Virginia Self Defense and Use of Force Laws, Excessive Police Use of Force


This article is written by criminal defense attorney Marina Medvin, who is located in Alexandria, Virginia, and Fairfax, Virginia. She represents individuals charged with the crimes described below in Fairfax, Alexandria, Arlington, Fairfax, Falls Church, Vienna, Manassas, and Prince Prince William. Please call (703)870-6868 for a consultation request.

SELF-DEFENSE

Life is the most basic right of them all. As such, all states have a law giving you the privilege to exercise reasonable force to protect your life. In many instances, the police and prosecutors will not charge someone defending his life in that way – but the facts and evidence have to be clearly lined up in favor of using any force against the assailant. This of course gets a bit complicated once a hero citizen gets charged with malicious wounding or murder when the evidence isn’t as clear.

In Virginia and many other states, self-defense is all about proportions. Your actions must be proportional to the assailant’s actions. The Virginia Court of Appeals has stated it as follows: “… the amount of force used to defend oneself must not be excessive and must be reasonable in relation to the perceived threat.” Diffendal v. Commonwealth, 8 Va.App. 417, 421, 382 S.E.2d 24, 25 (1989). So you can’t shoot someone for punching you in the face and call it self-defense. Also, Virginia courts impose a duty on you to check out your other, less harmful, options before imposing force on the assailant – for example: what other things could you have done instead of shooting him? You have a duty to select a less harmful option to protect yourself, if that option is readily available to you.

You must also be able to articulate to the court that the assailant acted in a manner as to threaten your safety or life – not just say that you feared him, you must describe his threatening conduct. Bare fear that a person intends to inflict serious bodily injury on you, however well-grounded, will not warrant killing such person if the fear is unaccompanied by any overt act indicating such intention. See Harper v. Commonwealth, 196 Va. 723, 731, 85 S.E.2d 249, 254 (1955). Compare: “I thought he would shoot me.” vs. “He was holding a gun in his right arm, pointing it at me, and I thought he was going to shoot me.”

Furthermore, a jury always has the ability to find your use of force to have been excessive or unreasonable. The jury may also find that you were “at fault” for the conflict with the alleged assailant and contributed to the conflict in such a way as to be responsible for it.

This is why self-defense is a sticky defense – it will be up to the jury to decide if you met all of the requirements if you invoke this defense. You won’t really know until after you are tried.

Finally we get to defending a third person, whether or not this person is a family member. You first need to understand all of the ramifications above. In Virginia, whether the person you defended is a daughter or a stranger, that person had a right to life and you had the right to defend his or her life. (This doesn’t hold true for all states – many states only allow defense of a third person when that person is a family member.)

Legally, the right to defend another is “commensurate with self-defense” – you are put into the third person’s shoes and are judged from their perspective – did the person who you defended have a right to use force of that magnitude against the assailant? Additionally, the third person cannot have appeared to have been at fault for the conflict from your perspective in order for you to invoke this defense. “One may avail himself or herself of the defense only where he or she reasonably believes, based on the attendant circumstances, that the person defended is without fault in provoking the fray.” Foster v. Commonwealth, 13 Va. App. 380, 412 S.E.2d 198 (1991).

While it is the burden of the government to prove beyond a reasonable doubt that you committed a crime, it is your burden to prove that you had to hurt another person in defense of your self, or another person. This means that you will need to admit evidence or witness testimony at your trial to establish your defense.

A jury’s instruction would read something like this:
1) “If you believe that the defendant was without fault in provoking or bringing on the fight and if you further believe that the defendant reasonably inferred under the circumstances as they appeared to him that he was in danger of being killed or that he was in danger of great bodily harm, then the wounding was self-defense and you shall find the defendant not guilty.”
2) “If you believe that the defendant was injecting himself into a fight to assist [third person's name], who was in a fight with [assailant's name] because he reasonably believed that [third person's name] was in danger of great bodily harm, then the wounding was in defense of another.”

POLICE OFFICER USE OF FORCE

Police officers in Virginia cannot use excessive force to apprehend a subject, but they may use a reasonable mount of “effort” required in a given incident “to compel compliance by an unwilling subject,” according to the International Association of Police Chiefs. In reality, this means that as a situation escalates, an officer makes split second decisions as to how to control the situation, respond to possible threats, and apprehend their subject.

The first level of force is the mildest one – police officer presence in uniform or with a badge, in itself, is a way for the officer to exert a level of force and authority over citizens.

The second level of force is through verbal commands. Officers issue commands, such as “Let me see your identification and registration,”"stop,” or “don’t move.”

The third level of force is physical restraint and physical command over a subject. If the situation calls for it, officers can grab and hold the subject in order to restrain that individual. If this doesn’t work or is not an option, then officers may use punches and kicks to restrain an individual. These actions must cease once the subject is restrained. The justification for this type of force comes and goes within seconds, and the officer is obliged to the public to adjust his conduct and his force accordingly.

