions. - To be entitled to a lesser included offense instruction of first degree murder, petitioner, convicted of capital murder, had to provide some evidence that the killing was not done with willfulness, deliberation, and premeditation. Given the absence of any evidence to support petitioner's accidental shooting theory, petitioner could not show entitlement to an instruction on that theory. Orbe v. True, 233 F. Supp. 2d 749, 2002 U.S. Dist. LEXIS 22958 (E.D. Va. 2002).

Conviction under this section and § 18.2-53.1 not double jeopardy. - Conviction for the use of a firearm in the commission of a felony, § 18.2-53.1 , as well as murder in the commission of a robbery while armed with a deadly weapon, does not violate the double jeopardy clause of the United States Constitution. Turner v. Commonwealth, 221 Va. 513 , 273 S.E.2d 36 (1980), cert. denied, 451 U.S. 1011, 101 S. Ct. 2347, 68 L. Ed. 2d 863 (1981).

Defendant's sentence of death was neither excessive nor disproportionate. - Defendant's sentence of death for capital murder for hire was neither excessive nor disproportionate when compared to sentences generally imposed by sentencing bodies in this jurisdiction for crimes of a similar nature. Murphy v. Commonwealth, 246 Va. 136 , 431 S.E.2d 48, cert. denied, 510 U.S. 928, 114 S. Ct. 336, 126 L. Ed. 2d 281 (1993).

Defendant's punishment of death for capital murder based on a finding of vileness was not disproportionate to similar offenses. Yarbrough v. Commonwealth, 262 Va. 388 , 551 S.E.2d 306, 2001 Va. LEXIS 112 (2001), cert. denied, 535 U.S. 1060, 122 S. Ct. 1925, 152 L. Ed. 2d 832 (2002).

Multiple punishments not double jeopardy. - The convictions and imposition of multiple punishments for capital murder, robbery and use of a firearm in the commission of a felony did not violate appellant's rights under the double jeopardy clause of the Fifth Amendment. Since those convictions and punishments did not violate the double jeopardy clause, his counsel was not ineffective for failing to raise the issue. Peterson v. Bass, 2 Va. App. 314, 343 S.E.2d 475 (1986).

Defendant's guilty plea to first-degree murder with regard to death of one victim did not bar, on double jeopardy grounds, capital murder prosecution with regard to death of second victim. Same conduct is used to support more than one conviction in a single proceeding. Defendant can be prosecuted in single proceeding for both murder charges involving victims. Thomas v. Commonwealth, 244 Va. 1 , 419 S.E.2d 606, cert. denied, 506 U.S. 958, 113 S. Ct. 421, 121 L. Ed. 2d 343 (1992).

Where the killing of one victim constituted two capital offenses, the imposition of multiple death sentences did not violate the constitutional guarantee of protection against multiple punishments for the same offense. Payne v. Commonwealth, 257 Va. 216 , 509 S.E.2d 293 (1999).

Petitioner's application for a writ of habeas corpus was dismissed because he failed to satisfy the "performance" and "prejudice" prong of the two-part test enunciated in Strickland; there was no double jeopardy violation because the elements of capital murder while in custody, subdivision 3 of § 18.2-31 , capital murder of a law-enforcement officer, subdivision 6 of § 18.2-31 , and capital murder of more than one person within a three-year period, subdivision 8 of § 18.2-31 were different and each carried its own separate penalty. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

In a case in which defendant was convicted and sentenced for two criminal acts for murdering the first victim within three years of murdering the second victim and murdering the second victim within three years of murdering the first victim, pursuant to the Double Jeopardy Clause, the trial court did not err in imposing two life sentences for defendant's two capital murder convictions because he was not punished twice for one criminal act as killing two victims at two different times in two different places constituted two different criminal acts; and defendant committed distinct and separate acts that were neither identical nor lesser-included criminal offenses. Severance v. Commonwealth, 295 Va. 564 , 816 S.E.2d 277, 2018 Va. LEXIS 94 (2018).

Defendant placed in double jeopardy. - Since the defendant had previously been tried for a rape in Richmond, the use of that rape as an element in an attempted capital murder charge in Chesterfield county violated the defendant's right against double jeopardy. Curtis v. Commonwealth, 12 Va. App. 527, 405 S.E.2d 230 (1991).

Commonwealth is free to indict a defendant under subdivision 8 of § 18.2-31 for the murder of more than one person within a three-year period when each of the constituent murders occurred as part of the same act or transaction, and also indict the defendant for capital murder under subdivision 7 of § 18.2-31 for the same murders; however, if the Commonwealth obtains convictions on both indictments it may not seek to have separate punishments imposed for each offense, but rather it must elect which indictment it will proceed upon in the penalty-determination phase of the trial. Andrews v. Commonwealth, 280 Va. 231 , 699 S.E.2d 237, 2010 Va. LEXIS 239 (2010), cert. denied, 131 S. Ct. 2999, 2011 U.S. LEXIS 4469, 180 L. Ed. 2d 827 (U.S. 2011).

Imposition of two death sentences upon defendant for convictions under subdivisions 7 and 8 of § 18.2-31 violated the double jeopardy prohibition against multiple punishments for the same offense, as the Commonwealth was free to indict a defendant under subdivisions 7 and 8 for the same murders, when each of the constituent murders occurred as part of the same act or transaction, but if the Commonwealth obtained convictions on both indictments it could not seek to have separate punishments imposed for each offense, but rather it had to elect which indictment it would proceed upon in the penalty-determination phase. Andrews v. Commonwealth, 280 Va. 231 , 699 S.E.2d 237, 2010 Va. LEXIS 239 (2010), cert. denied, 131 S. Ct. 2999, 2011 U.S. LEXIS 4469, 180 L. Ed. 2d 827 (U.S. 2011).

Habeas petitioner was granted a writ as to sentences imposed under subdivisions 7 and 8 of § 18.2-31 because the petitioner satisfied the performance and prejudice prongs of the Strickland test by showing ineffective assistance of counsel because counsel failed to protect petitioner's rights to be free from double jeopardy where petitioner was tried and punished for separate counts of capital murder of more than one person as part of the same transaction under subdivision 7 and capital murder of more than one person within a three-year period under subdivision 8, even though the crimes arose from the same criminal act and one punishment was for a crime that was a lesser included offense of the other. There was a reasonable probability that, but for counsel's failure to raise this issue at trial, the Commonwealth would have been permitted to proceed to sentencing on only one of the two indictments. Gray v. Warden of the Sussex I State Prison, 281 Va. 303 , 707 S.E.2d 275, 2011 Va. LEXIS 62 (2011), cert. denied, 2011 U.S. LEXIS 7334, 132 S. Ct. 403, 181 L. Ed. 2d 263 (U.S. 2011).

A remark made by the prosecutor during argument in the penalty phase that "if he is not a candidate for being a possible threat in the future, I don't know what would be" was not an improper expression of personal opinion by counsel, but rather was a statement, based on the evidence, that the defendant would constitute a future danger to society in view of his prior history. Payne v. Commonwealth, 233 Va. 460 , 357 S.E.2d 500, cert. denied, 484 U.S. 933, 108 S. Ct. 308, 98 L. Ed. 2d 267 (1987).

Where the trial court sustained defendant's objection to the prosecutor's use of the words, "I believe," and, upon defendant's motion for a mistrial, instructed the jury that "I believe" has no place in the attorney's argument, this prompt action by the court cured any possible error that may have occurred. Payne v. Commonwealth, 233 Va. 460 , 357 S.E.2d 500, cert. denied, 484 U.S. 933, 108 S. Ct. 308, 98 L. Ed. 2d 267 (1987).

B. EVIDENTIARY MATTERS.

Expert opinion as to effect of drugs or alcohol. - In capital murder case, the jury was entitled to have the benefit of expert opinion as to the cumulative effect of LSD, tranxene, and alcohol, in answer to a hypothetical question based upon evidence in the record. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

Conflicting DNA test results involving defendant only indicated a disagreement among scientific experts and were not sufficient to establish a miscarriage of justice to allow for federal habeas corpus review of defendant's procedurally defaulted federal constitutional claims in absence of showing of cause and prejudice for default, where defendant was convicted in state court of various crimes, including capital murder, and sentenced to death. Satcher v. Netherland, 944 F. Supp. 1222 (E.D. Va. 1996), aff'd in part and rev'd in part on other grounds sub nom. Satcher v. Pruett, 126 F.3d 561 (4th Cir.), cert. denied, 522 U.S. 1010, 118 S. Ct. 595, 139 L. Ed. 2d 431 (1997).

Mere intoxication from drugs or alcohol is not sufficient to negate premeditation. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

But one so greatly intoxicated as to be unable to deliberate and premeditate cannot be convicted of a class of murder that requires proof of a willful, deliberate, and premeditated killing. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

The defendant may negate the specific intent requisite for capital or first-degree murder by showing that he was so greatly intoxicated as to be incapable of deliberation or premeditation, but voluntary intoxication is no defense to the lesser degrees of homicide, or to any other crime. Particularly, his state of intoxication, however great, will not repel an inference of malice, implied by the circumstances surrounding his conduct. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Stipulation. - Even if counsel's stipulation - that the petitioner was a prisoner in a state or local correctional facility at the time of the charged crime - which mirrored the elements of the prisoner escape offense, conceded an element of the capital-murder charge under this section, it did not constitute ineffective assistance. It is not objectively unreasonable for counsel to stipulate to a fact that the government can prove. Morva v. Zook, 821 F.3d 517 (4th Cir. 2016), cert. denied, 137 S. Ct. 1068, 2017 U.S. LEXIS 1095, 197 L. Ed. 2d 177 (U.S. 2017).

Evidence of premeditation held sufficient. - First degree murder conviction was affirmed as the evidence was sufficient to prove defendant's attack on his six-week-old baby was premeditated, based on the Epperly factors: (1) the brutality of the attack, (2) the disparity in size between defendant and the victim, (3) his efforts to conceal his guilt, (4) his lack of remorse, and (5) the period of time between the two blows he struck. Knight v. Commonwealth, 41 Va. App. 617, 587 S.E.2d 736, 2003 Va. App. LEXIS 550 (2003).

Evidence held sufficient to support judge's finding that killing was willful, deliberate, and premeditated. - Evidence held to support the conclusion that killing and theft were interdependent objects of a common criminal design, and conviction of capital murder in the commission of robbery would be affirmed. Edmonds v. Commonwealth, 229 Va. 303 , 329 S.E.2d 807, cert. denied, 474 U.S. 975, 106 S. Ct. 339, 88 L. Ed. 2d 324 (1985).

The fact that defendant had money in hand before he shot victim did not mean that he could escape a charge and conviction of capital murder; robbery is a continuing offense. Poyner v. Commonwealth, 229 Va. 401 , 329 S.E.2d 815, cert. denied, 474 U.S. 865, 106 S. Ct. 189, 88 L. Ed. 2d 158 (1985), , 474 U.S. 888, 106 S. Ct. 208, 88 L. Ed. 2d 178 (1985), 506 U.S. 958, 113 S. Ct. 419, 121 L. Ed. 2d 342 (1992).

Evidence of the brutality of the attack, including the number and nature of the knife wounds inflicted, was sufficient to support the jury's finding that killing was willful, deliberate and premeditated. Boyce v. Commonwealth, No. 1820-91-1 (Ct. of Appeals Feb. 2, 1993).

Jury was entitled to ignore the self-serving statement made by defendant to a defense witness, after the fact, that the person hired to rob the victim had messed things up and killed the victim instead; therefore, defendant was properly convicted of capital murder instead of felony murder. Wolfe v. Commonwealth, 265 Va. 193 , 576 S.E.2d 471, 2003 Va. LEXIS 32, cert. denied, 540 U.S. 1019, 124 S. Ct. 566, 157 L. Ed. 2d 434 (2003).

Evidence that defendant shot a store owner without warning and, after his accomplice exited the store with stolen cash, fired two more shots at the victim and did not leave the store until his gun was empty clearly established premeditation; thus, the circuit court did not err in refusing to strike the Commonwealth's evidence regarding capital murder. Green v. Commonwealth, 266 Va. 81 , 580 S.E.2d 834, 2003 Va. LEXIS 55 (2003), cert. denied, 540 U.S. 1194, 124 S. Ct. 1448, 158 L. Ed. 2d 107 (2004).

When proof of premeditation is the subject of a sufficiency challenge, evidence showing that the premeditation was only slight or momentary is sufficient to sustain the conviction because premeditation is an intent to kill that needs to exist only for a moment, and the question of premeditation is generally a factual issue; thus, the court declined to reverse a jury's finding of premeditation where, despite defendant's self-serving testimony that he did not smother the victim with a pillow and told another to stop doing so, the jury could have concluded, based on defendant's confession, that he placed a pillow over the victim's face and held it there for four to six minutes even though she would have become unconscious within 15 to 30 seconds because that evidence was sufficient to show that defendant had a willful, premeditated, and deliberate intent to kill the victim. Jackson v. Commonwealth, 267 Va. 178 , 590 S.E.2d 520, 2004 Va. LEXIS 8 (2004), cert. denied, 543 U.S. 891, 125 S. Ct. 168, 160 L. Ed. 2d 155 (2004).

Admissibility of photographs. - In prosecution for capital murder following rape, photographs depicting contusions about the victim's neck, abrasions on her back, and multiple stab wounds in her body were relevant and material and were no more inflammatory than the medical testimony detailing the results of the autopsy. Such photographs would be properly admitted. Smith v. Commonwealth, 219 Va. 455 , 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967, 99 S. Ct. 2419, 60 L. Ed. 2d 1074 (1979), aff'd, 477 U.S. 527, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986).

The admission in evidence of photographs of a murder victim's body is within the discretion of the trial court. Peterson v. Commonwealth, 225 Va. 289 , 302 S.E.2d 520, cert. denied, 464 U.S. 865, 104 S. Ct. 202, 78 L. Ed. 2d 176 (1983).

It is not an abuse of discretion for the court to admit a photograph showing the location of the entry wound, since this might tend to support an inference that the killer did not shoot wildly in panic but drew his weapon and took aim before firing. Peterson v. Commonwealth, 225 Va. 289 , 302 S.E.2d 520, cert. denied, 464 U.S. 865, 104 S. Ct. 202, 78 L. Ed. 2d 176 (1983).

If photographs are relevant and material to establish premeditation and malice and to show the degree of atrociousness of the crime, their admission does not constitute an abuse of discretion. Stockton v. Commonwealth, 227 Va. 124 , 314 S.E.2d 371, cert. denied, 469 U.S. 873, 105 S. Ct. 229, 83 L. Ed. 2d 158 (1984).

In prosecution for capital murder of a fellow inmate, the trial court did not err by the admitting of three color photographs of the victim taken after death showing front and rear views of the victim's unclothed body and depicting the severe burns he received, where the photos tended to show motive, intent, method, premeditation, malice, and the degree of atrociousness of the crime. Payne v. Commonwealth, 233 Va. 460 , 357 S.E.2d 500, cert. denied, 484 U.S. 933, 108 S. Ct. 308, 98 L. Ed. 2d 267 (1987).

Evidence of homosexual defilement. - Introduction during the guilt phase of evidence regarding the homosexual defilement of the victim did not create an impermissible risk that defendant's conviction and sentence were the product of passion, prejudice, and arbitrary factors. George v. Angelone, 100 F.3d 353 (4th Cir. 1996), cert. denied, 519 U.S. 1103, 117 S. Ct. 854, 136 L. Ed. 2d 829 (1997).

Where no insanity defense is interposed, the defendant's mental condition is only relevant insofar as it might be probative of a fact in issue; i.e., premeditation at the time of the killing. LeVasseur v. Commonwealth, 225 Va. 564 , 304 S.E.2d 644 (1983), cert. denied, 464 U.S. 1063, 104 S. Ct. 744, 79 L. Ed. 2d 202 (1984).

Resistance of victims not a defense. - As a matter of law, one who, armed with a deadly weapon, approaches others intending to rob them will not be heard to assert that he was provoked by the resistance of his victims to his criminal enterprise. Barnes v. Commonwealth, 234 Va. 130 , 360 S.E.2d 196 (1987), cert. denied, 484 U.S. 1036, 108 S. Ct. 763, 98 L. Ed. 2d 779 (1988).

Testimony by expert witness about pain suffered by victim. - The severity of the burning which caused the death of the victim was relevant to the questions of malice and premeditation, and testimony by the medical examiner about pain suffered by the victim as the result of the burns was properly admitted. Payne v. Commonwealth, 233 Va. 460 , 357 S.E.2d 500, cert. denied, 484 U.S. 933, 108 S. Ct. 308, 98 L. Ed. 2d 267 (1987).

Testimony of fellow inmate. - In prosecution for capital murder by a fellow inmate, the trial court did not err by admitting testimony from a fellow inmate that the defendant wished to be a member of a motorcycle group, which apparently had an active local chapter within the correctional facility, where one motive for the murder was the defendant's desire to be feared as a killer in order to join the local chapter of the group. Payne v. Commonwealth, 233 Va. 460 , 357 S.E.2d 500, cert. denied, 484 U.S. 933, 108 S. Ct. 308, 98 L. Ed. 2d 267 (1987).

Murder victim's affidavit not admissible. - Admission at trial of a murder victim's affidavit in support of her request for a protective order against defendant, her husband, violated the Confrontation Clause of the Sixth Amendment to the U.S. Constitution, and the error was not harmless because in it she swore he had threatened and raped her; therefore, his convictions for rape under § 18.2-61 , abduction with the intent to defile under § 18.2-48 , use of a firearm during the commission of an abduction, and capital murder, which was predicated on the former three offenses, were unconstitutional as well as based on insufficient evidence. Crawford v. Commonwealth, 53 Va. App. 138, 670 S.E.2d 15, 2008 Va. App. LEXIS 554 (2008).

In a capital murder case, the trial court's admission of the victim's affidavit, which had been attached to her request for a protective order and stated that defendant, her husband, had previously threatened and raped her, in order to prove that defendant later raped and murdered his estranged wife, violated the Confrontation Clause; however, the affidavit's admission was harmless as to defendant's conviction for grand larceny because it did not affect the jury's determination of guilt as to defendant's theft of the victim's car. Crawford v. Commonwealth, 53 Va. App. 138, 670 S.E.2d 15, 2008 Va. App. LEXIS 554 (2008).

Evidence of second murder held admissible to show effort to conceal first murder. - As a general rule, evidence that the accused committed other crimes similar to the offense charged is inadmissible to prove the particular crime charged. But where the only reasonable inference which can be drawn from the testimony was that the victim of a second murder knew the defendant killed the victim of the first murder, and the defendant, believing the victim of a second murder was telling others about the murder, killed him to silence him. Clearly, the two offenses were interrelated, and the testimony showed both the defendant's guilty knowledge of the first murder and his desire to conceal his guilt. The conduct of an accused following the crime is often relevant, particularly when its purpose is to conceal his guilt. The testimony was so relevant and probative to the truth-finding process that its probative value greatly outweighed any prejudicial effect. Stockton v. Commonwealth, 227 Va. 124 , 314 S.E.2d 371, cert. denied, 469 U.S. 873, 105 S. Ct. 229, 83 L. Ed. 2d 158 (1984).

Commonwealth did not have the burden of excluding the hypothesis that defendant might have given the gun to the other man, who then shot the victims. Nothing in the evidence suggested that defendant may have given the gun to the other man in the interval between the time one victim closed his eyes and he and the other victim were shot. Instead, defendant's ownership of the gun, his retention of the gun even when sleeping, victim's testimony, and defendant's direction to friend to "get rid of the bag" containing the gun, taken together, amply justified the conclusion that defendant was the person who shot the victims. Graham v. Commonwealth, 250 Va. 79 , 459 S.E.2d 97, cert. denied, 516 U.S. 997, 116 S. Ct. 535, 133 L. Ed. 2d 440 (1995).

Robbery predicate for capital murder was established. - Where defendant and cohort were in the process of stealing money when they were interrupted by victim, where defendant left the room where he had found the money, chased victim, shot him, returned to the room, and retrieved the money, and where defendant and cohort then left the premises, the robbery and killing of the victim were interdependent objects of a common criminal design, and therefore, the robbery predicate for capital murder was established. Quesinberry v. Commonwealth, 241 Va. 364 , 402 S.E.2d 218, cert. denied, 502 U.S. 834, 112 S. Ct. 113, 116 L. Ed. 2d 82 (1991), and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

This section does not require proof that a defendant charged with capital murder during the commission of a robbery or a rape was a principal in the first degree to the crimes of robbery or rape; it is only necessary that the Commonwealth prove that the defendant was the triggerman in the murder and an accomplice in the robbery or rape to convict him of capital murder. Graham v. Commonwealth, 250 Va. 487 , 464 S.E.2d 128 (1995).

Where defendant took victim's motorcycle and helmet, hid them apart from his body, and marked their location on a map, the evidence was sufficient to permit a reasonable trier of fact to conclude beyond a reasonable doubt that defendant robbed victim of his motorcycle and helmet or that the robbery was a motivating factor for the murder. George v. Angelone, 100 F.3d 353 (4th Cir. 1996), cert. denied, 519 U.S. 1103, 117 S. Ct. 854, 136 L. Ed. 2d 829 (1997).

The evidence was sufficient to establish that the killing of the victim immediately after she was robbed was so closely related in time, place and causal connection as to the make the killing, as a matter of law, a part of the same criminal enterprise where the defendant, acting in concert with others, beat the victim in one location and then transported her in the trunk of a car to another location where they robbed her and, immediately thereafter, further beat and cut her, inflicting fatal injuries. Tibbs v. Commonwealth, 31 Va. App. 687, 525 S.E.2d 579 (2000).

Evidence of intent sufficient. - Where the evidence was undisputed that the defendant deliberately shot the victim twice in the chest with a high-powered assault rifle and the defendant stated in his confession that he planned and carried out the attack with premeditation and without provocation and that he deliberately aimed his weapon at the victim's chest, it was established as a matter of law that the murder was intentional. Kasi v. Commonwealth, 256 Va. 407 , 508 S.E.2d 57 (1998), cert. denied, 527 U.S. 1038, 119 S. Ct. 2399, 144 L. Ed. 2d 798 (1999) overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Sufficient evidence showed defendant's specific intent to kill a victim because, after physically assaulting the victim, defendant armed himself with a shotgun and threatened to kill the victim. Commonwealth v. Herring, 288 Va. 59 , 758 S.E.2d 225, 2014 Va. LEXIS 94 (2014).

Evidence held sufficient for conviction. - Where the main witness for the prosecution explained the details of the plan, in which he participated, to kill the victim, he related the specifics of the defendant's motive for the murder, he was an eyewitness to the defendant's acts of throwing the liquid into the victim's cell and igniting the fluid with matches, prison employees corroborated the witness' account of the incident, and the jurors were instructed fully on the manner in which they were to judge the testimony and credibility of convicted felons, there was no inherently incredible testimony by the Commonwealth's witnesses, and there was abundant evidence to support the conviction. Payne v. Commonwealth, 233 Va. 460 , 357 S.E.2d 500, cert. denied, 484 U.S. 933, 108 S. Ct. 308, 98 L. Ed. 2d 267 (1987).

Defendant's sentence to death for having committed several crimes, including the murder of two people, one of which was a willful, deliberate, and premeditated killing of more than one person as part of the same act in violation of subdivision 7 of § 18.2-31 , was not found to have been imposed under the influence of passion, prejudice, or any other arbitrary factor pursuant to subdivision C 1 of § 17.1-313 , nor was it excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant, pursuant to subdivision C 2 of § 17.1-313 ; although defendant had a long career as a soldier and a non-commissioned officer in the U.S. Army, there was also evidence that he had an illicit relationship although he was married for 23 years, that he squandered hundreds of thousands of dollars on the relationship, which was with a prostitute, and that he brutally murdered two innocent people with no remorse. Elliott v. Commonwealth, 267 Va. 396 , 593 S.E.2d 270, 2004 Va. LEXIS 44 (2004), cert. denied, 543 U.S. 1081, 125 S. Ct. 875, 160 L. Ed. 2d 825 (2005) and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Testimony that defendant was involved in a stormy relationship with one of the four victims, one witness gave defendant a ride to the victim's apartment, defendant began arguing with the victim and remained behind when the witness left, defendant called a friend from the victim's apartment and told him that he had killed them, a neighbor went to the victim's apartment and saw defendant was in the apartment with a gun and the bodies of the victim, the victim's two children, and the victim's brother were in the apartment, and an inmate testified that defendant had confessed to him during defendant's detention that he had killed the victims; evidence that the victim was both stabbed and shot, and that defendant's DNA and fingerprint matched that found on a knife in the victim's apartment was sufficient to support defendant's conviction for capital murder. Juniper v. Commonwealth, 271 Va. 362 , 626 S.E.2d 383, 2006 Va. LEXIS 29 (2006), habeas corpus proceeding, 2010 Va. Cir. LEXIS 201 (2010); habeas corpus dismissed, 281 Va. 277 , 707 S.E.2d 290, 2011 Va. LEXIS 61 (2011).

Trial court did not err in denying defendant's motion to strike evidence on the count for capital murder in the commission of abduction with the intent to defile, as the beating the victim 47 times with a blunt object was not a manner of effectuating a capital murder in the commission of a rape or attempted rape and thus, the evidence was sufficient to establish capital murder in the commission of abduction with the intent to defile separately and apart from, and not merely incidental to, capital murder in the commission of a rape or attempted rape. Lawlor v. Commonwealth, 285 Va. 187 , 738 S.E.2d 847, 2013 Va. LEXIS 13 (2013), cert. denied, 134 S. Ct. 427, 2013 U.S. LEXIS 7435, 187 L. Ed. 2d 282 (U.S. 2013).

Evidence was sufficient to convict defendant of attempted capital murder of a law-enforcement officer because, while no witness actually saw defendant shoot the gun at the deputy, a rational fact finder could find from the evidence presented that defendant was the shooter as the evidence showed defendant was in the area, he possessed a gun, and he had the opportunity to commit the offenses; no evidence suggested that any person other than defendant was in the area at the time of the shooting; the evidence showed that defendant shot the gun at the deputy with the intent to kill him as a natural consequence of shooting a gun numerous times in the direction of someone was that person's death; and a ricochet hit the deputy in the leg. Williams v. Commonwealth, No. 1700-14-3, 2015 Va. App. LEXIS 321 (Nov. 10, 2015).

Evidence was sufficient to convict defendant of capital murder as the child victim's death was criminal and did not result from natural, noncriminal causes, and defendant had the time and opportunity to commit the crime and was the criminal agent in the murder because the evidence included defendant's false claims that he discovered the victim seizing and very hot to the touch as he stated that the victim was really hot at 2:21 p.m., but only 23 minutes later his temperature was hypothermic; and defendant had a motive as his financial condition was dire, but, between September and November 2011, he bought more than $500,000 of insurance policies on the victim's life, he never missed a premium payment, and the victim died about a year later. Rams v. Commonwealth, 70 Va. App. 12, 823 S.E.2d 510, 2019 Va. App. LEXIS 45 (2019).

No reversal where record failed to show actual prejudice. - Defendant's four capital murder convictions, and conviction for use of a firearm in the commission of murder, were not reversed, despite his contention that he was deprived of a fair trial when the trial court allowed spectators in the courtroom to wear badges displaying photographs of the victims, where the court took active steps to ensure that the jurors were not negatively influenced by the spectators, including segregating the jurors from persons in the hallways and elevators, and by excluding the victim's family members, many of whom were wearing the badges, from the front row of the gallery, and there were always some people seated in the front row between the spectators wearing the badges and the jury. Cooper v. Commonwealth, No. 0819-03-4, 2004 Va. App. LEXIS 403 (Ct. of Appeals Aug. 24, 2004).

Retrial. - After defendant's capital murder conviction was reversed because an appellate court found insufficient evidence to support his convictions for the predicate offenses of rape, abduction with intent to defile, and use of a firearm in the commission of abduction, double jeopardy principles required the court to remand for retrial on a lesser-included offense of no greater than first-degree murder. Crawford v. Commonwealth, 53 Va. App. 138, 670 S.E.2d 15, 2008 Va. App. LEXIS 554 (2008).

Ineffective assistance of counsel not shown. - State Supreme Court dismissed the petition for writ of habeas corpus that petitioner filed as to petitioner's claim in petitioner's capital murder case that the indictments, jury instructions, and verdict forms were inadequate because they did not specify which other person petitioner had killed during a three-year period or which act of terrorism petitioner had committed; petitioner's claim in that regard did not satisfy either the performance or prejudice prong of the two-part Strickland test since under subdivision 8 of § 18.2-31 , there was no requirement that the relevant documents specify which other killing was being included within the three-year period and the indictment, under § 18.2-46.4 , did not have to specify the petitioner's intent under that statute's two subsections. Muhammad v. Warden of the Sussex I State Prison, 274 Va. 3 , 646 S.E.2d 182, 2007 Va. LEXIS 97 (2007), cert. denied, 128 S. Ct. 1889, 2008 U.S. LEXIS 3275 (U.S. 2008).

