AI Case Brief
Generate an AI-powered case brief with:
📋Key Facts
⚖️Legal Issues
📚Court Holding
💡Reasoning
🎯Significance
Estimated cost: $0.001 - $0.003 per brief
Full Opinion
Present: All the Justices
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 050395 JUSTICE LAWRENCE L. KOONTZ, JR.
January 13, 2006
REBECCA SCARLETT CARY
FROM THE COURT OF APPEALS OF VIRGINIA
In an unpublished opinion, the Court of Appeals of Virginia
vacated Rebecca Scarlett Cary’s convictions in a jury trial for
the first-degree murder of Mark Beekman, Code § 18.2-32, and the
use of a firearm in the commission of that crime, Code § 18.2-
53.1. The Court of Appeals reversed the convictions on the
ground that the trial court erred in excluding evidence of
Beekman’s prior threats and acts of violence against Cary and in
failing to grant her proffered jury instructions on self-
defense, right-to-arm, and voluntary manslaughter based upon a
“heat of passion” theory. Cary v. Commonwealth, Record No.
2031-03-1, slip op. at 1-2 (December 21, 2004). We awarded the
Commonwealth an appeal from the judgment of the Court of Appeals
pursuant to Code §§ 17.1-411 and 19.2-317(C).1
1
The Court of Appeals held, among other things, that the
evidence was sufficient to support Cary’s convictions,
necessitating a remand for a new trial. Cary did not assign
cross-error to this aspect of the judgment of the Court of
Appeals. Accordingly, this issue is not before us in this
appeal.
BACKGROUND
Because the principal issue we consider in this appeal is
whether the trial court erred in refusing to grant a proper
instruction of law proffered by the accused, we view the facts
relevant to the determination of that issue in the light most
favorable to Cary. Commonwealth v. Sands, 262 Va. 724, 729, 553
S.E.2d 733, 736 (2001); see also Commonwealth v. Vaughn, 263 Va.
31, 33, 557 S.E.2d 220, 221 (2002); Commonwealth v. Alexander,
260 Va. 238, 240, 531 S.E.2d 567, 568 (2000). When so viewed,
the evidence at trial showed that Cary and Beekman were involved
in a tumultuous relationship for more than 15 years during which
time Beekman fathered three of Cary’s four children. Although
the two had cohabited in the past, they were not living together
in 2002. They habitually argued violently regarding Beekman’s
failure to provide child support for his children.
On May 23, 2002, Cary purchased a handgun “to protect me
and my children and our home” because she lived in a “bad
neighborhood.” In August 2002, Cary allegedly told Beekman’s
sister that she had purchased the handgun and threatened to kill
Beekman because he continued to fail to provide child support.
Cary allegedly made a similar statement to Tracy Tabron the day
before Beekman was killed. Cary denied making these statements.
On the evening of September 6, 2002, Beekman went to Cary’s
apartment in the City of Norfolk. Cary detected the odor of
2
alcohol on Beekman’s person and knew from past experience that
Beekman became violent when intoxicated. Post-mortem tests
subsequently confirmed that Beekman had a highly-elevated blood
alcohol level and also that he had recently used cocaine. The
couple immediately began to quarrel over Beekman’s failure to
provide Cary with child support, and Beekman called Cary vulgar
names and attacked her, grabbing her by the hair and hitting her
in the “face and sides.” Beekman refused to leave the apartment
despite Cary’s request that he do so.
Cary testified that when Beekman went to use the bathroom
in the apartment, she decided to retrieve the handgun from where
she kept it, but found that Darron, her teenage son, had already
done so. Cary took the handgun from Darron and removed its
ammunition clip, intending to use the apparently unloaded weapon
to frighten Beekman into leaving the apartment.
When Beekman came out of the bathroom, Cary was sitting on
a couch in the living room. Beekman again refused to leave the
home and “was still verbally assaulting” Cary, threatening that
he would “smack” her, “‘F’ [her] up,” and “break [her] up.” As
Beekman “was getting ready to come into the living room,” Cary
pointed the handgun at Beekman, and it discharged. The bullet
struck Beekman in the chest. Cary could not “remember doing
anything [to make the handgun] go off” and “believe[d] it was on
3
safety” and unloaded. Cary subsequently testified that she
thought Beekman intended to resume his physical assault on her.
Cary instructed her son to call 911 and proceeded to apply
pressure to the wound in Beekman’s chest. Cary pulled Beekman’s
body outside of the home, later explaining that she did so
because “the ambulance could get to him a whole lot faster . . .
instead of them having to come all through the house.”
Emergency medical technicians arrived and attempted to revive
Beekman, but were unsuccessful.
When police arrived following the shooting, Cary first
claimed that an unknown assailant had shot Beekman outside the
home and that Beekman had come to the home’s door “holding his
chest and gasping for air.” Cary repeated versions of this
fabrication to the police several times that night.
When the police subsequently interviewed Cary two days
after the shooting, she claimed to be unable to remember what
had happened but that her memory “was starting to come back.”
However, she denied having a handgun in the home and when asked
if she had shot Beekman, Cary responded, “I don’t think so.” As
the interview progressed, Cary ultimately admitted to police
that she had shot Beekman, but maintained that she had only
intended to frighten him into leaving the home and that the
handgun had discharged accidentally. Cary also told police that
4
after the shooting, she gave the handgun to her son to give to
his uncle, who disposed of it. The handgun was never recovered.
On December 4, 2002, a grand jury indicted Cary for the
first-degree murder of Beekman and use of a firearm in the
commission of a felony. On April 7, 2003, a jury trial
commenced in the Circuit Court of the City of Norfolk (trial
court) with the Commonwealth presenting evidence in accord with
the above-recited facts.
Relevant to the issues raised in this appeal, during her
direct testimony in her defense Cary sought to introduce
evidence of Beekman’s prior threats and acts of violence against
her. The Commonwealth objected to the introduction of such
evidence, contending that “a defendant cannot introduce evidence
of a victim’s reputation for violence or evidence of specific
facts of violence unless the defendant first adduces evidence of
self-defense.” The Commonwealth asserted that because Cary was
claiming the shooting occurred accidentally, she could not also
claim self-defense. The Commonwealth asserted further that, in
any case, there had been no evidence of any overt act by Beekman
at the time of the shooting that would have placed Cary in
reasonable fear for her life or safety. The Commonwealth
contended that, when Beekman went to the bathroom, he had
effectively ended his assault on Cary and did nothing afterwards
to place her in fear.
5
Cary responded that she was entitled to assert concurrent
claims of accident and self-defense and that these claims were
not mutually exclusive. Cary contended that the evidence did
show an overt act sufficient to put Cary in fear for her life or
safety. Cary maintained that Beekman’s uninvited presence in
the home, his verbal and physical abuse of her, and his refusal
to leave after repeated requests, were part of a pattern of
behavior that she could have reasonably believed would continue
when Beekman returned from the bathroom, given his continued
verbal abuse and refusal to leave the home. Moreover, Cary
maintained that the space of time between the actual assault on
her and the shooting was sufficient to permit the jury to find
that Cary remained in imminent danger. At this point in the
proceeding, however, Cary did not assert the argument that
Beekman was actually advancing toward her when the gun
discharged.