The next level of force is when officers have a reasonable need to control the situation by using their tools or gadgets. Officers may use a baton or projectile to immobilize a combative person. Officers may use chemical sprays or projectiles such as pepper spray. And, officers may use tasters to immobilize an individual. Again, this type of force must cease once the subject is restrained. The justification for this type of force comes and goes within seconds, and the officer is obliged to the public to adjust his conduct and his force accordingly. Officers cannot continue beating someone with their baton once the person is no longer resisting or no longer posing a threat.

The last level of force is deadly force. The officer is allowed to use lethal force if his life or the life of another was threatened. This is a type of self defense, or defense of another situation.

VIRGINIA SUPREME COURT AND COURT OF APPEALS DECISIONS GUIDING TRIAL COURTS IN APPLICATION OF THESE LAWS

Foster v. Com., 412 SE 2d 198 – Va: Court of Appeals 1991

Cleandrew Foster was convicted of unlawful wounding in violation of Code § 18.2-51. On appeal, he contends that the trial court erred by refusing to instruct the jury on self-defense and defense of others and that the Commonwealth’s attorney violated the equal protection clause of the fourteenth amendment by using three peremptory challenges to exclude black members from the jury based on their race. We agree that the trial court erred by refusing to instruct the jury as to the law of selfdefense; thus, we do not reach Foster’s challenge to whether the jury was properly empaneled. Foster’s proposed instruction on defense of others was an erroneous statement of the law; thus, the trial court did not err in refusing it.

On July 11, 1986, Foster, who was an inmate at the Southampton Correctional Center in Southampton County, Virginia, was playing horseshoes with several other inmates in the prison’s recreation yard. Foster was standing at one end of the pit, and David Robinson and James Hooks, who were at the other end, were arguing over whose turn it was to play. Foster took his turn, and both Robinson and Hooks grabbed one of the horseshoes he had thrown. They engaged in a tugging match over the horseshoe. Robinson held another horseshoe in his right hand.

The evidence was in conflict as to the subsequent events. According to the Commonwealth’s evidence, James Hooks moved behind Robinson after Hooks released the horseshoe. Robinson turned toward Hooks in anticipation of a fight, and when he did, Foster came from behind and hit Robinson in the head with a horseshoe. Robinson and Foster then began to fight. According 200*200 to Foster’s evidence, he walked from his end of the horseshoe pit to the other in order to prevent a fight between Hooks and Robinson. When Foster reached them, Robinson drew back a horseshoe as if to hit either him or Hooks, and, to defend against the blow, Foster struck Robinson one time. Then, either Foster walked away and Robinson pursued and hit him with a horseshoe, or the men began to exchange blows with horseshoes immediately. Thereafter, correctional officers interceded to break up the fight.

Foster was indicted by a grand jury in the Circuit Court for the County of Southampton, Virginia on one count of malicious wounding in violation of Code § 18.2-51. At trial, defense counsel offered jury instructions as to the law of self-defense and defense of others.[1] The court refused them. The jury found Foster guilty of unlawful wounding and fixed his punishment at four years in the penitentiary. The trial judge sentenced Foster in accordance with the jury’s verdict.

Foster contends that the trial court erred in refusing to instruct the jury on the law of self-defense and/or defense of others. A party is entitled to have the jury instructed according to the law favorable to his or her theory of the case if evidence in the record supports it. Delacruz v. Commonwealth, 11 Va.App. 335, 338, 398 S.E.2d 103, 105 (1990). Thus, in deciding whether the trial court should have instructed on self-defense or defense of others, we must look at the evidence in the light most favorable to Foster’s theory of what occurred between him and Robinson, since a trial judge may not refuse to grant a proper, proffered instruction if evidence in the record supports the defendant’s theory of defense. See id. Because evidence in the record tends to support Foster’s selfdefense theory, we agree with his contention that the proffered self-defense instruction should have been given. We reject his contention regarding the proffered defense of others instruction because it misstates the applicable law.

“[A] person who reasonably apprehends bodily harm by another is privileged to exercise reasonable force to repel the assault.” Diffendal v. Commonwealth, 8 Va.App. 417, 421, 382 S.E.2d 24, 25 (1989). However, the amount of force used to defend oneself must not be excessive and must be reasonable in relation to the perceived threat. Id. at 421, 382 S.E.2d at 26. Further, “[i]f there is evidence in the record to support the defendant’s theory of defense, the trial judge may not refuse to grant a proper, proffered instruction.” Delacruz, 11 Va.App. at 338, 398 S.E.2d at 105. Where the conflicting evidence tends to sustain either the prosecution’s or defense’s theory of the case, the trial judge must instruct the jury as to both theories. Id. The jury as the finder of fact has the right to “reject that part of the evidence believed by them to be untrue and to accept that found by them to be true.” Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958). Therefore, the trial court must instruct on both theories to guide a jury in their deliberations as to the law applicable to the case, depending upon how the jury decides the facts. See Cooper v. Commonwealth, 2 Va.App. 497, 500, 345 S.E.2d 775, 777 (1986).

