## Facts

- Rebecca Scarlett Cary and Mark Beekman had a long, volatile relationship and argued frequently about child support; Beekman fathered three of Cary’s children.
- Cary bought a handgun in May 2002, stating she wanted protection for herself and her children; the Commonwealth presented testimony that she had threatened to kill Beekman, which she denied.
- On September 6, 2002, Beekman went to Cary’s apartment; Cary smelled alcohol and knew from prior experience that Beekman could become violent when intoxicated.
- Post-mortem evidence showed Beekman had a highly elevated blood alcohol level and had used cocaine.
- At trial, Cary sought to introduce evidence of Beekman’s prior threats and specific violent acts toward her and requested jury instructions on self-defense, a “right-to-arm,” and voluntary manslaughter based on heat of passion.
- The trial court excluded portions of the proffered prior-acts/threats evidence and refused the requested instructions; the jury convicted Cary of first-degree murder and use of a firearm in the commission of a felony.
- The Court of Appeals vacated the convictions and ordered a new trial based on the evidentiary exclusion and refusal of the requested instructions; it also held the evidence was sufficient, and Cary did not challenge that sufficiency holding on further review.

## Issues

1. Whether the trial court erred in refusing Cary’s proffered self-defense instruction.
2. Whether the trial court erred in refusing a “right-to-arm” instruction allowing the jury to consider lawful arming in anticipation of danger.
3. Whether the trial court erred in refusing a heat-of-passion voluntary manslaughter instruction.
4. Whether the trial court’s limitations on evidence of Beekman’s prior threats and violence improperly prevented Cary from establishing an evidentiary basis for the requested instructions.

## Decision

- The Supreme Court of Virginia sustained the Commonwealth’s appeal and reversed the Court of Appeals’ judgment awarding a new trial.
- The Court held the trial court did not err in refusing a self-defense instruction because the evidentiary record did not meet the threshold required to submit self-defense to the jury.
- Because self-defense was not properly in issue, the Court held a separate right-to-arm instruction was not required.
- The Court held the trial court did not reversibly err in refusing the heat-of-passion voluntary manslaughter instruction because the record did not establish legally adequate provocation and the required sudden passion.
- The convictions were reinstated, with sufficiency of the evidence not before the Court due to the absence of a cross-assignment of error.

## Legal Principles

- A defendant is entitled to a defense instruction only if there is more than a scintilla of evidence to support it; the trial court must refuse instructions not supported by legally sufficient evidence.
- Evidence of a victim’s prior threats and violent acts may be admissible to show who was the aggressor and to evaluate the reasonableness of the defendant’s fear, but remains subject to relevance and other evidentiary limits.
- The defendant need not prove self-defense beyond a reasonable doubt, but must produce enough evidence to raise a reasonable doubt as to the Commonwealth’s proof of the charged offense’s elements before the issue is submitted to the jury.
- A right-to-arm instruction is tied to the presence of a self-defense theory properly supported by the evidence; it does not operate as an independent basis for an instruction when self-defense is not for the jury.
- Heat-of-passion voluntary manslaughter requires legally adequate provocation and a killing committed before reason has returned; long-running disputes or insufficiently immediate provocations do not justify the instruction.

## Conclusion

The Supreme Court of Virginia held that, on the evidentiary record as properly limited by the trial court, Cary failed to meet the production threshold for instructions on self-defense, right-to-arm, or heat-of-passion manslaughter, so the Court of Appeals erred in ordering a new trial and the convictions were reinstated.


Commonwealth v. Cary, 271 Va. 87, 623 S.E.2d 906 (Va. 2006)