Home / Fulltext Opinions / Virginia Court of Appeals / CAUDILL v. COMMONWEALTH OF VA



APRIL 7, 1998
Record No. 0587-97-3





Donald A. McGlothlin, Jr., Judge
Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia

Wade T. Compton (C. Eugene Compton, P.C., on brief), for

Richard B. Smith, Assistant Attorney General (Richard Cullen,
Attorney General, on brief), for appellee.

Bolivar Caudill appeals his jury trial conviction for
malicious wounding in violation of Code ? 18.2?51. He contends
the trial court erred when it: (1) refused to instruct the jury
on the "heat of passion" defense, and (2) excluded from
the jury’s consideration during the sentencing phase evidence
regarding the impact of appellant’s incarceration upon his
family. Finding no error, we affirm the conviction.


At a social gathering hosted by Sharon George Peak, Peak’s
four?year-old daughter accidentally knocked an ashtray into
appellant’s lap. Appellant "jumped up
and . . . called her a little bitch and a little
whore." Harris, another guest, told appellant he should not
speak to a child in that manner. Peak asked appellant to leave
the trailer, which he did. Once outside, appellant started
cursing and screaming for Harris to come out of the trailer
"and settle it." Appellant stated: "I just want to
talk." Harris decided to "go talk to him and see if
he’ll calm down." When Harris exited the trailer, appellant
lunged at him and slashed Harris’ face with a shiny object.
Appellant then warned another guest that "he was the next
little son?of?a?bitch . . . he was going to
get." At trial, appellant testified that he did not recall
the incident because he was very intoxicated. Harris’ face was
permanently scarred as a result of the attack.


The trial court denied appellant’s request for a jury
instruction on the heat of passion defense.[1] Appellant
contends the trial court improperly refused the instruction
because the jury could have concluded that Harris’ "harsh
words" reasonably provoked appellant to attack Harris in the
"heat of passion." Appellant asserts that had the
instruction been given, the jury could have convicted him for the
lesser offense of unlawful wounding. See Miller v.
, 5 Va. App. 22, 24?25, 359 S.E.2d 841, 842
(1987). His contention is without merit.

"It is well settled that a trial court must instruct the
jury on a lesser?included offense if more than a scintilla of
evidence supports it." Donkor v. Commonwealth, 26 Va.
App. 325, 330, 494 S.E.2d 498, 500 (1998). However, an
instruction is properly refused when it is unsupported by the
evidence. Bennett v. Commonwealth, 8 Va. App. 228, 234,
380 S.E.2d 17, 21 (1989). Although the Commonwealth prevailed at
trial, we must view the evidence with respect to the refused
instruction in the light most favorable to the appellant. Turner
v. Commonwealth
, 23 Va. App. 270, 275, 476 S.E.2d 504, 507

No evidence in the record supports appellant’s contention that
the trial court was required to give an instruction on the heat
of passion defense. "Heat of passion" refers to the furor
brevis which renders a man deaf to the voice of reason. Hannah
v. Commonwealth
, 153 Va. 863, 870, 149 S.E. 419, 421 (1929).
To establish the heat of passion defense, an accused must prove
he committed the crime with "passion" and upon
"reasonable provocation." Canipe v. Commonwealth,
25 Va. App. 629, 643, 491 S.E.2d 747, 753 (1997). Viewed in the
light most favorable to appellant, the evidence establishes, at
most, that appellant and Harris exchanged "harsh
words" before the attack. The long?standing rule in
Virginia is that "[w]ords alone, however insulting or
contemptuous, are never a sufficient provocation" for
one to seriously injure or kill another. Id. (quoting Read
v. Commonwealth
, 63 Va. (22 Gratt) 924, 938 (1872)) (emphasis
added). The evidence was insufficient as a matter of law to prove
"heat of passion." Accordingly, the trial court did not
err in refusing to instruct the jury on the heat of passion


At his sentencing hearing, appellant informed the court that
he wished to offer as mitigating evidence for the jury’s
consideration appellant’s wife’s testimony that she suffered from
a serious medical condition and depended upon him to administer
her medication and to take her to the doctor. The trial judge and
defense counsel had the following dialogue:

[DEFENSE COUNSEL]: Well, your honor, we wanted to call
Betty Jean Caudill as a witness for mitigation. The proffered
evidence would be and (sic) Ms. Caudill would testify to her
current health condition. The medication that she is
receiving and the type of treatment she has to undergo (sic)
her medical condition. It would consist of (sic) that Mr.
Caudill who assists her with her medication. Who assists or
does the housekeeping chores as all of the children are out
of the home, your honor. He is responsible for taking her to
the doctor and back. And, that would be the proffer of what
she would testify to.