Before ruling on the admissibility of the anticipated
evidence of Beekman’s prior acts of violence, the trial court
asked Cary’s counsel if she had “presented all the evidence that
. . . supports the establishment of [a] prima facie case [for]
self-defense . . . including overt acts in support of that
particular defense.” Counsel responded that the series of
actions by Beekman that preceded the shooting constituted the
overt act necessary to establish an apprehension of imminent
6
harm and that it was for the jury to determine whether Cary’s
fear was reasonable.
The trial court then ruled that Beekman’s assault on Cary
prior to the shooting was not an overt act sufficient to support
a claim of self-defense, agreeing with the Commonwealth that
when Beekman stopped the attack to go to the bathroom, Cary was
no longer in imminent danger. The trial court reasoned that
Cary’s presence of mind in retrieving the handgun and of
removing the ammunition clip showed that she was no longer in
fear. The trial court further reasoned that at the time of the
shooting, Cary did not claim that she was “using that weapon to
repel any act or prevent any act by [Beekman] at that moment in
time.” Accordingly, the trial court ruled that Cary would not
be entitled to present evidence of Beekman’s prior threats and
acts of violence against her and that she could not assert a
defense of self-defense.
After the trial court made this ruling, Cary continued her
testimony. During redirect examination, Cary testified that
immediately prior to shooting Beekman, “[h]e was coming back. I
am not sure whether he was walking or running.” After this
evidence was received, Cary did not request the trial court to
reconsider its prior ruling that there was no evidence of an
overt act by Beekman after he returned from the bathroom that
7
would have caused Cary to be in reasonable fear for her life or
safety.
Outside the presence of the jury, however, the trial court
permitted Cary to proffer evidence of Beekman’s prior threats
and acts of violence against her. That evidence, presented by
Cary and her son, established that Beekman had raped Cary when
they first met and that he had physically abused her and her
children throughout their relationship. On one occasion,
Beekman cut her face with a glass, allegedly resulting in “75
stitches,” and on another he broke her jaw. Beekman was
particularly prone to violence when he was intoxicated.
Cary proffered instructions on the defenses of self-defense
and heat of passion and further requested that the jury be
instructed on the right-to-arm. Cary also sought an instruction
on the lesser-included offense of voluntary manslaughter. The
trial court refused these instructions.
The jury convicted Cary of both charged offenses and
sentenced her to 20 years imprisonment for the first-degree
murder of Beekman and three years imprisonment for the firearm
offense. In an order dated September 17, 2003, the trial court
imposed sentence in accord with the jury’s verdicts.
Cary noted an appeal in the trial court and filed a
petition for appeal in the Court of Appeals. In opposing Cary’s
petition, relevant to her claim that the trial court erred in
8
not instructing the jury on self-defense, the Commonwealth did
not assert a procedural bar with respect to this issue.
Instead, the Commonwealth argued that the trial court correctly
found that the record did not support a finding that Cary was
acting in self-defense.
After Cary’s petition for appeal was granted in part by the
Court of Appeals, the Commonwealth raised for the first time the
issue whether Cary’s assertion that the trial court erred in not
instructing the jury on self-defense was procedurally barred.
The Commonwealth asserted that Cary had not expressly “argued to
the trial court that Beekman was advancing on Cary at the time
she shot him” when the self-defense instruction was proffered.
The Commonwealth further maintained that Cary’s assertion that
she should have been permitted to introduce evidence of
Beekman’s prior threats and acts of violence against her was
also procedurally barred because at the time she sought to
introduce such evidence she had not yet testified that Beekman
was either “walking or running” toward her when the gun
discharged and did not reassert the issue once that evidence was
presented.
In reversing Cary’s convictions, the Court of Appeals did
not expressly address the Commonwealth’s assertion of a
procedural bar. However, the Court of Appeals expressly found
that with regard to Beekman’s actions immediately prior to the
9
shooting, Cary “testified without equivocation that ‘he was
coming back’ and she was ‘not sure whether he was walking or
running.’ ” Cary, Record No. 2031-03-1, slip op. at 7-8.
Accordingly, the Court of Appeals held that “[t]his evidence,
viewed in the light most favorable to [Cary], established an
overt act of sufficient imminence to entitle her to a self-
defense instruction because it supported a finding that the
victim, although still over ten feet away, was advancing toward
her in a threatening fashion to resume the attack he had stopped
only moments earlier.” Id. at 8.
In reaching this conclusion, the Court of Appeals
distinguished Sands, the principal case relied upon by the
Commonwealth, stating that facts in the present case stood “in
marked contrast to those in Sands, in which the victim had at
least temporarily ceased his repeated attacks on the defendant
and was watching television in another room when she retrieved a
gun and ‘shot him five times while he reclined on the bed.’ ”
Id. (quoting Sands, 262 Va. at 730, 553 S.E.2d at 737). The
Court of Appeals further held that although Beekman, like the
victim in Sands, “appeared [to be] unarmed [that fact] does not
defeat the threat. The victim had beaten [Cary] with his fists
on numerous prior occasions and, on one occasion, broke a glass
in her face. [Cary] testified that, prior to the night on which
10
she shot the victim, he had beaten her as recently as the
previous weekend.” Id.
The Court of Appeals further noted that Cary’s claim that
the killing “was an accident does not prevent her from asserting
a legal claim of self-defense.” Id. (citing Valentine v.
Commonwealth, 187 Va. 946, 953, 48 S.E.2d 264, 268 (1948)); see
also Jones v. Commonwealth, 196 Va. 10, 14-15, 82 S.E.2d 482,
484-85 (1954). Accordingly, the Court of Appeals held that the
trial court erred in failing to instruct the jury on self-
defense.2 Cary, Record No. 2031-03-1, slip op. at 1-2.
The Court of Appeals reasoned that because the record would
have supported giving an instruction on self-defense, “at least
some of [Cary’s] evidence about the victim’s prior threats and
abuse was admissible to show ‘the reasonable apprehensions of
[appellant] for [her] life and safety,’ immediately prior to the
2
In dictum, the Court of Appeals further opined that “even
if [Cary] had not been entitled to an instruction indicating
that the right of self-defense fully justified her use of deadly
force because the threat posed by the victim was not
sufficiently imminent, she nevertheless was entitled to an
instruction indicating that the right of self-defense justified
her merely threatening to use such force.” Cary, Record No.
2031-03-1, slip op. at 10. Cary did not proffer such an
instruction and does not assert in this appeal that the trial
court should have amended the instruction she proffered to
reflect her right to threaten the use of force. Accordingly, we
express no opinion on this aspect of the Court of Appeals’
judgment.
11
shooting.” Id., slip op. at 6 (quoting Canipe v. Commonwealth,
25 Va. App. 629, 640-41, 491 S.E.2d 747, 752 (1997)); see also
Randolph v. Commonwealth, 190 Va. 256, 265, 56 S.E.2d 226, 230
(1949). The Court did not address the Commonwealth’s assertion
that at the time she first sought to introduce the evidence of
Beekman’s prior threats and acts of violence she had not yet
introduced evidence that Beekman was advancing on her when the
gun discharged.