Admissibility of other crimes evidence. - Circuit court did not abuse its discretion by admitting evidence of defendant's prior felony conviction during the Commonwealth's case-in-chief for the limited purpose of proving defendant's motivation for shooting a police officer and to prove an essential element of the offense charged under subdivision 6 of § 18.2-31 ; i.e., the murder was to interfere with the performance of the police officer's duties. Porter v. Commonwealth, 276 Va. 203 , 661 S.E.2d 415, 2008 Va. LEXIS 78 (2008), cert. denied, 129 S. Ct. 1999, 173 L. Ed. 2d 1097, 2009 U.S. LEXIS 3047 (U.S. 2009).

CIRCUIT COURT OPINIONS

Exemption from death penalty. - Defendant proved by a preponderance of the evidence that he was exempted from the death penalty because he had sub-average intellectual functioning as confirmed by standardized testing and significant adaptive functioning deficits measured by a nationally accepted standardized assessment test corroborated by his academic records and family history; he was sentenced to the maximum punishment because his murder of and sexual assault of an elderly widow was inhuman, senseless, and depraved. Commonwealth v. Terry,, 2016 Va. Cir. LEXIS 218 (Halifax County Oct. 31, 2016).

I. WHAT CONSTITUTES MURDER.

A. DEFINITIONS AND ILLUSTRATIONS.

This section distinguishes the degrees of murder, but it does not define murder itself. Biddle v. Commonwealth, 206 Va. 14 , 141 S.E.2d 710 (1965).

Distinction between crimes in § 18.2-31(d) (now § 18.2-31 4) and this section is plain: To be found guilty of capital murder, a defendant must be proved, beyond a reasonable doubt, not only to have killed during the commission of a robbery, but to have killed willfully, deliberately, and with premeditation and while armed with a deadly weapon. The defendant found guilty of first degree murder is the defendant who killed during the course of a robbery, but did not kill with willfulness, deliberation, and premeditation. Briley v. Bass, 584 F. Supp. 807 (E.D. Va.), aff'd, 742 F.2d 155 (4th Cir.), cert. denied, 469 U.S. 893, 105 S. Ct. 270, 83 L. Ed. 2d 206 (1984).

Murder is the unlawful killing of another with malice. Robertson v. Commonwealth, 1 Va. Dec. 851, 20 S.E. 362 (1894).

Whoever kills a human being with malice aforethought is guilty of murder. Stapleton v. Commonwealth, 123 Va. 825 , 96 S.E. 801 (1918).

Murder is where a man of sound sense unlawfully kills another with malice aforethought, either express or implied. Harrison v. Commonwealth, 79 Va. 374 (1884).

Murder is defined as the unlawful killing of another with malice aforethought. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

And it is murder even though deceased might have recovered but for improper treatment. - If the prisoner willfully inflicted upon the deceased a dangerous wound, one that was calculated to endanger and destroy life, and death ensued therefrom within a year and a day, the prisoner is nonetheless responsible for the result although it may appear that the deceased might have recovered but for the aggravation of the wound by unskillful or improper treatment. Clark v. Commonwealth, 90 Va. 360 , 18 S.E. 441 (1893).

But it is not murder when wound quickens progress of fatal disease. - Where in a cause of homicide it appeared that a wound or beating was inflicted on the deceased which was not mortal and the deceased, while laboring under the effect of the violence, became sick of a disease not caused by such violence, from which disease death ensued within a year and a day, the party charged with the homicide was not criminally responsible for the death, although it also appeared that the symptoms of the disease were aggravated, and the fatal progress quickened, by the enfeebled or irritated condition of the deceased, caused by the violence. Livingston v. Commonwealth, 55 Va. (14 Gratt.) 592 (1857).

Doctrine of transferred intent. - Under the doctrine of transferred intent, if an accused shoots at another intending to kill him, and a third person is killed because of the act, that same intent follows the bullet and is transferred to the killing of the third person, even if such death was accidental or unintentional. Riddick v. Commonwealth, 226 Va. 244 , 308 S.E.2d 117 (1983).

When "intent" required. - To commit murder one need not intend to take a life; but to be guilty of an attempt to murder he must so intend. It is not sufficient that his act, had it been fatal, would have been murder. Goodson v. Commonwealth, 22 Va. App. 61, 467 S.E.2d 848 (1996).

To sustain a conviction for attempted murder, the evidence must establish a specific intent to kill the victim, as well as an overt but ineffectual act committed in furtherance of this criminal purpose. Parrott v. Commonwealth, No. 1014-99-2, 2001 Va. App. LEXIS 253 (Ct. of Appeals May 15, 2001).

Felony-murder defined. - Murder, for purposes of felony-murder under this section, is common-law murder coupled with the contemporaneous commission or attempted commission of one of the listed felonies. Wooden v. Commonwealth, 222 Va. 758 , 284 S.E.2d 811 (1981).

Although felony-murder is a statutory offense, it includes the elements of common-law murder. Wooden v. Commonwealth, 222 Va. 758 , 284 S.E.2d 811 (1981).

Purpose of felony-murder doctrine of this section was to deter inherently dangerous felonies by holding the felons responsible for the consequences of the felony, whether intended or not. While the range of felonies which may be a predicate for the felony-murder conviction has changed, the function of the doctrine is still to elevate to murder a homicide resulting from a felony by imputing malice. King v. Commonwealth, 6 Va. App. 351, 368 S.E.2d 704 (1988).

Section 18.2-33 and its companion, this section, codify common-law doctrine of felony-murder, a doctrine developed to elevate to murder a homicide committed during the course of a felony by imputing malice to the killing. King v. Commonwealth, 6 Va. App. 351, 368 S.E.2d 704 (1988).

Defendant is responsible even if victim killed by one acting in concert with him. - If defendant was the slayer, his intent to kill the intended victim was transferred to the slaying of the actual victim and his conviction is valid. If, however, the one acting in concert with defendant fired the fatal shot, defendant's conviction is still valid, as the two were acting in concert. The one acting in concert with defendant intended to kill the intended victim, and that intent was transferred to the slaying of the actual victim. Due to concert of action, defendant is deemed to have shared his intent. Thus, even if the one acting in concert with defendant killed the victim, defendant was responsible for his acts as a principal in the second degree. Riddick v. Commonwealth, 226 Va. 244 , 308 S.E.2d 117 (1983).

Ample evidence existed from which the jury reasonably could have concluded that defendant, at a minimum, was guilty of murder as a principal in the second degree because although the evidence did not show with certainty which of the gunmen fired the fatal bullet, the evidence showed that several persons, including defendant, fired guns toward a crowd of people; because the victim died as a result of the gunfire, defendant aided and abetted the other shooters by joining in the gunfire, and, by so doing, acted at least as a principal in the second degree to the murder of the victim. Cooper v. Commonwealth,, 2010 Va. App. LEXIS 403 (Oct. 19, 2010).

Exposure or neglect of infant resulting in death. - If the exposure or neglect of an infant or other dependent person, resulting in death, is an act of mere carelessness wherein the danger to life does not clearly appear, the homicide is only manslaughter; whereas if the exposure or neglect is of a dangerous kind, it is murder. Biddle v. Commonwealth, 206 Va. 14 , 141 S.E.2d 710 (1965).

If from an infant of tender years the person under obligation to provide for it willfully withholds needful food or any other needful thing, though not with intent to kill, and by reason thereof the child dies, he commits murder. Biddle v. Commonwealth, 206 Va. 14 , 141 S.E.2d 710 (1965).

If death is the direct consequence of the malicious omission of the performance of a duty, such as of a mother to feed her child, this is a case of murder; but if the omission is not willful, and arose out of neglect only, it is manslaughter. Biddle v. Commonwealth, 206 Va. 14 , 141 S.E.2d 710 (1965).

Involuntary manslaughter is felony assault under § 16.1-283. - Clause (iii) of subsection E of § 16.1-283 subsumes into subsection E of § 16.1-283 all the crimes that fit the definition of a felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault that are not already listed in clause (ii) of subsection E of § 16.1-283; involuntary manslaughter is a felony assault for purposes of clause (ii) of subsection E. King v. King George Dep't of Soc. Servs., 69 Va. App. 206, 817 S.E.2d 658, 2018 Va. App. LEXIS 226 (2018).

Father claimed his parental rights should not be terminated based on his conviction for involuntary manslaughter because the conviction was six years prior to the removal of the children; however, subsection E of § 16.1-283 does not impose any time restraints as to when the convictions had to occur in connection with the removal of the children. King v. King George Dep't of Soc. Servs., 69 Va. App. 206, 817 S.E.2d 658, 2018 Va. App. LEXIS 226 (2018).

Mens rea same for involuntary manslaughter and child abuse and neglect. - Not only can commission of either involuntary manslaughter or child abuse and neglect result in serious bodily injury to the child victim, but also the requisite mens rea is the same for both crimes; to the extent that the child abuse statute requires a showing of willfulness, that requirement incorporates willful negligence. King v. King George Dep't of Soc. Servs., 69 Va. App. 206, 817 S.E.2d 658, 2018 Va. App. LEXIS 226 (2018).

Convictions for murder and lynching by mob upheld. - Defendant was not entitled to reversal of convictions for both felony murder and lynching by mob, because both the felony murder statute, § 18.2-32 , and the lynching-by-mob statute, § 18.2-40 , included at least one element the other did not, and the appellate court presumed that the General Assembly did not intend either statute to displace the other. Gaddie v. Commonwealth,, 2010 Va. App. LEXIS 247 (June 22, 2010).

Former § 19.1-249 (now § 19.2-285 ) and this section are in pari materia and should be read together. Puckett v. Commonwealth, 182 Va. 237 , 28 S.E.2d 619 (1944).

Involuntary manslaughter served as basis for termination of parental rights. - Circuit court did not err in terminating the father's parental rights as a result of his conviction for involuntary manslaughter; because the father's conviction for involuntary manslaughter was a conviction for a felonious crime that results in serious bodily injury to a child, the conviction constituted a felony assault resulting in serious bodily injury. King v. King George Dep't of Soc. Servs., 69 Va. App. 206, 817 S.E.2d 658, 2018 Va. App. LEXIS 226 (2018).

Crime of violence under federal law. - Defendant's convictions for violent crimes in aid of racketeering activity by committing first-degree murder under Virginia law and federal witness tampering by means of murder under federal law constituted crimes of violence under 18 U.S.C.S. § 924(c) force clause because conviction for first-degree murder under Virginia law required willful, deliberate, and premeditated killing of another, and federal witness tampering by murder also required unlawful killing of another, which might be accomplished by force exerted either directly or indirectly. United States v. Mathis, 932 F.3d 242, 2019 U.S. App. LEXIS 22742 (4th Cir. 2019).

Applied in Pender v. Angelone, 257 Va. 501 , 514 S.E.2d 756 (1999); Orndorff v. Commonwealth, 271 Va. 486 , 628 S.E.2d 344, 2006 Va. LEXIS 43 (2006); Osman v. Osman, 285 Va. 384 , 737 S.E.2d 876, 2013 Va. LEXIS 26 (2013); Flanders v. Commonwealth, 298 Va. 345 , 838 S.E.2d 51, 2020 Va. LEXIS 8 (2020).

B. ELEMENTS.

1. MALICE.

The test of murder is malice. Every malicious killing is murder either in the first or second degree - the former if deliberate and premeditated, and the latter if not. Furthermore, there is a prima facie presumption of malice arising from the mere fact of a homicide, but there is no presumption therefrom of deliberation and premeditation. That is merely another way of stating the familiar rule of law that every homicide is prima facie murder in the second degree, and that the burden is on the accused to reduce, and on the Commonwealth to elevate, the grade of the offense. Painter v. Commonwealth, 210 Va. 360 , 171 S.E.2d 166 (1969); Perkins v. Commonwealth, 215 Va. 69 , 205 S.E.2d 385 (1974); Wooden v. Commonwealth, 222 Va. 758 , 284 S.E.2d 811 (1981).

Malice aforethought is the grand criterion which distinguishes murder from other killings. M'Whirt's Case, 44 Va. (3 Gratt.) 594 (1846); Wooden v. Commonwealth, 222 Va. 758 , 284 S.E.2d 811 (1981).

Every unlawful homicide must be either murder or manslaughter, and whether it be the one or the other depends alone upon whether the party who perpetrated the act did it with malice or not - malice either expressed or implied. Read v. Commonwealth, 63 Va. (22 Gratt.) 924 (1872); Moxley v. Commonwealth, 195 Va. 151 , 77 S.E.2d 389 (1953).

Malice is element of murder but not manslaughter. - Malice, a requisite element for murder of any kind, is unnecessary in manslaughter cases and is the touchstone by which murder and manslaughter cases are distinguished. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Malice, an essential element of all grades of murder, distinguishes murder from manslaughter. Parrott v. Commonwealth, No. 1014-99-2, 2001 Va. App. LEXIS 253 (Ct. of Appeals May 15, 2001).

Without malice there cannot be murder. Coleman v. Commonwealth, 184 Va. 197 , 35 S.E.2d 96 (1945).

Malice, express or implied, is an essential element in murder of either the first or second degree. Richardson v. Commonwealth, 128 Va. 691 , 104 S.E. 788 (1920); Mercer v. Commonwealth, 150 Va. 588 , 142 S.E. 369 (1928).

Malicious intent is an element of both first-degree murder and second-degree murder. What elevates the lesser crime to the greater grade and invokes the heavier penalty is the element of premeditation. Baker v. Commonwealth, 218 Va. 193 , 237 S.E.2d 88 (1977).

Malice is an element of felony-murder. Wooden v. Commonwealth, 222 Va. 758 , 284 S.E.2d 811 (1981).

Malice inheres in the doing of a wrongful act intentionally or without just cause or excuse, or as a result of ill will. Thus, where a person maliciously engages in criminal activity, such as robbery, and homicide of the victim results, the malice inherent in the robbery provides the malice prerequisite to a finding that the homicide was murder. All of the criminal participants in the initial felony may be found guilty of the felony-murder of the victim so long as the homicide was within the res gestae of the initial felony. Wooden v. Commonwealth, 222 Va. 758 , 284 S.E.2d 811 (1981).

Malice, in a legal sense, means any wrongful act done willfully or purposely. Sun Life Assurance Co. v. Bailey, 101 Va. 443 , 44 S.E. 692 (1903).

Malice is a subjective condition of mind, discoverable only by words and conduct, and the significance of the words and conduct of an accused person, wherever there can be doubt about such significance, addresses itself peculiarly to the consideration of the jury. Painter v. Commonwealth, 210 Va. 360 , 171 S.E.2d 166 (1969); Perkins v. Commonwealth, 215 Va. 69 , 205 S.E.2d 385 (1974).

And is presumed from the act of killing. - Malice is presumed from the act of killing, unaccompanied with circumstances of extenuation, and the burden of disproving the malice is thrown upon the accused. Hill v. Commonwealth, 43 Va. (2 Gratt.) 594 (1845); Johnston's Case, 46 Va. (5 Gratt.) 660 (1848); Dejarnette v. Commonwealth, 75 Va. 867 (1881); Lewis v. Commonwealth, 78 Va. 732 (1884); Honesty v. Commonwealth, 81 Va. 283 (1886); Coleman v. Commonwealth, 184 Va. 197 , 35 S.E.2d 96 (1945); Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

On a charge of murder, malice is presumed from the fact of killing, and when the Commonwealth has proven the commission of a homicide and has pointed out the accused as the criminal agent, then it may rest its case, and, unless the accused shows circumstances of justification, excuse, or palliation, a verdict of murder in the second degree will be warranted. Adams v. Commonwealth, 163 Va. 1053 , 178 S.E. 29 (1935).

Or from the deliberate use of a deadly weapon. Commonwealth v. Jones, 28 Va. (1 Leigh) 598 (1829); Hill v. Commonwealth, 43 Va. (2 Gratt.) 594 (1845); Johnston's Case, 46 Va. (5 Gratt.) 660 (1848); Murphy v. Commonwealth, 64 Va. (23 Gratt.) 960 (1873); Wright v. Commonwealth, 74 Va. (33 Gratt.) 880 (1880); Wright v. Commonwealth, 75 Va. 914 (1882); Stapleton v. Commonwealth, 123 Va. 825 , 96 S.E. 801 (1918); Henry v. Commonwealth, 195 Va. 281 , 77 S.E.2d 863 (1953).

The use of a deadly weapon, standing alone, is not sufficient to prove the specific intent required to establish attempted murder. Goodson v. Commonwealth, 22 Va. App. 61, 467 S.E.2d 848 (1996).

Malice may be evident in post-shooting conduct. - The finder of fact may consider the defendant's conduct and words at the time of the shooting and thereafter, including evidence of flight, to determine whether the shooting was accompanied by malice. Betancourt v. Commonwealth, No. 0142-93-2, 1994 Va. App. LEXIS 582 (Ct. of Appeals Sept. 13, 1994).

Malice may be either express or implied by conduct. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Express malice is evidenced when one person kills another with a sedate, deliberate mind and formed design. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Implied malice exists when any purposeful, cruel act is committed by one individual against another without any, or without great provocation. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Malice cannot be implied from negligent killing. - If a killing results from negligence, however gross or culpable, and the killing is contrary to the defendant's intention, malice cannot be implied. In order to elevate the crime to second-degree murder, the defendant must be shown to have willfully or purposefully, rather than negligently, embarked upon a course of wrongful conduct likely to cause death or great bodily harm. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Generally, implied malice is equivalent to "constructive malice"; that is, malice as such does not exist but the law regards the circumstances of the act as so harmful that the law punishes the act as though malice did in fact exist. Pugh v. Commonwealth, 223 Va. 663 , 292 S.E.2d 339 (1982).

Defendant's conduct rather than degree of intoxication is relied upon to establish malice. - The defendant's degree of intoxication, however great, neither enhances nor impairs the set of facts relied upon to establish implied malice. 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; not by the defendant's blood-alcohol level. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Malicious purpose to do deceased a serious personal injury is sufficient. - If the prisoner, in the execution of a malicious purpose to do the deceased a serious personal injury or hurt by wounding and beating him, killed him, the offense is murder. Dock v. Commonwealth, 62 Va. (21 Gratt.) 909 (1872). See Honesty v. Commonwealth, 81 Va. 283 (1886); M'Whirt's Case, 44 Va. (3 Gratt.) 594 (1846); Johnston's Case, 46 Va. (5 Gratt.) 660 (1848).

Malice and passion distinguished. - "Malice aforethought" implies a mind under the sway of reason, whereas "passion," while 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 done 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. Brown v. Commonwealth, 86 Va. 466 , 10 S.E. 745 (1890).

Malice and heat of passion are mutually exclusive; malice excludes passion, and passion presupposes the absence of malice. In other words, malice and passion cannot coexist. Jenkins v. Commonwealth, 244 Va. 445 , 423 S.E.2d 360 (1992), cert. denied, 507 U.S. 1036, 113 S. Ct. 1862, 123 L. Ed. 2d 483 (1993), overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Whether a defendant acted with malice is generally a question to be decided by the trier of fact. Pugh v. Commonwealth, 223 Va. 663 , 292 S.E.2d 339 (1982); Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Implied malice in death of three year old. - Implied malice was shown beyond a reasonable doubt and was fairly deducible where victim, a three year old child, had been forcefully fed a stomach full of pepper, was starving and had been beaten; this was sufficient evidence to find the mother-defendant guilty of murder in the second degree. Pugh v. Commonwealth, 223 Va. 663 , 292 S.E.2d 339 (1982).

Malice intrinsic in commission of predicate felony provides element needed to find murder. - While this section contemplates a killing with malice, the malice intrinsic in the commission of one of the predicate felonies provides the malice prerequisite to a finding that the homicide was murder. The same imputation of malice is implicit in § 18.2-33 which contemplates an accidental killing; the commission of any felonious act during the prosecution of which a death occurs supplies the malice which raises the incidental homicide to the level of second-degree murder. Heacock v. Commonwealth, 228 Va. 397 , 323 S.E.2d 90 (1984).

Participant not guilty of felony-murder of co-felon killed by victim. - Under this section, a criminal participant in a felony may not be convicted of the felony-murder of a co-felon killed by the victim of the initial felony as this would require the elimination of proof of malice as a prerequisite to conviction under this section. Wooden v. Commonwealth, 222 Va. 758 , 284 S.E.2d 811 (1981).

Sufficient evidence of malice. - The evidence was sufficient to support a finding of malice where appellant's wife died as a result of a gunshot wound to the chest inflicted at close range; appellant admitted that the gun went off in his hands; a neighbor testified that she heard a gunshot and then heard a woman moan and say, "I can't believe you did that to me"; and appellant then immediately fled the scene without administering aid, disposed of the weapon, and failed to report the incident when stopped by the police a short time later. Betancourt v. Commonwealth, No. 0142-93-2, 1994 Va. App. LEXIS 582 (Ct. of Appeals Sept. 13, 1994).

Proof of malice was established by testimony that defendant and victim had argued, that defendant had angrily refused to allow victim to leave, and that victim suffered two deep stab wounds. Bowler v. Commonwealth, No. 0404-99-4, 2000 Va. App. LEXIS 207 (Ct. of Appeals Mar. 21, 2000).

There were no mitigating circumstances that would have stripped defendant's conduct in submerging her newborn baby in the bathtub of its inherent malice, as it was not a provoked killing, nor was defendant acting in self-defense, but rather admitted that she knew her actions could result in the death of her baby, but deliberately engaged in those actions because she was worried that people would be ashamed of her. Aldridge v. Commonwealth, 44 Va. App. 618, 606 S.E.2d 539, 2004 Va. App. LEXIS 631 (2004).

Evidence was sufficient to support defendant's convictions of second degree murder and the use of a firearm in the commission of that murder where, based on defendant's animosity towards the victim, evidenced by numerous statements in which he expressed a desire to shoot and kill him, the jury could have inferred that defendant killed the victim with malice. Buchanan v. Commonwealth,, 2015 Va. App. LEXIS 153 (May 5, 2015).

Commonwealth sufficiently showed defendant's malice aforethought because the Commonwealth showed defendant shot the victim two or three times after disarming the victim and then walked 20 to 30 feet away and shot the victim four or five more times at close range, allowing a reasonable juror to conclude defendant's conduct was that of a sedate, deliberate mind or at least a purposeful, cruel act committed without great provocation, and that defendant's self-serving account was designed to hide defendant's guilt. Washington v. Commonwealth, No. 2023-15-2, 2017 Va. App. LEXIS 140 (May 30, 2017).

2. OTHER ELEMENTS.

Proof of corpus delicti. - In homicide cases, the corpus delicti must consist of proof (1) of the victim's death, and (2) that it resulted from the criminal act or agency of another. Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

The corpus delicti may be proven by circumstantial evidence. Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

Premeditated murder, one of the forms of first degree murder defined by statute, contemplates: (1) a killing; (2) a reasoning process antecedent to the act of killing, resulting in the formation of a specific intent to kill; and (3) the performance of that act with malicious intent. Rhodes v. Commonwealth, 238 Va. 480 , 384 S.E.2d 95 (1989).

Deliberation and premeditation. - While the absence of self defense is not an element of murder, deliberation and premeditation undoubtedly are elements of first-degree murder which the state must prove beyond a reasonable doubt. Baker v. Muncy, 619 F.2d 327 (4th Cir. 1980).

Premeditation and deliberation, which the Commonwealth must prove beyond a reasonable doubt to obtain a first-degree murder conviction, require the adoption of a specific intent to kill, which is something more than malice. Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

Premeditation and deliberation are jury questions. - The question whether premeditation and deliberation exist, so as to elevate a homicide to first-degree murder, is in the province of the jury. In deciding it, the jury may properly consider the brutality of the attack, and whether more than one blow was struck, the disparity in size and strength between the defendant and the victim, the concealment of the victim's body, and the defendant's lack of remorse and efforts to avoid detection. Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

Premeditation shown by circumstantial evidence. - Supreme Court will affirm a conviction of premeditated murder, even though based upon wholly circumstantial evidence, whenever the reasonable import of such evidence, considered as a whole, is sufficient to show beyond a reasonable doubt that the accused was the criminal agent and that he acted with a premeditated intent to kill. Rhodes v. Commonwealth, 238 Va. 480 , 384 S.E.2d 95 (1989).

Defendant's actions following her baby's death provided ample circumstantial evidence of her specific intent to kill; specifically, defendant concealed the infant's body so effectively that it was not discovered until almost three months had elapsed, in her effort to avoid detection she cleaned the hotel bathroom and disposed of soiled towels and bathmats in an outside dumpster, and she informed nurses at a hospital that she had given her child up for adoption rather than telling them that she had given birth to a stillborn baby. Aldridge v. Commonwealth, 44 Va. App. 618, 606 S.E.2d 539, 2004 Va. App. LEXIS 631 (2004).

Premeditation inferred from wound. - Evidence of a mortal wound inflicted by a deadly weapon with little or no provocation creates an inference from which the trier of fact may conclude that the killer acted with premeditation. McNair v. Commonwealth, No. 0062-00-1, 2000 Va. App. LEXIS 784 (Ct. of Appeals Dec. 5, 2000).

Analysis of intent. - The intention to kill need not exist for any specified length of time prior to the actual killing; the design to kill may be formed only a moment before the fatal act is committed provided the accused had time to think and did intend to kill. In deciding the question, the jury may consider, among other things, the brutality of the attack and whether more than one shot was fired. Weeks v. Commonwealth, 248 Va. 460 , 450 S.E.2d 379 (1994), cert. denied, 516 U.S. 829, 116 S. Ct. 100, 133 L. Ed. 2d 55 (1995).

To constitute murder, the killing must be predetermined, yet the design to kill need not have existed for any particular length of time and may be formed at the moment of committing the act. Commonwealth v. Brown, 90 Va. 671 , 19 S.E. 447 (1894).

Unless committed by specific means enumerated in this section. - Murder committed by any of the specific means enumerated in the statute is murder in the first degree, whether there was any actual intent to kill or not. Howell v. Commonwealth, 67 Va. (26 Gratt.) 995 (1875). See Burgess v. Commonwealth, 4 Va. (2 Va. Cas.) 483 (1826); Whiteford v. Commonwealth, 27 Va. (6 Rand.) 721 (1828); Commonwealth v. Jones, 28 Va. (1 Leigh) 598 (1829).

Killing must be done on purpose and not by accident or without design. Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

Defendant's state of mind determines intent. - The exact state of the defendant's mind at the time of the killing is the crucial factor in determining intent. Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

The test of the criminal intent in the use of a deadly weapon is to be found, not in the manner in which or the purpose for which the previous possession of the weapon was acquired, but in its deliberate use for a deadly purpose. Adams v. Commonwealth, 163 Va. 1053 , 178 S.E. 29 (1935).

Motive is not an essential element of the crime of murder. Ward v. Commonwealth, 205 Va. 564 , 138 S.E.2d 293 (1964).

Motive has never been a requisite element of the crime of murder in Virginia. Cantrell v. Commonwealth, 229 Va. 387 , 329 S.E.2d 22 (1985).

Motive relevant to intent. - While motive is not an essential element of the crime of murder, motive is usually an element relevant to establish intent when a conviction is based primarily on circumstantial evidence. Smith v. Commonwealth, 220 Va. 696 , 261 S.E.2d 550 (1980).

Defendant's admission that a motive existed was a circumstance which the jury had a right to consider in determining if the murder of which he was accused was a willful, deliberate and premeditated act, one prompted by a cause or reason or by an inducement which moved the will and induced the action by the defendant. Smith v. Commonwealth, 220 Va. 696 , 261 S.E.2d 550 (1980).

While motive is not an essential element of the crime, it is relevant and often most persuasive upon the question of the actor's intent. Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

Striking with a walking stick held not to warrant presumption of intent to kill. McDaniel v. Commonwealth, 77 Va. 281 (1883).

Premeditation was not shown. - Where accused was an adult and the victim an infant, and the deceased suffered grievous injuries caused by a number of blows struck on several occasions, evidence was insufficient to show defendant acted with premeditated intent to kill since defendant did not conceal evidence or avoid the risk of detection and blame, but to the contrary, she initiated a call for medical help for a child who had suffered respiratory problems from birth. Rhodes v. Commonwealth, 238 Va. 480 , 384 S.E.2d 95 (1989).

Premeditation amply proved. - On probation, riding in a stolen vehicle, and possessing a weapon that the evidence showed had been used in a previous North Carolina murder, defendant shot the state trooper at virtually point blank range at least six times to avoid arrest. Several of the bullet wounds, according to the evidence, probably were the result of ricochet, indicating that the trooper may have been fired upon while lying on the pavement. These and other factors surrounding the killing amply proved premeditation. Weeks v. Commonwealth, 248 Va. 460 , 450 S.E.2d 379 (1994), cert. denied, 516 U.S. 829, 116 S. Ct. 100, 133 L. Ed. 2d 55 (1995).

Circuit court did not err in denying defendant's motion to strike a first-degree murder charge because a reasonable jury could have found that defendant underwent the necessary premeditation to commit first-degree murder; the attack was quite brutal, defendant attacked a pregnant woman, and he failed to demonstrate remorse. Riddick v. Commonwealth, No. 1102-07-1, 2008 Va. App. LEXIS 237 (May 13, 2008).