THE COURT: So, do I understand that the testimony would be
basically that she has a medical condition and is unable to
do these other items that you just enumerated for herself and
that, that if Mr. Caudill were to be incarcerated that she
would not have anyone to help her do these things?


Over appellant’s objection, the trial judge excluded the
evidence, holding that the adverse impact of appellant’s
incarceration on his family was irrelevant to the jury’s
recommendation of punishment.

Code ? 19.2?295.1
provides, in pertinent part, as follows:

In cases of trial by jury, upon finding that the defendant
is guilty of a felony, a separate proceeding limited to the
ascertainment of punishment shall be held as soon as possible
before the same jury. . . . After the
Commonwealth has introduced . . . evidence of
prior convictions, or if no such evidence is introduced, the
defendant may introduce relevant, admissible evidence
related to punishment

(Emphasis added.) The question of what evidence may be
properly admitted by the defendant at sentencing as
"relevant, admissible evidence related to punishment"
is an unsettled issue in Virginia. See Shifflett v.
, 26 Va. App. 254, 494 S.E.2d 163 (1997) (en
banc) (currently on appeal to the Virginia Supreme Court).

However, in Coppola v. Commonwealth, 220 Va. 243, 257
S.E.2d 797 (1979), upon being convicted for capital murder, the
defendant sought to introduce his former wife’s testimony as to
the adverse effect that sentencing him to death would have upon
their two young children. The trial court refused to admit the
evidence. On appeal, the Supreme Court noted that Coppola’s
proffered evidence of family impact was "not analogous to
any of the evidence specifically approved in the [death penalty] statute."[2]
Id. at 253, 257 S.E.2d at 804. Affirming the trial court’s
ruling, the Court held that "the effect of [the defendant’s] incarceration upon relatives is not a mitigating circumstance for
the jury to consider" during the sentencing phase of trial. Id.
at 254, 257 S.E.2d at 804. We find the Coppola decision
persuasive and controlling here.

Within the past year, in Shifflett, we held that the
trial court erred by excluding from the jury’s consideration at
sentencing Shifflett’s girlfriend’s testimony that "would
have proved that Shifflett was a responsible father who worked
earnestly to provide for his children." 26 Va. App. at 261,
494 S.E.2d at 166. We stated: "For the determination of
sentences, justice generally requires consideration of more than
the particular acts by which the crime was committed and that
there be taken into account the circumstances of the offense
together with the [offender’s] character and propensities
[for rehabilitation].’" Id. at 259, 494 S.E.2d at 166
(quoting Pennsylvania v. Ashe, 302 U.S. 51, 55 (1937))
(emphasis added). Thus, we held in Shifflett that evidence
of an offender’s "habits" and "character" is
"relevant to determining an appropriate punishment"
under Code ? 19.2?295.1.
Id. at 261, 494 S.E.2d at 166. In so holding, we concluded
the evidence that Shifflett "contributed positively to his
family situation" would have reflected upon his character
and was, therefore, admissible at his sentencing hearing. Id.
However, we noted that the evidence "was not offered merely
to prove the family’s apparent need for [the defendant’s] income." Id.

Here, as in Coppola, appellant offered the evidence in
order to prove that his incarceration would adversely affect his
family. Unlike the circumstances of Shifflett, appellant’s
wife’s testimony that she suffered from a serious medical
condition and depended upon appellant to ensure that she receive
medical treatment did not reflect upon the appellant’s
"character" and "propensities" for
rehabilitation. Accordingly, under Coppola, appellant’s
proffered evidence that his incarceration would adversely impact
his wife was not a mitigating circumstance that the jury could
properly consider under Code ? 19.2?295.1,
and the trial court did not err in refusing to admit the evidence
at appellant’s sentencing hearing. For these reasons, we affirm
the conviction.







[1] The so?called "heat of
passion" defense is not a defense in the traditional sense;
the existence of "heat of passion" merely reduces the
grade of the offense to a Class 6 felony.

Because the defendant was convicted for capital murder, the Coppola
Court considered the admissibility of evidence under Code ? 19.2?264.4(B),
Virginia’s death penalty statute. Code ? 19.2?264.4(B)
provides "[i]n cases of trial by jury, evidence may be
presented as to any matter which the court deems relevant to
. . . ." The statute then
enumerates an extensive, but not exhaustive, list of evidence
that may be introduced at sentencing, all of which "bears
upon the record of the defendant and the atrociousness of the
crime." Coppola, 220 Va. at 253, 257 S.E.2d at 804.
Our decisions have analogized the sentencing provisions of Code ? 19.2?295.1 to those
applicable to the sentencing phase of bifurcated capital murder
trials. See Bunn v. Commonwealth, 21 Va. App. 593,
598, 466 S.E.2d 744, 746 (1996); Gilliam v. Commonwealth,
21 Va. App. 519, 522?23, 465 S.E.2d 592, 594 (1996).