The Court of Appeals further held that because Cary’s claim
of right-to-arm would have been supported by the evidence of
Beekman’s prior threats and acts of violence and, thus, would
potentially rebut the Commonwealth’s assertion that her purchase
of the handgun showed premeditation, the trial court erred in
refusing Cary’s instruction on right-to-arm. Cary, Record No.
2031-03-1, slip op. at 10-13. Addressing Cary’s assertion that
she was entitled to a heat of passion instruction and further
that this would have warranted the trial court instructing the
jury on the lesser-included offense of voluntary manslaughter,
the Court of Appeals held that Cary’s “testimony of the victim’s
prior conduct that evening and her testimony that he was coming
back into the living room, where she feared he would assault her
further and perhaps kill her, created a jury issue on whether
there had been a cooling off period sufficient to preclude a
finding that [Cary] acted in the heat of passion.” Id. at 14.
12
The Court of Appeals recognized that “[w]hen a jury is
instructed on first-degree murder and second-degree murder and
convicts the defendant of first-degree murder, such a verdict
‘compels the conclusion that [the jury] would never have reached
a voluntary manslaughter verdict.’ ” Id. (quoting Turner v.
Commonwealth, 23 Va. App. 270, 277, 476 S.E.2d 504, 507 (1996),
aff’d, 255 Va. 1, 492 S.E.2d 447 (1997)). However, the Court of
Appeals concluded that the trial court’s failure to instruct the
jury on self-defense and right-to-arm might have impacted the
jury’s consideration of the evidence in favor of finding first-
degree murder and, thus, it was not clear that a properly
instructed jury would not have considered the lesser offense of
voluntary manslaughter in the heat of passion. Id. at 14-15.
Accordingly, the Court of Appeals held that the trial court
erred in failing to instruct the jury on that offense. Id. at
1-2.
Although the Court of Appeals vacated Cary’s convictions,
it nonetheless found the evidence sufficient to sustain those
convictions and remanded the case for a new trial. Id. at 17.
The Commonwealth filed a petition for rehearing en banc,
asserting, among other arguments, that the Court had erred in
failing to address the assertion of a procedural bar to the
self-defense issue. By order entered February 8, 2005, the
Court of Appeals refused the petition for rehearing en banc.
13
DISCUSSION
Before addressing the merits of the substantive issues
raised in this appeal, we first address the Commonwealth’s
second assignment of error that “[t]he Court of Appeals erred in
ignoring the fact that Cary’s argument on appeal on the issue of
self-defense was procedurally defaulted.” In briefing this
assignment of error, the Commonwealth argued this issue in
conjunction with its first assignment of error asserting that
the Court of Appeals erred in rejecting the trial court’s
decision to exclude evidence of Beekman’s prior threats and acts
of violence against Cary. The Commonwealth contends that the
procedural default applies both to Cary’s assertion that the
trial court erred in denying her an instruction on self-defense
and her assertion that the trial court erred in refusing to
admit that evidence. However, because the Commonwealth’s
assignment of error asserts only that the default related to
“the issue of self-defense,” we will confine our consideration
of the alleged procedural default to the failure to grant a
self-defense instruction.
The Commonwealth maintains that in offering the self-
defense instruction, Cary “never articulated for the court what
overt act the victim had committed.” Thus, the Commonwealth
contends that Cary’s argument made in the Court of Appeals, and
reiterated here, that the evidence supports, directly or by
14
inference, that Beekman was advancing upon her at the time of
the killing, is procedurally barred. We disagree.
When a trial court refuses to give an instruction proffered
by a party that is a correct statement of law and which is
supported by adequate evidence in the record, this action,
without more, is sufficient to preserve for appeal the issue of
whether the trial court erred in refusing the instruction. Cf.
Atkins v. Commonwealth, 257 Va. 160, 178 n.9, 510 S.E.2d 445,
456 n.9 (1999) (failure to raise “a precise objection to the
Commonwealth’s proposed verdict form” did not bar consideration
of issue on appeal when defendant had proffered a correct
verdict form); see also Pilot Life Insurance Co. v. Karcher, 217
Va. 497, 498, 229 S.E.2d 884, 885 (1976). This is so because
when an instruction is proffered on “a principle of law [that]
is vital to a defendant in a criminal case, a trial court has an
affirmative duty properly to instruct a jury about the matter.”
Jimenez v. Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681
(1991). Indeed, in Jimenez, we held the failure of the trial
court to properly instruct the jury was so serious as to warrant
invoking the “ends of justice” exception of Rules 5A:18 and 5:25
despite the defendant’s failure to object to the improper
instruction actually given. Id. at 251, 402 S.E.2d at 681-82.
Thus, we hold that Cary’s proffer of a correct instruction
on the defense of self-defense is sufficient to preserve for
15
appeal the question whether the trial court erred in refusing
that instruction. It was not necessary for Cary 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, which unquestionably
was vital to Cary’s case.
We now consider whether the Court of Appeals correctly
concluded that the evidence was sufficient to warrant the jury
being instructed on the defense of self-defense. The
Commonwealth contends that in determining that the trial court
erred in failing to grant Cary’s self-defense instruction,
“[t]he Court of Appeals . . . stitch[ed] together unconnected
threads from various portions of Cary’s testimony to create the
impression of an overt act.” The Commonwealth further contends
that although these “unconnected threads” of evidence were
before the trial court when it rejected Cary’s proffered self-
defense instruction, the evidence was not unequivocal, and when
viewed in the context of Cary’s full testimony established
nothing more than that Beekman was returning to the living room
from the bathroom, and not that he was advancing upon Cary in a
threatening manner.
Cary responds that the Commonwealth’s argument fails to
apply the proper standard for reviewing the refusal of a correct
instruction of law. Because that standard requires that the
16
evidence be viewed in the light favorable to Cary, as the
proponent of the instruction, Cary contends that the Court of
Appeals properly focused its attention on those elements of her
testimony that the jury could have found supported her claim of
self-defense.
Both parties rely extensively upon the rationale underlying
the holding in Sands to support their respective positions.
Certainly, that case provides the most recent, succinct, and
comprehensive survey of the law of self-defense as it has
developed in this Commonwealth:
The principles governing a plea of self-defense
are well-established. Self-defense is an affirmative
defense to a charge of murder, and in making such a
plea, 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 the jurors.” McGhee
v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810
(1978). The “bare fear” of serious bodily injury, or
even death, however well-grounded, will not justify
the taking of human life. Stoneman v. Commonwealth,
66 Va. 887, 900 (1874). “There must [also] be some
overt act indicative of imminent danger at the time.”
Vlastaris v. Commonwealth, 164 Va. 647, 652, 178 S.E.
