James Edward Williams v. Commonwealth of Virginia, 767 S.E.2d 252

On Sept. 25, 2012, James Edward Williams and companion Delvon Brown were at a 7-11; Brown struck the unarmed victim on the back of the head, and Williams then retrieved a loaded gun from under his car seat and fired. The first shot hit the victim’s lower front torso; Williams fired six more shots while the victim fled.
Williams admitted he brought and deliberately retrieved a loaded gun, was a convicted felon (and thus not lawfully permitted to have a gun), and that the victim had not provoked him; Williams testified he shot to “scare” the victim because he feared retaliation after learning a friend had been murdered days earlier.
Williams was charged with malicious wounding (Va. Code § 18.2-51). At trial he conceded the facts supported unlawful wounding but argued the evidence showed lack of malice (heat of passion) and requested jury instructions for the lesser offense of unlawful wounding; the trial court denied them.
The trial court found the evidence supported malicious wounding and that there was no independent evidence of lack of malice; the court inferred malice from Williams’s deliberate use of a deadly weapon.
Williams appealed the denial of the lesser-included unlawful wounding instruction; the Court of Appeals reviewed whether more than a scintilla of independent evidence supported heat-of-passion (absence of malice).

Issue	Plaintiff's Argument (Williams)	Defendant's Argument (Commonwealth)	Held
Whether the trial court erred by refusing an unlawful-wounding jury instruction (lesser-included)	Williams argued his testimony of grief/fear over his friend’s murder and his stated intent to “scare” (not kill) rebutted malice and provided evidence of heat of passion warranting the lesser instruction	Commonwealth argued malice can be inferred from Williams’s deliberate retrieval and use of a loaded gun, continued firing, and lack of provocation from the victim; no independent affirmative evidence negated malice	Court held no error: the evidence supported malicious wounding and Williams produced less than a scintilla of independent evidence negating malice, so the lesser-included instruction was not required

Vaughn v. Commonwealth, 263 Va. 31, 557 S.E.2d 220 (Va. 2002) (defendant entitled to instruction only if supported by more than a scintilla of evidence)
Epperly v. Commonwealth, 224 Va. 214, 294 S.E.2d 882 (Va. 1982) (malice implied from deliberate, willful, and cruel act)
Avent v. Commonwealth, 279 Va. 175, 688 S.E.2d 244 (Va. 2010) (malice may be inferred from deliberate use of a deadly weapon unless reasonable doubt exists)
Harris v. Commonwealth, 134 Va. 688, 114 S.E. 597 (Va. 1922) (denial of lesser instruction proper where shooting was without reasonable provocation)
Miller v. Commonwealth, 5 Va. App. 22, 359 S.E.2d 841 (Va. Ct. App. 1987) (reversal where record contained evidence of victim-provoked heat of passion)
Hernandez v. Commonwealth, 15 Va. App. 626, 426 S.E.2d 137 (Va. Ct. App. 1993) (malice distinguishes malicious wounding from unlawful wounding)