Virginia Case Law and the Use of Deadly Force Continued

Commonwealth v. Sands, 262 Va. 724, 553 S.E.2d 733 (2001).
 

"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. (25 Gratt.) 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 "[a]n immediate, real threat to one's safety . . . ." Black's Law Dictionary 399 (7th ed. 1999). "There must be . . . some act menacing present peril . . . [and] [t]he act . . . must be 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." Byrd v. Commonwealth, 89 Va. 536, 539, 16 S.E. 727, 729 (1893).

In holding that the trial court erroneously refused to instruct the jury on self-defense, the Court of Appeals construed the term "imminent" to mean something less than "immediate." Sands, 33 Va. App. at 678, 536 S.E.2d at 465 (quoting Sam v. Commonwealth, 13 Va. App. 312, 325, 411 S.E.2d 832, 839 (1991)). Applying its view of that term, the Court of Appeals concluded that, "[u]nder the facts of this case, the fact finder could reasonably have concluded that [the defendant] was without fault in beginning the altercation, reasonably apprehended she was in imminent danger of death or serious bodily harm and, thus, was justified in shooting her husband to prevent him from killing her or further inflicting serious bodily harm upon her." Sands, 33 Va. App. at 679, 536 S.E.2d at 465.

We agree that the defendant reasonably believed that she was in danger of serious bodily harm or death. Nevertheless, that reasonable belief is not dispositive of the issue before us in this appeal. The question here is whether the circumstances immediately surrounding the killing, specifically, the actions of the defendant's husband at that time, were sufficient to create a reasonable belief of an imminent danger which had to be met. The Court of Appeals did not squarely address this requirement of an overt act.

Even when viewed in the light most favorable to the defendant, the evidence fails to reveal any overt act by her husband that presented an imminent danger at the time of the shooting. The last episode between the defendant and her husband occurred after the defendant telephoned Shelton. Then, sufficient time elapsed for Shelton to arrive at the couple's home, and for the defendant to view the extent of her injuries while in the bathroom with Shelton, 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 was reclining on the bed, watching television. At that moment, the only reaction by the defendant's husband was his question, "What are you doing[?]" While we do not doubt the defendant's genuine fear for her life or minimize the atrocities inflicted upon her, we cannot point to any evidence of an overt act indicating imminent danger, or indeed any act at all by her husband, when she shot him five times while he reclined on the bed. Nor did the Court of Appeals cite to any such evidence. Thus, the defendant was not entitled to an instruction on self-defense. The requirement of an overt act indicative of imminent danger ensures that the most extreme recourse, the killing of another human being, will be used only in situations of necessity. "The plea of self-defense is a plea of necessity and the necessity must be shown to exist or there must be shown such reasonable apprehension of the immediate danger, by some overt act, as to amount to the creation of necessity." Vlastaris, 164 Va. at 651, 178 S.E. at 776.

CONCLUSION

For these reasons, we will reverse the judgment of the Court of Appeals and enter final judgment reinstating the convictions. Reversed and final judgment."

Smith v. Commonwealth, Va. App. (2004 Unpublished)
 

"Heat of passion negates malice only when some "reasonable provocation" creates a "furor brevis which renders a man deaf to the voice of reason."  Rhodes, 41 Va. App. at 200-01, 583 S.E.2d at 775-76 (quoting Caudill v. Commonwealth, 27 Va. App. 81, 85, 497 S.E.2d 513,  514-15 (1998)).  The provocation must be objectively reasonable under the circumstances.  See  Stewart v. Commonwealth, 245 Va. 222, 240, 427 S.E.2d 394, 406 (1993); Willis v. Commonwealth, 37 Va. App. 224, 231, 556 S.E.2d 60, 64 (2001); Robertson v. Commonwealth, 31 Va. App. 814, 823, 525 S.E.2d 640, 645 (2000) ("In order to determine whether the accused acted in the heat of passion, it is necessary to consider the nature and degree of provocation as well as the manner in which it was resisted." (quoting Miller v. Commonwealth, 5 Va. App. 22, 25, 359 S.E.2d 841, 842 (1987))).  The "victim of the crime" must be the provoker, Arnold v. Commonwealth, 37 Va. App. 781, 789, 560 S.E.2d 915, 919 (2002), and there must be a "simultaneous occurrence" of both provocation and passion, Graham v. Commonwealth, 31 Va. App. 662, 671, 525 S.E.2d 567, 571 (2000) (citing Canipe v. Commonwealth, 25 Va. App. 629, 643, 491 S.E.2d 747, 753 (1997)).