775, 776 (1935). See also Yarborough v. Commonwealth,
217 Va. 971, 975, 234 S.E.2d 286, 290 (1977); Mercer
v. Commonwealth, 150 Va. 588, 597, 142 S.E. 369, 371
(1928). In other words, a defendant “must wait till
some overt act is done[,] . . . till the danger
becomes imminent.” Vlastaris, 164 Va. at 652, 178
S.E. at 777. In the context of a self-defense plea,
“imminent danger” is defined as “an immediate, real
threat to one’s safety . . . .” Black’s Law
Dictionary 399 (7th ed. 1999). “There must be . . .
some act menacing present peril . . . [and] the act
. . . must be of such a character as to afford a
reasonable ground for believing there is a design
17
. . . to do some serious bodily harm, and imminent
danger of carrying such design into immediate
execution.” Byrd v. Commonwealth, 89 Va. 536, 539, 16
S.E. 727, 729 (1893).
Sands, 262 Va. at 729, 553 S.E.2d at 736.
Moreover, in Sands, this Court reiterated the well-
established rule that, as with any proffered instruction that is
otherwise a correct statement of law, an instruction on the
defense of self-defense “is proper only if supported by more
than a scintilla of evidence” and “it is not error to refuse an
instruction when there is no evidence to support it.” Id.
(emphasis added).
Except that the victim and the defendant in Sands were
married, the underlying history of their relationship is
materially indistinguishable from that of the tumultuous
relationship between Beekman and Cary. In both instances, the
couples had a long history of acts of violence committed by the
male upon the female that were frequently occasioned by the
excessive use by the male of alcohol and illicit drugs. In both
instances, the male had made repeated threats to kill the
female, and the female had a subjective belief that the male
would eventually carry out that threat. See id. at 725-27, 553
S.E.2d at 734-35.
In Sands, on the evening of the killing, the victim had
savagely beaten the defendant. However, the evidence showed
18
that subsequent to that assault, the defendant’s sister-in-law
had arrived at the couple’s home and offered assistance to the
defendant. Id. at 727-28, 553 S.E.2d at 735. Meanwhile, the
victim “was lying in bed, watching television.” Id. at 728, 553
S.E.2d at 735. The defendant, who was in the bathroom with her
sister-in-law, suddenly became frantic, went to the kitchen
where she retrieved a gun, and then went to the bedroom. The
victim merely asked the defendant what she was “doing,” and then
the defendant shot the victim five times, killing him. Id. at
728, 533 S.E.2d at 735-36.
This Court concluded that there was no evidence to support
the defendant’s proffered self-defense instruction because the
record did not “reveal any overt act by her husband that
presented an imminent danger at the time of the shooting.” Id.
at 730, 533 S.E.2d at 737. This Court specifically noted that
while less than an hour had elapsed between the victim ending
his assault on the defendant and the shooting, id. at 730 n.2,
553 S.E.2d at 737 n.2, “sufficient time elapsed for [the sister-
in-law] to arrive at the couple’s home, and for the defendant to
view the extent of her injuries while in the bathroom with [the
sister-in-law], walk from the bathroom to the living room door,
turn around and proceed back into the kitchen, retrieve a gun
from a cabinet, and walk back into the bedroom where her husband
19
was reclining on the bed, watching television.” Id. at 730, 553
S.E.2d at 737.
In the present case, when considered in the light most
favorable to Cary, the evidence is sufficient to establish
Cary’s genuine fear for her life in view of the atrocities
inflicted upon her by Beekman. Thus, as before, we are
concerned only with whether the record would provide the trier-
of-fact with more than a scintilla of evidence to support a
finding that there was an overt act of sufficient imminence on
the part of Beekman that would warrant Cary to act upon that
genuine fear to use deadly force in self-defense.
The Commonwealth asserts, and we agree, that Cary cannot
rely solely on the initial assault upon her as the “overt act”
that occasioned her resort to self-defense. However, contrary
to the apparent view of the Commonwealth, neither may we
disregard that evidence entirely, merely because “Beekman
retired to the bathroom” for approximately five minutes.
Rather, we consider Beekman’s subsequent actions in light of
that assault.
Contrary to the assertion made by the Commonwealth, the
evidence in this case, again viewed in the light most favorable
to Cary, does not “simply indicate[] that Beekman walked back
into the living room after using the bathroom.” Nor is it
necessary for us to “stitch together unconnected threads from
20
various portions of Cary’s testimony to create the impression of
an overt act.”
According to Cary’s testimony, Beekman did not simply
emerge from the bathroom and make his way to the living room.
Rather, she confronted Beekman as he returned to the living room
and repeated her demand that he leave the home. Beekman refused
this demand and threatened to “smack” her and commit other acts
of violence upon her. It was in this context that Cary
testified that Beekman was “walking or running” toward her. And
that fact must be viewed in the context that Beekman’s assault
on Cary, which had ended only five minutes before, had been
occasioned by the same demand that he leave the home, his
refusal, and a vile verbal assault. When so viewed, the trier-
of-fact could reasonably conclude that Beekman, although 11 to
18 feet away from Cary at the time of the shooting, was
nonetheless advancing toward her with the intent to resume his
physical assault upon her. Such act constituted an overt act of
sufficient imminence on the part of Beekman to warrant Cary to
respond in her defense. Accordingly, we hold that the Court of
Appeals did not err in finding that there was sufficient
evidence in the record to warrant the trial court instructing
the jury on Cary’s claim of self-defense and, thus, that the
trial court erred in not giving the proffered self-defense
instruction.
21
The Commonwealth also contends that even if the evidence in
its entirety entitled Cary to have the jury instructed on self-
defense, the Court of Appeals nonetheless erred in finding that
the trial court improperly refused to admit Cary’s proffered
testimony concerning Beekman’s prior threats and acts of
violence against her. As it did in the Court of Appeals, the
Commonwealth contends that at the time Cary sought to introduce
this evidence during her direct testimony, she had not yet
presented the evidence she now relies upon to establish the
overt act necessary for a claim of self-defense, and she did not
request that the trial court revisit its decision once that
evidence had been presented during her re-direct testimony.
We agree with the Commonwealth that at the time Cary sought
to introduce the evidence of Beekman’s prior threats and acts of
violence, in response to the trial court’s express inquiry, her
counsel relied only on the evidence as it existed at that point
in the trial as the basis for establishing a claim of self-
defense. Thus, the trial court correctly excluded the proffered
evidence because at that time evidence of an overt act
sufficiently imminent to support a claim of self-defense by Cary
had not been presented.
However, the issue is mooted by our holding that the
evidence ultimately supported the assertion of an overt act
warranting a self-defense instruction. Because the case will be
22
remanded and the evidence well may be presented differently upon
a new trial, we will not give an advisory opinion regarding
whether evidence of Beekman’s prior threats and acts of violence
would be admissible if proffered again. Kanter v. Commonwealth,
171 Va. 524, 532-33, 199 S.E. 477, 481 (1938); see also Cantrell
v. Crews, 259 Va. 47, 52, 523 S.E.2d 502, 504 (2000).