Neither premeditation nor an intent to kill is an element of felony-murder under this section. Wooden v. Commonwealth, 222 Va. 758 , 284 S.E.2d 811 (1981).

For a murder conviction, it is not necessary that the wounds, injuries or trauma be the direct cause of death. - It is sufficient if the initial wound, injury or trauma causes death indirectly through a chain of natural causes such as a defendant's beating death of a fellow inmate, which caused the fellow inmate to have a heart attack as well as suffer a brain injury from striking his head on the steel frame of a bunk bed. Wyche v. Commonwealth, No. 3113-02-1, 2004 Va. App. LEXIS 163 (Ct. of Appeals Apr. 6, 2004).

Felony-murder. - Defendant's conviction on a felony-murder theory was affirmed where the record established all the requisite elements that he confessed to a burglary as a principal in the first degree and the victim was murdered during commission of the offense, even though a codefendant's conviction had been reversed based on improperly admitted evidence. Smith v. Commonwealth, No. 2752-00-1, 2002 Va. App. LEXIS 124 (Ct. of Appeals Feb. 26, 2002).

Insufficient evidence of causation. - Evidence was insufficient as a matter of law to convict defendant under this section where the victim died of a cocaine overdose; taken in the light most favorable to the Commonwealth, the evidence did not exclude the hypothesis that the victim died as a result of an accidental or deliberate self-inflicted overdose. Betancourt v. Commonwealth, 26 Va. App. 363, 494 S.E.2d 873 (1998).

II. DEGREE OF MURDER.

A. FIRST AND SECOND DEGREE DISTINGUISHED.

Degree depends upon the intent. - Whether a homicide is murder in the first or second degree depends upon the intent of the prisoner at the time of the killing. Williams v. Commonwealth, 128 Va. 698 , 104 S.E. 853 (1920).

And whether the killing was willful, deliberate and premeditated. - The difference between murder in the first and murder in the second degree turns upon whether the homicide was wilful, deliberate and premeditated or not. Williams v. Commonwealth, 128 Va. 698 , 104 S.E. 853 (1920).

Every malicious homicide is murder. If in addition, the killing be wilful, deliberate and premeditated it is murder in the first degree. Sims v. Commonwealth, 134 Va. 736 , 115 S.E. 382 (1922).

Premeditation, or specific intent to kill, distinguishes murder in the first from murder in the second degree. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560.

To premeditate means to adopt a specific intent to kill, and that is what distinguishes first and second-degree murder. Smith v. Commonwealth, 220 Va. 696 , 261 S.E.2d 550 (1980).

Will and purpose to kill determines grade of offense. - It is the will and purpose to kill, not necessarily the interval of time, which determines the grade of the offense. Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

In Virginia, every homicide is presumed to be second degree murder. To elevate murder to first degree the Commonwealth must prove additional aggravating factors. Willis v. Commonwealth, 10 Va. App. 430, 393 S.E.2d 405 (1990).

Question for jury. - The question of whether a particular homicide is murder in the first or second degree is one of fact for the jury. Williamson v. Commonwealth, 180 Va. 277 , 23 S.E.2d 240 (1942); Plymale v. Commonwealth, 195 Va. 582 , 79 S.E.2d 610 (1954); Smith v. Commonwealth, 220 Va. 696 , 261 S.E.2d 550 (1980).

The determination of the grade or degree of homicide is a question for the jury. Painter v. Commonwealth, 210 Va. 360 , 171 S.E.2d 166 (1969); Perkins v. Commonwealth, 215 Va. 69 , 205 S.E.2d 385 (1974).

Determination of the degree is ordinarily a question for the jury. Hodges v. Commonwealth, 213 Va. 316 , 191 S.E.2d 794 (1972).

B. MURDER IN THE FIRST DEGREE.

There must be a premeditated design to kill. - As to willful, deliberate and premeditated killings, other than those enumerated in the statute, proof must be adduced to satisfy the mind that the death of the party slain was the ultimate result which the concurring will, deliberation and premeditation of the attempt sought. King v. Commonwealth, 4 Va. (2 Va. Cas.) 78 (1817); Whiteford v. Commonwealth, 27 Va. (6 Rand.) 721 (1828); Commonwealth v. Jones, 28 Va. (1 Leigh) 598 (1829); McDaniel v. Commonwealth, 77 Va. 281 (1883); Wells v. Commonwealth, 190 Va. 619 , 57 S.E.2d 898 (1950).

A willful, deliberate and premeditated killing is murder in the first degree. It must be a predetermined killing upon consideration, and not a sudden killing done in the momentary excitement and impulse of a passion which was engendered by adequate provocation. Bailey v. Commonwealth, 191 Va. 510 , 62 S.E.2d 28 (1950).

Only a homicide proved to be committed willfully, deliberately, and with premeditation constitutes first-degree murder. Cooper v. Mitchell, 647 F.2d 437 (4th Cir.), cert. denied, 454 U.S. 849, 102 S. Ct. 171, 70 L. Ed. 2d 139 (1981).

Without provocation recently received. - The premeditated design to kill need not have existed any particular length of time, but if the design at the time of killing was then formed, and the killing was done without provocation then or recently received, it is murder in the first degree. Whiteford v. Commonwealth, 27 Va. (6 Rand.) 721 (1828). See Commonwealth v. Jones, 28 Va. (1 Leigh) 598 (1829); Howell v. Commonwealth, 67 Va. (26 Gratt.) 995 (1875); Mitchell v. Commonwealth, 74 Va. (33 Gratt.) 872 (1880). See also Wright v. Commonwealth, 75 Va. 914 (1882); McDaniel v. Commonwealth, 77 Va. 281 (1883); Price v. Commonwealth, 77 Va. 393 (1883); Williams v. Commonwealth, 128 Va. 698 , 104 S.E. 853 (1920); Thompson v. Commonwealth, 131 Va. 847 , 109 S.E. 447 (1921); Bailey v. Commonwealth, 191 Va. 510 , 62 S.E.2d 28 (1950).

Intent to kill must come into existence at some time before killing; it need not exist for any particular length of time. Smith v. Commonwealth, 220 Va. 696 , 261 S.E.2d 550 (1980); Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

A measurable period of time for pondering need not have elapsed in order for a killing to be rendered first-degree murder. The intention to kill may have come into being only at the time of the killing and the act still be first-degree murder. It is the will and purpose to kill and not the interval of time which fixes the grade of the offense. Bailey v. Commonwealth, 191 Va. 510 , 62 S.E.2d 28 (1950); Hairston v. Commonwealth, 217 Va. 429 , 230 S.E.2d 626 (1976).

It is not the interval of time, but the will and purpose to kill which fixes the grade of the offense. Fuller v. Commonwealth, 201 Va. 724 , 113 S.E.2d 667 (1960); Akers v. Commonwealth, 216 Va. 40 , 216 S.E.2d 28 (1975).

To constitute willful, deliberate and premeditated murder, it is not necessary that the intent to kill exist for any particular length of time prior to the killing. The intent to kill may spring into existence for the first time at the time of the killing or at any time previously. Akers v. Commonwealth, 216 Va. 40 , 216 S.E.2d 28 (1975); Hairston v. Commonwealth, 217 Va. 429 , 230 S.E.2d 626 (1976); Beck v. Commonwealth, 2 Va. App. 170, 342 S.E.2d 642 (1986).

In first-degree murder, the intent to kill must come into existence at some time before the killing; it need not exist for any particular length of time. Smith v. Commonwealth, 220 Va. 696 , 261 S.E.2d 550 (1980).

Premeditation need not exist for any particular length of time; an intent to kill may be formed at the moment of the commission of the unlawful act. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

It is the will and purpose to kill, not necessarily the interval of time, which determine the grade of homicide. Smith v. Commonwealth, 220 Va. 696 , 261 S.E.2d 550 (1980).

To constitute a willful, deliberate and premeditated homicide, the intention to kill need not exist for any specified length of time prior to the actual killing. Giarratano v. Commonwealth, 220 Va. 1064 , 266 S.E.2d 94 (1980).

A design to kill may be formed only a moment before the fatal act is committed provided the accused had time to think and did intend to kill. Giarratano v. Commonwealth, 220 Va. 1064 , 266 S.E.2d 94 (1980); Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

In finding first-degree murder, the fact finder need not have found that defendant harbored the intent to kill for any particular time prior to its enactment. The intent to kill may arise prior to or at the time of the murder. Beck v. Commonwealth, 2 Va. App. 170, 342 S.E.2d 642 (1986).

To establish premeditation, the intent to kill need only exist for a moment. McNair v. Commonwealth, No. 0062-00-1, 2000 Va. App. LEXIS 784 (Ct. of Appeals Dec. 5, 2000).

Anger does not necessarily preclude premeditation. Bailey v. Commonwealth, 193 Va. 814 , 71 S.E.2d 368 (1952).

A killing in anger without provocation or upon very slight provocation may still be murder in the first degree. Bailey v. Commonwealth, 193 Va. 814 , 71 S.E.2d 368 (1952).

The intent to kill need not be directed against any specific person. - If it be an intent to kill any person who may attempt a certain thing, and one is killed because he attempted that thing, the intent is the same as if it were directed against that specific person. Williams v. Commonwealth, 128 Va. 698 , 104 S.E. 853 (1920).

Murder by enumerated means is murder in first degree. - Murder by poison, lying in wait, imprisonment, starving or any willful, deliberate, and premeditated killing, or in the commission of, or attempt to commit arson, rape, robbery, or burglary, is murder in the first degree. Commonwealth v. Jones, 28 Va. (1 Leigh) 598 (1829); Harrison v. Commonwealth, 79 Va. 374 (1884); Stapleton v. Commonwealth, 123 Va. 825 , 96 S.E. 801 (1918).

Murder by enumerated means. - As to murder by poison, see Commonwealth v. Jones, 28 Va. (1 Leigh) 598 (1829); Hatchett v. Commonwealth, 76 Va. 1026 (1882); Hicks v. Commonwealth, 86 Va. 223 , 3 S.E. 1024 (1889). As to murder by lying in wait, see Commonwealth v. Jones, 28 Va. (1 Leigh) 598 (1829). As to murder by imprisonment, confinement or starvation, see Commonwealth v. Jones, 28 Va. (1 Leigh) 598 (1829).

In a case in which defendant had been convicted of first-degree murder and the Commonwealth moved for a rehearing, asking that the court reconsider its holding that the evidence did not prove premeditation, the Commonwealth was correct that § 18.2-32 did not require proof of premeditation for first-degree murder by starvation. Murder by starvation was one of the enumerated crimes. Welch v. Commonwealth,, 2005 Va. App. LEXIS 540 (Oct. 18, 2005).

Whether there was intent to kill or not. - Murder committed by any of the specific means enumerated in the statute is murder in the first degree, whether there was any actual intent to kill or not. Howell v. Commonwealth, 67 Va. (26 Gratt.) 995 (1875).

Imprisonment may be with a view to reducing the victim to the necessity of yielding to some proposed conditions, as well as a punishment for the failure of prompt obedience, without any certain and final determination to destroy life. Gilreath v. Robinson, 544 F. Supp. 569 (E.D. Va. 1982), aff'd, 705 F.2d 109 (4th Cir. 1983), decided under former § 18.1-21.

In cases of imprisonment, as with poisoning and the other enumerated actions, the underlying legislative intent was to hold the perpetrator guilty of first-degree murder without further proof that the death was the ultimate result, which the will, deliberation, and premeditation of the party accused sought. Gilreath v. Robinson, 544 F. Supp. 569 (E.D. Va. 1982), aff'd, 705 F.2d 109 (4th Cir. 1983), decided under former § 18.1-21.

Homicide committed in course of robbery. - Where the intention of the defendants changed from the commission of larceny to robbery to accomplish their original purpose by overcoming a property owner's interference with the taking, and homicide was committed in the course thereof, then the homicide may be first-degree murder. Durham v. Commonwealth, 214 Va. 166 , 198 S.E.2d 603 (1973).

Murder in an attempted robbery violates this section, but not § 18.2-31 , the capital-murder statute. Ball v. Commonwealth, 221 Va. 754 , 273 S.E.2d 790 (1981).

Even if unintentional. - Even an unintentional killing during a robbery or an attempted robbery violates this section and is punishable as murder of the first degree. Ball v. Commonwealth, 221 Va. 754 , 273 S.E.2d 790 (1981).

Conviction of both murder and robbery. - The clear conclusion of the trial court, sitting without a jury, that defendant was a principal in the second degree to a willful, deliberate and premeditated killing provided an independent statutory basis for his first-degree murder conviction, apart from any association with or relation to the crime of robbery out of which course of action the killing arose, and defendant could be convicted of both murder and robbery. Simpson v. Commonwealth, 221 Va. 109 , 267 S.E.2d 134 (1980).

When felony-murder statute applies. - The felony-murder statute applies where the killing is so closely related to the felony in time, place, and causal connection as to make it a part of the same criminal enterprise. Haskell v. Commonwealth, 218 Va. 1033 , 243 S.E.2d 477 (1978).

Question of fact. - Whether a homicide committed during escape from a felony comes within the felony-murder statute usually will present an issue of fact to be determined from the evidence. Haskell v. Commonwealth, 218 Va. 1033 , 243 S.E.2d 477 (1978).

Defendant's activities prior to breaking and entering and subsequent thereto provided sufficient evidence of his intent to kill at the time of entry, where he had threatened to kill the victim the previous week, in a statement given to the police he stated: "I remember taking the glass out to get in because I wanted to see my kids for the last time," he took with him to the victim's apartment a screwdriver and a carpenter's knife, upon entry, he obtained a larger knife from the kitchen, he confessed to the killing, physical evidence demonstrated 18 knife wounds, including seven fatal wounds inflicted both in the chest and back, blood was splattered over the entire apartment, upstairs and down, the upstairs phone was unplugged and blood stained, and blood was splattered in the area of the phone downstairs. Patterson v. Commonwealth, No. 0819-85 (Ct. of Appeals July 30, 1986).

The trial court properly considered, as evidence of premeditation, the manner of death as well as the circumstances surrounding the death. The fact that the decedent died from manual strangulation and suffocation, which in themselves required some prolonged physical effort by appellant, coupled with the same facts which identified defendant as the criminal agent, were relevant to the determination whether defendant acted willfully, deliberately and with premeditation. Beck v. Commonwealth, 2 Va. App. 170, 342 S.E.2d 642 (1986).

Evidence supported first degree murder instruction. - Where trial judge give instructions on first and second degree murder, there was evidence to support a first degree murder instruction; the jury could have found that the shots were fired by appellant in a fearful response to the victim reaching under the counter; from this, the jury could have found that the killing was not willful, deliberate and premeditated; under these circumstances, the court properly instructed the jury as to the crime of felony murder, and felony murder under these circumstances is murder in the first degree. Moats v. Commonwealth, 12 Va. App. 349, 404 S.E.2d 244 (1991).

Sentence upheld. - Defendant's sentence to life in prison for first-degree murder was not an abuse of discretion because the sentence was within the statutory range in §§ 18.2-32 and 18.2-10 . Johnson v. Commonwealth, 63 Va. App. 175, 755 S.E.2d 468, 2014 Va. App. LEXIS 106 (2014), aff'd, 793 S.E.2d 326, 2016 Va. LEXIS 186 (2016).

C. MURDER IN THE SECOND DEGREE.

Homicide is presumed to be murder in second degree. McDaniel v. Commonwealth, 77 Va. 281 (1883); Bradshaw v. Commonwealth, 174 Va. 391 , 4 S.E.2d 752 (1939); Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

Every homicide is prima facie a case of murder in the second degree. And it is incumbent upon the Commonwealth where the offense was not committed by any of the specific means enumerated in the statute in order to elevate it to murder in the first degree, to prove by evidence, either direct or circumstantial, beyond rational doubt, that the killing was "willful, deliberate and premeditated." And on the other hand, the burden is upon the accused, if he would reduce the offense below murder in the second degree, to show the absence of malice and the other mitigating circumstances necessary for that purpose. Painter v. Commonwealth, 210 Va. 360 , 171 S.E.2d 166 (1969).

Every unlawful homicide is presumed to be murder in the second degree, and an instruction to that effect is usually necessary in a homicide case. But it is not always necessary. Painter v. Commonwealth, 210 Va. 360 , 171 S.E.2d 166 (1969).

Every homicide is presumed to be murder in the second degree, the burden resting on the accused to reduce it and on the Commonwealth to elevate it to murder in the first degree. Hodges v. Commonwealth, 213 Va. 316 , 191 S.E.2d 794 (1972); Evans v. Commonwealth, 215 Va. 609 , 212 S.E.2d 268 (1975).

In Virginia, every unlawful homicide is "presumed" to be murder in the second degree. The so-called "presumption," however, amounts to no more than an "inference" which the trier of fact is permitted, but is not required, to draw from proven facts. The constitutional guarantee of due process is protected if the evidence necessary to invoke the presumption or inference is sufficient for a rational juror to find the presumed or inferred fact beyond a reasonable doubt. Bell v. Commonwealth, 2 Va. App. 48, 341 S.E.2d 654 (1986).

The intention to kill is not essential. - In all cases of slight and insufficient provocation, if it may be reasonably inferred from the weapon made use of, or the manner of using it, or from any other circumstance that the party intended merely to do some great bodily harm, such homicide will be murder in the second degree in like manner as if no provocation had been given, but not a case of murder in the first degree. McDaniel v. Commonwealth, 77 Va. 281 (1883).

Second degree murder does not require a willful, deliberate and premeditated act; it is defined simply as a malicious killing. Maddox v. Commonwealth, No. 1129-99-4, 2000 Va. App. LEXIS 575 (Ct. of Appeals Aug. 1, 2000).

Conviction of second-degree murder for beating death of child. - See Evans v. Commonwealth, 215 Va. 609 , 212 S.E.2d 268 (1975).

Principles governing second-degree murder conviction based upon use of an automobile are the same as those which apply to any other kind of second-degree murder: The victim must be shown to have died as a result of the defendant's conduct, and the defendant's conduct must be shown to be malicious. In the absence of express malice, this element may only be implied from conduct likely to cause death or great bodily harm, willfully or purposefully undertaken. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Evidence supported second degree murder. - Viewed in the light most favorable to the Commonwealth, where the evidence proved the defendant struck the back of the victim's head five times with an object, causing impressed skull fractures, the brutal and vicious nature of the killing was evidence from which the trial judge could infer malice; the evidence supported second-degree murder. Tratzinski v. Commonwealth, No. 0419-02-2, 2003 Va. App. LEXIS 158 (Ct. of Appeals Mar. 25, 2003).

Evidence was sufficient to support defendant's conviction for second-degree murder, despite her claim that she could not be found guilty of any crime greater than voluntary manslaughter, as it showed that she was an active and joint participant in the beating death of the victim; indeed, the evidence showed that she struck defendant on the back of the head with a metal folding chair before he was beaten to death, that she told an inquiring neighbor that what was going on was none of his business, that she cleaned blood off of her two "co-actors" after the beating, and that she lied to police when they investigated the death. Whitehead v. Commonwealth,, 2006 Va. App. LEXIS 89 (Mar. 14, 2006).

Direct eyewitness testimony of two witnesses identifying defendant as the gunman was not inherently incredible as a matter of law and was, thus, sufficient to support defendant's convictions for second-degree murder, in violation of § 18.2-32 , and use of a firearm in the commission of murder, in violation of § 18.2-53.1 . The witnesses' testimony was corroborated by other testimony and the physical evidence, including shell casings recovered from the scene of the murder. Jones v. Commonwealth,, 2007 Va. App. LEXIS 265 (July 17, 2007).

Evidence, while primarily circumstantial, supported the fact finder's determination that defendant was a principal in the second degree to the crimes of murder, malicious wounding, and use of a firearm during the commission of a felony because the fact finder could conclude that after having left a convenience store and returning to his father's car, defendant followed the victims back into the store and confronted one of them with the accusation that he touched or hit the father's car, and defendant's repeated questioning and interaction drew the victims towards the car, exposing them to the father's gunfire; the evidence further supported the jury's finding that defendant's conduct was knowingly in furtherance of the commission of the father's crime because rather than expressing surprise, fleeing, or intervening when the shots were fired, defendant stood by observing his father shoot the victims. Stagg v. Commonwealth,, 2010 Va. App. LEXIS 416 (Oct. 26, 2010).

Evidence supported attempted second degree murder. - Evidence was sufficient to support defendant's conviction for the attempted second-degree murder of a victim, and under the doctrine of transferred intent, this same evidence supported defendant's conviction for the attempted second-degree murder of a witness's daughter. The testimony of the witness, coupled with tire marks left in the grass by defendant's vehicle, supported a finding that defendant struck the victim and the witness's daughter when they were at a location in the grass more than six feet from the edge of a roadway. Patrick v. Commonwealth,, 2008 Va. App. LEXIS 231 (May 13, 2008).

III. TRIAL.

A. INDICTMENT.

An indictment in the common-law form for murder is good and will support a conviction for murder in the first or second degree, or manslaughter. Livingston v. Commonwealth, 55 Va. (14 Gratt.) 592 (1857); cited in Bull v. Commonwealth, 55 Va. (14 Gratt.) 613 (1857); Cluverius v. Commonwealth, 81 Va. 787 (1886); Kibler v. Commonwealth, 94 Va. 804 , 26 S.E. 858 (1897). See, in accord, Commonwealth v. Miller, 3 Va. (1 Va. Cas.) 310 (1812); Wicks v. Commonwealth, 4 Va. (2 Va. Cas.) 387 (1824); Thompson v. Commonwealth, 61 Va. (20 Gratt.) 724 (1870). See also Thurman v. Commonwealth, 107 Va. 912 , 60 S.E. 99 (1908).

Where the indictment was sufficient to convict on first as well as second-degree murder, the petitioner's plea of guilty was a plea of guilty to first-degree murder. Davis v. Slayton, 353 F. Supp. 571 (W.D. Va. 1973).

Manner of killing. - Under an indictment for murder in the form prescribed by § 19.2-221 or Rule 3A:7, Form 5, the Commonwealth may prove a killing in any manner or in different manners. Thus, the Commonwealth was not required to elect whether it was proceeding against the defendant on the theory that the killing was willful, deliberate and premeditated or under the felony-murder doctrine that the killing occurred in the commission of an abduction. Akers v. Commonwealth, 216 Va. 40 , 216 S.E.2d 28 (1975).

Must charge that killing was done with "malice aforethought." - In an indictment for murder, it is indispensable that the killing and murder should be charged to be done with "malice aforethought." And if the assault and stabbing be charged to have been done with "malice aforethought" and the conclusion substitutes for those words the word "maliciously," the indictment is not sufficient. Commonwealth v. Gibson, 4 Va. (2 Va. Cas.) 70 (1817).

But it may omit words "deliberately" and "premeditate." - In an indictment for murder, the omission of the word "deliberately," will not be fatal on general demurrer. Bull v. Commonwealth, 55 Va. (14 Gratt.) 613 (1857). Nor omission of the word "premeditate." Weatherman v. Commonwealth, 1 Va. Dec. 819, 19 S.E. 778 (1894). See Livingston v. Commonwealth, 55 Va. (14 Gratt.) 592 (1857).

The deletion from an indictment of the words "willfully, deliberately and premeditatedly," and the inclusion of the phrase "during the commission of robbery while armed with a deadly weapon" did not constitute a binding prosecutorial commitment to prove first-degree murder under this section solely through the mechanism of proving a robbery. Simpson v. Commonwealth, 221 Va. 109 , 267 S.E.2d 134 (1980).

Defects as to time are not fatal. - The decisions holding that the defect in the indictment as to the elements of time is fatal were prior to § 19.2-231 as it now reads. Prior to this time there could be no amendment after the indictment was returned by the grand jury. Section 19.2-231 changed this rule. Woods v. Commonwealth, 140 Va. 491 , 124 S.E. 468 (1924).

And it is not error to set out dates in figures. Lazier v. Commonwealth, 51 Va. (10 Gratt.) 708 (1853).

Or to designate the name of murdered person by initials. - An indictment concluding "against the peace and dignity of the Commonwealth of Virginia," and designating the murdered person by the initials of his name, though not signed by the Commonwealth's attorney is sufficient. Brown v. Commonwealth, 86 Va. 466 , 10 S.E. 745 (1890).

It is not necessary to set out the length, breadth or depth of the wound. Lazier v. Commonwealth, 51 Va. (10 Gratt.) 708 (1853).

Nor is it necessary to specify the kind of missile used. - An averment that the killing was done with a loaded shotgun would have been sufficient without specifying the kind of missiles employed. Green v. Commonwealth, 122 Va. 862 , 94 S.E. 940 (1918).

Or that accused knew the killing substance was a deadly poison. - In an indictment for murder by poison, it is not necessary to charge that the accused knew the substance alleged to have been used in producing death was a deadly poison. Thornton v. Commonwealth, 65 Va. (24 Gratt.) 657 (1874).

Amendment properly denied. - In prosecution for first-degree murder it was held proper under the evidence for the court to deny motion to amend indictment to charge only manslaughter. Bailey v. Commonwealth, 193 Va. 814 , 71 S.E.2d 368 (1952).

Prosecution's switch of theories on retrial does not violate due process. - The prosecution's switch on retrial of petitioner for murder from a theory of premeditated murder in petitioner's original trial to a theory of felony murder in petitioner's retrial did not violate petitioner's due process rights, as petitioner's indictment gave him adequate notice that he might be tried for felony murder, and the evidence at petitioner's first trial was substantially the same as that at his retrial. Moore v. Garraghty, 739 F. Supp. 285 (E.D. Va. 1990), aff'd, 932 F.2d 963 (4th Cir. 1991).

B. DEFENSES.

1. SELF-DEFENSE.

Self-defense is an affirmative defense and the state may cast upon the accused the burden of proving self-defense. Baker v. Muncy, 619 F.2d 327 (4th Cir. 1980).

Defense must be necessary to protect against grievous bodily harm. - To make out a case of self-defense in a case of homicide, the accused must show to the jury that the defense was necessary to protect his own life, or to protect himself against grievous bodily harm. Vaiden v. Commonwealth, 53 Va. (12 Gratt.) 717 (1855); Clark v. Commonwealth, 90 Va. 360 , 18 S.E. 440 (1893). See Brown v. Commonwealth, 86 Va. 466 , 10 S.E. 745 (1890).

And the necessity must not arise out of accused's misconduct. - With regard to the necessity that will justify the slaying of another in self-defense, the accused must not have wrongfully occasioned the necessity, for a man shall not in any case justify the killing of another by a pretense of necessity, unless he were without fault in bringing that necessity upon himself. Vaiden v. Commonwealth, 53 Va. (12 Gratt.) 717 (1855); Bristow v. Commonwealth, 56 Va. (15 Gratt.) 634 (1859); Lewis v. Commonwealth, 78 Va. 732 (1884); Honesty v. Commonwealth, 81 Va. 283 (1886); Gaines v. Commonwealth, 88 Va. 682 , 14 S.E. 375 (1892); Clark v. Commonwealth, 90 Va. 360 , 18 S.E. 440 (1893); Gray v. Commonwealth, 92 Va. 772 , 22 S.E. 858 (1895); Jackson v. Commonwealth, 98 Va. 845 , 36 S.E. 487 (1900); McCoy v. Commonwealth, 125 Va. 771 , 99 S.E. 644 (1919); Bausell v. Commonwealth, 165 Va. 669 , 181 S.E. 453 (1935). See Looney v. Commonwealth, 115 Va. 921 , 78 S.E. 625 (1913).

Homicide in self-defense may be either justifiable or excusable. If it is either, it entitles the prisoner to an acquittal. But if the difficulty is brought about by the accused and he finds that it is necessary to kill his assailant in order to save his own life, such killing is not in the eye of the law excusable. Sims v. Commonwealth, 134 Va. 736 , 115 S.E. 382 (1922).

Accused must retreat as far as he safely can before killing. - When a man is assaulted in the course of a sudden brawl or quarrel, he may in some cases protect himself by slaying the person who assaults him, and excuse himself on the ground of self-defense. Before a party thus assaulted, however, can kill his adversary, he must have retreated as far as he safely could to avoid the assault, until his further going back was prevented by some impediment, or as far as the fierceness of the assault permitted. He must show to the jury that the defense was necessary to protect his own life, or to protect himself against grievous bodily harm. Vaiden v. Commonwealth, 53 Va. (12 Gratt.) 717 (1855).

Justified self-defense applies if the defendant was without fault in bringing on the altercation. Epps v. Commonwealth, No. 2921-02-3, 2003 Va. App. LEXIS 641 (Ct. of Appeals Dec. 16, 2003).