In this case, the trial court correctly ruled that the heat-of-passion instruction could not be given even under Smith's version of the facts.   No rational factfinder could find that Mosley, a  victim of an armed robbery, did anything that  objectively speaking could be said to have  reasonably provoked Smith to shoot him.  At most, the evidence showed only that Mosley  attempted to defend himself and refused to turn over his leather jacket to Smith.  Cf. Humphrey  v. Commonwealth, 37 Va. App. 36, 49, 553 S.E.2d 546, 552 (2001) ("A person who reasonably apprehends [imminent] bodily harm by another is privileged to exercise reasonable force to repel the assault." (quoting Diffendal v. Commonwealth, 8 Va. App. 417, 421, 382 S.E.2d 24, 25 (1989))); Connell v. Commonwealth, 34 Va. App. 429, 439, 542 S.E.2d 49, 54 (2001) ("One who is assaulted may and usually does defend himself, the ensuing struggle cannot be accurately described as a mutual combat.").

As the Virginia Supreme Court has explained, a "man cannot go a-gunning for an adversary and kill him on the first appearance of resistance, and rely upon the necessity of the killing as an excuse therefor."  Jordan v. Commonwealth, 219 Va. 852, 855-56, 252 S.E.2d 323,  325 (1979) (quoting Sims v. Commonwealth, 134 Va. 736, 760, 115 S.E. 382, 390 (1922)) (internal quotation marks omitted).  For similar reasons, an armed robber cannot attack a victim and then claim the victim's resistance reasonably provoked the robber to kill him.  As a matter of law, the heat-of-passion doctrine simply does not go that far. Because the trial court did not err in refusing the heat-of-passion instruction proffered by Smith, we affirm his conviction."
 

Andre Barbosa v. Commonwealth Va. App. (2002 Unpublished)

"...Thus, . . . [one] who expects to be attacked should first employ the means in his power to avert the necessity of self-defence, and, until he has done this, his right of self-defence does not arise." Hash v. Commonwealth, 88 Va. 172, 192, 13 S.E. 398, 405 (1891). "The 'bare fear' of serious bodily injury, or even death, however well-grounded, will not justify the taking of human life." Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001)..."

"...Under these facts, we hold, therefore, that it was not "necessary" for Barbosa to use deadly force to avert the perceived impending "gang beating." The fact that he was surrounded by Serna and his friends and that Serna "bumped into his gun," stating he was not afraid, does not constitute an "overt act indicative of imminent danger." See Vlastaris v. Commonwealth, 164 Va. 647, 651-52, 178 S.E. 775, 776-77 (1935) (holding that accused's fear for his life was without foundation because victim made no overt act at the time of the shooting). "
 

 Decarlos Coleman v. Commonwealth, Va. App. (2002 Unpublished)
 

"Appellant next contends the trial court erred in refusing  to instruct the jury on self-defense. We disagree.