For the same reason, we do not consider the Commonwealth’s
remaining assignments of error concerning the judgments of the
Court of Appeals reversing the trial court on the right-to-arm,
heat of passion, and voluntary manslaughter issues. While we do
not discount the Commonwealth’s assertions on these issues and
recognize that they may likely recur in the event of a new
trial, it is also likely that the presentation of evidence will
be sufficiently different that any expression by this Court as
to the correctness of the rulings of the trial court in the
former trial, or of the Court of Appeals in reversing those
rulings, would not be relevant and advisory only.
CONCLUSION
For these reasons, we will affirm the judgment of the Court
of Appeals vacating Cary’s convictions and remanding the case to
the trial court for a new trial, if the Commonwealth be so
advised.
Affirmed.
23
JUSTICE AGEE, with whom JUSTICE KINSER joins, dissenting.
For the reasons stated below, I find that the Court of
Appeals erred in holding that Rebecca Scarlett Cary was entitled
to jury instructions on self-defense and accidental self-defense
because her appellate argument of the overt act of imminent
danger justifying self-defense under Commonwealth v. Sands, 262
Va. 724, 553 S.E.2d 733 (2001), is barred by Rule 5:25. On that
basis, I also find the Court of Appeals erred in ruling evidence
of the decedent’s prior acts of violence to be admissible.
Furthermore, I believe the Court of Appeals was in error to
adjudge Cary entitled to jury instructions on the right to arm
and voluntary manslaughter. Therefore, I respectfully dissent
from the majority opinion and would reverse the judgment of the
Court of Appeals.
I. THE SELF-DEFENSE CLAIMS
The majority opinion correctly recites from our holding in
Sands that in order for the affirmative defense of self-defense
to apply “[t]here must [also] be some overt act indicative of
imminent danger at the time” made against the defendant. Id. at
729, 553 S.E.2d at 736 (citation omitted). That overt act must
be “some act menacing present peril” and “of such a character as
to afford a reasonable ground for believing there is a design
. . . to do some serious bodily harm, and imminent danger of
carrying such design into immediate execution.” Id. (citations
24
omitted). On appeal, at least in this Court, Cary has posited
the overt act justifying her claims of self-defense to be that
Beekman advanced at her in the apartment in such a way as to
constitute an “imminent danger” about to be carried “into
immediate execution” when she shot him. This is a position
never argued in the trial court and only implied before the
Court of Appeals.
The overt act of imminent danger is crucial because it is
the foundation without which Cary is not entitled to a jury
instruction on self-defense. Id.; see also Mealy v.
Commonwealth, 135 Va. 585, 596, 115 S.E. 528, 531 (1923).
Furthermore, and just as importantly, the overt act justifying
self-defense is an absolute condition precedent to Cary’s claim
for an instruction on accidental self-defense, see Braxton v.
Commonwealth, 195 Va. 275, 277-78, 77 S.E.2d 840, 841-42 (1953)
(recognizing that the defenses of accident and self-defense are
ordinarily mutually exclusive, except where the accused is
“lawfully acting in self-defense” because of the victim’s overt
act but the death is allegedly accidental, such as “where in a
struggle over the possession of a weapon it was accidentally
discharged”), or to the admission into evidence of the victim’s
character for violence or aggression. Mealy, 135 Va. at 596,
115 S.E. at 531 (“evidence [that the decedent was a quarrelsome,
dangerous and ferocious man] was not admissible . . . because
25
there was no foundation in the case for the theory of self-
defense, and the dangerous character of the deceased was,
therefore, not material.”). Thus, if the record fails to
support Cary’s claim that she argued Beekman’s advance on her as
the overt act justifying self-defense in the trial court, then
all of her related claims of trial court error, as found by the
Court of Appeals, fail.
The Commonwealth makes three assignments of error1 to the
judgment of the Court of Appeals which relate to the issue of
self-defense: admission into evidence of the decedent’s alleged
prior violent acts, a self-defense jury instruction and an
accidental self-defense jury instruction (collectively the
“self-defense claims”). As noted above, without an overt act
menacing present peril to the defendant, self-defense is not
available as an affirmative defense and all of Cary’s claims on
these three issues fail. If the trial court correctly found
there was no overt act under Sands that justified the giving of
1
Assignment of Error 1 alleges: “The Court of Appeals erred
in holding that the record showed an overt act by the victim
that required the trial court to admit certain evidence of past
acts of violence by the victim and further required a self-
defense instruction.”
Assignment of Error 2 alleges: “The Court of Appeals erred
in ignoring the fact that Cary’s argument on appeal on the issue
of self-defense was procedurally defaulted.”
Assignment of Error 3 alleges: “The Court of Appeals erred
in holding that the trial court should have granted Cary’s
26
an instruction on self-defense, then as a matter of law, the
requisite showing of a defense of self-defense could not be
present to legitimize the admission of alleged prior acts of
violence by the victim. Mealy, 135 Va. at 596, 115 S.E. at 531;
see also Jordan v. Commonwealth, 219 Va. 852, 855, 252 S.E.2d
323, 325 (1979); Burford v. Commonwealth, 179 Va. 752, 767, 20
S.E.2d 509, 515 (1942); Harrison v. Commonwealth, 79 Va.
(4 Hans.) 374, 378-79 (1884). Thus, all three of the foregoing
issues comprising the Commonwealth’s first three assignments of
error rise or fall on whether the requisite overt act justifying
self-defense was before the trial court.
Rule 5:25 of the Rules of the Supreme Court of Virginia
states:
Error will not be sustained to any ruling of the trial
court or the commission before which the case was
initially tried unless the objection was stated with
reasonable certainty at the time of the ruling, except
for good cause shown or to enable this Court to attain
the ends of justice.
“The purpose of Rule 5:25,” as we have previously stated, “is to
give the trial court an opportunity to rule on a matter with
knowledge of the substance of a party’s objection, in order to
avoid needless mistrials, reversals, and appeals.” Morgen
Indus., Inc. v. Vaughan, 252 Va. 60, 67, 471 S.E.2d 489, 493
instruction on accidental self-defense where there was no overt
act.”
27
(1996) (declaring an issue procedurally barred because the
record showed that the proponent’s arguments on appeal differed
from the arguments it made to the trial court). In addition,
“Rule 5:25 exists to protect the trial court from appeals based
upon undisclosed grounds, to prevent the setting of traps on
appeal, to enable the trial judge to rule intelligently, and to
avoid unnecessary reversals and mistrials.” Fisher v.
Commonwealth, 236 Va. 403, 414, 374 S.E.2d 46, 52 (1988).
A. The Overt Act Argued in the Trial Court
Before determining that Cary had not set forth a prima
facie case of self-defense and therefore could not present
evidence of Beekman’s prior violent acts, the trial court
specifically questioned Cary’s trial counsel: “[D]o you
represent to the Court that you have presented all of the
evidence that you claim supports the establishment of your prima
facie . . . self-defense defense including overt acts in support
of that particular defense . . . ?” Counsel's response is
unequivocal:
Your Honor, I believe that with the testimony of
Ms. Cary as to the actions of the victim, Mark
Beekman, on the evening in question where he had
proceeded to assault her, make verbal threats towards
her and [by] other means terrorize her that evening,
that that does constitute the overt act. And as I had
previously said, the issue of imminence, I believe, is
an issue for the jury.
