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Self-defense, heat of passion claims rejected

Virginia Lawyers Weekly//December 8, 2022

Self-defense, heat of passion claims rejected

Virginia Lawyers Weekly//December 8, 2022

Where, in this malicious wounding case, appellant presented alternate theories that he was either acting in self-defense when he shot the victim or that he acted in the heat of passion after the victim used racially charged language, the trial court properly rejected both theories.


“The appellant argues that the trial court should have concluded that he acted in self-defense. He suggests that his ‘actions were not excessive in terms of the perceived threat of three adults, spewing racial epithets, coming toward him to do him harm, possibly with a firearm.’…

“In this case, when the appellant returned to the parking lot, Cook was attending to her son’s car. The appellant approached Cook and yelled at her, calling her an ‘ignorant [W]hite cunt bitch.’ As the two exchanged heated insults, the appellant became ‘louder and more aggressive.’

“Ultimately, during the verbal dispute, the appellant removed his firearm from its holster and shot the unarmed victim while standing behind her.

“This record supports the trial court’s conclusion that the appellant ‘was not “without any fault on his part in provoking or bringing on the difficulty”’ and cannot rely on justifiable self-defense. …

“Further, the record supports the trial court’s finding that the appellant did not retreat, despite several opportunities during the confrontation to do so safely. Instead, the appellant escalated the situation drastically during the heated verbal exchange by unholstering his gun, pointing it at Cook’s head, and then ultimately shooting her in the ankle.

“Consequently, the trial court was not plainly wrong in rejecting the theory of excusable self-defense. …

The evidence, when viewed in the light most favorable to the Commonwealth, demonstrates that the appellant participated in instigating the altercation and did not withdraw despite an ability to do so.

“Accordingly, the trial court did not err by finding that the appellant did not act in either form of self-defense when he shot Cook.”

Heat of passion

“The appellant argues that there was overwhelming evidence that he acted in the heat of passion due to Cook’s behavior and use of certain racist language. Specifically, he contends that Cook’s use of the N-word directed at him, triggered a ‘visceral reaction.’

“The appellant suggests that this ‘racial epithet, as a matter of law, was likely to create fear or anger which could incite violence.’ He argues that Cook’s ‘overt racism’ created ‘a mental state that negates malice.’ …

“The trial court acknowledged that Cook used ‘terrible and ugly words that included slurs that were meant to be offensive, demeaning, [and] to marginalize’ the appellant.

“Nonetheless, it declined to ‘grade’ the incendiary insults the appellant and the victim exchanged. Clearly, this Court recognizes that ‘[g]iven American history, … the [N-word] … can have a highly disturbing impact on the listener.’ …

“We agree with the trial court’s characterizations of the racist language and its utterly devastating impact on individuals and society. Even so, binding precedent is clear that words by themselves do not constitute provocation sufficient to support the heat of passion defense. …

“The trial court found beyond a reasonable doubt that the appellant acted with malice. That factual determination is supported by the record and included consideration of the use of the racial epithets. The appellant approached Cook and called her an ‘ignorant [W]hite cunt bitch.’

“As the two engaged in a heated argument and said patently offensive things to one another, the appellant went over to her, dropped his folder, and drew his firearm. The appellant first pointed it toward Cook’s head and then lowered it as he walked up behind her.

“He did all of this within moments of shooting her. The appellant’s clearly intentional acts support the finding that he acted deliberately rather than impulsively in the heat of passion. … This conclusion is further supported by the fact that immediately after the shooting, the appellant ‘calmly walked away.’ …

“In these circumstances, the appellant’s intentional use of a deadly weapon supports an inference that he acted with malice.

“The trial court’s finding that the appellant acted deliberately and intentionally in response to Cook’s use of racial slurs against him and that he was not under the influence of a passion that rendered him ‘deaf to the voice of reason’ is supported by the record.”


Washington v. Commonwealth, Record No. 1256-21-2, Oct. 18, 2022. CAV (Decker). From the Circuit Court of the City of Fredericksburg (Willis). James Joseph Ilijevich for appellant. Virginia B. Theisen (Jason S. Miyares on brief), for appellee. VLW 022-7-458, 11 pp.

VLW 022-7-458

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