Failure to retreat. - Defendant's conviction for first-degree murder was proper because defendant's own testimony revealed that he did not retreat as far as possible; additionally, when the victim, without a weapon and wounded by a shotgun, was on the ground after a blow from defendant, defendant was not acting out of a reasonably apparent necessity to preserve his own life. Accordingly, the trial court did not err when it denied defendant's motion to strike on the basis of excusable homicide in self-defense. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

To reduce the offense to killing in self-defense the accused must prove two things, to wit: (1) that before the mortal blow was given he declined further combat, and retreated as far as he could with safety; and (2) that he killed the deceased through the necessity of preserving his life or to save himself from great bodily harm. Vaiden v. Commonwealth, 53 Va. (12 Gratt.) 717 (1855); Dock v. Commonwealth, 62 Va. (21 Gratt.) 909 (1872); Clark v. Commonwealth, 90 Va. 360 , 18 S.E. 440 (1894).

Distinction between accident and self-defense. - The defense that a killing was accidental presents a different issue from a claim that a killing was done in self-defense; in making a claim of self-defense a defendant implicitly admits the killing was intentional and assumes the burden of introducing evidence of justification or excuse that raises a reasonable doubt in the minds of jurors. Bowler v. Commonwealth, No. 0404-99-4, 2000 Va. App. LEXIS 207 (Ct. of Appeals Mar. 21, 2000).

Death may result accidentally from action taken in self-defense and, under such circumstances, defenses of accident and self-defense are not mutually exclusive and instructions on both defenses should be given upon request. Bowler v. Commonwealth, No. 0404-99-4, 2000 Va. App. LEXIS 207 (Ct. of Appeals Mar. 21, 2000).

Unless assaulted while in the discharge of a lawful act. - A person assaulted while in discharge of a lawful act, and reasonably apprehending that his assailant will do him bodily harm, has the right to repel the assault by all force he deems necessary and is not compelled to retreat from his assailant, but may in turn become the assailant, inflicting bodily wounds until his person is out of danger. Jackson v. Commonwealth, 96 Va. 107 , 30 S.E. 452 (1898); McCoy v. Commonwealth, 125 Va. 771 , 99 S.E. 644 (1919).

There must be an overt act by deceased to warrant a killing. - There must be some act by the deceased meaning present peril, or something in the attending circumstances indicative of a present purpose to make the apprehended attack. The act so done, or circumstances thus existing, must be of such a character as to afford a reasonable ground for believing there is a design to commit a felony, or to do some serious bodily harm, and imminent danger of carrying such design into immediate execution. Then the killing will be justifiable, though there was in fact no such design by the deceased. Stoneman v. Commonwealth, 66 Va. (25 Gratt.) 887 (1874).

For fear alone that a man intends to commit murder will not suffice. - The bare fear that a man intends to commit murder or other atrocious felony, however well grounded, unaccompanied by any overt act indicative of any such intention will not warrant killing the party by way of prevention. There must be some overt act indicative of imminent danger at the time. Stoneman v. Commonwealth, 66 Va. (25 Gratt.) 887 (1874).

Whether the defendant shot in self-defense depends on whether he reasonably believed that it was necessary to shoot as he did in order to save his own life or avoid serious bodily harm. Fear alone would not excuse the killing. There must have been some overt act by the deceased indicative of imminent danger at the time. Boone v. Commonwealth, 195 Va. 708 , 80 S.E.2d 412 (1954).

An overt act of sufficient imminence. - In a first degree murder prosecution, where the victim had a history of assaulting defendant, and had allegedly assaulted her and refused to leave her residence, his allegedly advancing towards her after threatening her was an overt act of sufficient imminence on his part that would warrant her to use deadly force in self-defense. Thus, the trial court erred in denying her proffered self-defense instruction. Commonwealth v. Cary, 271 Va. 87 , 623 S.E.2d 906, 2006 Va. LEXIS 22 (2006).

A person reasonably apprehending attack has a right to arm himself for his necessary self-defense. Stapleton v. Commonwealth, 123 Va. 825 , 96 S.E. 801 (1918).

As to distinction between killing in self-defense proper and accidental or unintentional killing while in the exercise of self-defense, see Braxton v. Commonwealth, 195 Va. 275 , 77 S.E.2d 840 (1953).

As to admissibility of evidence of decedent's prior character, see notes under analysis line III, C, 2.

As to issue of remoteness of evidence showing decedent's prior character, see note under analysis line III, C, 3.

The trier of fact determines the weight of evidence in support of a claim of self-defense. Gardner v. Commonwealth, 3 Va. App. 418, 350 S.E.2d 229 (1986).

2. DRUNKENNESS AND INSANITY.

Effect of intoxication on ability to commit first degree murder. - When a man has become so greatly intoxicated as not to be able to deliberate and premeditate, he cannot commit murder of the first degree, or that class of murder under the statute denominated a willful, deliberate and premeditated killing. But so long as he retains the faculty of willing, deliberating and premeditating, though drunk, he is capable of committing murder in the first degree; and if a drunk man is guilty of a willful, deliberate and premeditated killing, he is guilty of murder in the first degree. Hatcher v. Commonwealth, 218 Va. 811 , 241 S.E.2d 756 (1978).

A person who voluntarily has become so intoxicated as to be unable to deliberate and premeditate cannot commit any class of murder that is defined as a willful, deliberate and premeditated killing. Giarratano v. Commonwealth, 220 Va. 1064 , 266 S.E.2d 94 (1980).

Mere intoxication from drugs or alcohol will not suffice to negate premeditation. Giarratano v. Commonwealth, 220 Va. 1064 , 266 S.E.2d 94 (1980).

Voluntary drunkenness will not reduce offense to manslaughter. - "Voluntary immediate drunkenness is not admissible to disprove malice, or to reduce the offense to manslaughter. But where, by reason of it, there is wanting that deliberation and premeditation which are necessary to elevate the offense to murder in the first degree, it is properly ranked as murder in the second degree, as the courts have repeatedly decided." Willis v. Commonwealth, 73 Va. (32 Gratt.) 929 (1879). See also Honesty v. Commonwealth, 81 Va. 283 (1886).

Mere intoxication will not negate premeditation. However, when a person voluntarily becomes so intoxicated that he is incapable of deliberation or premeditation, he cannot commit a class of murder that requires proof of a deliberate and premeditated killing. Wright v. Commonwealth, 234 Va. 627 , 363 S.E.2d 711 (1988).

While a person who has become so intoxicated as to be unable to deliberate and premeditate cannot commit any class of murder that is defined as a willful, deliberate, and premeditated killing, mere intoxication from drugs or alcohol will not suffice to negate premeditation. Jenkins v. Commonwealth, 244 Va. 445 , 423 S.E.2d 360 (1992), cert. denied, 507 U.S. 1036, 113 S. Ct. 1862, 123 L. Ed. 2d 483 (1993), overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Where defendant was charged with first-degree murder by lying in wait, the trial court did not abuse its discretion in granting the Commonwealth's motion to exclude any evidence of his alleged intoxication at the time of the offense; because premeditation was not an element of first-degree murder by lying in wait, any evidence of voluntary intoxication offered to negate premeditation would be irrelevant. Tisdale v. Commonwealth, 65 Va. App. 478, 778 S.E.2d 554, 2015 Va. App. LEXIS 329 (2015).

But is admissible to show the murder was not premeditated. - "Drunkenness is only entitled to weight when and so far as it tends to show that the offender did not act in a frame of mind to act with that determination and premeditation which is necessary to constitute murder in the first degree. Great caution is required in applying this doctrine because there are few cases of premeditated violent homicide in which the defendant does not nerve himself to the encounter by liquor." Willis v. Commonwealth, 73 Va. (32 Gratt.) 929 (1879). See Baccigalupo v. Commonwealth, 74 Va. (33 Gratt.) 807 (1880); Honesty v. Commonwealth, 81 Va. 283 (1886).

Voluntary drunkenness (as distinguished from permanent insanity produced by drink) affords no excuse for crime, save only that where premeditation is a material question the intoxication of the accused may be considered by the jury. As between murder in the first degree and murder in the second degree, voluntary drunkenness may be a legitimate subject of inquiry; but, as between murder in the second degree and manslaughter, it is never material and cannot be considered. Gills v. Commonwealth, 141 Va. 445 , 126 S.E. 51 (1925).

Voluntary intoxication is material to the element of premeditation and may be found to have negated it. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

The defendant may negate the specific intent requisite for capital or first-degree murder by showing that he was so greatly intoxicated as to be incapable of deliberation or premeditation, but voluntary intoxication is no defense to the lesser degrees of homicide, or to any other crime. Particularly, his state of intoxication, however great, will not repel an inference of malice, implied by the circumstances surrounding his conduct. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

When partial insanity is no defense. - In every case, although the accused may be laboring under partial insanity, if he still understands the nature and character of his act, and its consequences, and has a knowledge that it is wrong and criminal, and a mental power sufficient to apply that knowledge to his own case, and to know that if he does the act he will do wrong and receive punishment, and possesses withal a will sufficient to restrain the impulse that may arise from a diseased mind, such partial insanity is not sufficient to exempt him from responsibility to the law for his crime. Dejarnette v. Commonwealth, 75 Va. 867 (1881).

The doctrine of irresistible impulse is applicable only where the defendant knows that the act is wrong but is driven by an irresistible impulse to commit it. Thompson v. Commonwealth, 193 Va. 704 , 70 S.E.2d 284 (1952).

The irresistible impulse doctrine is applicable only to that class of cases where the accused is able to understand the nature and consequences of his act and knows it is wrong, but his mind has become so impaired by disease that he is totally deprived of the mental power to control or restrain his act. Thompson v. Commonwealth, 193 Va. 704 , 70 S.E.2d 284 (1952); McLane v. Commonwealth, 202 Va. 197 , 116 S.E.2d 274 (1960); Christian v. Commonwealth, 202 Va. 311 , 117 S.E.2d 72 (1960).

In prosecution for homicide although instruction to the effect that the only degree of insanity the law recognizes as an excuse for a crime is that determined by the "right and wrong test" was inaccurate, the failure to include in such instruction the doctrine of irresistible impulse did not constitute reversible error as applied to the evidence in the case. Thompson v. Commonwealth, 193 Va. 704 , 70 S.E.2d 284 (1952).

The defense of irresistible impulse is applicable only where the accused's mind has become so impaired by disease that he is totally deprived of the mental power to control or restrain his act. Godley v. Commonwealth, 2 Va. App. 249, 343 S.E.2d 368 (1986).

How sanity to be determined. - Defendant in murder prosecution was, under the evidence, entitled to have the question of his sanity determined by a fair and impartial jury, uninfluenced or affected by any testimony except that produced in open court. Thompson v. Commonwealth, 193 Va. 704 , 70 S.E.2d 284 (1952).

Burden on accused to show he was rendered incapable of doing premeditated act by drunkenness. - The onus rests on accused to prove, if he relies on intoxication as a defense, that when he committed the offense his condition, from intoxication was such as to render him incapable of doing a willful, deliberate and premeditated act. And so of insanity. Both must be proved as independent facts. Honesty v. Commonwealth, 81 Va. 283 (1886).

Burden on accused to show insanity. - If the accused relies on the defense of insanity, the burden is on him to prove to the satisfaction of the jury that he was insane at the time. Reasonable doubt as to his insanity is not enough to excuse him. Thompson v. Commonwealth, 193 Va. 704 , 70 S.E.2d 284 (1952).

The accused has the burden of proving that he was insane when the offense was committed. Bloodgood v. Commonwealth, 212 Va. 253 , 183 S.E.2d 737 (1971).

When the corpus delicti has been established and proof adduced that the accused committed the act it is not sufficient for the accused to raise a reasonable doubt as to his sanity; he must go one step further and prove to the satisfaction of the jury that he was insane at the time of the commission of the act. Jones v. Commonwealth, 202 Va. 236 , 117 S.E.2d 67 (1960); Christian v. Commonwealth, 202 Va. 311 , 117 S.E.2d 72 (1960).

The Commonwealth having established the corpus delicti and that the act was committed by the defendant, had made out its case, and the burden rested upon the accused to prove to the satisfaction of the jury that at the time of the commission of the act he was insane. This burden rests upon the accused by reason of the presumption of law that every person of the age of discretion is of sound mind. Lucas v. Commonwealth, 201 Va. 599 , 112 S.E.2d 915 (1960).

Effect of expert testimony. - Although the Commonwealth produced no expert testimony, the jurors were not bound to accept the testimony of defendant's expert to the effect that defendant committed the crime under an "irresistible impulse." The evidence of an expert witness should be given the same consideration as is given that of any other witness, considering his opportunity for knowledge of the subject, his appearance, conduct, and demeanor on the stand. McLane v. Commonwealth, 202 Va. 197 , 116 S.E.2d 274 (1960).

Opinion of lay witness. - It was improper, though not reversible error, to admit the opinion of a lay witness as to whether defendant acted "like he was out of his mind." Jones v. Commonwealth, 202 Va. 236 , 117 S.E.2d 67 (1960).

Issue of sanity held for the jury even though medical witnesses were unable to state an opinion as to whether or not defendant was insane at the time of the crime. Lucas v. Commonwealth, 201 Va. 599 , 112 S.E.2d 915 (1960).

Instruction on partial insanity upheld. - An instruction is not misleading or confusing which plainly tells the jury that although the defendant may be laboring under partial insanity, if he still understands the nature and character of his act and its consequences, and has knowledge that it is wrong and criminal and has mental power sufficient to apply that knowledge to his own case, and has knowledge sufficient to know that if he does the act he will do wrong and receive punishment, and possesses a will sufficient to restrain the impulse that may arise from a diseased mind, that such partial insanity is not sufficient to exempt him from responsibility to the law for his crime. Jones v. Commonwealth, 202 Va. 236 , 117 S.E.2d 67 (1960).

Intoxication held not so great to render defendant incapable of premeditated murder. - Where defendant was at his mother's home before the murder and had the ability to talk with her and determine that he wanted to visit his children, who were living with the victim, although at an inappropriate hour; he had the mental capacity to determine that he would need a screwdriver and a carpenter's knife to get into the victim's apartment; he was able to walk to her residence four or five blocks away and then use the tools he brought with him to break and enter the door; he decided that he might need a butcher knife and found his way to the kitchen to obtain it; he went to the victim's bedroom and discussed with her the visitation of the children; and after the killing he was able to go to the telephone, dial the police, and report that he had killed the victim, the defendant's level of intoxication from alcohol and drug use was not so great as to render him incapable of committing a deliberate and premeditated murder. Patterson v. Commonwealth, No. 0819-85 (Ct. of Appeals July 30, 1986).

Voluntary intoxication defense rejected. - Defendant's conviction for first-degree murder was proper because, by his own testimony, it was clear that on the day in question he comprehended what was occurring; he recalled the chain of events and he articulated reasons for his reaction to the developing situation in a way that supported a finding that he was capable of deliberation despite his consumption of intoxicants. Accordingly, the trial court did not err when it denied defendant's motion to strike the charge of first-degree murder on the grounds that he was voluntarily intoxicated. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

3. OTHER DEFENSES.

A homicide committed to prevent a felony is justifiable. Cooke v. Commonwealth, 114 Va. 882 , 77 S.E. 608 (1913).

Duress. - A person subject to duress may justifiably violate the literal language of the criminal law in order to avoid a harm of greater magnitude. Sam v. Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991).

To support a defense of duress, a defendant must demonstrate that his criminal conduct was the product of an unlawful threat that caused him reasonably to believe that performing the criminal conduct was his only reasonable opportunity to avoid imminent death or serious bodily harm, either to himself or to another. Sam v. Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991).

A defendant may not rely on the defense of duress if he has a reasonable opportunity both to refuse to do the criminal act and also to avoid the threatened harm. Sam v. Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991).

Defense of duress requires showing of imminent harm. - The more appropriate approach to the defense of duress is to require a showing of "imminent" harm rather than the stricter and more limiting "immediate" harm. Sam v. Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991).

"Threats of future harm" denotes threats of harm that might occur at some uncertain time that is distant and separate from the period of duress or coercion; therefore, the temporal proximity of the threat and the threatened harm is the true issue, and the proper distinction between imminent and immediate harm is how far in the future is the harm to occur from the time the threat is made. Sam v. Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991).

Vague threats of future harm, however alarming, will not suffice to excuse criminal conduct. Sam v. Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991).

Duress is available in cases involving threats against family members. - The defense of duress is applicable to cases involving threats of harm against a defendant's family members. Sam v. Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991).

The defense of duress may be available to a defendant who has committed a criminal act because of threats made against members of the defendant's family. Sam v. Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991).

When balanced against a lesser evil, a greater evil, whether committed against the defendant or a member of the defendant's family, is still less desirable for reasons of social policy. Sam v. Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991).

One may kill to protect his family. - On the trial of S. for the murder of E., if S. shot E. under a reasonable apprehension that his own life or that of some member of his family was in imminent danger, or under a reasonable apprehension that the deceased intended to burn the dwelling house of his mother, or commit some other known felony, and that there was imminent danger of such design being carried into execution, he is justified in so doing, though such danger was unreal. Stoneman v. Commonwealth, 66 Va. (25 Gratt.) 887 (1874). See Green v. Commonwealth, 122 Va. 862 , 94 S.E. 940 (1918).

Killing to resist entry of dwelling. - The owner may resist the entry of his dwelling but he has no right to kill, unless it be rendered necessary to prevent loss of life or great bodily harm. If he kills where there is not a reasonable ground of apprehension of imminent danger to his person or property, it is manslaughter, and if done with malice, express or implied, it is then murder. Bausell v. Commonwealth, 165 Va. 669 , 181 S.E. 453 (1935). But see Stoneman v. Commonwealth, 66 Va. (25 Gratt.) 887 (1874); Parrish v. Commonwealth, 81 Va. 1 (1884).

A mere trespass upon land is insufficient provocation. - For a mere trespass upon land, the owner has no right to assault the trespasser with a deadly weapon, the result of which may be to kill him or do him great bodily harm. Montgomery v. Commonwealth, 98 Va. 840 , 36 S.E. 371 (1900).

Provocation not proved. - Defendant's conviction for first-degree murder was proper because the victim's alleged statements regarding his disapproval of African Americans was so removed in time that it was irrelevant to the issue of reasonable provocation. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

And words, however grievous, will not justify an assault. McCoy v. Commonwealth, 125 Va. 771 , 99 S.E. 644 (1919). See Sims v. Commonwealth, 134 Va. 736 , 115 S.E. 382 (1922).

In a prosecution for homicide, where the deceased, who was intoxicated, applied a vile epithet to the accused and others to which the accused took exception and invited the deceased outside to fight, and in the fight the accused stabbed the deceased eight times and killed him, the deceased not being armed, it was held that vile as the epithet was that deceased employed, it afforded no legal excuse to the accused to assault him and was not in law such a provocation as justified the killing. Adams v. Commonwealth, 163 Va. 1053 , 178 S.E. 29 (1935).

Self-induced unconsciousness goes only to the grade of the offense and not to the existence of a complete defense. Greenfield v. Commonwealth, 214 Va. 710 , 204 S.E.2d 414 (1974).

Where not self-induced, unconsciousness is a complete defense to a criminal homicide. Greenfield v. Commonwealth, 214 Va. 710 , 204 S.E.2d 414 (1974).

Evidence contradicting assertion of accident. - The jury was presented with evidence contradicting defendant's assertion that his gun discharged accidentally as he was raising the weapon from his leg holster, where the autopsy report showed that the bullet traveled at a slightly downward angle through the victim's chest. From this fact, the jury was entitled to infer that defendant was not truthful about the manner in which the shooting occurred. Gardner v. Commonwealth, 3 Va. App. 418, 350 S.E.2d 229 (1986).

Conviction for conduct not constituting crime. - Section 18.2-26 , at the time of defendant's offense, did not provide a punishment for an attempted felony which was punishable by confinement for a maximum of 40 years. Thus, although defendant's conduct may have been proscribed by this section, it was an offense without a penalty. Therefore, defendant was convicted for conduct which constituted no crime at the time of the offense. Accordingly, the judgment of the trial court was reversed. Cook v. Commonwealth, 20 Va. App. 510, 458 S.E.2d 317 (1995).

No retroactive assignment of punishment. - Although the amendments to § 18.2-26 subsequent to defendant's misconduct included attempts at offenses under this section, the revised statute may not retroactively assign punishment to prior acts. Cook v. Commonwealth, 20 Va. App. 510, 458 S.E.2d 317 (1995).

No due process violation. - Defendant did not allege that the exclusion of evidence violated his rights under the Bill of Rights, and nothing in the record showed that he was denied a fundamental right, and there was no due process violation on the part of the circuit court. Jones v. Commonwealth, 71 Va. App. 70, 833 S.E.2d 918, 2019 Va. App. LEXIS 244 (2019).

C. EVIDENCE.

1. PRESUMPTIONS AND BURDEN OF PROOF.

a. DEGREE OF OFFENSE.

Nothing in Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) casts any shadow upon the constitutionality of this section. Warlitner v. Commonwealth, 217 Va. 348 , 228 S.E.2d 698 (1976), cert. denied, 430 U.S. 957, 97 S. Ct. 1604, 51 L. Ed. 2d 807 (1977).

This section does not mention, much less establish, any presumptions or burdens. Warlitner v. Commonwealth, 217 Va. 348 , 228 S.E.2d 698 (1976), cert. denied, 430 U.S. 957, 97 S. Ct. 1604, 51 L. Ed. 2d 807 (1977).

Ultimate burden of proof on prosecution. - Neither the due process clause nor Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) prohibits the use of presumptions or inferences as procedural devices to shift to the accused the burden of producing some evidence contesting the otherwise presumed or inferred fact. These devices, however, must satisfy certain due process requirements, and the ultimate burden of proof beyond a reasonable doubt must remain upon the prosecution. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

The presumption of innocence to which an accused is entitled follows him throughout the trial. This presumption is sufficient to require his acquittal on the charge brought against him unless the Commonwealth proves beyond a reasonable doubt every material element of that charge. The burden of proof is always upon the Commonwealth, and this burden never shifts. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

The presumption is that every killing is murder in the second degree. Hill v. Commonwealth, 43 Va. (2 Gratt.) 594 (1845); Watson v. Commonwealth, 85 Va. 867 , 9 S.E. 418 (1889); Vance v. Commonwealth, 1 Va. Dec. 830, 19 S.E. 785 (1894); Williams v. Commonwealth, 128 Va. 698 , 104 S.E. 853 (1920); Blankenship v. Commonwealth, 193 Va. 587 , 70 S.E.2d 335 (1952).

And burden is on state to raise offense to murder in the first degree. - The presumption arising from the homicide being that the killing is murder in the second degree, if the state would make it murder in the first degree, the burden is upon the state to establish the elements of the crime. Hill v. Commonwealth, 43 Va. (2 Gratt.) 594 (1845); Willis v. Commonwealth, 73 Va. (32 Gratt.) 929 (1879); McDaniel v. Commonwealth, 77 Va. 281 (1883); Watson v. Commonwealth, 85 Va. 867 , 9 S.E. 418 (1889); Smith v. Commonwealth, 192 Va. 186 , 64 S.E.2d 761 (1951); Blankenship v. Commonwealth, 193 Va. 587 , 70 S.E.2d 335 (1952); Henry v. Commonwealth, 195 Va. 281 , 77 S.E.2d 863 (1953).

In establishing first-degree murder the Commonwealth has the burden of showing both premeditation and malice. Brown v. Commonwealth, 212 Va. 515 , 184 S.E.2d 786 (1971).

By showing malice aforethought and intent to kill. - Under this section, in order to elevate the crime of murder to murder in the first degree, the burden is upon the Commonwealth to show not only that the killing was done with malice aforethought, but also that the homicide was committed with the intent to kill, not merely to do great bodily harm. Williams v. Commonwealth, 128 Va. 698 , 104 S.E. 853 (1920).

Second-degree murder presumption is no more than inference. - The Virginia presumption of second-degree murder arising from the commission of an unlawful homicide amounts, in practical effect, to no more than an inference which the trier of fact is permitted, but is not required, to draw from proven facts. Warlitner v. Commonwealth, 217 Va. 348 , 228 S.E.2d 698 (1976), cert. denied, 430 U.S. 957, 97 S. Ct. 1604, 51 L. Ed. 2d 807 (1977).

The presumption of second-degree murder employed in Virginia is the type of procedural, evidentiary device permitted by Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). Neither the presumption nor the resulting burden imposed upon the accused has the effect of shifting from the prosecution the ultimate burden of persuasion upon the critical issue of malice or its corollary, the absence of heat of passion. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

The Virginia presumption that an unlawful homicide is murder of the second degree differs substantially, both in nature and effect, from the Maine presumption struck down in Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). Unlike the Maine presumption, the Virginia presumption is not conclusive. Unlike the Maine presumption, the Virginia presumption does not cast upon the accused the burden of proving by a fair preponderance of the evidence that he acted in the heat of passion in order to put that critical fact in issue and to require the Commonwealth to negate passion beyond a reasonable doubt. The Virginia burden is satisfied when the accused produces some credible evidence that he acted in the heat of passion. But even if he produces no evidence, he may rely upon the Commonwealth's evidence to secure a manslaughter instruction and an acquittal on the charge of murder, if that evidence indicates he acted in the heat of passion. In practical effect, therefore, the Virginia presumption amounts to no more than an inference which the trier of fact is permitted, but is not required, to draw from proven facts. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

This section merely prescribes what shall constitute murder of the first degree and then declares that all other murders shall be of the second degree. Warlitner v. Commonwealth, 217 Va. 348 , 228 S.E.2d 698 (1976), cert. denied, 430 U.S. 957, 97 S. Ct. 1604, 51 L. Ed. 2d 807 (1977).

When the Commonwealth makes a prima facie showing that malice exists, it thereby establishes prima facie that heat of passion is absent. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

The Virginia presumption or inference of malice arising from the commission of an unlawful homicide is clothed with due process safeguards. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

Evidence must prove inference beyond reasonable doubt. - Virginia law comports with the rule that the evidence necessary to invoke the presumption or inference must be sufficient for a rational juror to find the presumed or inferred fact beyond a reasonable doubt. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

The burden of going forward with the evidence may, from time to time during the course of trial, shift from one side to the other as the exigencies of the situation may require. For example, the burden of production may first shift to the accused to neutralize, by evidence raising a reasonable doubt, a prima facie showing by the Commonwealth of guilt and then to the Commonwealth to overcome the showing made by the accused. But the ultimate burden of persuasion remains upon the Commonwealth, and if, upon the evidence as a whole, both for the Commonwealth and the accused, there remains a reasonable doubt of the guilt of the accused, he must be acquitted or convicted only of a lesser included charge established by the evidence. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

Burden of persuasion as to malice cannot be shifted to accused. - There is no violation of the rule of Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) that the burden of persuasion may not be shifted to the accused upon the critical issue of malice. Virginia has long recognized that malice and heat of passion cannot coexist. Proof of malice excludes the presence of passion, and proof of passion presupposes the absence of malice. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

The Commonwealth is not entitled to the presumption of malice in the absence of evidence showing that defendant's use of the pistol was deliberate, that is, not accidental. Lawhorne v. Commonwealth, 213 Va. 608 , 194 S.E.2d 747 (1973).

Similarly, burden is on accused to reduce offense to manslaughter. - And if the accused would reduce the crime to manslaughter, the burden of proof is on him to overcome the presumption of murder arising from the killing. Hill v. Commonwealth, 43 Va. (2 Gratt.) 594 (1845); Willis v. Commonwealth, 73 Va. (32 Gratt.) 929 (1879); Watson v. Commonwealth, 85 Va. 867 , 9 S.E. 418 (1889); Vance v. Commonwealth, 1 Va. Dec. 830, 19 S.E. 785 (1894); Smith v. Commonwealth, 192 Va. 186 , 64 S.E.2d 761 (1951); Blankenship v. Commonwealth, 193 Va. 587 , 70 S.E.2d 335 (1952); Henry v. Commonwealth, 195 Va. 281 , 77 S.E.2d 863 (1953).

By showing justification or excuse. - Every homicide is prima facie murder in the second degree, and the burden is upon the defendant to establish to the satisfaction of the jury any justification or excuse relied upon by him. Bryan v. Commonwealth, 131 Va. 709 , 109 S.E. 477 (1921); Blankenship v. Commonwealth, 193 Va. 587 , 70 S.E.2d 335 (1952).

When the Commonwealth has proved the commission of a homicide, and has pointed out the accused as a criminal agent, then it may rest its case, and unless the accused shows circumstances of justification, alleviation or excuse, a verdict of murder in the second degree will be warranted. Braxton v. Commonwealth, 195 Va. 275 , 77 S.E.2d 840 (1953); Boone v. Commonwealth, 195 Va. 708 , 80 S.E.2d 412 (1954).

All homicide is, in presumption of law, malicious, and of course amounts to murder, unless justified, excused or alleviated. It is incumbent upon the prisoner to make out to the satisfaction of the court and jury the circumstances of justification, excuse and alleviation. M'Whirt's Case, 44 Va. (3 Gratt.) 594 (1846).

Once the Commonwealth proves an unlawful homicide and establishes the accused as the criminal agent, the presumption of second-degree murder arises and he has the burden of showing circumstances of justification, excuse or alleviation. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

Which raises a reasonable doubt that offense was murder. - In order to reduce a homicide from murder in the second degree to manslaughter or excusable homicide, the burden is upon the accused to introduce evidence sufficient to raise a reasonable doubt in the minds of the jury as to whether the offense is murder in the second degree. Sims v. Commonwealth, 134 Va. 736 , 115 S.E. 328 (1922).