The overt act in Ms. Cary’s mind at the time put
her or would have put her in a position to fear, as
she stated, future violence against her and that at
28
the time her son had brought the gun from the room,
she was still under that fear.
Although the overt act may not have coincided or
occurred concomitantly at the exact same moment as the
possession of the weapon, it was fresh enough in her
mind the actions that Mr. Beekman had taken against
her as well as the verbal threats that he had made as
to constitute an overt act for purposes [of a] self-
defense defense.
(Emphasis added). The Court immediately asked, “So then is the
answer to my question yes?” Cary’s attorney replied, “Yes.”
Cary’s trial counsel never mentions in this direct exchange
or anywhere else in the record that Beekman advancing toward
Cary immediately prior to the shooting was the overt act of
immediate peril creating an imminent danger to Cary that
supports self-defense. Cary never made any argument regarding
the self-defense or accidental self-defense instructions that
differed from this argument. Indeed, counsel’s statement here
not only omits any contention that the decedent was moving
toward Cary immediately prior to the shooting, but it actually
negates that argument by admitting the alleged overt act “may
not have coincided or occurred concomitantly” with the
possession and firing of the gun. From this text, Cary’s trial
court argument of an overt act justifying self-defense does not
include even a passing reference to Beekman’s movement toward
Cary immediately prior to the shooting. To the contrary, Cary’s
trial court argument is based on the totality of the decedent’s
prior acts both earlier that evening and on previous occasions.
29
Indeed, when defense counsel contended that Cary was
entitled to instructions on self-defense and accidental self-
defense, she did so because:
while [Cary] was holding the gun in self-defense of
herself, the victim returns to the room, is continuing
to make threats to her which, based on her prior
experience that evening, the assault coupled with the
threats, she at that time believed herself to be in
reasonable danger.
So I would submit the overt act, even though it
did not occur concomitantly with the gun going off,
occurred in a reasonable time which the jury could
determine led Ms. Cary to believe that she was in
imminent danger.
(Emphasis added). Once again, in arguing to the trial court
that a sufficient overt act existed, Cary never argued that
Beekman advanced toward her immediately prior to the shooting.
Instead, Cary again represented that the opposite occurred
because the overt act “did not occur concomitantly with the gun
going off.” (Emphasis added).
In addition to defense counsel’s own statements, which
contradict the argument now made on appeal, the trial court
transcripts reflect several instances in which the trial court
attempted to clarify Cary’s position and explain the basis for
its holdings. For example, in reviewing the facts in the light
most favorable to Cary on self-defense and accidental self-
defense, the trial court summarized her testimony:
[Cary] says that more conversation takes place, and
then the gun goes off accidentally, clearly the gun
goes off accidentally. She does not testify, does not
30
suggest that she was using that weapon to repel any
act or to prevent any act by the defendant at that
moment in time. She was simply holding a gun that she
believed to be empty, and that it accidentally
discharged and struck him in the chest which
ultimately resulted in his death.
. . . .
There is no claim that there was some struggle, that
he was assaulting her, that she was repelling that
force and that in the context of that this gun
accidentally went off.
(Emphasis added). Similarly, after hearing Cary’s later proffer
of testimony, the trial court stated:
[N]otwithstanding anything that’s been said at this
stage through the proffer is that the defendant
clearly did not set forth any overt act on [the day of
the shooting] or any basis upon which a viable case of
self-defense could reasonably or rationally be
considered in this case. . . . at the time of the
event the defendant’s and her son’s testimony clearly
state that there was no act of overt threat or
violence toward the defendant at the time.
At no time during or after these statements from the bench did
Cary object to the characterization of her arguments or contend
to the trial court that the decedent’s movements immediately
prior to the shooting established the existence of an overt act
justifying self-defense. Instead, the sole basis argued to the
trial court at any time was that the overt act of imminent
danger to Cary was the decedent’s prior physical and verbal
assaults.
The arguments now made by Cary, and adopted by the Court of
Appeals and the majority opinion, were simply never made at
31
trial. For example, nothing in Cary’s proffered testimony
supports the claim that the decedent committed the overt act she
now argues justifies the self-defense claims. Her proffered
testimony focuses on the decedent’s prior acts against Cary, and
date back to 1984, nearly twenty years prior to the shooting.
After detailing these prior events, Cary’s trial counsel asked
Cary what she was “afraid of” when Beekman physically assaulted
her earlier on the evening of the shooting. Cary’s response
was, “I was afraid that one day he would just take me out of
this world because that almost like took me out of here being
busted in the face and the glass and near the jugular vein.”
The events Cary recounts here as to what precipitated her fear
on the evening of the shooting were all events that occurred on
previous occasions. None of the proffered testimony contends
Beekman was moving toward Cary to attack her immediately prior
to the shooting, so as to put Cary in immediate fear of an
imminent danger of bodily injury or death.2
2
The record shows that prior to the shooting, Beekman used
the bathroom, which was through the kitchen and down a hall away
from the living room. The only entry or exit from the apartment
was a single door in the living room where Cary was sitting.
Thus, Beekman had to re-enter the living room where Cary was
sitting at the time of the shooting in order to exit the
apartment. Beekman could not have fulfilled Cary’s request to
leave without re-entering the living room in order to reach the
apartment’s only door.
32
Because the record clearly shows that Cary did not argue to
the trial court that the decedent’s alleged movement toward her
immediately prior to the shooting was the overt act that placed
her in imminent danger of immediate harm, Rule 5:25 bars Cary
from making this argument on appeal as an after-the-fact basis
to justify the self-defense claims. Based on the record, the
trial court correctly held that Cary failed to establish the
existence of an overt act under Sands, and therefore no basis
existed to warrant any of the self-defense claims. As such, the
trial court properly denied Cary’s request to introduce evidence
of Beekman’s past violent conduct and properly refused Cary’s
proposed jury instructions relating to self-defense and
accidental self-defense. The Court of Appeals erred in holding
to the contrary.
B. The Majority’s Reliance on Jimenez v. Commonwealth
The majority opinion summarily dispenses with the
Commonwealth's argument that Cary procedurally defaulted her
argument as to the overt act of self-defense by citing our
decision in Jimenez v. Commonwealth, 241 Va. 244, 250, 402
S.E.2d 678, 681 (1991), for the first time in these proceedings.
The majority does so in support of its holding that "Cary's
proffer of a correct instruction on the defense of self-defense
is sufficient to preserve for appeal the question whether the
trial court erred in refusing that instruction." Upon review of
33
Jimenez and other decisions of this Court cited therein, I
cannot agree that those decisions apply in this case.
