Federal Case law
Fear Alone is not Enough
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."
Heat of Passion Not a Defense When Victim Did Not Provoke It
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."
Disparity of Force not a Defense by Itself
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).
Common Law Right To Self Defense Includes Felons
Humphrey v. Commonwealth, 37 Va. App. 36, 553 S.E.2d 546 (2001).
"[The legislature] in enacting criminal statutes legislates against a background of Anglo-Saxon common law . . . ." Part of this common law is the doctrine of self-defense. . . . [S]tatutes rarely enumerate the defenses to the crimes they describe. . . . We do not believe that [the legislature] intended to make [convicted felons] hapless targets for assassins. The right to defend oneself from deadly attack is fundamental. [The legislature] did not contemplate that [Code 18.2-308.2] would divest convicted felons of that right....Further, as the Commonwealth acknowledges, "[t]he fact that a man has been drinking does not ipso facto deprive him of the right of self-defense, even though the necessity for the exercise of the right might not have arisen had neither he nor his aggressor been drinking." Hawkins v. Commonwealth, 160 Va. 935, 941, 169 S.E. 558, 560 (1933); see Gilbert v. Commonwealth, 28 Va. App. 466, 473, 506 S.E.2d 543, 546-47 (1998) (holding that accused was not at fault in inviting aggressors to his house for drinks)....Courts and commentators disagree over whether the appropriate label for the defense is self-defense, necessity or duress. See Panter, 688 F.2d at 272 n.7 (discussing self-defense and necessity and holding that accused was entitled to instruction under either); Castrillo, 819 P.2d at 1328 & n.2 (comparing justification defenses of duress and necessity to self-defense). The justification defenses of duress and necessity are similar in that both require that "the perceived harm must be imminent." Castrillo, 819 P.2d at 1328 n.2. Self-defense is similar to duress and necessity in that it "provides a justification for an otherwise criminal act; strictly speaking, however, it is not a defense to possession, although it may justify the possession."...The [common law] defense of necessity traditionally addresses the dilemma created when physical forces beyond the actor's control render "illegal conduct the lesser of two evils." . . . We have held that, under appropriate circumstances, constructive possession of a firearm may support a conviction for possession of a firearm by a convicted felon. See Blake v. Commonwealth, 15 Va. App. 706, 707-09, 427 S.E.2d 219, 220-21 (1993) (holding accused constructively possessed firearm which was in actual possession of his companion while accused and companion acted jointly to commit robbery). Here, however, neither the Commonwealth nor the trial court took the position that appellant constructively possessed the firearm earlier on December 29, 1999, before he took actual possession of it, presumably because the evidence indicated the firearm was located in a storage shed which was owned and used by appellant's father and located on property owned by appellant's father. "
See Also : Joann Marie Crews Walker v. Commonwealth, Va. App. (2004 Unpublished)
The Right to Arm
Rebecca Scarlett Cary v. Commonwealth, Va. App. (2004 Unpublished)
"The Supreme Court held the trial court should have instructed the jury "'that one who has been threatened with murderous assaults and has reason to believe that such assaults will be made, may arm himself in his defense and in such case no inference of malice can be drawn from the fact of preparation for it.'" Bevley, 185 Va. at 213, 38 S.E.2d at 332 (quoting State v. Summers, 188 S.E. 873, 875 (1936) (emphasis added))...Here, appellant did not seize the weapon from the victim, her potential assailant, as occurred in Lynn. Rather, the evidence, viewed in the light most favorable to appellant, supported a finding that she obtained the firearm in preparation for a future deadly attack by the victim at three discreet times--when she first purchased the firearm; 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 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 instruction was relevant to appellant's explanation for why she purchased the gun. Her testimony that she purchased the gun to protect herself, her home and her family does not preclude the conclusion that she intended to protect them, at least in part, from the victim, who, her proffered testimony established, had repeatedly beaten her and her children and inflicted serious injuries on her on numerous prior occasions. The instruction also was relevant to explain why appellant kept the gun after seizing it from her son and why she picked it up when the victim returned from the bathroom, after which time she claimed it accidentally discharged. To the extent the Commonwealth planned to argue that appellant's purchase of the weapon or use of it on September 6, 2002 showed malice, she was entitled to an instruction that permitted her to argue she had "a right to arm and defend . . . herself against a perceived attack." Lynn, 27 Va. App. at 347, 499 S.E.2d at 6. Further, this theory also required the admission of evidence of the victim's history of violence toward appellant and their children in order to show "'the reasonable apprehensions of [appellant] for [her] life and safety'" sufficient to justify her arming herself. Canipe, 25 Va. App. at 640-41, 491 S.E.2d at 752 (quoting Randolph, 190 Va. at 265, 56 S.E.2d at 230)."
Appealed to Supreme Court on Grounds of Overt Act in Self-Defense Jury Instruction
Commonwealth v. Cary, 271 Va. 87, 623 S.E.2d 906 (2006).
"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."