"Self-defense is an affirmative defense which the accused must  prove by introducing sufficient evidence to raise a reasonable doubt about his guilt." Smith v. Commonwealth, 17 Va. App. 68,  71, 435 S.E.2d 414, 416 (1993) (citing McGhee v. Commonwealth,  219 Va. 560, 562, 248 S.E.2d 808, 810 (1978); Yarborough v. Commonwealth, 217 Va. 971, 979, 234 S.E.2d 286, 292 (1977)). "[A] person assaulted while in the discharge  of a lawful act, and reasonably apprehending  that his assailant will do him bodily harm,  has the right to repel the assault by all  the force he deems necessary, and is not  compelled to retreat from his assailant, but may, in turn, become the assailant, inflicting bodily wounds until his person is out of danger." Dodson v. Commonwealth, 159 Va. 976, 979, 167 S.E. 260, 260  (1933) (quoting Jackson's Case, 96 Va. 107, 30 S.E. 452 (1898))."
 

See Also : Gilbert v. Commonwealth, 28 Va. App. 466, 473, 506 S.E.2d 543, 546 (1998).
 
 

No Duty to Retreat in Your Home/Curtilage

Fortune v. Commonwealth, 133 Va. 669, 112 S.E.2d 861 (1922).

"One, in his own curtilage, who is free from fault in bringing on the combat, when attacked by another, has the same right of conduct, without any retreat (i. e. to stand at bay and resist as fault), even to the taking of life, that one has when within his own home. See note to 5 Am. & Eng. Anno. Cas. 999 and cases cited, among them Beard v. United States, 158 U.S. 550, 15 S. Ct. 962, 39 L. Ed. 1086, approved in Alberty v. United States, 162 U.S. 499, 16 S. Ct. 864, 40 L. Ed. 1051. What force one, on his own premises, may use to eject another therefrom, short of endangering human life or of doing great bodily harm, was the subject of consideration in Montgomery's Case, 98 Va. 840, 842-3, 36 S.E. 371; Montgomery v. Commonwealth, 99 Va. 833, 835-6, 37 S.E. 841. But in no case, even within one's own home, or curtilage, is a person wholly  justified in taking the life of another, who has entered the home or curtilage peaceably on an implied license, merely to punish or subdue him or to compel him to leave the premises, where there is no apparent intent on the part of the latter to commit any felony. 

As said in 1 Bish. New Cr. Law (8th Ed.),  sections 857, 858: "* * the general rule is that while a man may use all reasonable and necessary force to defend his real and personal estate, of which he is in the actual possession, against another who comes to dispossess him without right, he cannot innocently carry this defense to the extent of killing the aggressor. If no other way is open to him, he must yield, and get himself righted by resort to the law. A seeming exception to this rule is the --

—  "Defense of the Castle. — In the early times our forefathers were compelled to protect themselves in their habitations by converting them into holds of defense: and so the dwelling house was called the castle. To this condition of things the law has conformed, resulting in the familiar doctrine that while a man keeps the doors of his house closed, no other may break and enter it, except in particular circumstances to make an arrest or the like - cases not within the line of our present exposition. From this doctrine is derived another: namely, that the persons within the house may exercise all needful force to keep aggressors out, even to the taking of life. As observed by Campbell, J., in Michigan, 'a man is not obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house or prevent his forcible entry, even to the taking of life' * *." 

But the same learned work continues, in section 858, as follows: 

" 1. Waiving Castle. — One may waive the protection of his castle by permitting another to enter; * *." 

" 2. Putting out of the Castle. — If a man enters another's dwelling house peaceable on an implied license, he cannot be ejected except on request to leave, followed by no more than the necessary and proper force, even though misbehaving himself therein. 

* * Hence a needless battery, resulting in death, employed   in   ejecting   an   intruder   from   the dwelling-house, will constitute felonious homicide." 

There is no evidence in the case in judgment tending to show that the deceased entered the premises of the accused by force. He was there, and was greeted in a manner which indicated that he was there by permission of the accused, before the affray began. His subsequent conduct, granting that it was misconduct, did not justify the killing of him, unless that  conduct was such as to justify it on the part of the accused under the settled doctrine applicable to the killing of an assailant by one in defence of his own person. 

Therefore, none of the instructions in the case should have been predicated upon the existence or non-existence of the circumstance of the ordering of the deceased off the premises, since that is an immaterial circumstance so far as the instant case is concerned and could serve no purpose but to mislead the jury, unless they were more fully instructed on that subject than they were. "

Dodson v. Commonwealth, 159 Va. 976, 979, 167 S.E. 260, 260  (1933).