In Jimenez, the defendant was indicted for a violation of
Code § 18.2-200.1, which provides, in pertinent part, that a
defendant may be guilty of larceny if he "obtain[s] from another
an advance of money, . . . with fraudulent intent, upon a
promise to perform construction" and fails either to perform the
service or return the advance "within fifteen days of a request
to do so sent by certified mail . . . ." Id. at 247, 402 S.E.2d
at 679. The trial court failed to instruct the jury that a
necessary element of the offense that the Commonwealth must
prove is that the defendant must have received a written
request. The Commonwealth provided no evidence of such a
request, but the defendant failed to object to the trial court's
incomplete instruction. This Court determined that the ends of
justice exception to Rule 5:25 applied because the jury was not
instructed as to a material element of the offense charged. Id.
at 248, 251, 401 S.E.2d at 679, 681-82. We held that
[t]he granted instruction omitted some essential
elements of the offense. Likewise, no evidence was
produced relating to those elements. [The defendant],
therefore, was convicted of a non-offense.
Id. at 251, 401 S.E.2d at 681. In reaching our holding in
Jimenez, we reviewed our prior decisions in Ball v.
Commonwealth, 221 Va. 754, 273 S.E.2d 790 (1981), Bryant v.
34
Commonwealth, 216 Va. 390, 219 S.E.2d 669 (1975) (per curiam),
and Whaley v. Commonwealth, 214 Va. 353, 200 S.E.2d 556 (1973).
Like Jimenez, each of these cases was decided on facts and in a
procedural posture dissimilar to the case at bar.
In Ball, the defendant was convicted on an indictment for
capital murder under former Code § 18.2-31(d) (Supp. 1979):
"[t]he willful, deliberate and premeditated killing of any
person in the commission of robbery while armed with a deadly
weapon." The evidence adduced at trial, however, showed that
the defendant never consummated the robbery. Thus, the store
manager was mortally wounded when he tried to wrest the gun from
the defendant during the commission of an attempted robbery, not
robbery as charged in the indictment. Id. at 756, 273 S.E.2d at
791. The defendant failed to object to the capital murder
instruction as unsupported by the evidence, but we applied the
ends of justice exception finding, as we did later in Jimenez,
that the defendant in Ball had been "convicted of a crime of
which under the evidence he could not properly be found guilty."
Id. at 758-59, 273 S.E.2d at 793.
In Bryant, the defendant was convicted of rape and argued
as his only defense, the consent of the prosecutrix. The trial
court, however, refused the defendant's proffered instruction on
consent as a defense and never instructed the jury that lack of
consent was an element of the crime charged. Id. at 391-92, 219
35
S.E.2d at 670-71. On appeal, we noted that the evidence was by
no means conclusive of the defendant's guilt, and we determined
that while the "trial court [was] not required to amend or
correct an erroneous instruction, . . . it [was] reversible
error for the trial court to refuse a defective instruction"
which "was crucial to [the defendant's] sole defense." Id. at
393, 219 S.E.2d at 671. Instead, the trial court should have
"correct[ed] it and giv[en] it in the proper form" because "[a]
jury should . . . [be] sufficiently informed [of the elements of
a crime required for a conviction]." Id. at 393, 219 S.E.2d at
671-72.
In Whaley, the defendant was convicted of rape. 214
Va. at 354, 200 S.E.2d at 557. He offered an instruction
to the trial court that included the presumption of
innocence, but the trial court rejected the instruction.
Id. at 355, 200 S.E.2d at 558. The jury was never
instructed on the presumption of innocence. Id. Citing
prior decisions of this Court, we agreed that "the accused
is entitled to an instruction on the presumption of
innocence, and it is reversible error for the trial court
to refuse such an instruction when requested." Id. at 355-
56, 200 S.E.2d at 558 (citations omitted). As such, we
determined that the presumption is a "principle of law
. . . materially vital to [the criminal] defendant, [and]
36
it [was] reversible error for the trial court to refuse a
defective instruction instead of correcting it and giving
it in the proper form." Id. at 355-56, 200 S.E.2d at 558.
The case at bar, however, bears little similarity to
Jimenez or the other cases. Unlike Ball and Jimenez, the
Commonwealth here met its burden of proof on all the
elements of the indicted offense. The trial court
instructed the jury on the necessary elements of the crime
and did not permit conviction for a non-offense.
Unlike the defendants in Bryant and Whaley, Cary did
not offer an incorrect instruction that the trial court had
a duty to correct. Cary simply failed to argue to the
trial court the necessary basis of an overt act for her
self-defense claims that she later advanced for the first
time on appeal. Moreover, in distinction from Jimenez and
the other cited cases, Cary did not just make a different
argument on appeal, but her argument at trial contradicts
her appellate claim. At risk of again repeating the saga,
Cary argued at trial that the overt act was the history of
Beekman’s prior threats and assaults, which she admitted
did not occur “concomitantly” with the shooting. Yet on
appeal the overt act transmutes to an onrushing Beekman
about to bludgeon Cary, necessitating her shot in self-
defense. Neither Jimenez nor any of the other cases turned
37
on such a diametrically different argument birthed between
trial and appeal, nor do they contain a trial court
argument that negates the argument later made on appeal.
Cary never argued in the Court of Appeals or to this
Court that the ends of justice exception to Rules 5A:18 or
5:25 should apply as was the case in Jimenez and Ball. And
the Court of Appeals never referenced Rules 5A:18 or 5:25
regarding this issue. There is no basis to do so now.
A careful reading of the trial court record shows that
the “overt act” Cary argued to that court was wholly
different from that now argued on appeal. After thorough
review of Cary’s arguments in the trial court, her
testimony at trial, and even Cary’s briefs to the Court of
Appeals, I conclude Rule 5:25 bars Cary from arguing on
appeal that Beekman’s alleged movement toward her at the
time of the shooting was the overt act justifying her
action as self-defense. Jimenez cannot operate to recreate
Cary's self-defense claims argument on appeal. The Court
of Appeals thus erred in reversing the judgment of the
trial court based upon Cary's new appellate argument.
II. THE OTHER CONTESTED INSTRUCTIONS
In view of the majority opinion’s disposition of the self-
defense claims, it does not address the Commonwealth's fourth
and fifth assignments of error: that the Court of Appeals erred
38
in holding that (1) the jury should have been instructed about
Cary's right to arm, and (2) the failure to instruct on
voluntary manslaughter was not harmless. As I believe the Court
of Appeals erred as to the self-defense claims, I address these
other assignments of error. I find that the trial court did not
err in either circumstance and would reverse the judgment of the
Court of Appeals on both points.
A. Right to Arm Instruction
On appeal, the Court of Appeals determined that the
evidence adduced at trial supported a finding that Cary obtained
the firearm she used to shoot Beekman
in preparation for a future deadly attack by the
victim at three discreet [sic] times – [(1)] when she
first purchased the firearm; [(2)] when she snatched
it from her son's hands while the victim was in the
bathroom and kept it by her side rather than hiding it
or returning it to its place in her room; and [(3)]
when she picked it up off the couch and pointed it at
the victim as he again advanced toward her where she
sat on the couch.
The first reason articulated by the Court of Appeals,
at the time of purchase, is directly contradicted by Cary's
trial testimony and is without any support in the record. Cary
never argued at trial that she obtained the weapon because she
needed it as protection from Beekman. To the contrary, she
testified that she purchased the weapon because of a general
need to protect her children and her home because "[t]here were
people in the neighborhood breaking into people's houses." Cary
39
testified that she purchased bullets, but "[n]ot for no real
intended purposes."