In a given situation, the accused, without producing evidence, may be entitled to an instruction on manslaughter, or even to a verdict on that lesser charge, if it can reasonably be inferred from the Commonwealth's evidence that he acted in the heat of passion. Where the Commonwealth's evidence does not permit such an inference, however, the burden of production shifts to the accused. But when he produces some credible evidence that he acted in the heat of passion, he is entitled to an instruction on manslaughter and also, if the evidence as a whole raises a reasonable doubt that he acted maliciously, to a verdict on the lesser charge of homicide. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

Guilty plea held involuntary. - Where the defendant's guilty plea to a short form indictment of murder was based upon the advice of counsel who mistakenly understood that the Commonwealth would have the burden of raising the degree of the offense to first-degree murder through a showing of evidence of premeditation, when in fact the Virginia Supreme Court has determined that a guilty plea is always to the highest degree of the offense charged in the indictment and that the statutory short form of indictment for murder includes murder in the first degree, the plea could not be viewed as voluntary, intelligent or made with an awareness of the likely consequences. Harlow v. Murray, 443 F. Supp. 1327 (W.D. Va.), aff'd, 588 F.2d 1348 (4th Cir. 1978).

b. OTHER MATTERS.

Fact of death must be shown by direct proof or strongest presumptive evidence. - The corpus delicti consists of two fundamental facts: first, the death, and second, the existence of the criminal agency as the cause thereof. The former must be shown either by direct proof, or by presumptive evidence of the strongest kind, which is clearly satisfactory to the jury, and convinces them beyond a reasonable doubt. Smith v. Commonwealth, 62 Va. (21 Gratt.) 809 (1871); Dean v. Commonwealth, 73 Va. (32 Gratt.) 912 (1879); Hatchett v. Commonwealth, 76 Va. 1026 (1882); Russell v. Commonwealth, 78 Va. 400 (1884); Sutton v. Commonwealth, 85 Va. 128 , 7 S.E. 323 (1888).

A man must be taken to intend that which he does, or which is the natural and necessary consequence of his act. Hill v. Commonwealth, 43 Va. (2 Gratt.) 594 (1845); Murphy v. Commonwealth, 64 Va. (23 Gratt.) 960 (1873); McDaniel v. Commonwealth, 77 Va. 281 (1883); Price v. Commonwealth, 77 Va. 393 (1883). See Lewis v. Commonwealth, 78 Va. 732 (1884).

The burden of showing that a killing is accidental is upon the accused. Lawhorne v. Commonwealth, 213 Va. 608 , 194 S.E.2d 747 (1973).

Restrictions on cross-examination. - Second-degree murder conviction would be reversed, and case would be remanded for new trial, where trial judge erred in limiting counsel's cross-examination of adverse witnesses about pending charges and their dispositions for purposes of showing bias and motive to testify, where from proffered evidence the jury could have inferred that both had agreements for leniency with the State. Fogg v. Commonwealth, No. 3062-00-2, 2002 Va. App. LEXIS 323 (Ct. of Appeals May 28, 2002).

Appellate review standard. - Defendant's convictions for second-degree murder of defendant's wife and for the use of a firearm in the commission of the murder were reinstated, after having been reversed on initial appeal, by the lower appellate court, which found that there was evidence to support defendant's hypothesis of innocence, and that there was some evidence that defendant's wife may have fatally fired the gun; the issue upon appellate review was not whether there was some evidence to support defendant's hypotheses, the issue was whether a reasonable jury, upon consideration of all the evidence, could have rejected defendant's theories in defendant's defense and found defendant guilty of murder beyond a reasonable doubt, which the jury could have done in the instant case. Commonwealth v. Hudson, 265 Va. 505 , 578 S.E.2d 781, 2003 Va. LEXIS 49 (2003), cert. denied, 540 U.S. 972, 124 S. Ct. 444, 157 L. Ed. 2d 322 (2003).

2. ADMISSIBILITY.

Proof violating defendant's right against self-incrimination. - Proof in a murder trial of the defendant's identity primarily through the testimony of a state-employed psychiatrist hired to determine competency to stand trial that the defendant had admitted the crime, was in violation of the defendant's constitutional right against self-incrimination. Gibson v. Zahradnick, 581 F.2d 75 (4th Cir.), cert. denied, 439 U.S. 996, 99 S. Ct. 597, 58 L. Ed. 2d 669 (1978).

False information leading to confession not error to admit. - Trial court did not err in denying motion to suppress defendant's confession where he gave an inculpatory statement only after police created and showed him falsified fingerprint and DNA reports implicating him in the crime. Arthur v. Commonwealth, 24 Va. App. 102, 480 S.E.2d 749 (1997).

Previous quarrels and ill feelings between accused and deceased are admissible. Poindexter v. Commonwealth, 74 Va. (33 Gratt.) 766 (1880); Hardy v. Commonwealth, 110 Va. 910 , 67 S.E. 522 (1910).

Also, threats by deceased communicated to accused. - Threats by deceased communicated to the prisoner, directly or indirectly, or through others are admissible to show the motive of the killing. Lewis v. Commonwealth, 78 Va. 732 (1884). See Hardy v. Commonwealth, 110 Va. 910 , 67 S.E. 522 (1910); Stapleton v. Commonwealth, 123 Va. 825 , 96 S.E. 801 (1918).

Antecedent threats of accused. - On a trial for homicide, antecedent threats are competent evidence both on a question of deliberation and premeditation. Lewis v. Commonwealth, 78 Va. 732 (1884); Honesty v. Commonwealth, 81 Va. 283 (1886); Snodgrass v. Commonwealth, 89 Va. 679 , 17 S.E. 238 (1893); Nicholas v. Commonwealth, 91 Va. 741 , 21 S.E. 364 (1895). See Muscoe v. Commonwealth, 87 Va. 460 , 12 S.E. 790 (1891); Hardy v. Commonwealth, 110 Va. 910 , 67 S.E. 522 (1910).

Including impersonal threats. - See Snodgrass v. Commonwealth, 89 Va. 679 , 17 S.E. 238 (1893); Hardy v. Commonwealth, 110 Va. 910 , 67 S.E. 522 (1910).

Evidence of discussion of murder and how to get away with it. - Trial court did not err in allowing prosecution to present evidence that several months prior to the killing, defendant had engaged in a discussion with two classmates centered on how to murder someone and get away with it. Because the circumstances of the shooting generally conformed to the suggestions that arose from the conversation, and because evidence of the discussion went to establish premeditation, the trial court did not abuse its discretion in admitting evidence of that discussion, despite its potential for prejudicial impact. Miller v. Commonwealth, 15 Va. App. 301, 422 S.E.2d 795 (1992), aff'd, 246 Va. 336 , 437 S.E.2d 411 (1993).

Evidence of use of stolen weapon. - Trial court did not err in admitting evidence that, eight to nine months prior to the offense, defendant committed an uncharged theft of the weapon used to shoot victim. At issue was whether defendant planned the killing. Use of a stolen weapon in the commission of a killing could make the tracing of the bullets to the perpetrator more difficult. The fact that defendant used a stolen weapon, not whether he stole it, was relevant at trial to the critical question of premeditation. Miller v. Commonwealth, 15 Va. App. 301, 422 S.E.2d 795 (1992), aff'd, 246 Va. 336 , 437 S.E.2d 411 (1993).

And the subsequent possession by accused of shells fitting gun used. Litton v. Commonwealth, 101 Va. 833 , 44 S.E. 923 (1903).

Attempt to purchase untraceable weapon. - The fact that defendant sought to obtain a deadly weapon that could not be traced to her was relevant to prove that she attempted to obtain the means to inflict death or serious bodily harm to another at a time when she had a reason or motive for wanting to do so. The fact that she was present at the time of victim's death and had given false and conflicting accounts of what occurred tended to enhance the relevance of the evidence. Therefore, trial court did not abuse its discretion by admitting testimony that defendant attempted to purchase an untraceable, concealable handgun within 10 months of victim's murder. Monroe v. Commonwealth, No. 2604-92-2 (Ct. of Appeals May 2, 1995).

Evidence of assault on other members of family. - Where defendant went to deceased's home, talked with deceased at front door, shot and killed him, it was not error to admit evidence that defendant then went into the home and assaulted other members of the family. The actions were continuous and interwoven and necessary to show jury the circumstances surrounding the killing, and tended to show motive and that the killing was willful and deliberate. Williams v. Commonwealth, 208 Va. 724 , 160 S.E.2d 781 (1968).

Evidence that defendant killed other members of same family. - In a prosecution for murder of one member of a family, evidence that defendant killed other members of the same family was properly admitted to show motive. Rees v. Commonwealth, 203 Va. 850 , 127 S.E.2d 406 (1962), cert. denied, 372 U.S. 964, 83 S. Ct. 1088, 10 L. Ed. 2d 128 (1963).

Evidence of good character and peaceable nature of deceased. - It is true that the Commonwealth may not ordinarily, in its case-in-chief, offer evidence of the good character and peaceable nature of the deceased. However, where the Commonwealth has the burden of proving by circumstantial evidence that the victim was dead as a result of the criminal act of another, the evidence must be such as to foreclose every reasonable hypothesis of innocence, including suicide, natural death, accidental death, justifiable or excusable homicide, or continuing life in absentia. Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

Evidence of infidelity or disharmony in prosecution for murder of spouse. - In a prosecution for the murder of one's spouse the Commonwealth generally may introduce evidence of marital infidelity and may offer relevant evidence to show marital disharmony or to rebut evidence of marital bliss. Brown v. Commonwealth, 3 Va. App. 182, 348 S.E.2d 849 (1986).

Evidence of fight between husband and wife 18 months prior to her murder was properly admitted for the purpose of showing the relations between the parties, their state of feeling and course of conduct towards each other, and as reflecting light upon the motive and intent with which the act was done. Cox v. Commonwealth, No. 2177-93-2 (Ct. of Appeals May 9, 1995).

Evidence of previous unchaste character of accused's wife. - Evidence of the previous unchaste character of the wife, and that accused had knowledge of this reputation, is admissible when accused claimed to have acted in hot blood after a confession of his wife of her illicit relations with deceased. Bryan v. Commonwealth, 131 Va. 709 , 109 S.E. 477 (1921).

Proof of truth of confession of unchastity by accused's wife inadmissible. - The trial court did not err in refusing to permit accused to introduce proof of the truth of his wife's confession. Bryan v. Commonwealth, 131 Va. 709 , 109 S.E. 477 (1921).

Testimony that victim suffered from battered child syndrome admissible. - Where doctor was qualified as an expert based on both his professional training and professional experiences with physically abused children, the trial court did not abuse its discretion in admitting his testimony as to whether the deceased infant had suffered from a pattern of intentional physical abuse referred to as battered child syndrome. Price v. Commonwealth, 18 Va. App. 760, 446 S.E.2d 642 (1994).

Evidence of defendant's prior attacks on the victim improperly admitted. - In a case where deliberation and premeditation were the only issues, it was reversible error to permit the prosecutor on cross-examination of defendant to question him as to a prior beating and to elicit the information that defendant had been convicted of a felony. This evidence served only to prejudice the accused in the minds of the jury. Williams v. Commonwealth, 203 Va. 837 , 127 S.E.2d 423 (1962).

Photographic evidence. - In defendant's trial for first-degree murder, a violation of § 18.2-32 , and use of a firearm in the commission of murder, a violation of § 18.2-53.1 , the trial court did not abuse its discretion when it admitted into evidence six photographs of defendant's bedroom, which served as an independent silent witness corroborating a witness's testimony that defendant handled a firearm. Although the photographs supported the prosecution's case, the photographs also supported defendant's testimony regarding intoxication. Therefore, the photographs were relevant evidence and were not prejudicial. Szenasy v. Commonwealth,, 2010 Va. App. LEXIS 412 (Oct. 26, 2010).

Photographs of the victim were relevant and admissible to show the degree of atrociousness of the crime, or the malice with which it was committed, even though the defense was based only on insanity and did not question that defendant committed the act. Timmons v. Commonwealth, 204 Va. 205 , 129 S.E.2d 697 (1963).

Admission of photographs of the victim's body, which accurately represent the true condition of the victim and the handiwork of the killer, and are relevant and material to establish premeditation and malice and to show the degree of atrociousness of the crime, does not constitute an abuse of discretion by the trial court. Brown v. Commonwealth, 212 Va. 515 , 184 S.E.2d 786 (1971).

Evidence of decedent's prior character is admissible on self-defense issue. - Where an accused adduces evidence that he acted in self-defense, evidence of specific acts is admissible to show the character of the decedent for turbulence and violence, even if the accused is unaware of such character. Barnes v. Commonwealth, 214 Va. 24 , 197 S.E.2d 189 (1973).

Where there is evidence that the victim was intoxicated at the time of the shooting, evidence of his character or reputation for turbulence when in such condition is admissible on the issue of self-defense. Barnes v. Commonwealth, 214 Va. 24 , 197 S.E.2d 189 (1973).

The test of admissibility on self-defense is whether the evidence of prior character is so distant in time as to be void of real probative value in showing present character. Barnes v. Commonwealth, 214 Va. 24 , 197 S.E.2d 189 (1973).

Incriminating statement that defendant was at scene of crime. - Appellate court's reversal of the trial court's denial of defendant's motion to suppress an incriminating statement made during police questioning was upheld on appeal, because defendant's third reference to an attorney during the police questioning was an unequivocal request for the presence of counsel and police questioning should have ceased, therefore, the trial court erred by refusing to grant defendant's motion to suppress the statement. Commonwealth v. Hilliard, 270 Va. 42 , 613 S.E.2d 579, 2005 Va. LEXIS 64 (2005).

Interrogation conducted appropriately. - Defendant's convictions for first-degree murder and the use of a firearm in the commission of a felony were proper because the record in the case, which included defendant's own testimony, indicated that his will was not overborne during questioning and that his capacity for self-determination was not impaired. Defendant was apprised of his Miranda rights by the interrogating officer; he was given food and an opportunity to sleep; and he described himself as calm and comfortable throughout the questioning. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

Hypnotic evidence, whether in the form of the murder defendant testifying in court under hypnosis or through another's revelation of what the murder defendant said while under a hypnotic trance, is not admissible. Greenfield v. Commonwealth, 214 Va. 710 , 204 S.E.2d 414 (1974).

Expert testimony. - Trial court did not abuse its discretion in allowing the Commonwealth's forensic expert to opine that the physical facts were inconsistent with defendant's differing versions of how his wife's fatal injury occurred, as these evidentiary facts were useful to the jury in deciding whether the death was accidental, self-inflicted, or a homicide, and whether any of the versions defendant gave to the police were credible; moreover, not only was it important for the Commonwealth's expert witnesses to explain the impact of the physical and forensic evidence to the jury to aid it in evaluating defendant's differing versions to the police of how his wife died, the significance of these evidentiary factors was beyond the scope of knowledge of the average juror. Smallwood v. Commonwealth,, 2005 Va. App. LEXIS 196 (May 17, 2005).

In a prosecution for second-degree murder under § 18.2-32 , the trial court did not err in allowing medical examiner's opinion testimony as to cause of victim's death as record showed that her opinions were supported by her own observations and examinations of victim's body. Observations obtained during autopsy overcame any suggestion that examiner relied in part on hospital records not admitted into evidence. Jones v. Commonwealth, 54 Va. App. 219, 677 S.E.2d 61, 2009 Va. App. LEXIS 238 (2009).

Second expert's testimony properly excluded. - In a prosecution for first-degree murder, because the trial court specifically found that defendant's personality could be understood by men of ordinary intelligence, and testimony from defendant's first expert on this issue sufficiently placed that issue before the jury, it properly excluded testimony from defendant's second expert on the same. Moreover, given defendant's limited proffer, and the second expert's admitted lack of specialized expertise in the area the first expert testified about, no error resulted. Downs v. Commonwealth,, 2008 Va. App. LEXIS 222 (May 6, 2008).

Admission of evidence held not a federal question. - The admission of evidence to show robbery when the accused is indicted for murder in the common form, and thus raising the offense to murder in the first degree, under this section, is not a federal question. In re Robertson, 156 U.S. 183, 15 S. Ct. 324, 39 L. Ed. 389 (1895).

Evidence properly admitted. - It was not an abuse of discretion to allow the jury to consider the evidence of defendant's attempted escape as evidence of his consciousness of guilt as to the attempted murder charge; defendant clearly was aware, at the time, that the police had information connecting him to that crime and that he would likely be prosecuted for it, although he was not yet charged with that offense when he attempted to escape from jail. Leonard v. Commonwealth, 39 Va. App. 134, 571 S.E.2d 306, 2002 Va. App. LEXIS 657 (2002), cert. denied, 540 U.S. 989, 124 S. Ct. 479, 157 L. Ed. 2d 384 (2003).

During defendant's trial on charges of murder and using a firearm in the commission of a murder, the trial court properly admitted an affidavit defendant's ex-wife submitted when she sought a restraining order and allowed the prosecutor to use that affidavit in an attempt to impeach defendant's expert after the expert testified that defendant suffered from a major depressive disorder and post-traumatic stress disorder, that these disorders were present when defendant shot his ex-wife. Araya v. Commonwealth, No. 0044-02-4, 2002 Va. App. LEXIS 754 (Ct. of Appeals Dec. 17, 2002).

Trial court did not err in allowing defendant's former girlfriend to read portions of her affidavit to the jury on the basis of the past recollection recorded hearsay exception as there was no abuse of discretion in the trial court's determination that the vouching foundation requirement to the present recollection recorded doctrine was met. Further, defendant's Sixth Amendment right to confront witnesses was met because defendant had an opportunity to confront the witness and test the recollection of the witness. Abney v. Commonwealth, 51 Va. App. 337, 657 S.E.2d 796, 2008 Va. App. LEXIS 103 (2008).

Where defendant was convicted of second-degree murder, items seized at defendant's residence pursuant to a search warrant were properly admitted because: (1) the totality of the circumstances could be considered when deciding the question of good faith; and (2) the Leon good-faith exception to the exclusionary rule applied since the warrant stated that the residence was located on the same street as the shooting and the criminal complaint listed defendant's address, which was the same address as the residence. Adams v. Commonwealth, 275 Va. 260 , 657 S.E.2d 87, 2008 Va. LEXIS 40 (2008).

In a murder prosecution, because defendant did not possess the firearm that police later recovered near the area where he was seized, nor was he seen discarding it, the trial court did not err in denying his motion to suppress the firearm. Osorio v. Commonwealth,, 2010 Va. App. LEXIS 508 (Oct. 28, 2010).

Defendant's convictions for murder in violation of § 18.2-32 , use of a firearm in the commission of a felony in violation of § 18.2-53.1 , and grand larceny in violation of § 18.2-95 were appropriate because the trial court did not err in admitting evidence of prior crimes to establish defendant's identity since he disputed his identity as the perpetrator of the instant offenses. Additionally, given the substantial evidence of prior bad acts, evidence of a damaged fence did not substantially influence the jury; its admission was therefore harmless. McMillian v. Commonwealth,, 2011 Va. App. LEXIS 74 (Mar. 1, 2011).

Trial court did not err in holding that text messages were not hearsay because they were not offered for the truth of the matter asserted; the text messages tended to prove that defendant was involved with the homicide because they were offered to demonstrate what an unknown declarant did in response to defendant's message to ride past the crime scene and to show that he reported back with details about the scene and the victim's subsequent death. Wood v. Commonwealth, No. 0937-17-1, 2018 Va. App. LEXIS 255 (Oct. 2, 2018).

Evidence inadmissible. - In a murder prosecution in which defendant claimed self-defense, evidence that the victim was seen panhandling was properly excluded because panhandling was not an act of violence. Osorio v. Commonwealth,, 2010 Va. App. LEXIS 508 (Oct. 28, 2010).

Harmless error in admission of evidence. - Any error in the admission at trial of an autopsy report prepared by a then deceased medical examiner and a medical examiner's testimony based on the report was harmless beyond a reasonable doubt because any error did not affect the verdict. Similarly, any error in admitting DNA evidence was harmless beyond a reasonable doubt as it did not affect the verdict. Abney v. Commonwealth, 51 Va. App. 337, 657 S.E.2d 796, 2008 Va. App. LEXIS 103 (2008).

In a first-degree murder case, the admission of testimony from a detective concerning motorcycle clubs and their culture constituted harmless error. In light of the cumulative nature of the testimony, the circumstances limiting its prejudicial effect, and the strength of the Commonwealth's evidence, its admission did not affect the jury's verdict. Hughes v. Commonwealth, No. 1983-14-4, 2016 Va. App. LEXIS 149 (Ct. of Appeals May 3, 2016).

Admission of hearsay held harmless. - Based on the overwhelming evidence of defendant's guilt, including testimony from an expert, a police detective, and defendant himself, the latter of which demonstrated a motive and intent to kill, the trial court's admission of alleged hearsay testimony under the "state of mind" exception to the hearsay rule was harmless error. West v. Commonwealth,, 2008 Va. App. LEXIS 193 (Apr. 22, 2008).

Alleged error harmless given proof of specific intent to kill. - When defendant claimed that he was guilty only of second-degree murder, not first-degree murder, any violation of § 8.01-381 by not allowing the jury to replay defendant's videotaped confession while deliberating was harmless error under § 8.01-678 . The facts that defendant entered his wife's room and retrieved a loaded gun from a closet, fired twice at her at point-blank range, buried her in a makeshift grave, lied about her whereabouts, and admitted that he killed her because he did not want to take any more verbal harassment from her were irrefutable proof of his specific intent to kill; replaying the videotape would have added little to the deliberative process, given the Commonwealth's stipulation of its narrative content, the jury's previous viewing of it, the jury's in-court review of an agreed transcript, and the nearly identical evidence presented from an investigator. Kirby v. Commonwealth, 50 Va. App. 691, 653 S.E.2d 600, 2007 Va. App. LEXIS 442 (2007).

3. WEIGHT AND SUFFICIENCY.

The corpus delicti may be established by circumstantial as well as direct evidence, and it takes only slight evidence to establish the corpus delicti where the commission of the crime has been fully confessed by the accused. Lucas v. Commonwealth, 201 Va. 599 , 112 S.E.2d 915 (1960).

Circumstantial evidence standard. - The malicious infliction of injury can be shown through circumstantial evidence, but the Commonwealth is required to exclude hypotheses of innocence that flow from the evidence. Maddox v. Commonwealth, No. 1129-99-4, 2000 Va. App. LEXIS 575 (Ct. of Appeals Aug. 1, 2000).

Evidence sufficient to prove cause of death. - Where medical testimony was to the effect that the victim died one month after being shot by defendant as a result of peritonitis caused by the bullet wounds, such testimony was sufficient to carry the question of causation to the jury. Jones v. Commonwealth, 202 Va. 236 , 117 S.E.2d 67 (1960).

Consideration of sufficiency confined to evidence bearing upon the sole defense. - Where the plea of self-defense was the sole defense relied on by the accused to justify the shooting on the trial of a prosecution for homicide, a consideration of the sufficiency of the evidence to support the verdict and judgment must be confined to a consideration of the evidence as bearing upon that defense. Pendleton v. Commonwealth, 131 Va. 676 , 109 S.E. 201 (1921).

Evidence sufficient to warrant jury finding deceased shot while fleeing. - See Pendleton v. Commonwealth, 131 Va. 676 , 109 S.E. 201 (1921).

Criminal agency of defendant sufficiently proved. - Where evidence showed that during the course of an altercation defendant struck deceased on the head with a deadly weapon (a pair of wire cutters) and that the sole cause of death was a brain hemorrhage resulting from a fracture of the skull, these facts sufficiently proved the criminal agency of defendant. Henry v. Commonwealth, 195 Va. 281 , 77 S.E.2d 863 (1953).

Evidence sufficient to prove malice. - In the instant case, accused, upon the confession of his wife of illicit relations with deceased, immediately got his pistol, walked to deceased's office about one hundred and twenty-five yards, stopping at a drug store for an instant to inquire about deceased, and at once opened fire upon deceased. It was held that even if the evidence had disclosed no circumstance to discredit accused's claim that he acted solely under the propulsion of hot blood and frenzy, engendered by his wife's confession, it is not at all certain that the trial court would not have improperly invaded the province of the jury if it had set aside the verdict of guilty of murder in the second degree on the ground that the evidence was insufficient to show that the killing was malicious. Bryan v. Commonwealth, 131 Va. 709 , 109 S.E. 477 (1921); Burgess v. Commonwealth, 4 Va. (2 Va. Cas.) 483 (1825). See Bristow v. Commonwealth, 65 Va. (15 Gratt.) 634 (1859).

Evidence sufficiently showed malice aforethought to support defendant's second-degree murder conviction where: (1) defendant, who had given birth in her bedroom and wished to keep her pregnancy a secret from her mother, left her newborn infant son outside near some trash cans wrapped in some sweat pants before going herself to the hospital; and (2) the medical evidence showed that the infant's later death despite medical attention was the result of blunt force head injuries and abandonment. Smith v. Commonwealth, No. 2284-01-1, 2002 Va. App. LEXIS 668 (Ct. of Appeals Nov. 5, 2002).

Defendant's convictions for first-degree murder and the use of a firearm in the commission of a felony were proper because he admitted to purposefully using a sawed-off shotgun both to shoot and bludgeon the victim; therefore, there was sufficient evidence from which the jury could have inferred malice, and the charges of first- and second-degree murder were properly before the jury. Accordingly, the trial court did not err when it denied defendant's motion to strike those charges; for the same reasons, the trial court did not err when it failed to strike the charge of use of a firearm in the commission of a felony. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

Sufficient evidence supported a finding that defendant acted with malice for purposes of § 18.2-32 where, based on the testimony of an eyewitness, a rational trier of fact could have found that when defendant fired a deadly weapon multiple times up a street he was attempting to shoot the man with a bike who had been walking and talking with him just a minute before. Watson-Scott v. Commonwealth, No. 1538-17-2, 2018 Va. App. LEXIS 335 (Dec. 4, 2018).

Evidence insufficient to prove malice. - The evidence was insufficient, as a matter of law, to support a finding that the defendant killed the victim maliciously where, although the defendant admitted striking the victim in the face after their truck became stuck in a flood and began to fill with water, the blow itself did not cause the death of the victim and there was no evidence that it caused her to drown. Maddox v. Commonwealth, No. 1129-99-4, 2000 Va. App. LEXIS 575 (Ct. of Appeals Aug. 1, 2000).

Evidence sufficient to show intent. - Evidence that defendant intended to kill the victim held sufficient where the defendant, who was a stranger to the victim, shouted a racial epithet at the victim, got out of the car with a loaded gun and chased the victim, made no demand of the victim to turn over personal property nor call for him to halt, and where the defendant fired from twenty-five feet behind the victim, who was about to enter the safety of his apartment building. King v. Commonwealth, No. 2834-98-2, 2000 Va. App. LEXIS 555 (Ct. of Appeals July 25, 2000).

Evidence was sufficient to support defendant's attempted murder and use of a firearm in the commission of attempted murder charges where defendant's intent to kill the victim was shown by defendant's actions in climbing on the top of the victim's truck, and repeatedly firing his weapon toward the victim, who was on the ground trying to shield himself with the truck. Cook v. Commonwealth, No. 1968-02-2, 2003 Va. App. LEXIS 375 (Ct. of Appeals July 1, 2003), aff'd, 268 Va. 111 , 597 S.E.2d 84 (2004).

Evidence was sufficient to prove attempted murder and use of a firearm while attempting to commit murder, violations of §§ 18.2-26 , 18.2-32 , and 18.2-154 , where defendant pointed a gun at the victim's car, firing four or five times. Thus, defendant must have intended the immediate, direct, and necessary consequences of his voluntary act. Stullenberg v. Commonwealth, No. 0223-09-3, 2010 Va. App. LEXIS 179 (Ct. of Appeals May 4, 2010).

Sufficient evidence showed defendant's specific intent to kill a victim because, after physically assaulting the victim, defendant armed himself with a shotgun and threatened to kill the victim. Commonwealth v. Herring, 288 Va. 59 , 758 S.E.2d 225, 2014 Va. LEXIS 94 (2014).

Evidence was sufficient to support defendant's conviction of attempted murder because it showed that defendant poured fuel around a building in the early morning hours when people inside were sleeping, he wanted to eliminate the people he knew were in the building at the time he started the fire, he purposefully poured gas outside of bedrooms, offices, and the main living area throughout the first floor, which made evacuation difficult. Secret v. Commonwealth, No. 0853-15-2, 2017 Va. App. LEXIS 38 (Ct. of Appeals Feb. 14, 2017), aff'd, 296 Va. 204 , 819 S.E.2d 234, 2018 Va. LEXIS 136 (2018).