"The only case in which the law does not require the party to retreat at all, or under any circumstances, is when he' is assaulted in his own house; there he need not fly as far as he can; for he has the protection of his house to excuse him from flying; as that would be to give up by his flight the possession of his house to his adversary. But in this as in other cases, the assault must be of such a character as to expose him to imminent danger. "

See Also : Beard v. United States 158 U.S. 550 (1896).

Foster v. Commonwealth, 13 Va. App. 380, 385, 412 S.E.2d 198, 201-02 (1991) .

"The Supreme Court has clearly recognized that one is privileged to use force in defense of family members. See Newberry v. Commonwealth, 191 Va. 445, 459, 61 S.E.2d 318, 324 (1950); Green v. Commonwealth, 122 Va. 862, 871, 94 S.E. 940, 942 (1918); Hodges v. Commonwealth, 89 Va. 265, 272, 15 S.E. 513, 516 (1892). We find no Virginia cases, nor have any been cited to us, determining whether and when a person can use force to protect or defend a third person. Generally, however, this privilege is not limited to family members and extends to anyone, even a stranger who is entitled to claim self-defense. See 40 Am.Jur.2d Homicide § 170 (1968); In re Neagle, 135 U.S. 1, 75-76, 10 S.Ct. 658, 672, 34 L.Ed. 55 (1890); State v. Saunders, 175 W.Va. 16, 330 S.E.2d 674, 675, 76 (1985); Yardley v. State, 50 Tex.Crim. 644, 100 S.W. 399, 400 (1907); State v. Bowers, 65 S.C. 207, 210-14, 43 S.E. 656, 657-58 (1903); Stanley v. Commonwealth, 86 Ky. 440, 440-45, 6 S.W. 155, 155-57 (1887); Mitchell v. State, 22 Ga. 211, 234 (1857). Like self-defense, the circumstances in which the protection of others may be raised as a defense are carefully circumscribed so as to preclude such a claim in situations where one has instigated the fray in order to provide an excuse for assaulting or murdering his enemy. In a majority of jurisdictions, a person asserting a claim of defense of others may do so only where the person to whose aid he or she went would have been legally entitled to defend himself or herself. 40 Am.Jur.2d Homicide § 171 (1968)."

Lynn v. Commonwealth, 27 Va. App. 336, 499 S.E.2d 1 (1998).

"Self-defense and defense of others are affirmative defenses for which the accused has the burden of persuading the fact finder that he or she acted in defense of self or another to the degree necessary to raise a reasonable doubt about his or her guilt. See Smith, 17 Va. App. at 71, 435 S.E.2d at 416; Foster v. Commonwealth, 13 Va. App. 380, 385, 412 S.E.2d 198, 201-02 (1991) (recognizing defense of others "is commensurate with self-defense"). Although undisputed facts may establish self-defense as a matter of law, see, e.g., Hensley v. Commonwealth, 161 Va. 1033, 170 S.E. 568 (1933), whether the accused establishes that he or she acted in either respect is generally a question of fact. See Yarborough v. Commonwealth, 217 Va. 971, 979, 234 S.E.2d 286, 292 (1977)...

"[A] person asserting a claim of defense of others may do so only where the person to whose aid he or she went would have been legally entitled to defend himself or herself." Foster, 13 Va. App. at 385, 412 S.E.2d at 201 (citing with approval 40 Am. Jur.2d Homicide § 171 (1968)). Thus, one may be justified in using deadly force to defend another person where he or she reasonably believes that the person defended faces an imminent threat of serious bodily harm or death and that such person was not at fault in bringing about the necessity to use the deadly force. See Foster, 13 Va.App. at 385-86, 412 S.E.2d at 201-02; see also 1 Wayne R. LaFave, Substantive Criminal Law § 5.8 (1986)."