The Court of Appeals conjured that this testimony of
generalized need "does not preclude the conclusion that [Cary]
intended to protect [her family], at least in part, from the
victim." But our duty to examine the evidence in the light most
favorable to Cary does not permit us to construct arguments that
she did not raise at trial. Rule 5:25. Furthermore, this Court
has consistently held that a right to arm instruction is
correctly given only when the threat to the defendant's life is
specific and nearly contemporaneous with the defendant's action
in arming himself. See, e.g., Jones v. Commonwealth, 187 Va.
133, 143-44, 45 S.E.2d 908, 912 (1948) (After defendant was
severely beaten by decedent, and decedent threatened that "he
would kill the defendant that day" defendant returned home and
waited with a pistol.). There simply was no evidence in the
record to support a finding that Cary armed herself by
purchasing the firearm in order to protect herself from Beekman.
Furthermore, a careful review of the record reveals that
that the second and third instances the Court of Appeals recited
to support an instruction that Cary armed herself "in
preparation for a future deadly attack" by Beekman, were never
mentioned by any party at trial or on appeal, and first came to
pass when written by the Court of Appeals. While Cary did
40
testify that she took the gun away from her son, she said that
she did so, not because she needed to arm herself against
aggression by Beekman, but "because [she] didn't want nobody to
get hurt or harmed." Cary then removed the magazine from the
gun as an extra precaution "so that nobody would get hurt
nowhere." There is no evidence anywhere in the record to
support the Court of Appeals' determination that Cary took the
gun from her son in order to arm herself against Beekman. In
addition, Cary testified that she pointed the gun at Beekman in
order to scare him and force him to leave. She never testified
that she drew the gun to protect herself from him as he advanced
toward her or argued she was entitled to a right to arm
instruction on that basis.
In Boggs v. Commonwealth, 199 Va. 478, 100 S.E.2d 766
(1957), the defendant argued on appeal that the trial court had
erred in refusing his requested instruction on the right to arm.
Id. at 488-89, 100 S.E.2d at 774. While admitting that the
evidence in that case may have supported a theory that the
defendant armed himself in anticipation of an attack by the
victim, we noted that according to the record,
[the defendant] denied that he armed himself because
he apprehended trouble from [the victim] and denied
that he was carrying his pistol for any such reason.
He cannot now complain of the refusal of the
instruction which is predicated upon the fact that he
anticipated trouble from [the victim].
41
Id. at 489, 100 S.E.2d at 774.
The Court of Appeals thus erred in determining Cary was
entitled to a jury instruction on the right to arm because the
record does not support any of the reasons cited.
B. Right to Threaten Force Instruction
Coupled with its analysis regarding Cary’s right to a jury
instruction on the right to arm in self-defense, the Court of
Appeals held sua sponte that Cary “was entitled to an
instruction indicating that the right of self-defense justified
her merely threatening to use such force.” In so doing, the
Court of Appeals opined that while Cary’s “proffered self-
defense instruction did not cover this theory, her proffered
right to arm instruction did.”
This part of the judgment of the Court of Appeals violates
the principles embodied in that Court’s Rule 5A:18 and this
Court’s Rule 5:25 by again deciding an issue not properly
preserved at trial. It also disregards the plain language of
the right to arm instruction and wrongly conflates the distinct
concepts of self-defense and right to arm. As detailed in the
earlier discussion of Rule 5:25’s applicability to the
determination of an overt act, Rule 5A:18 and 5:25 prevent
appellate courts from deciding issues that a party does not
properly preserve during the trial court proceeding.
42
Cary did not argue to either the trial court or the Court
of Appeals that she was entitled to a jury instruction on the
right to threaten force in self-defense. As such, this issue
was not before the Court of Appeals.
Moreover, the Court of Appeals erred in finding that the
issue had been preserved because Cary did proffer a jury
instruction regarding the right to arm. The plain language of
the proffered right to arm instruction states:
A person who reasonably believes that another intends
to attack her for the purpose of killing her or doing
her serious bodily harm has a right to arm herself for
her own necessary protection. In such a case no
inference of malice can be drawn from the fact that
she armed herself.
Nothing in this language addresses a right to threaten use
of force. The concepts are separate principles of law, and by
arguing a right to arm, Cary did not argue a right to threaten
use of force.
Consequently, the Court of Appeals erred in holding that
Cary was entitled to a jury instruction on the right to threaten
force.
C. Voluntary Manslaughter Instruction
At trial, the jury was instructed on first-degree murder,
second-degree murder, and involuntary manslaughter. On appeal
to the Court of Appeals, Cary argued that the trial court erred
43
in denying her proffered instruction on voluntary manslaughter.
The Court of Appeals ultimately agreed with Cary, but noted:
under ordinary circumstances, the jury's conviction of
appellant for first-degree murder would preclude a
finding that the court's failure to instruct on
voluntary manslaughter was reversible error. [In this
case] voluntary manslaughter was not the only legal
theory on which the trial court erroneously failed to
instruct the jury. . . . [I]t failed to instruct on
self-defense and the right to arm.
This language indicates that had the Court of Appeals not
found error on the other issues, it would have found no error in
the failure to give an instruction on voluntary manslaughter.
As I do not believe the trial court erred regarding the
self-defense claims or the right to arm instruction, the jury’s
verdict of first-degree murder should stand. Therefore, there
was no error in failing to give a voluntary manslaughter
instruction. This Court's affirmation of the Court of Appeals'
decision in Turner v. Commonwealth, 23 Va. App. 270, 476 S.E.2d
504 (1996), aff'd, 255 Va. 1, 492 S.E.2d 447 (1997), makes this
point clear.
In Turner, the failure to instruct the jury on voluntary
manslaughter was harmless because the jury had rejected second-
degree murder in reaching its verdict of guilty of first-degree
murder. By rejecting the lesser-included offense of second-
degree murder, "the jury found beyond a reasonable doubt that
appellant acted not only maliciously, but also willfully,
44
deliberately, and premeditatedly." Id. at 277, 476 S.E.2d at
508. Because "premeditation and reasonable provocation cannot
co-exist . . . [the jury] necessarily rejected the factual basis
upon which it might have rendered a verdict on the lesser
included offense of voluntary manslaughter." Id. at 277-78, 476
S.E.2d at 508. Thus, as I would find Cary’s first-degree murder
conviction should stand, the trial court did not err in failing
to give an instruction on voluntary manslaughter.
III. CONCLUSION
Because Cary never argued to the trial court that the overt
act justifying the self-defense claims was that an advancing
Beekman forced her to act in self-defense, I would reverse the
judgment of the Court of Appeals regarding the self-defense
claims because those are barred under Rule 5:25. I would also
reverse the Court of Appeals' judgment that the trial court
erred in refusing Cary's jury instructions on the right to arm
and voluntary manslaughter for the reasons stated above.
Consequently, I respectfully dissent from the majority
opinion and would reverse the judgment of the Court of Appeals
and affirm the judgment of the trial court.
45