Criminal: Circuit court erred by not giving voluntary manslaughter instructions

Where there was more than a scintilla of evidence that the defendant acted in the heat of passion upon reasonable provocation, and thus acted without malice, the circuit court erred by not instructing the jury on voluntary manslaughter.

Background

Avery D. Kirby was convicted of second-degree murder, in violation of Code § 18.2-32. On appeal, he contends that the trial court erred in refusing his proposed jury instructions related to voluntary manslaughter.

Analysis

Based on the standard of review and applicable legal standards, the trial court erred in refusing these instructions because there was more than a scintilla of evidence that appellant acted in the heat of passion upon reasonable provocation, and thus acted without malice.

According to appellant, on the night prior to D.J.’s death, D.J. and appellant argued because appellant had recently spent time with another woman. In retaliation for appellant’s infidelity, D.J. sexually assaulted appellant in his buttocks area while he slept. After he woke up and realized that he had been sexually assaulted, appellant spoke briefly with D.J., asking her if she had sexually assaulted him. Once he got confirmation of the assault, he then “snapped,” and hit her with the wooden leg of the sink counter, causing D.J.’s death.

Viewed in the light most favorable to appellant, in killing D.J., appellant acted upon a reasonable provocation—D.J.’s sexual assault of him. He also acted in the heat of passion, rendered “deaf to the voice of reason” by his rage towards D.J.

The Commonwealth, however, argues that appellant’s version of events lacked credibility because he failed to tell the investigator about the sexual assault during his police interview, did not wake up during or later seek medical attention for the assault, and failed to give aid to D.J. or call 911 on her behalf. But these challenges to appellant’s account of D.J.’s death do not make the determination of whether he acted in the heat of passion upon reasonable provocation a question for the trial court instead of the jury. Instead, these were credibility issues that were for the jury to decide, not for the trial court to resolve.

None of the physical evidence contradicted appellant’s theory of D.J.’s killing—that he hit her with the wooden counter leg after he “snapped” because she had sexually assaulted him. Because it was for the jury to determine the credibility of appellant’s account of D.J.’s death, and because no credible physical evidence negated appellant’s theory, this court rejects the Commonwealth’s argument that the trial court did not err in refusing to give voluntary manslaughter instructions based on the lack of credibility of appellant’s theory of the case.

The Commonwealth also argues that voluntary manslaughter instructions should not have been given here because “there was reasonable time or opportunity for any passion to cool.” Just as whether a provocation was sufficient to rebut the presumption of malice is a question of fact, “it is also a question of fact whether the defendant committed the homicide before or after his passion had cooled.” Here, reasonable persons could differ as to whether appellant’s retrieval of the counter leg provided him with sufficient time to cool off and thus act with malice rather than passion. Accordingly, the trial court erred by refusing the requested voluntary manslaughter instructions.

Harmless error

The Commonwealth contends that any error in not giving the voluntary manslaughter instructions was harmless. The court disagrees. Although there was evidence supporting the Commonwealth’s theory of a malicious killing, there was also evidence supporting appellant’s theory of a killing committed in the heat of passion upon reasonable provocation. Because “it is impossible to determine from the verdict whether the jury would have necessarily rejected a lesser-included offense on which it was not instructed,” the “error in refusing to instruct on that offense . . . not harmless.”

Reversed and remanded.

Kirby v. Commonwealth, Record No. 1984-23-3, July 29, 2025. CAV (unpublished opinion) (Malveaux). From the Circuit Court of the City of Danville (Reynolds). Michael A. Nicholas (Daniel, Medley & Kirby, P.C., on brief), for appellant. Virginia B. Theisen, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 025-7-199. 16 pp.