Trial court did not err in applying transferred intent to convict defendant of second-degree murder where the evidence supported a finding that he acted with malice toward a specific individual, and the victim was a bystander who suffered direct and immediate harm that was within the scope of defendant's effort to shoot the man he had been with. Watson-Scott v. Commonwealth, No. 1538-17-2, 2018 Va. App. LEXIS 335 (Dec. 4, 2018).

Evidence insufficient to show intent required for attempted murder. - Evidence that defendant turned the car into traffic in order to flee while the officer was standing toward the rear of the vehicle and slightly behind the driver's side door was insufficient to show that defendant possessed the requisite specific intent to kill the officer; there was no evidence that defendant aimed the vehicle directly at the officer or otherwise had any intent to inflict bodily harm on the officer, much less that defendant had formed the intent to murder the officer. The facts better supported the conclusion that defendant was attempting to escape. Baldwin v. Commonwealth, 274 Va. 276 , 645 S.E.2d 433, 2007 Va. LEXIS 76 (2007).

Evidence that defendant poured gasoline and diesel fuel around the dwelling before setting it on fire, knowing people were inside, sufficiently supported the first-degree attempted murder convictions. Secret v. Commonwealth, 296 Va. 204 , 819 S.E.2d 234, 2018 Va. LEXIS 136 (2018).

Evidence sufficient to prove attempted murder. - Trial court's finding that defendant was guilty of the attempted murder of his wife in violation of §§ 18.2-32 and 18.2-26 and use of a firearm in the commission of that offense was not plainly wrong or without evidence to support it because defendant shoved, punched, and choked his wife in the presence of their three minor children and his father and obtained a shotgun and went to the front door of the house looking for his wife; the trial court found that the evidence proved that defendant was aiming the shotgun generally around with his finger on the trigger. Herring v. Commonwealth, No. 1430-12-3, 2013 Va. App. LEXIS 123 (Ct. of Appeals Apr. 16, 2013).

Circuit court properly convicted defendant of attempted murder, shooting at an occupied vehicle, and use of a firearm in the commission of a felony because defendant was the only individual seen handling a firearm, threatened the victim, pointed his gun at the victim, and, after becoming momentarily distracted, fired it at the victim, and hit his truck, and a rational factfinder could find that defendant shot at the victim with malice. Logan v. Commonwealth, 67 Va. App. 747, 800 S.E.2d 202 (2017).

Evidence was sufficient to convict defendant of, inter alia, attempted murder based on a gunfight at a shopping center as defendant attacked the victim at the shopping center and initiated the gunfight that occurred there; and defendant was linked to the shooting by the initial identification of the victim, a distinctive shirt similar to the one worn by the shooter in the video recording that was found at the home of defendant's stepmother, his wounds for which he sought treatment at a nearby hospital, the presence of primer residue on his hands, and his own statements to the police. Boykins v. Commonwealth, No. 1487-16-1, 2017 Va. App. LEXIS 143 (June 6, 2017).

Evidence warranted a verdict of murder in the first degree. See Bennett v. Commonwealth, 35 Va. (8 Leigh) 745 (1837); Howell v. Commonwealth, 67 Va. (26 Gratt.) 995 (1875); Mitchell v. Commonwealth, 74 Va. (33 Gratt.) 845 (1880); Wright v. Commonwealth, 74 Va. (33 Gratt.) 880 (1880); Wright v. Commonwealth, 75 Va. 914 (1882); Harrison v. Commonwealth, 79 Va. 374 (1884); Barbour v. Commonwealth, 80 Va. 287 (1885); Thompson v. Commonwealth, 193 Va. 704 , 70 S.E.2d 284 (1952); Bailey v. Commonwealth, 193 Va. 814 , 71 S.E.2d 368, cert. denied, 344 U.S. 886, 73 S. Ct. 186, 97 L. Ed. 686 (1952); Fuller v. Commonwealth, 201 Va. 724 , 113 S.E.2d 667 (1960); Williams v. Commonwealth, 214 Va. 338 , 200 S.E.2d 579 (1973); Hairston v. Commonwealth, 217 Va. 429 , 230 S.E.2d 626 (1976); O'Brien v. Commonwealth, 4 Va. App. 261, 356 S.E.2d 449 (1987); Cantrell v. Commonwealth, 7 Va. App. 269, 373 S.E.2d 328 (1988); Etheridge v. Commonwealth, No. 1487-97-1 (Ct. of Appeals June 9, 1998); Dickens v. Radford-Willis S. Ry., 121 Va. 353 , 93 S.E. 625 (1917); Simon v. Commonwealth, No. 0294-03-3, 2003 Va. App. LEXIS 689 (Ct. of Appeals Dec. 23, 2003).

Defendant's conviction of first-degree murder in violation of § 18.2-32 was affirmed, because the trial court did not allow the Commonwealth to impeach its own witness as prohibited by § 8.01-403 , but rather properly allowed the Commonwealth to refresh the memory of the witness after the witness stated that she was unable to recall certain statements she had made to police investigators, and defendant failed to include either the tape played to refresh the witness's memory or the contents of the tape in the record on appeal as required by Va. Sup. Ct. R. 5A:25, so the appellate court had no basis for determining whether the trial court committed error in permitting the tape to be played in the presence of the jury. Brockenbrough v. Commonwealth, No. 3023-01-2, 2003 Va. App. LEXIS 243 (Ct. of Appeals Apr. 22, 2003).

The evidence is sufficient to support the conviction for first-degree murder. The jury reasonably could have inferred, from the unbroken chain of necessary circumstances, established to its satisfaction, that defendant had a motive to kill the victim; that he was placed within several hundred yards of the victim shortly before and shortly after the time of the crime; that he had the means to commit the crime, in that he owned a camper and had access to a shotgun; that his conduct before and after the crime was consistent with guilt and inconsistent with innocence; and that all of these factors concur in pointing him out as the perpetrator of the crime. Inge v. Commonwealth, 217 Va. 360 , 228 S.E.2d 563 (1976), cert. denied, 474 U.S. 833, 106 S. Ct. 104, 88 L. Ed. 2d 85 (1985).

Any error in admitting defendant's confession was harmless beyond a reasonable doubt, where Commonwealth's other evidence overwhelmingly proved that he committed a willful, deliberate and premeditated act, and his wife's fresh defensive injuries belied his theory that her death was an accident. Xayapheth v. Commonwealth, No. 0524-99-3 (Ct. of Appeals Mar. 14, 2000).

Court confirmed convictions for first-degree murder and use of a firearm in the commission of the murder where blood spatter analysis was proper expert testimony for which a sufficient evidentiary foundation was established. Smith v. Commonwealth, 265 Va. 250 , 576 S.E.2d 465, 2003 Va. LEXIS 36 (2003).

Evidence was sufficient to support defendant's conviction of first-degree murder as a principal in the second degree where: (1) defendant was a lookout for his accomplice, assisted in the abduction, and countenanced the murder as a retaliation against a drug dealer, erroneously believed to be related to the victim, (2) he drove his accomplice and the victim to a secluded area and allowed his accomplice to exit the vehicle with the victim, (3) he provided the murder weapon, and (4) he drove the accomplice home from the spot where the victim was later found dead. Hood v. Commonwealth, No. 2469-02-2, 2004 Va. App. LEXIS 82 (Ct. of Appeals Feb. 17, 2004), aff'd, 269 Va. 176 , 608 S.E.2d 913 (2005).

Evidence was sufficient to support defendant's convictions on three counts of first-degree murder where defendant hid out at a friend's house and then fled the state, the murder weapon was found in the friend's backyard, other crimes evidence tended to prove that defendant stole the murder weapon in a robbery, and an accomplice's testimony identifying defendant as the shooter was corroborated by fingerprint evidence. Rayford v. Commonwealth, No. 0328-07-1, 2007 Va. App. LEXIS 506 (Ct. of Appeals Aug. 9, 2007).

Evidence was sufficient to conclude that defendant willfully, deliberately, and with premeditation, killed the victim, who came to collect a drug debt, where defendant brutally beat the victim with a metal pipe, sealed a plastic bag over his head, wrapped him in a carpet, and concealed him in a bedroom, and then admitted to the murder to several witnesses. Hurt v. Commonwealth,, 2008 Va. App. LEXIS 127 (Mar. 18, 2008).

Because a letter found in defendant's jail cell was properly admitted as relevant to whether he was faking symptoms of insanity, and any error in excluding defendant's statement or in granting the jury instruction was harmless, his first-degree murder conviction, in violation of § 18.2-32 was upheld on appeal. Pahno v. Commonwealth,, 2008 Va. App. LEXIS 199 (Apr. 22, 2008).

Fact that defendant apparently found and loaded a pistol, defendant fired all five rounds and still continued pulling the trigger, and defendant initially packed a bag for flight were circumstances that the jury properly considered in concluding that defendant acted with malice and supported defendant's convictions for first-degree murder and the use of a firearm in committing the murder. Cayton v. Commonwealth,, 2008 Va. App. LEXIS 393 (Aug. 12, 2008).

Defendant's conviction for first-degree murder, in violation of § 18.2-32 , was sufficiently supported by evidence showing that the victim rejected defendant's request to have sex, that defendant convinced the victim, who was described as a little bit slow mentally, to let him walk her to her sister's home, that the victim never arrived at her intended destination, that defendant pretended to be a deaf juvenile and used false names in order to gain transportation out of Virginia, that the victim's body was found in a wooded area, and that the victim's clothes contained semen from defendant. Jordan v. Commonwealth, No. 1026-07-3, 2008 Va. App. LEXIS 417 (Ct. of Appeals Sept. 9, 2008).

Defendant's convictions for first-degree murder and use of a firearm in the commission of a felony in violation of §§ 18.2-32 and 18.2-53.1 were appropriate because the jury was entitled to disbelieve defendant's assertion that she did not know that her boyfriend had a weapon when they entered the victim's home. Further, there was sufficient evidence of concert of action because defendant and her boyfriend arrived at the home of defendant's father knowing that they were forbidden to be there; they gained entrance through the back door; they were intent upon forcing her father to surrender the welfare checks; and when defendant's father refused, they pursued him up the stairs where he was shot and brutally beaten. Thomas v. Commonwealth, 279 Va. 131 , 688 S.E.2d 220, 2010 Va. LEXIS 11, cert. denied, 131 S. Ct. 143, 178 L. Ed. 2d 8, 2010 U.S. LEXIS 6109 (U.S. 2010).

Evidence was sufficient to support defendant's conviction for first-degree murder because the jury could have concluded that defendant acted as a principal in the first degree and that he was the person whose shot struck and killed the victim; the victim was killed by a medium caliber bullet, several witnesses testified that defendant was firing a pistol and firing it in the victim's direction, and defendant admitted that he had access to a 9 mm gun on the night of the shooting. Cooper v. Commonwealth,, 2010 Va. App. LEXIS 403 (Oct. 19, 2010).

Evidence was sufficient beyond a reasonable doubt to support defendant's convictions for first-degree murder, a violation of § 18.2-32 , and use of a firearm in the commission of murder, a violation of § 18.2-53.1 , where the trial court's rejection of defendant's heat of passion argument was not plainly wrong or without evidentiary support because the victim's words alone, no matter how insulting, were not sufficient to constitute heat of passion and defendant's mere intoxication did not suffice to negate premeditation. Szenasy v. Commonwealth,, 2010 Va. App. LEXIS 412 (Oct. 26, 2010).

Defendant was properly convicted of first-degree murder, as evidence that he deliberately shot and killed an unarmed man at close range, immediately left the scene, tried to avoid questioning by police, and initially admitted that the victim was unarmed, was sufficient to establish that he acted with premediation and malice. Osorio v. Commonwealth,, 2010 Va. App. LEXIS 508 (Oct. 28, 2010).

Evidence was sufficient to support defendant's convictions where, taken in the light most favorable to the Commonwealth, it established that defendant shot and killed the victim; the jury was free to disbelieve defendant's testimony that defendant was not at scene when the victim was shot and to believe the testimony of other witnesses that defendant was there and shot and killed the victim. Mayfield v. Commonwealth, 59 Va. App. 839, 722 S.E.2d 689, 2012 Va. App. LEXIS 88 (2012).

Ample evidence supported a finding that defendant committed the offenses of first-degree murder and use of a firearm in the commission of a felony as the testimony of an eyewitness, who was at the scene at the time of the offenses, proved that defendant shot and killed two unarmed men without provocation, in that the eyewitness testified that defendant obtained a rifle, that he had a brief verbal exchange with the first victim before he shot the first victim twice, that defendant then turned the gun toward the second victim and shot him twice in the back, that the eyewitness did not have a gun, and that the eyewitness did not see any weapons in the possession of the two victims. Additionally, the evidence showed that defendant moved the two bodies to a location behind his garage and fled from police. Daugherty v. Commonwealth,, 2012 Va. App. LEXIS 136 (May 1, 2012).

Conviction for first-degree murder, based on robbery as the underlying felony, was supported by sufficient evidence, where the record contained ample evidence demonstrating that defendant took marijuana from a victim's car on the day of the shooting, including testimony that the victim weighed out one ounce of marijuana in the car but police recovered less than two-tenths of an ounce and defendant admitted he took a pill bottle containing marijuana. Person v. Commonwealth,, 2012 Va. App. LEXIS 187 (June 5, 2012).

Evidence demonstrating that defendant inflicted brutal injuries in his 16-month-old daughter, failed to seek help for her after causing those injuries, and seemed to lack remorse was sufficient for the trier of fact to convict defendant of first-degree murder and felony child abuse. Logan v. Commonwealth, No. 0867-15-1, 2016 Va. App. LEXIS 290 (Ct. of Appeals Nov. 1, 2016).

Evidence insufficient to prove first-degree murder. - See Wells v. Commonwealth, 190 Va. 619 , 57 S.E.2d 898 (1950).

Defendant's conviction for first-degree murder was reversed because, at its best, the inculpatory evidence showed only that defendant knew that the triggerman killed the victim and that, two months after the killing, defendant and another decided to "roll up" or leave the area. No reasonable interpretation of defendant's statement that defendant knew the triggerman implied that defendant, even if present at the scene of the murder, aided and abetted the triggerman in committing the murder. Jones v. Virginia,, 2007 Va. App. LEXIS 430 (Nov. 27, 2007).

Evidence warranted a verdict of murder in the second degree. - See Slaughter v. Commonwealth, 38 Va. (11 Leigh) 681 (1841); M'Whirt's Case, 44 Va. (3 Gratt.) 594 (1846); Lewis v. Commonwealth, 81 Va. 416 (1886); Boone v. Commonwealth, 195 Va. 708 , 80 S.E.2d 412 (1954).

Evidence was sufficient to sustain defendant's conviction for murdering her newborn baby where: (1) the baby's lungs were filled with air indicating that the baby had been alive; (2) the jury could infer that defendant caused the death, as she denied giving birth, and was the only one who knew that the baby was in her closet; and (3) malice could be inferred from defendant's denial of the birth, testimony of a friend that defendant told her that she wanted to cremate the body, and testimony that defendant faced eviction for having another baby. Corrales v. Commonwealth, No. 2797-01-2, 2002 Va. App. LEXIS 687 (Ct. of Appeals Nov. 19, 2002).

Evidence was sufficient to support defendant's second-degree murder conviction where: (1) the position of the victim's body was inconsistent with defendant's explanation that she had committed suicide; (2) defendant gave inconsistent factual accounts to the EMTs, law-enforcement officers, friends, and the jury; (3) despite defendant's claims that his relationship with the victim had no problems or difficulties, the victim moved out four months earlier, bought a new home, removed defendant as beneficiary on her life insurance policy, and started dating other men; (4) the victim's friends described her as happy and upbeat following her separation from defendant; and (5) defendant testified that immediately prior to the victim's death, he and the victim engaged in an emotional discussion over the victim's admitted relationships with other men that hurt defendant's feelings and emotionally upset him. Sluder v. Commonwealth, No. 2531-02-3, 2003 Va. App. LEXIS 605 (Ct. of Appeals Nov. 25, 2003).

Evidence was sufficient to support defendant's conviction for murder, as it showed that the three-year-old boy who died after being placed in defendant's care was healthy when he was initially placed in defendant's care, that he had severe and extensive injuries when he was taken to a hospital after being in defendant's care, that defendant did not have a plausible explanation for how the boy sustained the injuries, and that the boy's medical care providers opined that the injuries had been caused by blunt force trauma caused by an external force. Covington v. Coleman, No. 2450-02-2, 2003 Va. App. LEXIS 606 (Ct. of Appeals Nov. 25, 2003).

Evidence was sufficient to support defendant's conviction for second-degree murder as a fellow inmate's testimony that defendant had confessed to him was not inherently incredible and was corroborated by other evidence where: (1) the inmate was not directed to extract defendant's confession, and had nothing to gain by fabricating the confession; (2) defendant's stepson observed a clean ashtray, which fit with the inmate's testimony that the weapon was an ashtray and that defendant wiped it clean; (3) defendant was wearing different clothing the next day, which fit with the inmate's testimony that he returned to the house later to clean up; (4) defendant asked the arresting officer whether he was only being arrested for being drunk in public, which implied that he thought that the police might have cause to arrest him for something else; and (5) the victim's autopsy and a bloodstain pattern expert supported a conclusion that the victim died from a blow to the head. Lester v. Commonwealth, No. 1719-03-3, 2004 Va. App. LEXIS 198 (Ct. of Appeals Apr. 27, 2004).

Evidence supported defendant's conviction for second-degree murder as: (1) defendant arrived at a witness's home with blood on her T-shirt and arm; (2) defendant's statement to the witness that the police were looking for her, that she had cut her boyfriend because he called her a bitch, and that she had left him on the floor, bleeding, was not speculative; (3) defendant wielded a deadly weapon to kill the victim and malice could be inferred from the deliberate use of a deadly weapon; and (4) defendant's hypothesis that the victim stabbed himself was properly rejected as the medical examiner had never seen such a self-inflicted wound. Oliver v. Commonwealth,, 2006 Va. App. LEXIS 297 (July 5, 2006).

Because defendant admitted to being at the victim's residence, because glitter similar to that worn by defendant was found on the victim, because defendant's driver testified that defendant was taken to the victim's residence and left an hour later with the victim's property, and because the victim's property was later discovered in defendant's home and purse, defendant was properly found to have assisted her husband in the victim's death and shared the requisite criminal intent; accordingly, the evidence was sufficient to convict defendant of second-degree murder and robbery under §§ 18.2-32 and 18.2-58 . McLean v. Commonwealth,, 2008 Va. App. LEXIS 449 (Oct. 7, 2008).

Defendant's challenge to the sufficiency of the evidence to support convictions for second-degree murder, use of a firearm in the commission of murder, malicious wounding, and use of a firearm in the commission of malicious wounding lacked merit, because the testimony of defendant's grandfather, identifying defendant as the person who shot the pistol that wounded the grandfather and killed another victim, was not inherently incredible as a matter of law; any challenge based on the grandfather's admission that the grandfather had been drinking and doing drugs before the shooting did not render the testimony inherently incredible. Carrington v. Commonwealth,, 2009 Va. App. LEXIS 152 (Mar. 31, 2009).

Trial court did not err in denying defendant's motion to strike the charge of murder to voluntary manslaughter because the evidence supported a rational trier of fact's conclusion that defendant committed second-degree murder by maliciously suffocating the victim, who died as a result of the suffocation; defendant's conduct showed that she willfully undertook an act that would likely cause death or great bodily harm without reasonable provocation. Durand v. Commonwealth,, 2009 Va. App. LEXIS 419 (Sept. 22, 2009).

Evidence that defendant purchased a handgun five weeks before using it to kill the victim, defendant fired twice at point blank range hitting the victim in the side and the back, and the handgun had to be manually squeezed was sufficient to support defendant's conviction for second-degree murder. Tizon v. Commonwealth, 60 Va. App. 1, 723 S.E.2d 260, 2012 Va. App. LEXIS 105 (2012).

Stress-induced heart attack. - Evidence that 86-year-old victim who was beaten and robbed had a preexisting heart disease which contributed to her death, but that she died of a stress-induced heart attack, and that the robbery of a woman in her condition was sufficient stress to trigger such a heart attack, was more than sufficient to support a finding that the trauma of the robbery caused her death and to support a verdict of felony murder. Spain v. Commonwealth, 7 Va. App. 385, 373 S.E.2d 728 (1988).

Evidence sufficient to find defendant present at scene of crimes. - Defendant's fingerprint, impressed in blood on a moveable object (a flashlight), found at the scene of the crimes was sufficient in light of attendant circumstances to find that the defendant was at the scene at the time the crimes were committed in a prosecution for murder and breaking and entering with intent to commit murder. Turner v. Commonwealth, 218 Va. 141 , 235 S.E.2d 357 (1977).

Evidence sufficient to prove identity. - Evidence was sufficient to find defendants were two of the perpetrators of the offenses because the surveillance footage showed four males traveling together on the day of the beating and homicide; it showed two men wearing clothing consistent with defendants chasing after the second victim with their arms outstretched and a puff of smoke that looked as if a gun was fired; and the jury was entitled to rely on the witnesses' identifications of defendants and the videos. Benniefield v. Commonwealth, No. 0001-20-2, 2020 Va. App. LEXIS 231 (Sept. 29, 2020).

Evidence sufficient to prove victim was alive during abduction. - There was sufficient evidence to support defendant's conviction as a principal in the second degree, § 18.2-18 , of abduction and felony murder, in violation of §§ 18.2-48 and 18.2-32 , where he and others lured the victim to a co-defendant's home with the purpose of robbing the victim of drugs and money, they restrained the victim while attempting to determine the whereabouts of the drugs, walked him out to the trunk of his car, drove him away, and fatally shot him; although there was blood in the house, the fact that the victim was "walked" outside to his car and that he "squirmed like a worm" when he was shot supported the finding that he was not killed in the house and accordingly, that defendant participated in abducting defendant while he was still alive. Brooks v. Commonwealth, No. 1629-03-2, 2004 Va. App. LEXIS 284 (Ct. of Appeals June 15, 2004).

Sufficiency of provocation is question of fact. - Whether provocation, shown by credible evidence, is sufficient to engender the furor brevis necessary to rebut the presumption of malice arising from a homicide is a question of fact. McClung v. Commonwealth, 215 Va. 654 , 212 S.E.2d 290 (1975).

Sufficiency of evidence showing premeditation is a jury question. - The law presumes malice from the fact of the killing, but it does not presume that the act was willful, deliberate, and premeditated. The sufficiency of the evidence on the one hand to establish the willful, deliberate and premeditated character of the act, or, on the other, to rebut the presumption of malice, is generally a question which lies peculiarly within the province of the jury. Bryan v. Commonwealth, 131 Va. 709 , 109 S.E. 477 (1921).

The sufficiency of the evidence on one hand to establish the willful, deliberate and premeditated character of the act, or, on the other, to rebut the presumption of malice, is generally a question which lies peculiarly within the province of the jury. Painter v. Commonwealth, 210 Va. 360 , 171 S.E.2d 166 (1969).

Evidence sufficient to support finding of premeditation. - See Martinez v. Commonwealth, 42 Va. App. 9, 590 S.E.2d 57, 2003 Va. App. LEXIS 678 (2003).

Defendant's convictions for first-degree murder and the use of a firearm in the commission of a felony were proper because the record revealed a brutal attack where, after the victim was shot, more than one blow was struck, and defendant attempted to conceal the crime and avoid detection; defendant expressed no remorse for the killing. Accordingly, there was ample evidence to support the jury's finding of premeditated killing in the first degree and the trial court did not err when it denied defendant's motion to set aside the verdict on the grounds that there was insufficient evidence to support a finding of premeditation. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

Evidence was sufficient to find that defendant acted with premeditation when he killed the victim despite his claim that he thought the victim was reaching for a gun because defendant armed himself with a loaded gun while carrying out his planned criminal activity and then drew, aimed, and fired his gun at the witness, who witnessed his crime. Saunders v. Commonwealth, No. 1183-12-3, 2013 Va. App. LEXIS 274 (Ct. of Appeals Oct. 8, 2013).

Jury decides if killing induced by previous grudge or immediate provocation. - Where there has been a previous grudge and also an immediate provocation, it is for the jury to determine whether the shooting was induced by the previous grudge or the immediate provocation, and it is not for an appellate court to reverse their judgment, when the judge who tried the case declines to set aside. Read v. Commonwealth, 63 Va. (22 Gratt.) 924 (1872).

Trial court's determination of issue as a matter of law held proper. - Where defendant was on trial for murder of police officer during an attempted arrest, the evidence justified the trial court in determining as a matter of law that the attempted arrest was legal, although without a warrant. Fuller v. Commonwealth, 201 Va. 724 , 113 S.E.2d 667 (1960).

Circumstantial evidence justifying verdict. - The evidence, which is circumstantial only, justifies the verdict of murder in the first degree. Russell v. Commonwealth, 78 Va. 400 (1884). As to sufficiency of circumstantial evidence, see also Dean v. Commonwealth, 73 Va. (32 Gratt.) 912 (1879); Holmes v. Cooper, 872 F. Supp. 298 (W.D. Va. 1995); Bullion v. Gadaleto, 872 F. Supp. 303 (W.D. Va. 1995); Vannoy v. Cooper, 872 F. Supp. 1485 (E.D. Va. 1995).

Circumstantial evidence held sufficient to uphold verdict of first-degree murder. Rees v. Commonwealth, 203 Va. 850 , 127 S.E.2d 406 (1962), cert. denied, 372 U.S. 964, 83 S. Ct. 1088, 10 L. Ed. 2d 128 (1963).

Circumstantial evidence was sufficient to prove that the defendant was the person who committed the murder at issue where: (1) the victim's companion identified the defendant as the person she saw approach their car on three occasions attempting to sell cocaine to the victim; (2) in close proximity to her, the defendant and the victim discussed the quantity of cocaine the victim was trying to buy; (3) the defendant had the victim exit the car and led him to an apartment breezeway; (4) within seconds, the companion heard a gunshot and saw the victim run toward the car holding his chest; and (5) when he arrived at the car, he stated that he "shot me." Fentress v. Commonwealth, No. 2056-97-2 (Ct. of Appeals Sept. 15, 1998).

Whether evidence of decedent's prior character is remote concerns weight, etc. - Once a nexus for relevancy of prior conduct or character of decedent has been established in a defendant's self-defense contentions, the issue of remoteness concerns the weight of the evidence and the credibility of the witnesses, both of which are within the province of the jury. Barnes v. Commonwealth, 214 Va. 24 , 197 S.E.2d 189 (1973).

D. INSTRUCTIONS.

The jury should be instructed as to the degrees of homicide and the punishment therefor provided by statute. Bradshaw v. Commonwealth, 174 Va. 391 , 4 S.E.2d 752 (1939); Henry v. Commonwealth, 195 Va. 281 , 77 S.E.2d 863 (1953).

Instruction on second-degree murder not given unless warranted by evidence. - An instruction on murder in the second degree should not be given unless it was warranted by the evidence before the jury. Wright v. Commonwealth, 213 Va. 352 , 192 S.E.2d 748 (1972).

The trial court did not err in refusing the instruction on murder in the second degree where the jury could have properly returned only one of two verdicts: guilty of murder in the first degree, or not guilty. Wright v. Commonwealth, 213 Va. 352 , 192 S.E.2d 748 (1972).

The presumption of second-degree murder yields to facts. No instruction should be given unless it is supported by evidence, and such evidence must be more than a scintilla. LeVasseur v. Commonwealth, 225 Va. 564 , 304 S.E.2d 644 (1983), cert. denied, 464 U.S. 1063, 104 S. Ct. 744, 79 L. Ed. 2d 202 (1984).

The trial court properly refuses an instruction on second-degree murder where the evidence would support only findings of first-degree murder or not guilty. This is so notwithstanding the presumption that every homicide is second-degree murder. LeVasseur v. Commonwealth, 225 Va. 564 , 304 S.E.2d 644 (1983), cert. denied, 464 U.S. 1063, 104 S. Ct. 744, 79 L. Ed. 2d 202 (1984).

The fact that a killer and his victim argue prior to the murder does not, of itself, mandate that a second degree murder instruction be given. Casey v. Commonwealth, No. 1326-94-3 (Ct. of Appeals July 25, 1995).

It is well established that a defendant accused of capital or first degree murder is not entitled to an instruction on second degree murder based on the legal presumption that all homicides are second degree murder. Williams v. Commonwealth, No. 2584-96-1 (Ct. of Appeals Feb. 10, 1998).

Instructions as to malice, deliberation, and premeditation held valid. - See Honesty v. Commonwealth, 81 Va. 283 (1886); Bryan v. Commonwealth, 131 Va. 709 , 109 S.E. 477 (1921); Thompson v. Commonwealth, 131 Va. 847 , 109 S.E. 447 (1921); Sims v. Commonwealth, 134 Va. 736 , 115 S.E. 382 (1922); Adams v. Commonwealth, 163 Va. 1053 , 178 S.E. 29 (1935); Hodges v. Commonwealth, 213 Va. 316 , 191 S.E.2d 794 (1972).