See Also: Lynn v. Commonwealth, 27 Va. App. 336, 499 S.E.2d 1 (1998).
See Also: Gourko v. United States, 153 U.S. 183 (1894). "Right to Arm"
Dead Men Tell No Tales
(Militia Officer Fratricide - Militia Patrols- Sword Cane- Dying Declarations)
Hill v. Commonwealth, 43 Va. 2 Gratt. 594 (1845).
"We also concur with the prisoner's counsel in their position, that under our statute, every homicide is, prima facie, murder in the second degree; and in order to elevate the offence to murder in the first degree, the burden is cast upon the Commonwealth to bring it by proof either within the specific class of cases, such as killing by poison, or by laying in wait, &c. enumerated in the statute, or within the general class of " willful, deliberate and premeditated killing." On the other hand, in order to reduce the offence from murder in the second degree to manslaughter, the burden is cast upon the accused. As the homicide in question has been found by the jury to be murder in the first degree, the question arises, was there sufficient evidence before the jury to elevate the offence to that grade? As there was no evidence tending to bring the homicide within the specific class of cases which by the statute are made to constitute murder in the first degree, does the evidence bring it within the general class of " willful, deliberate and premeditated killing?"
The principal difficulty, we apprehend, that exists in distinguishing between murder in the first and second degree, is in determining what proof is sufficient on the part of the Commonwealth to shew that the killing was willful, deliberate and premeditated. In order to elevate the offence from murder in the second to murder in the first degree, there must be proof that the accused deliberated; and that the killing was the result of such deliberation. This being proved, it is not material how recently the deliberation preceded the killing. The practical difficulty in cases of this kind, is, in determining what is sufficient evidence of deliberation. A homicide rarely declares his intention; nay, he often, under the disguise of friendship and kind offices, sedulously conceals his fatal purpose. Often the resolution to kill may be fixed, but the time and the means not determined upon. The most willful, deliberate and premeditated murders would often go unpunished unless means existed of proving the intention, independent of the admissions or declarations of the homicide. We are of opinion that such means are furnished by the rule: "That a man shall be taken to intend that which he does, or which is the immediate or necessary consequence of his act." 2 Stark. Evi. 738, and the authorities there referred to. To illustrate this rule, let us suppose that a man is seen, within shooting distance of another, to raise his gun, take aim, and fire, and the man falls; the ball having inflicted a mortal wound: and that these are all the facts proved; is this murder in the first or second degree? To respond to this enquiry, we have only to apply the rule just quoted. The taking aim, and firing such a weapon, one from which death would most likely ensue, would itself be prima facie evidence that he intended it; and was, therefore, a willful, deliberate and premeditated killing.
Now, let us apply this rule to the prisoner's case; and in the first instance, to examine it as if all the evidence which are technically classed as dying declarations were out of the case. Some of these declarations, it might be insisted, were parts of the res gesta; and as such, proper evidence. These will be adverted to presently; and the reasons assigned why they ought to be admitted as part of the res gesta.
The proof to which we will now refer as exclusive of the dying declarations, is as follows: On the evening of the 13th of September last, (the evening of the homicide,) the decedent, who resided 18 miles from Suffolk, being on a visit to his estate adjoining, or near to the town of Suffolk, came to the town, and was at the Washington Hotel. The prisoner who resided in the town of Suffolk, casually met him there: friendly salutations passed between them: a mixed conversation took place in the company; (there being several persons present;) when about the hour of 7 o'clock, the prisoner asked the decedent to walk with him, as he wished to say something to him. The decedent complied, and they walked off together towards Bayly's storehouse; which is about 50 feet from the end of the porch of the tavern from which they started: and Bayly's store is in view of persons stationed in the end of the porch. No person seems to have observed the parties after they started on their walk. The prisoner had with him a sword cane. After the lapse of between 5 and 10 minutes, the decedent was seen to approach the tavern, staggering. He fell before he got to the porch. Some of the company who were in the porch went to his aid, carried him into the porch, and laid him down. He was pulseless, and his countenance was pale and death like. Some of the persons present thought he was dead. He lay in this situation some minutes, when he revived a little, turned himself over and vomited. Remedies were applied to restore sensibility, and in about 10 minutes he was sufficiently restored to be able to speak; and upon being asked what ailed him, "he put his hand to his left breast, and said here it is, here it is. "— "Hunter Hill asked me to walk out, and stabbed me here."...
...Without referring in detail to the numerous adjudications that have taken place in England, and in this country, upon the question, we consider it settled, that declarations in articulo mortis by one who is conscious of his condition, are admissible evidence; and that the fact of such consciousness may be established otherwise than by the statements of the decedent: as by the character and nature of the wound, his appearance and conduct, &c. For this we refer to Roscoe's Crim. Evi. 29, and the authorities there referred to."
What Is Great or Serious Bodily Injury?