Instruction in a prosecution for first-degree murder that "to constitute a willful, deliberate and premeditated killing" it is only necessary that the intention to kill come into existence at the time of the killing is not error when thrust of instructions is to define time frame of malicious intent to kill and additional instruction clearly differentiates between malicious intent and premeditation. The preferable practice, however, is to omit the words "and premeditated." Baker v. Commonwealth, 218 Va. 193 , 237 S.E.2d 88 (1977).

An instruction to the effect that to constitute a willful, deliberate and premeditated killing, it is not necessary that the intention to kill should exist for any length of time prior to the actual killing; it is only necessary that such intention should have come into existence for the first time at the time of such killing or at any time previously, although misleading, was not so erroneous as to require habeas corpus relief, though the words "and premeditation" should be omitted in the future. Baker v. Muncy, 619 F.2d 327 (4th Cir. 1980).

Instruction as to concert of action. - Because the jury instructions on concert of action fully and fairly covered the principle of law, and because defendant acted with an accomplice pursuant to a scheme that involved robbing the victim with a gun, defendant was accountable for the victim's death; consequently, defendant was properly convicted of first-degree murder and use of a firearm during the commission of a felony. Baker v. Commonwealth,, 2010 Va. App. LEXIS 507 (Mar. 31, 2010).

Instructions properly refused. - See Dejarnette v. Commonwealth, 75 Va. 867 (1881); Smith v. Commonwealth, 192 Va. 186 , 64 S.E.2d 761 (1951).

In a prosecution of accused, as a principal in the second degree, for murder in the commission of a robbery, the trial judge committed no error in refusing to grant an instruction that would have told the jury that every unlawful homicide is presumed to be murder in the second degree and that, in order to elevate an unlawful homicide to murder in the first degree, the Commonwealth has the burden of proving the elements of first-degree murder, or in refusing instructions that defined and set forth the permissible punishment for murder in the second degree, since, under the evidence, the jury could have properly returned only one of two verdicts, guilty of first-degree murder or not guilty. Wooden v. Commonwealth, 208 Va. 629 , 159 S.E.2d 623 (1968).

Where defendant's only defense at trial was that he was not the killer, defendant was not entitled to an instruction on first degree murder or on the grade of the offense of homicide. Bennett v. Commonwealth, 236 Va. 448 , 374 S.E.2d 303 (1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1765, 104 L. Ed. 2d 200 (1989).

Where evidence fell short of establishing provocation, anger, passion, or any other fact that might serve to convince a jury that defendant acted without premeditation, the trial court did not err in refusing to instruct the jury on second degree murder. Casey v. Commonwealth, No. 1326-94-3 (Ct. of Appeals July 25, 1995).

The trial court did not err in refusing to instruct the jury on self-defense where the defendant asserted that, after he and the victim had begun to argue, she attacked him with a knife, they fought over the knife and, in the struggle, they fell down the stairs and the victim was fatally wounded when she fell on the knife; the defendant never claimed that he had stabbed the victim in self-defense and the only instruction warranted by his account was for an accidental death, which instruction was given by the court. Bowler v. Commonwealth, No. 0404-99-4, 2000 Va. App. LEXIS 207 (Ct. of Appeals Mar. 21, 2000).

Request for a jury instruction on self-defense in defendant's trial for murder, under § 18.2-32 , was properly refused where defendant was not engaged in a lawful activity when he shot the gun, killing the victim; defendant had instigated two separate confrontations at the time of the killing. Coleman v. Commonwealth, No. 1654-01-2, 2002 Va. App. LEXIS 734 (Ct. of Appeals Dec. 10, 2002).

Defendant, convicted of multiple charges that included a conviction as a principal in the first degree for second-degree murder, in violation of §§ 18.2-30 and 18.2-32 , was not entitled to an instruction on theory of justifiable homicide, as defendant was not totally free from fault, as defendant admitted that approaching defendant's adversary and threatening him; in addition, defendant was not entitled to a voluntary manslaughter instruction, as the evidence did not support defendant's argument that defendant shot in the heat of passion and without reflection, where defendant's statement to the police reflected deliberation and intent, rather than the heat of passion, and there was a reasonable opportunity to cool. Martin v. Commonwealth, No. 0470-02-1, 2003 Va. App. LEXIS 205 (Ct. of Appeals Apr. 8, 2003).

Trial court's denial of defendant's requested jury instruction to support his defense of heat of passion and absence of malice was proper where he was convicted of being a principal to a murder due to his friend having shot at a carload of individuals that defendant and his friend were engaged in a dispute with, which caused the death of an innocent passerby when the bullet went astray; the court indicated that defendant's intent was irrelevant because he did not have the gun, and his friend's actions clearly evidenced no indication of provocation that would have justified giving the instruction. Williams v. Commonwealth, No. 0552-02-1, 2003 Va. App. LEXIS 206 (Ct. of Appeals Apr. 8, 2003).

Where defendant preserved the argument for a voluntary manslaughter instruction and the Commonwealth did not argue at trial that the evidence did not support the instruction, the trial court erred in excluding the instruction; therefore, defendant's conviction for second-degree murder and use of a firearm during the commission of a felony, violations of §§ 18.2-32 and 18.2-53.1 , had to be reversed. Fox v. Commonwealth, No. 1717-02-1, 2003 Va. App. LEXIS 362 (Ct. of Appeals June 24, 2003).

Defendant's request for a jury instruction on justifiable self-defense was properly denied as both defendant and the victim were responsible for the altercation that resulted in the shooting. Epps v. Commonwealth, No. 2921-02-3, 2003 Va. App. LEXIS 641 (Ct. of Appeals Dec. 16, 2003).

In trial for second-degree murder, the trial court did not err in refusing to instruct on voluntary manslaughter, because defendant presented no evidence that defendant acted in the heat of passion; no evidence suggested that the victim provoked defendant or that defendant acted in rage or fear, and even if defendant did act in rage or fear initially, the time necessary to get gun and return was sufficient for defendant's passion to cool. Monroe v. Commonwealth,, 2009 Va. App. LEXIS 111 (Mar. 17, 2009).

Defendant's convictions for first-degree murder and the use of a firearm in the commission of a felony were proper because, under either account of the events given by defendant, either his trial testimony or his statements made to investigators, he forfeited his right to a self-defense jury instruction because he was not without fault in bringing on the difficulty that resulted in the victim's death, and he was not in reasonable fear of death or great bodily harm when he killed the victim. Accordingly, the trial court did not err when it refused defendant's proffered jury instruction on justifiable homicide. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

Trial court did not abuse its discretion by refusing to give defendant's proposed jury instruction defining concert of action because defendant did not meet his burden of showing that the proposed language was a correct statement of the law, applicable to the facts of the case on trial, and expressed in appropriate language; the trial court gave an instruction on concert of action that adequately stated the law and addressed the issues raised in the case related to that legal principle. Cooper v. Commonwealth,, 2010 Va. App. LEXIS 403 (Oct. 19, 2010).

In a murder prosecution in which defendant claimed self-defense, as the evidence showed that he did not arm himself after being threatened or assaulted, but shot the victim during their only confrontation, he was not entitled to a "right to arm" instruction. Osorio v. Commonwealth,, 2010 Va. App. LEXIS 508 (Oct. 28, 2010).

Defendant's conviction for first-degree murder was appropriate because any error in refusing to give his requested justifiable self-defense jury instruction was harmless since the trial court instructed the jury on the elements of first-degree murder, second-degree murder, and voluntary manslaughter, as well as excusable self-defense. By convicting defendant of first-degree murder, the jury found that defendant acted with premeditation, and willfully, maliciously, and deliberately killed his father. Lancaster v. Commonwealth,, 2011 Va. App. LEXIS 29 (Feb. 1, 2011).

Defendant's convictions for first-degree murder and use of a firearm in the commission of a felony were proper because the jury did not err in refusing to award an instruction on voluntary manslaughter. The jury rejected the instruction on second-degree murder and convicted defendant of first-degree murder; it followed that the jury would never have reached a voluntary manslaughter verdict. Cortez-Hernandez v. Commonwealth, 58 Va. App. 66, 706 S.E.2d 893, 2011 Va. App. LEXIS 114 (2011).

Because the jury, in its verdict of first-degree murder, rejected the factual basis upon which it could have rendered a verdict on the lesser-included offense of involuntary manslaughter, any error in failing to instruct on involuntary manslaughter was harmless; the jury rejected the lesser-included offense of second-degree murder, and in doing so must have found beyond a reasonable doubt that defendant acted not only maliciously but also willfully, deliberately, and premeditatedly. Dosky v. Commonwealth, No. 1771-17-4, 2019 Va. App. LEXIS 188 (Aug. 13, 2019).

The trial court did not err in failing to instruct the jury as to self-defense since nothing in the video or statements even minimally established the overt act requirement sufficient to justify a self-defense claim; nor was there even a scintilla of evidence of heat of passion or reasonable provocation warranting a manslaughter instruction. Jones v. Commonwealth, 71 Va. App. 70, 833 S.E.2d 918, 2019 Va. App. LEXIS 244 (2019).

Instruction on unsupported hypothesis properly refused. - It is proper for the trial court to refuse defendant's request to instruct the jury on a hypothesis of the case which finds no support in the evidence. Fuller v. Commonwealth, 201 Va. 724 , 113 S.E.2d 667 (1960).

Variance not created by instruction. - Jury instruction on transferred intent did not create a fatal variance between the indictment of first-degree murder and the evidence, where the instruction accurately reflected the evidence adduced at trial, that defendant intended to shoot a person other than the victim, and did not broaden the charge defendant faced. Coleman v. Commonwealth, No. 1654-01-2, 2002 Va. App. LEXIS 734 (Ct. of Appeals Dec. 10, 2002).

Failure to give elements of robbery in felony murder instruction. - While failure of court on trial for felony murder to instruct the jury as to the elements of robbery or attempted robbery in giving felony murder instruction was error, it was not so prejudicial as to warrant federal habeas relief. Moore v. Garraghty, 739 F. Supp. 285 (E.D. Va. 1990), aff'd, 932 F.2d 963 (4th Cir. 1991).

Improper felony murder instruction. - Although a felony homicide instruction under § 18.2-33 incorrectly included the offense of attempted robbery, which was an enumerated offense for first-degree felony murder under § 18.2-32 , defendant could not show that a miscarriage of justice had occurred in order to invoke the ends of justice exception to Va. Sup. Ct. R. 5A:18 as defendant benefitted from the error in the jury instruction. Chalk v. Commonwealth,, 2009 Va. App. LEXIS 36 (Feb. 3, 2009).

Instruction as to lapse of cooling time after provocation. - An instruction to the effect that if accused, in heat of passion caused by insult to his wife, and before lapse of time enough for his passion to cool, killed deceased, it was murder in the second degree, but that it was murder in the first degree if such time had elapsed, and then he went with deadly weapon to kill, and did kill him with malice aforethought, was proper. Watson v. Commonwealth, 87 Va. 608 , 13 S.E. 22 (1891). See M'Whirt's Case, 44 Va. (3 Gratt.) 594 (1846).

Instruction presenting defendant's theory of accidental killing as defense. - Where the evidence warrants, an accused is entitled to an instruction presenting his theory of accidental killing as a defense. Martin v. Commonwealth, 218 Va. 4 , 235 S.E.2d 304 (1977).

Where the undisputed physical evidence renders an accident impossible, the trial court does not err in refusing to instruct on accidental shooting. Epps v. Commonwealth, No. 2921-02-3, 2003 Va. App. LEXIS 641 (Ct. of Appeals Dec. 16, 2003).

Accidental killing instruction denied. - In trial for second-degree murder, the trial court did not err in refusing to instruct on accidental killing, because the evidence did not support defendant's claim that a ricochet bullet hit the victim accidentally and the instructions given fully denied the elements of murder and the meaning of the terms. Monroe v. Commonwealth,, 2009 Va. App. LEXIS 111 (Mar. 17, 2009).

To justify an instruction on voluntary drunkenness, the evidence must show more than the mere drinking of alcohol. Hatcher v. Commonwealth, 218 Va. 811 , 241 S.E.2d 756 (1978).

Instruction which read: "Voluntary intoxication is a defense to first degree murder. If you find that the defendant was so greatly intoxicated by the voluntary use of alcohol that he was incapable of forming the specific intent necessary to deliberate and premeditate, which are elements of the crime of first degree murder, you may not find him guilty of any offense greater than second degree murder," read as a whole, contained a clear, accurate statement of the law, although deletion of the first sentence of the instruction perhaps would have been an improvement. Wright v. Commonwealth, 234 Va. 627 , 363 S.E.2d 711 (1988).

Instruction as to burden of proof. - It was error for the trial court to refuse an instruction to the jury that the burden was on the Commonwealth to prove a killing was not accidental and that the jury should acquit the defendant if it entertained a reasonable doubt whether the death was accidental or intentional where the evidence warranted such an instruction. Martin v. Commonwealth, 218 Va. 4 , 235 S.E.2d 304 (1977).

The instruction "The Court instructs the jury that every person is presumed to have intended the natural and probable consequences of his voluntary acts" is error, since a reasonable jury could view the presumption either as conclusive or as shifting the burden of persuasion to the defendant. Stokes v. Warden, Powhatan Correctional Center, 226 Va. 111 , 306 S.E.2d 882 (1983).

For case involving an analysis of specific jury instructions vis-a-vis the due process standards of Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), see Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976); Warlitner v. Commonwealth, 217 Va. 348 , 228 S.E.2d 698 (1976), cert. denied, 430 U.S. 957, 97 S. Ct. 1604, 51 L. Ed. 2d 807 (1977).

Requiring defendant to show extenuating circumstances unconstitutional. - An instruction which tells the jury that the delivery of a mortal wound with a deadly weapon and without sufficient provocation throws upon the slayer the necessity of showing extenuating circumstances to overcome the presumption of willful, deliberate and premeditated killing and which directs that the presumption may be overcome by proof of extenuating circumstances sufficient to create a reasonable doubt, is an unconstitutional shifting to the defendant of the burden of persuasion as to an essential element of the crime. Baker v. Muncy, 619 F.2d 327 (4th Cir. 1980).

Proper instruction on self-defense. - An instruction that the law of self-defense is the law of necessity, and necessity relied on to justify the killing must not arise out of the prisoner's own conduct, and that if the prisoner assaulted the deceased, and thereby brought about the necessity of killing him, then the prisoner could not justify the killing by a plead of necessity unless he were without fault in bringing that necessity on himself, was proper. Jackson v. Commonwealth, 98 Va. 845 , 36 S.E. 487 (1900).

Instruction on self-defense properly refused when no evidence to support it. - In a trial for homicide it is not error to refuse an instruction on self-defense, where there is no evidence to support it, it not appearing that accused was threatened with any danger. Jones v. Commonwealth, 135 Va. 545 , 115 S.E. 572 (1923).

Failure to instruct on self-defense, right to arm, voluntary manslaughter, and heat of passion, constituted reversible error, where the court's exclusion of the victim's prior threats and violence toward defendant, evidence which rebutted the Commonwealth's anticipated argument as to premeditation, and evidence which would have created a jury issue on whether a significant cooling off period was presented, failed to allow the fact finder to conclude that the murder was anything but premeditated. Cary v. Commonwealth, No. 2031-03-1, 2004 Va. App. LEXIS 623 (Ct. of Appeals Dec. 21, 2004), aff'd, 271 Va. 87 , 623 S.E.2d 906 (2006).

Instruction on apprehension of danger. - See Byrd v. Commonwealth, 89 Va. 536 , 16 S.E. 727 (1893); McCoy v. Commonwealth, 125 Va. 771 , 99 S.E. 644 (1919).

Instructions on duty to retreat. - See Stoneham v. Commonwealth, 86 Va. 523 , 10 S.E. 238 (1889); McCoy v. Commonwealth, 125 Va. 771 , 99 S.E. 644 (1919).

Instruction that lack of motive affords presumption of innocence held valid. - Where there is no evidence of motive, it is prejudicial error to refuse to instruct the jury "that the absence of all evidence of an inducing cause or motive to commit the crime, when the fact is in reasonable doubt as to who committed it, affords a strong presumption of innocence." Vaughan v. Commonwealth, 85 Va. 671 , 8 S.E. 584 (1889). See also Sutton v. Commonwealth, 85 Va. 128 , 7 S.E. 323 (1888).

Instructions as to reasonable doubt. - See Horton v. Commonwealth, 99 Va. 848 , 38 S.E. 184 (1901).

Instructions on unique method of committing crime. - Trial judge erred by referring in jury instructions to the "unique nature of the method of committing the crime," where no evidence of modus operandi was profferred at trial. Fogg v. Commonwealth, No. 3062-00-2, 2002 Va. App. LEXIS 323 (Ct. of Appeals May 28, 2002).

Instructions as to res gestae. - It was proper to instruct the jury that a killing could take place before, during, or after the arson if the killing was so closely related to the arson in time, place, and causal connection as to make it a part of the same criminal enterprise. It was unnecessary to give a more elaborate restatement with regard to res gestae; there was nothing in the brevity or clarity of the instruction to suggest that the jury could find defendant guilty without any showing of causal connection between the killing and the arson or attempted arson. Kennemore v. Commonwealth, 50 Va. App. 703, 653 S.E.2d 606, 2007 Va. App. LEXIS 439 (2007).

Instructions as to lesser offenses. - In murder prosecution where facts were sufficient to establish the killing of the deceased by the defendant and defendant was convicted of involuntary manslaughter the court did not err in instructing the jury as to voluntary manslaughter, involuntary manslaughter, or assault and battery, because there was no evidence which tended to prove the commission of any of these lesser offenses. Blankenship v. Commonwealth, 193 Va. 587 , 70 S.E.2d 335 (1952).

Denial of defendant's request for a voluntary manslaughter instruction was proper, because the overwhelming evidence demonstrated that defendant committed a malicious killing; with a sedate, deliberate mind, and formed design, he placed a barbell on his daughter's neck and suffocated her and then took a larger barbell and pummeled his wife's head with it and used it to suffocate her. Kenston v. Commonwealth, No. 2487-11-4, 2013 Va. App. LEXIS 35 (Jan. 29, 2013).

Curative instructions. - In a first degree murder case, the prosecutor's comment, in rebuttal to defense counsel's closing argument, that defendant did not obtain the house or any money after her husband's murder because she was in jail 10 days after his death, was not so prejudicial as to require a mistrial, especially in light of the trial court's cautionary instruction and the prosecutor's corrective statement. Blanton v. Commonwealth, 280 Va. 447 , 699 S.E.2d 279, 2010 Va. LEXIS 237 (2010).

Preservation for review. - Where defendant did not preserve for appeal the issues regarding admission and exclusion of testimony and did not show "good cause" or that review was necessary to attain the "ends of justice," the issues could not be raised on direct appeal of defendant's conviction for first-degree murder and for use of a firearm in the commission of the murder. Nguyen v. Commonwealth, No. 0432-02-4, 2003 Va. App. LEXIS 155 (Ct. of Appeals March 25, 2003).

In a first-degree murder prosecution, defendant's proffer of a correct instruction on self-defense was sufficient to preserve for appeal the question of whether the trial court erred in refusing that instruction. It was not necessary for her to expressly articulate each element necessary to her defense, because the trial court heard the evidence and could evaluate its application to the proffered instruction. Commonwealth v. Cary, 271 Va. 87 , 623 S.E.2d 906, 2006 Va. LEXIS 22 (2006).

Defendant did not preserve for review the claim that the trial court's response to the jury's question caused the jury instruction to incorrectly state the law because defendant did not make a contemporaneous objection at the time the trial court informed defendant how the trial court would respond to the question. However, in defendant's murder case, the jury instruction did correctly state the law because defendant could be found not guilty of murder under § 18.2-32 yet be convicted of use of a firearm in attempting to commit murder under § 18.2-53.1 . Ludwig v. Commonwealth, 52 Va. App. 1, 660 S.E.2d 679, 2008 Va. App. LEXIS 227 (2008).

Batson motion correctly denied. - Defendant's convictions for first-degree murder and the use of a firearm in the commission of a felony were proper because the trial court was not clearly erroneous in denying defendant's Batson motion. The Commonwealth offered facially valid race-neutral reasons for the exercise of its strikes and defendant failed to offer any evidence or argument that the proffered rationale behind the strikes challenged were pretextual. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

E. VERDICT.

A jury's determination of guilt and punishment in a single trial does not impair the right of an accused to an impartial jury in contravention of the Sixth Amendment to the Constitution of the United States. Bloodgood v. Commonwealth, 212 Va. 253 , 183 S.E.2d 737 (1971).

A unitary trial at which the jury determines guilt and punishment in a single trial does not impair the right of the accused to an impartial trial in contravention of the Sixth Amendment to the Constitution of the United States. Brown v. Commonwealth, 212 Va. 515 , 184 S.E.2d 786 (1971).

From a constitutional standpoint, it is not impermissible for a state to consider that the compassionate purposes of jury sentencing in capital cases are better served by having the issues of guilt and punishment determined in a single trial than by focusing the jury's attention solely on punishment after the issue of guilt has been determined. Bloodgood v. Commonwealth, 212 Va. 253 , 183 S.E.2d 737 (1971).

Defendant entitled to new sentencing hearing. - Circuit court erred by reducing defendant's second degree murder conviction to a sentence of twenty years imprisonment because defendant was entitled to a new sentencing hearing when his original twenty-five year sentence exceeded the maximum range of punishment set forth in § 18.2-32 ; a sentence imposed in violation of a prescribed statutory range of punishment is void ab initio because the character of the judgment was not such as the circuit court had the power to render, and, thus, a criminal defendant in that situation is entitled to a new sentencing hearing. Rawls v. Commonwealth, 278 Va. 213 , 683 S.E.2d 544, 2009 Va. LEXIS 82 (2009).

Double jeopardy was not violated when defendant was convicted of both felony murder and the underlying felony in a single trial, since the purpose of the reference to felonies in the murder statutes is gradation and not prohibition of punishment for the underlying felonies. Spain v. Commonwealth, 7 Va. App. 385, 373 S.E.2d 728 (1988).

Double jeopardy not violated by convictions for aggravated malicious wounding and attempted murder. - Proof of attempted murder does not require proof of an actual injury, and therefore aggravated malicious wounding and attempted murder each contain an element not contained by the other, and neither crime is a lesser-included offense of the other for double jeopardy purposes. Dennis v. Commonwealth, No. 1285-98-1, 1999 Va. App. LEXIS 583 (Ct. of Appeals Oct. 19, 1999).

Double jeopardy not violated by convictions for aggravated malicious wounding and second-degree murder. - Two offenses required elements of proof that the other did not since the aggravated malicious wounding statute, § 18.2-51.2 , prohibited certain methods of violence resulting in severe and permanent injury, and the murder statute, § 18.2-32 , punished the taking of life without regard to the method. Aggravated malicious wounding required proof of a specific intent, whereas second-degree murder required no specific intent, and with different elements of proof, aggravated malicious wounding was not a lesser-included offense of second-degree murder, malicious wounding was not a lesser-included offense of attempted murder and the legislature intended multiple punishments; therefore, the offenses, having separate and distinct elements, allowed for prosecution under both statutes, the legislature authorized separate punishments for those acts, and the defendant's convictions for both aggravated malicious wounding and second-degree murder did not violate the Fifth Amendment prohibition against double jeopardy. Bomber v. Commonwealth,, 2013 Va. App. LEXIS 75 (Mar. 5, 2013).

Double jeopardy not violated by two convictions for attempted murder. - Defendant's double jeopardy rights were not violated by convicting him of two counts of attempted murder as each of defendant's attacks on the victim could stand on its own as a separate, complete attempt to murder her because, during the first attack, defendant accelerated his car and aimed the vehicle directly at the victim, and his acceleration of his car toward the victim was a direct, unequivocal act toward the commission of murder; and defendant's second attack on the victim with a hammer was a separate attempt to murder her as the hammer attack did not involve a continuation of the motion involved in trying to run over the victim with a vehicle; instead, the hammer attack involved a new formation and execution of purpose. Jin v. Commonwealth, 67 Va. App. 294, 795 S.E.2d 918, 2017 Va. App. LEXIS 34 (2017).

Jury verdict finding accused guilty of a lesser degree of homicide will not be disturbed even though the evidence adduced tends to prove murder in the first degree and none other. Blankenship v. Commonwealth, 193 Va. 587 , 70 S.E.2d 335 (1952).

On an indictment for murder, a verdict of manslaughter will not be set aside at the instance of the accused because the evidence shows "murder by lying in wait" which the statute declares to be murder of first degree. The statutes of this state allow juries a certain degree of latitude and discretion in applying the law to the facts, and in fixing the degree of guilt of one convicted of crime. Burton v. Commonwealth, 108 Va. 892 , 62 S.E. 376 (1908).

Verdict set aside where jury examined photographs not admitted. - The trial court erred in refusing to sustain defendant's motion to set aside the verdicts of guilty of first-degree murder and use of a firearm in the commission of murder made upon the ground that numerous photographs of the crime scene, not admitted in evidence, were examined and considered by the jurors during deliberations, since the information supplied by some of the photographs tended to incriminate the accused and affected the grade of the offense. Brittle v. Commonwealth, 222 Va. 518 , 281 S.E.2d 889 (1981).

Verdict supported by evidence. - Trial court did not err in refusing to set aside the jury's verdict because it was supported by one witness's testimony, which was not contradicted by the testimony of two other witnesses; the first witness unequivocally testified she saw defendant shoot the victim, and the testimony of the other witnesses, viewed in light of their particular vantage points, did not directly contradicted her identification of defendant. Wood v. Commonwealth, No. 0937-17-1, 2018 Va. App. LEXIS 255 (Oct. 2, 2018).

CIRCUIT COURT OPINIONS

Admissibility of evidence. - Trial court denied defendant's motion in limine to exclude evidence that defendant had an altercation with another person whiled defendant was incarcerated for premeditated murder and use of a firearm while committing a murder, and that altercation led to a charge and conviction for assault and battery; that evidence, plus evidence that defendant made incriminating statements regarding his crimes were relevant and probative, and were not unduly prejudicial. Commonwealth v. Wallace, 70 Va. Cir. 341, 2006 Va. Cir. LEXIS 32 (Portsmouth 2006).

I. IN GENERAL.

Involuntary manslaughter is the killing of one accidentally contrary to the intention of the parties, in the prosecution of some unlawful, but not felonious act; or in the improper performance of a lawful act. Commonwealth v. Jones, 28 Va. (1 Leigh) 598 (1829); Souther v. Commonwealth, 48 Va. (7 Gratt.) 673 (1851). See also M'Whirt's Case, 44 Va. (3 Gratt.) 594 (1846); Byrd v. Commonwealth, 89 Va. 536 , 16 S.E. 727 (1893); Fadely v. Commonwealth, 208 Va. 198 , 156 S.E.2d 773 (1967); Lewis v. Commonwealth, 211 Va. 684 , 179 S.E.2d 506 (1971); Gooden v. Commonwealth, 226 Va. 565 , 311 S.E.2d 780 (1984).

Criminal negligence is element of offense. - Criminal negligence is the basis for involuntary manslaughter and has been defined as acting consciously in disregard of another person's rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another. Gray v. Commonwealth, No. 2017-99-3, 2000 Va. App. LEXIS 548 (Ct. of Appeals July 25, 2000).

Criminal negligence is acting consciously in disregard of another person's rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another. Craig v. Commonwealth, 34 Va. App. 155, 538 S.E.2d 355, 2000 Va. App. LEXIS 837 (2000).

Knowledge is element of offense. - To be guilty of involuntary manslaughter, a defendant must have had prior knowledge of specific conditions that would likely cause injury to others. Gray v. Commonwealth, No. 2017-99-3, 2000 Va. App. LEXIS 548 (Ct. of Appeals July 25, 2000).

Intentional, willful and wanton violation of safety statutes, resulting in death, will justify conviction of involuntary manslaughter. King v. Commonwealth, 217 Va. 601 , 231 S.E.2d 312 (1977).

To convict defendant of involuntary manslaughter the Commonwealth was required to prove that defendant committed acts of commission or omission of a wanton or wilful nature, showing a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his acts. Gallimore v. Commonwealth, 246 Va. 441 , 436 S.E.2d 421 (1993).

To support an involuntary manslaughter conviction, the Commonwealth must prove a homicide was not improbable under all of the facts existing at the time and that the knowledge of such facts should have had an influence on the conduct of the offender. Craig v. Commonwealth, 34 Va. App. 155, 538 S.E.2d 355, 2000 Va. App. LEXIS 837 (2000).

Evidence that defendant left the child in the van and casually instructed other children to get all the children out of the van and into the house without ensuring that his instructions were obeyed, and that, over a period of more than seven hours, defendant assumed but never ascertained that the child was asleep in the house was sufficient to show defendant's total and utter disregard for her well-being, safety, and life and thus, to support convictions for involuntary manslaughter and felony child neglect. Kelly v. Commonwealth, 42 Va. App. 347, 592 S.E.2d 353, 2004 Va. App. LEXIS 47 (2004).

"Objective awareness" test. - Whether a defendant knows of the dangerous risk she or he causes is measured by an "objective awareness" test - whether the defendant knew or should have known of the risk her or his conduct created. Gallimore v. Commonwealth, 15 Va. App. 288, 422 S.E.2d 613 (1992), aff'd, 246 Va. 441 , 436 S.E.2d 421 (1993).

Criminal negligence, as the basis for involuntary manslaughter, is judged under an objective standard and, therefore, may be found to exist where the offender either knew or should have known the probable results of his acts. Craig v. Commonwealth, 34 Va. App. 155, 538 S.E.2d 355, 2000 Va. App. LEXIS 837 (2000).

Construction with other law. - While the statutory requirements of former § 18.2-268 [now see § 18.2-268.1 et seq.] are to be strictly applied, they apply only to DUI prosecutions under § 18.2-266 , and not to an involuntary manslaughter prosecution under this section. Taylor v. Commonwealth, No. 1977-94-4 (Ct. of Appeals July 18, 1995).

The "improper" performance of a lawful act, to constitute involuntary manslaughter, must amount to an unlawful commission of such lawful act, not merely a negligent performance. The negligence must be criminal negligence. Gooden v. Commonwealth, 226 Va. 565 , 311 S.E.2d 780 (1984).

The accidental killing must be the proximate result of a lawful act performed in a manner so gross, wanton, and culpable as to show a reckless disregard of human life. Gooden v. Commonwealth, 226 Va. 565 , 311 S.E.2d 780 (1984).

The improper performance of a lawful act proximately causing an accidental killing is insufficient to support a conviction for involuntary manslaughter unless that improper performance constitutes criminal negligence. King v. Commonwealth, 217 Va. 601 , 231 S.E.2d 312 (1977).

Showing necessary where charge predicated on improper performance of lawful act. - When the Commonwealth predicates the charge upon an improper performance of a lawful act, it must show that the performance was so improper as to constitute negligence so gross and culpable as to indicate a callous disregard of human life. But the negligence need not be so gross as to raise the presumption of malice. Beck v. Commonwealth, 216 Va. 1 , 216 S.E.2d 8 (1975).

Where intentional violation of statute involves inherently dangerous act which is the proximate cause of the resulting homicide, the killing is involuntary manslaughter. Bailey v. Commonwealth, 5 Va. App. 331, 362 S.E.2d 750 (1987).

Malice is element of murder but not manslaughter. - Malice, a requisite element for murder of any kind, is unnecessary in manslaughter cases and is the touchstone by which murder and manslaughter cases are distinguished. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Reckless conduct must amount to unlawful conduct in order to sustain a charge of involuntary manslaughter; it is immaterial whether the unlawful act was unlawful in its inception - that is, an inherently unlawful act, such as discharging a deadly weapon into a crowded street - or became unlawful after it was begun, such as lawfully operating a vehicle in a public street but so accelerating its speed that it may cause death or serious bodily harm to persons in that street. Gooden v. Commonwealth, 226 Va. 565 , 311 S.E.2d 780 (1984).

Ordinary negligence is insufficient to convict of involuntary manslaughter. - The degree of negligence must be more than ordinary negligence in order for negligent violation of a safety statute to justify conviction of involuntary manslaughter. King v. Commonwealth, 217 Va. 601 , 231 S.E.2d 312 (1977).

In the operation of motor vehicles violation of a safety statute amounting to mere negligence proximately causing an accidental death is not sufficient to support a conviction of involuntary manslaughter. King v. Commonwealth, 217 Va. 601 , 231 S.E.2d 312 (1977).

Where evidence in a criminal prosecution showed at most only an inadvertent failure by the defendant to turn on her white headlights rather than her amber running or parking lights, this act of omission was no more than ordinary negligence, an insufficient predicate for a conviction of involuntary manslaughter. King v. Commonwealth, 217 Va. 601 , 231 S.E.2d 312 (1977).

When the proximate cause of a death is simply ordinary negligence, i.e., the failure to exercise reasonable care, the negligent party cannot be convicted of involuntary manslaughter. To constitute criminal negligence essential to a conviction of involuntary manslaughter, an accused's conduct must be of such reckless, wanton or flagrant nature as to indicate a callous disregard for human life and of the probable consequences of the act. Davis v. Commonwealth, 230 Va. 201 , 335 S.E.2d 375 (1985).

A higher degree of negligence in the operation of a motor vehicle is required to establish criminal liability for involuntary manslaughter than to establish liability in a civil action for ordinary or even gross negligence. This higher degree of negligence has come to be known as "criminal negligence." Keech v. Commonwealth, 9 Va. App. 272, 386 S.E.2d 813 (1989).

In determining the degree of negligence sufficient to support a conviction of vehicular involuntary manslaughter, the accused's conscious awareness of the risk of injury created by his conduct is necessarily a significant factor. Obviously, when the driver proceeds in the face of a known risk, the degree of the negligence is increased, and may turn that which would have been ordinary negligence into gross, willful or wanton negligence. Keech v. Commonwealth, 9 Va. App. 272, 386 S.E.2d 813 (1989).

Effect of contributory negligence of victim. - Contributory negligence has no place in a case of involuntary manslaughter. If the criminal negligence of the accused is found to be the cause of the death, he is criminally responsible, whether the decedent's failure to use due care contributed to the injury or not. Only if the conduct of the deceased amounts to an independent, intervening act alone causing the fatal injury can the accused be exonerated from liability for his or her criminal negligence. In such case, the conduct of the accused becomes a remote cause. Hubbard v. Commonwealth, 243 Va. 1 , 413 S.E.2d 875 (1992).

Reasonably foreseeable intervening acts do not break the chain of causal connection between the original act of negligence and subsequent injury. For defendant's negligence to have been a remote cause of victim's death, action of person who shot victim must have been an independent, intervening act alone causing the death. Gallimore v. Commonwealth, 15 Va. App. 288, 422 S.E.2d 613 (1992), aff'd, 246 Va. 441 , 436 S.E.2d 421 (1993).

It was not necessary that defendant foresaw the specific manner in which injury and death occurred. It was sufficient that she reasonably could have foreseen that risk of death or serious harm might result from her actions. Gallimore v. Commonwealth, 15 Va. App. 288, 422 S.E.2d 613 (1992), aff'd, 246 Va. 441 , 436 S.E.2d 421 (1993).

Accidental killing of person at whom loaded gun was pointed. - Where defendant intentionally pointed a loaded gun at the victim who was no more than five to ten feet away and the killing, while accidental, was a foreseeable result of defendant's conduct, his conduct was so gross, wanton and culpable as to show a reckless disregard for human life constituting involuntary manslaughter. Alternatively, his conduct was an unlawful act committed with criminal negligence constituting involuntary manslaughter. Bailey v. Commonwealth, 5 Va. App. 331, 362 S.E.2d 750 (1987).

Violation not a crime of violence under 18 U.S.C.S. § 16(b). - Violation of § 18.2-36 is not a crime of violence under 18 U.S.C.S. § 16(b); although the crime of violating § 18.2-36 intrinsically involves a substantial risk that the defendant's actions will cause physical harm, it does not intrinsically involve a substantial risk that force will be applied "as a means to an end." Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 2005 U.S. App. LEXIS 13318 (4th Cir. 2005).

Removability of alien. - Where the court found that involuntary manslaughter was not a crime of violence, the immigrant's finding of removability under 8 U.S.C.S. § 1227 was erroneous because the immigrant had not been convicted of an aggravated felony. Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 2005 U.S. App. LEXIS 13318 (4th Cir. 2005).

Duty to avoid danger by revealing truth. - Where defendant knew that a dangerous condition had been created by her deceit, and knew or should have known that the situation she created had escalated and was fraught with imminent danger that someone might be killed or seriously injured, yet she took no steps to defuse the danger that she knowingly and purposefully set in motion, and where she knew or should have known that she could avoid the danger by revealing the truth, she had a duty to act to avoid the danger. Gallimore v. Commonwealth, 15 Va. App. 288, 422 S.E.2d 613 (1992), aff'd, 246 Va. 441 , 436 S.E.2d 421 (1993).

For case upholding conviction of daughter for involuntary manslaughter of mother by starvation and freezing, see Davis v. Commonwealth, 230 Va. 201 , 335 S.E.2d 375 (1985).

Hunting accident. - Fact that defendant, alerted by a noise which he supposed to be a squirrel jumping from a tree but which could well have been something else, fired at an unidentified target which he perceived only to be "a flash of movement," supported a finding that he fired blindly and wildly and in utter disregard of the safety of others, and was sufficient to support defendant's conviction of involuntary manslaughter. Cable v. Commonwealth, 12 Va. App. 565, 405 S.E.2d 444 (1991), aff'd. 243 Va. 236 , 415 S.E.2d 218 (1992).

Admissibility of perception expert testimony in hunting shooting. - Testimony by sensation and perception expert would have explained to the jury how the camouflage contributed to the possibility of misperception. Some jurors might not appreciate how the victim, being camouflaged and using a turkey call, and defendant, expecting a turkey, could combine to cause defendant reasonably to believe he saw a turkey. The jury might have wondered how defendant could have made such a mistake unless he was grossly, wantonly, and wilfully negligent. The expert testimony could have provided the jury with an explanation that the jury could have found to be a reasonable hypothesis of innocence. Therefore, the testimony would have assisted the jury in resolving an essential issue and should not have been rejected on the grounds that it would not assist the jury or was a matter of common knowledge. Farley v. Commonwealth, 20 Va. App. 495, 458 S.E.2d 310 (1995).

Criminal negligence in training and supervision of dogs. - Evidence supported defendant's involuntary manslaughter conviction under § 18.2-36 as the jury could find that the cumulative effect of defendant's acts, including lack of adequate training and supervision of defendant's dogs culminating in their repeated history of actual harm and threatening behavior to animals and humans, followed by defendant's indifferent attitude to their actions caused a victim's death, and constituted criminal negligence. Large v. Commonwealth,, 2007 Va. App. LEXIS 399 (Oct. 30, 2007).

Supplying legal substance in lethal doses constituted involuntary manslaughter. - Evidence that defendant provided a lawful drug to a victim that he packaged in quantities that he knew were potentially lethal, knowing that the victim intended to ingest them in order to "trip," was sufficient evidence of defendant's criminal negligence to support his conviction of involuntary manslaughter. Coyle v. Commonwealth, 50 Va. App. 656, 653 S.E.2d 291, 2007 Va. App. LEXIS 422 (2007).

Defendant was charged with involuntary manslaughter for supplying a legal, but dangerous, drug to a person who died from an overdose. Although the victim's voluntary act of ingesting the drug was a contributing cause of his death, his voluntary act did not interrupt the natural and probable consequence of defendant's criminally negligent act of purposefully distributing the drug for ingestion in large dosages to the victim so that he could experience a "trip." Coyle v. Commonwealth, 50 Va. App. 656, 653 S.E.2d 291, 2007 Va. App. LEXIS 422 (2007).

Evidence sufficient to convict. - Where defendant, knowing that victim was intoxicated, nearly blind, and in an agitated state of mind, orchestrated a scenario whose finale was bound to include harmful consequences to victim, either in the form of his arrest or his injury or death, having aroused victim's wrath and led him to expect a violent confrontation, and then made two anonymous telephone calls to the police in which he falsely reported that victim had threatened to "shoot up" the neighborhood and to shoot anything that moved, defendant could properly be convicted of involuntary manslaughter for victim's death, which occurred when victim opened fire upon the police and the officers returned fire. Bailey v. Commonwealth, 229 Va. 258 , 329 S.E.2d 37 (1985).

Evidence that defendant assaulted the victim and left him lying injured on unlit exit ramp and that it was the assault that left the victim lying in the road to be subsequently hit by an oncoming car was sufficient to sustain his conviction for involuntary manslaughter. Banks v. Commonwealth, 41 Va. App. 539, 586 S.E.2d 876, 2003 Va. App. LEXIS 495 (2003).

In a prosecution for involuntary manslaughter, where experts testified that the victim had elevated levels of a drug in his bodily fluids and tissues, and that he died from the toxicity of that drug, which defendant had supplied him, the jury's finding that the victim died from an overdose of the drug was not plainly wrong or without evidence to support it. Coyle v. Commonwealth, 50 Va. App. 656, 653 S.E.2d 291, 2007 Va. App. LEXIS 422 (2007).

Evidence supported defendant's involuntary manslaughter conviction under § 18.2-36 as: (1) a victim's daughter identified dogs one and two as two of dogs involved in the fatal attack on the victim; (2) defendant admitted that defendant owned dog one; and (3) five witnesses identified dog two as belonging to defendant. Large v. Commonwealth,, 2007 Va. App. LEXIS 399 (Oct. 30, 2007).

Defendant's conduct in placing cardboard and a thirty-three and one-quarter pound, collapsed dog crate atop a toddler's crib to prevent the toddler from standing up in the crib and failing to visually check on the toddler for about three hours was wanton and willful, supporting defendant's conviction for involuntary manslaughter. Noakes v. Commonwealth, 280 Va. 338 , 699 S.E.2d 284, 2010 Va. LEXIS 240 (2010).

Convictions of involuntary manslaughter, § 18.2-36 , and felony child neglect, § 18.2-371.1 B were supported by sufficient evidence under circumstances in which defendant, a daycare van driver, left a child in the van for a full day, and the child died of heat exposure; defendant failed to look for the child after unloading the other children from the van, despite having personally strapped the child into his car seat, did not use the van logbook designed to prevent this kind of tragedy, took the child's diaper bag inside the daycare without confirming that the child was also safely inside, failed to use the logbook inside the daycare, and then drove home, completely oblivious to the child sitting behind him. After returning home, defendant did not check to make sure the van was empty, silenced his phone, making it impossible for anyone to reach him when questions later arose concerning the child's delivery, and then slept all day leading to the reasonable inference that lack of sleep compromised his alertness that morning. Whitfield v. Commonwealth, 57 Va. App. 396, 702 S.E.2d 590, 2010 Va. App. LEXIS 502 (2010).

Evidence insufficient to convict. - Evidence did not support defendant's conviction for involuntary manslaughter because defendant's decision not to take defendant's daughter back to the hospital during the few hours that elapsed during the night after the hospital released defendant's daughter did not amount to criminal negligence as both the treating physician and the generic discharge instructions led defendant to believe that defendants' daughter was "okay" when defendant left the hospital with defendant's daughter. Artis v. Commonwealth,, 2015 Va. App. LEXIS 183 (June 2, 2015).

Sentence appropriate within statutory range. - Defendant's involuntary manslaughter sentence was appropriate because it was a Class 5 felony under § 18.2-36 , punishable by imprisonment for 1 to 10 years under subdivision (e) of § 18.2-10 , and defendant was sentenced to 10 years imprisonment, which fell within the statutory range set by the legislature. Thus, no abuse of discretion occurred with regard to his sentence. Scott v. Commonwealth, 58 Va. App. 35, 707 S.E.2d 17, 2011 Va. App. LEXIS 104 (2011).

II. INVOLUNTARY MANSLAUGHTER IN OPERATION OF A MOTOR VEHICLE.

Involuntary manslaughter in operation of motor vehicle defined. - Involuntary manslaughter arising from the operation of a motor vehicle should be predicated solely upon criminal negligence proximately causing death. Accordingly, involuntary manslaughter in the operation of a motor vehicle is defined as the accidental killing which, although unintended, is the proximate result of negligence so gross, wanton and culpable as to show a reckless disregard of human life. King v. Commonwealth, 217 Va. 601 , 231 S.E.2d 312 (1977).

In order for driving an automobile at an excessive speed to constitute the basis for a manslaughter conviction the act must be so flagrant, culpable, and wanton as to show utter disregard of the safety of others under circumstances likely to cause injury. Shrader v. Commonwealth, 2 Va. App. 287, 343 S.E.2d 375 (1986).

In a prosecution for involuntary manslaughter, the manner of operation and speed of the appellant's automobile was material to the issue of whether his conduct was willful or wanton or showed a total disregard of the safety and well-being of others. Shrader v. Commonwealth, 2 Va. App. 287, 343 S.E.2d 375 (1986).

In a prosecution for involuntary manslaughter, evidence which tends to prove the rate of speed at which the automobile was driven, if competent, is relevant. Shrader v. Commonwealth, 2 Va. App. 287, 343 S.E.2d 375 (1986).

Degree of intoxication is a circumstance relevant to a determination of the question whether, in light of all other circumstances, the act of driving an automobile was such an improper performance of a lawful act as to constitute negligence so gross and culpable as to indicate a callous disregard of human life. Beck v. Commonwealth, 216 Va. 1 , 216 S.E.2d 8 (1975).

Defendant's negligence not remote cause of double homicide where evidence established beyond reasonable doubt that the defendant's vehicle was proceeding at an exorbitant rate of speed, running out of control, and swerving from one lane to the other up to the very point in time and place that the fatal collision occurred. At best, failure of driver of victims' car to steer to the right would have been only a contributing cause of the collision, not rising to the level of an independent, intervening act which could be classified as alone causing the fatal injuries and thus exonerating the defendant. Hubbard v. Commonwealth, 243 Va. 1 , 413 S.E.2d 875 (1992).

Concurring causes of death. - Where, in a prosecution under this section, the negligence of the defendant and another person, in operating their vehicles around a curve at speeds of 80 to 100 miles per hour, occurred contemporaneously and continued in operation up to the very point in time and place that the defendant's vehicle went out of control and resulted in death of a pedestrian, the negligence of the other person was not an intervening but a concurring cause. Delawder v. Commonwealth, 214 Va. 55 , 196 S.E.2d 913 (1973).

Reckless driving and involuntary manslaughter are two separate and distinct offenses, although arising out of the same occurrence. The lesser offense is not included within the other. Delawder v. Commonwealth, 214 Va. 55 , 196 S.E.2d 913 (1973).

Distinction between reckless driving and involuntary manslaughter. - What distinguishes a speeding violation from the misdemeanor of reckless driving, and the misdemeanor from the felony of involuntary manslaughter, is the likelihood of injury to other users of the highways. And the degree of the hazard posed by a speeding automobile depends upon the circumstances in each case. Mayo v. Commonwealth, 218 Va. 644 , 238 S.E.2d 831 (1977).

Evidence that defendant, after drinking enough beer to affect his behavior, knowingly drove an overcrowded, defective vehicle and attempted to negotiate a curve at a speed in excess of the posted speed limit during unfavorable weather conditions was a sufficient basis for the jury to conclude that defendant's negligence was so gross, wanton, and culpable as to show a reckless disregard of human life. Jetton v. Commonwealth, 2 Va. App. 557, 347 S.E.2d 141 (1986).

Prosecution not barred by prior acquittal of driving under influence. - The doctrine of collateral estoppel may not bar the prosecution for involuntary manslaughter of a person previously acquitted of driving under the influence of intoxicants, since the issue of intoxication is not necessarily dispositive of the crime of involuntary manslaughter. Simon v. Commonwealth, 220 Va. 412 , 258 S.E.2d 567 (1979).

But evidence of intoxication barred under collateral estoppel. - Although the defendant could be tried for involuntary manslaughter, even though he previously had been acquitted of driving under the influence of intoxicants, based upon failure of the Commonwealth to prove legal intoxication, the Commonwealth should have been barred, under the doctrine of collateral estoppel, from introducing in the manslaughter trial evidence to show that the defendant was intoxicated while operating the motor vehicle. Simon v. Commonwealth, 220 Va. 412 , 258 S.E.2d 567 (1979).

Though consumption of alcohol could be shown. - If the Commonwealth elected to try a defendant previously acquitted of driving under the influence for involuntary manslaughter, the Commonwealth would not be estopped from introducing evidence to show that the defendant consumed alcohol shortly before the accident in question, since the quantity of alcohol consumed by an automobile driver, even though not enough to cause legal intoxication, may be sufficient to impair his capacity to perceive the dangers with the clarity, make decisions with the prudence, and operate the vehicle with the skill and caution required by law. If such evidence is introduced in a subsequent trial, the jury should be instructed that such conduct is a circumstance to be considered in considering whether the defendant was guilty of negligence so gross, wanton and culpable as to show a reckless disregard of human life; and in addition, that the defendant was not legally intoxicated within the definition contained in former § 4-2 [now § 4.1-100 ]. Simon v. Commonwealth, 220 Va. 412 , 258 S.E.2d 567 (1979).

But blood tests not admissible to prove consumption of alcohol. - Where the prosecution would be estopped from introducing evidence of intoxication in a prosecution for involuntary manslaughter following acquittal of the defendant in a prosecution for driving under the influence of intoxicants on the basis of the failure of the Commonwealth to prove legal intoxication, the Commonwealth could not introduce into evidence the results of defendant's blood test, to prove that the defendant had been drinking before the accident in question, even though not estopped from proving that fact, since the prejudicial effect of the evidence would outweigh its probative value. If, however, the defendant presented evidence that he was not drinking before the accident, evidence of the test results would be competent on rebuttal, because its probative value would then outweigh its prejudicial effect. Simon v. Commonwealth, 220 Va. 412 , 258 S.E.2d 567 (1979).

Admissibility of blood test. - In an involuntary manslaughter prosecution, the degree of the driver's intoxication or impairment from alcohol ingestion is relevant to a determination of the driver's negligence, whether ordinary, gross, or wanton so as to demonstrate a reckless disregard of human life. For blood test results to be admissible to prove the degree of impairment or intoxication, the evidence must prove the reliability of the procedures used, that is, that the procedures utilized are likely to produce a reliable result. The burden is on the Commonwealth, as the proponent of the evidence, to prove that the procedures used yielded a reliable result. Taylor v. Commonwealth, No. 1977-94-4 (Ct. of Appeals July 18, 1995).

Where nurse testified that, except when drawing blood for DUI prosecutions, the traditional and customary procedure for cleansing and sterilizing the puncture area was with an isopropyl alcohol solution and that before drawing the blood, she dried the area with a sterile gauze pad; while no direct evidence was offered that the procedure could not affect the test results, from nurse's testimony, the fact finder could infer that because the area was dry, no isopropyl alcohol remained to contaminate the area or the blood sample and, therefore, that the test results were accurate and reliable. Accordingly, the Commonwealth met its burden of proving the reliability of the testing procedure. Taylor v. Commonwealth, No. 1977-94-4 (Ct. of Appeals July 18, 1995).

Conviction for involuntary manslaughter in the operation of a motor vehicle upheld. - An involuntary manslaughter conviction was upheld where a pedestrian on a bridge, who could be clearly seen for 400 feet, was killed by a drinking driver operating a car with defective brakes. Lewis v. Commonwealth, 211 Va. 684 , 179 S.E.2d 506 (1971).

Evidence that the driver, with an unobstructed view for 1,000 feet, "zigzagged" across the road and collided with another vehicle on the wrong side of the highway was held sufficient to convict him of involuntary manslaughter. Lewis v. Commonwealth, 211 Va. 684 , 179 S.E.2d 506 (1971).

Where defendant was travelling at a high rate of speed while following a vehicle so closely that he was unable to stop when the other driver hit his brakes, while his intellectual and motor functions were substantially impaired by alcohol, the record clearly supported his conviction under this section for involuntary manslaughter. Stover v. Commonwealth, 31 Va. App. 225, 522 S.E.2d 397 (1999).

Evidence of defendant's reckless and violent driving, directed toward known location of a pedestrian, supported trial court's finding that defendant's conduct constituted negligence so gross, wanton and culpable as to show a reckless disregard of human life. Hancock v. Commonwealth, No. 0182-99-1 (Ct. of Appeals Jan. 27, 2000).

The evidence was sufficient to support defendant's conviction where the defendant crashed into the rear end of a vehicle that was stopped behind a school bus that was unloading children and the evidence established that the defendant, who was driving a large wrecker truck, had been driving erratically for a number of miles prior to the accident, that the defendant was distracted by repeatedly checking his clipboard while he was driving, that the defendant failed to observe the signs warning of a school bus stop ahead, that the defendant failed to observe the school bus from a reasonable distance and that, when he finally did see the bus, he maintained a 55 mile per hour speed until slamming on the brakes just prior to the collision. Gray v. Commonwealth, No. 2017-99-3, 2000 Va. App. LEXIS 548 (Ct. of Appeals July 25, 2000).

Sufficient evidence supported defendant's convictions of involuntary manslaughter stemming from a drag race where the other driver ran into a tree, killing him and his passenger. Defendant's conduct of racing at speeds over 100 miles per hour during rush hour on a busy road near a residential area after he had been drinking was criminal negligence, and as defendant set the course of events in motion and did nothing to prevent the risk, the other driver's negligence was not an intervening act that alone caused the accident. O'Connell v. Commonwealth, 48 Va. App. 719, 634 S.E.2d 379, 2006 Va. App. LEXIS 415 (2006).

Evidence supported defendant's conviction for involuntary manslaughter in the operation of a motor vehicle as: (1) defendant was on notice that the road conditions ahead required a modification of his speed, but he continued to travel at 75 to 80 miles per hour both before and after he crested a hill, and he failed to slow as he approached the merging traffic that was traveling at 5 to 7 miles per hour; (2) defendant was in a fully-loaded tractor-trailer; (3) his failure to heed the warning signs and to slow down and drive at a safe speed and his unusual maneuver in merging caused him to crush the victim's vehicle; and (4) he showed a disregard for others and a reckless indifference to the consequences, which he knew or should have known would cause injury to another. Kreider v. Commonwealth,, 2006 Va. App. LEXIS 486 (Oct. 31, 2006).

Where defendant made a wrong turn onto the highway, and traveled the next seven or eight miles, with westbound traffic visible to him at various points, with other motorists traveling both east and west warning him by blowing horns and flashing lights, with reversed traffic signs and several wrong way and one way signs visible to him, prior to hitting an oncoming automobile killing three people, he should have known that he was traveling in the wrong lane, and therefore, should have known of the risk his conduct created; his conduct of continuing to drive against oncoming traffic once armed with this knowledge, which was chargeable to him, was a callous act of indifference to the safety of others and constituted conduct so gross, wanton and culpable as to show a reckless disregard of human life. The degree of his negligence, as determined by the great risk of injury together with the knowledge he had or should have had of that risk, was sufficient to support the convictions of involuntary manslaughter. Keech v. Commonwealth, 9 Va. App. 272, 386 S.E.2d 813 (1989).

Evidence sufficient to convict. - Defendant's conviction of involuntary manslaughter was proper. The trial court did not err in its finding that defendant acted in a criminally negligent manner, with a wanton and culpable disregard of human life, when defendant fired at a target defendant did not fully identify and thought incorrectly to be a turkey. Vance v. Commonwealth,, 2008 Va. App. LEXIS 508 (Nov. 18, 2008).

Evidence was sufficient to convict defendant of involuntary manslaughter, felonious child abuse or neglect involving the reckless endangerment of a child, and felonious child abuse involving serious injury to a child as the evidence proved that defendant was criminally negligent because he drove recklessly after recently ingesting marijuana with the knowledge that his minor passengers were not properly restrained by seat belts or appropriate devices; and he possessed the knowledge and consciousness of risk that could establish reckless disregard as he wore his own seat belt. Turner v. Commonwealth, No. 0067-16-1, 2017 Va. App. LEXIS 4 (Ct. of Appeals Jan. 10, 2017).

Evidence was sufficient to convict defendant of involuntary manslaughter as he acted with criminal negligence when he struck and killed the victim with his vehicle while she was riding her bicycle on the side of the road because defendant saw the victim approximately 400-500 feet before the accident; he was able to make a complete stop of his vehicle in 408.9 feet, and could have avoided hitting the victim; he took no action to avoid the victim as he did not slow down, attempt to move to the adjacent lane, or sound his horn to warn the victim; and defendant knew or should have known that his actions created a probability of serious injury and he acted with reckless or indifferent disregard to the rights of the victim. Hardin v. Commonwealth,, 2017 Va. App. LEXIS 229 (Sept. 5, 2017).

Evidence that defendant knew he was driving while impaired by a prescription drug, the side effects of which included drowsiness and delayed reaction times, and eyewitness testimony that defendant's vehicle suddenly crossed the double solid line and traveled into the lane of incoming traffic was sufficient to support defendant's conviction for involuntary manslaughter. Novotny v. Commonwealth,, 2017 Va. App. LEXIS 255 (Oct. 10, 2017).

Evidence insufficient to convict. - In a prosecution for involuntary manslaughter, where the evidence showed that the defendant drove down the center of a narrow, unlighted, unmarked, rural, secondary road in the early morning hours at a time when he was unlikely to encounter other traffic or pedestrians, and that he was driving at a speed well within the posted speed limit, and there was no evidence of drinking or of recklessness in the operation of his truck, the evidence, at most, showed ordinary negligence and not such gross, wanton, and culpable negligence as to show a reckless disregard of human life necessary to sustain a conviction of involuntary manslaughter. Jenkins v. Commonwealth, 220 Va. 104 , 255 S.E.2d 504 (1979).

The defendant's conduct did not rise to the level of willful or wanton negligence, evidencing a reckless disregard for human life, and, therefore, did not support a conviction for involuntary manslaughter where the most that could be said against him was that he failed to maintain a proper lookout. Sullivan, Jr. v. Commonwealth, No. 1038-98-3 (Ct. of Appeals Apr. 6, 1999).