Commonwealth v. Bernard Payne, Va. App. (1996 Unpublished)
" Bernard Payne was charged with violating the felony provision of Code § 46.2-817. The trial court held that the term "serious bodily injury" was unconstitutionally vague and dismissed the felony charge. The Commonwealth appeals...Furthermore, in determining the meaning of a statute, "[t]he validity of using other Code sections as interpretive guides is well established. The Code of Virginia constitutes a single body of law, and other sections can be looked to where the same phraseology is employed." King v. Commonwealth, 2 Va. App. 708, 710, 347 S.E.2d 530, 531 (1986). Code § 18.2-369, which concerns abuse or neglect of incapacitated adults, reads: "For purposes of this subsection, 'serious bodily injury or disease' shall include but not be limited to (i) disfigurement, (ii) a fracture, (iii) a severe burn or laceration, (iv) mutilation, (v) maiming, or (vi) life threatening internal injuries or conditions, whether or not caused by trauma." The term "serious bodily injury" can also be found in other statutes. See Code § 10.1-1455 (handling of hazardous wastes), 16.1-228 (family abuse definition), 16.1-269.1 (transfer of juveniles to circuit court), 17-237 (sentencing guidelines), 18.2-67.3 (aggravated sexual battery), 29.1-740 (duty to stop and render assistance); 54.1-2400.1 (duty of mental health service providers to prevent violence), and 54.1-3434.3 (denial, revocation, and suspension of pharmacy registration).
With such widespread use of the term, it is plain that the term does have a common and well-recognized meaning. As such, ordinary people can understand what conduct is prohibited and the inclusion of the term in the statute does not encourage arbitrary and discriminatory enforcement. Therefore, the term is not unconstitutionally vague."
Evidence of Character of Aggressor in Self-defense
Workman v. Commonwealth, 272 Va. 633, 636 S.E.2d 368 ( 2006).
We have very recently held: In Virginia, the rule in criminal cases is that, when a defendant adduces evidence of self-defense, proof of specific acts is admissible to show the character of the victim for turbulence and violence, even when the defendant is unaware of such character. Barnes v. Commonwealth, 214 Va. 24, 25-26, 197 S.E.2d 189, 190 (1973); Stover v. Commonwealth, 211 Va. 789, 794, 180 S.E.2d 504, 508 (1971). When admissible, such evidence bears upon the questions of who was the aggressor or what was the reasonable apprehension of the defendant for his safety. Upon the question of who was the aggressor, the issue is what the victim probably did, and evidence of recent acts of violence toward third persons ought to be received, if connected in time, place, and circumstance with the crime, as to likely characterize the victim's conduct toward the defendant....Here, Workman was deprived of introducing evidence of three recent incidents involving Bumbry firing weapons at others. Most certainly, such evidence has the potential to be powerful impeachment of Bumbry's statement at trial that he did not have a gun at the scene and his denial that he had been involved with a criminal offense involving firearms . . .The undisclosed evidence and the evidence that would have been discovered before trial were material. The nondisclosure under the circumstances of this case undermines confidence in the outcome of the trial....The trial court and the Court of Appeals erred in denying Workman a new trial because of Brady violations. We will reverse the judgment of the Court of Appeals and reverse Workman's voluntary manslaughter conviction, and remand this case for retrial if the Commonwealth be so advised for an offense no greater than voluntary manslaughter.
The Jury Instruction
Workman v. Commonwealth, Va. App. (2005 Unpublished).
"In any case, the instruction the judge gave the jury encompassed the issues covered in the instruction Workman's attorney offered. The instructions explain that in determining whether Workman's actions were "necessary . . . there must have been some observable act from which the defendant could have reasonably concluded that he was in imminent danger of death or serious injury. Whether the danger is reasonably apparent is always to be determined from the viewpoint of the defendant at the time he acted." In short, the instructions clearly informed the jury that the "misconduct" concerned Workman's actions during the altercation. For these reasons, the trial judge did not err in granting the instructions. "
A Deadly Weapon ?
Daisy BB Gun is a Deadly Weapon
Young v. Commonwealth, Va. App. (2005 Unpublished).
"Lastly, appellant argues that the evidence was insufficient to prove that the Daisy BB gun was, in fact, a deadly weapon. We disagree. Unless an object can be considered a deadly weapon as a matter of law, the jury determines from the evidence whether the object belongs in that category. Thus, "[w]hether an instrument is a deadly weapon is a question of fact." Inge v. Commonwealth, 39 Va. App. 85, 87, 570 S.E.2d 869, 870 (2002)...Here, the jury clearly had sufficient evidence to conclude that the Daisy BB gun was a deadly weapon. As noted earlier, Investigator Sharpe testified that the manufacturer warned that its product, if used as designed to shoot BB's at high velocity, could seriously injure or kill another human being. Investigator Sharpe further stated his opinion that one could get killed with "what comes out of the barrel of this gun." We conclude that no rational jury, faced with this uncontradicted evidence, would find that the Daisy BB gun was not a deadly weapon."
Federal Case law