At trial, Foster testified that he “thought he [Robinson] was going to hit me or Hooks so I reacted.” Three other inmates, Steven Skutans, James Hooks, and Derrick Brown, also testified that Robinson drew back with a horseshoe in his hand as if he were going to strike either Foster or Hooks before Foster struck him. Additionally, both Foster and Derrick Brown testified 201*201 that Foster struck Robinson once with a horseshoe and that he then began to walk away when Robinson “retaliated and came back at him.” Based on the above evidence, Foster tendered jury instruction 6A which is nearly identical to the self-defense justifiable homicide instruction approved by the Supreme Court in Perricllia v. Commonwealth, 229 Va. 85, 93, 326 S.E.2d 679, 684 (1985). Nevertheless, the trial court refused to give instruction 6A.

We find that if the jury believed the foregoing evidence which Foster presented, as it had the right to do, that evidence supported Foster’s self-defense theory. He proffered an instruction correctly stating the law of self-defense in Virginia. We cannot say, as a matter of law, that if Foster retaliated against a perceived attack with a horseshoe by Robinson with the same type instrumentality, by so doing, he used excessive or unreasonable force. The evidence raised factual issues regarding the reasonableness of the force used, the reasonableness of the perceived threat and whether Foster was without fault in the incident. These issues are properly within the province of the jury to resolve as part of considering the claim of self-defense. See Diffendal, 8 Va.App. at 421-22, 382 S.E.2d at 26.

The Commonwealth also contends that the trial court properly refused Foster’s proffered self-defense instruction because he was not “without fault” when he interceded to stop the altercation between Hooks and Robinson. The question whether or not Foster was without fault in the incident is another factual issue to be resolved by a properly instructed jury. See Bell v. Commonwealth, 2 Va.App. 48, 58, 341 S.E.2d 654, 659 (1986) (not error for court to refuse instruction defining “fault” in self-defense context because “[i]t encompasses any form of conduct on the part of an accused which a jury may reasonably infer from the evidence to have contributed to an affray”). The jury could have found that Foster, by walking to the other end of the horseshoe pit to prevent an altercation, if that were his purpose, was not at fault and was entitled to stand his ground and to defend himself without withdrawing. Accordingly, we hold that the trial court erred by refusing to give to the jury a selfdefense instruction.

As to Foster’s contention that he was entitled to have the jury instructed on defense of others, we hold that the trial court did not err in refusing the instruction. Foster’s tendered instruction was an erroneous statement of the Virginia law. However, because the issue will necessarily arise on remand, we address what is the state of the law in Virginia on defense of others. 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). Thus, the right to defend another “is commensurate with selfdefense.” 202*202 Id. Consequently, in those jurisdictions which recognize the defense, the limitations on the right to defend one’s self are equally applicable, with slight modifications, to one’s right to defend another. One must reasonably apprehend death or serious bodily harm to another before he or she is privileged to use force in defense of the other person. The amount of force which may be used must be reasonable in relation to the harm threatened. See Diffendal, 8 Va.App. at 421, 382 S.E.2d at 25-26 (delineating limitations in self-defense context).

Jurisdictions which recognize the defense are split on the question whether the person to whose aid one comes must be free from fault in order to claim the defense of protection of others. The majority of those courts which have addressed the question have adopted an objective test so that one “may act on and is governed by the appearance of conditions when he arrives upon the scene, provided he acts honestly and according to what seems reasonably necessary in order to afford protection.” 40 Am.Jur.2d Homicide § 172 (1968). Thus, under the majority view, in order to justifiably defend another, the defendant must reasonably believe that the person being defended was free from fault; whether the defended person was, in fact, free from fault is legally irrelevant to the defense in those jurisdictions. This view is based on the principle that one should not be convicted of a crime for attempting to protect one whom he or she perceives to be a faultless victim from a violent assault. Under this approach, the policy of the law is to encourage individuals to come to the aid of perceived victims of assault. Id. We find this position to be well-grounded in principle and policy. Accordingly, we hold that the law pertaining to defense of others is that one may avail himself or herself of the defense only where he or she reasonably believes, based on the attendant circumstances, that the person defended is without fault in provoking the fray.

Foster’s proffered instruction, however, did not state the law as we have defined it and, thus, misstates the law. While the proffered instruction correctly noted that the defendant must reasonably believe that the person to be defended is in danger of great bodily harm, it did not address the issue that the defendant must reasonably believe that the person he or she is defending was without fault in instigating the altercation. Thus, even if Foster reasonably believed that Hooks was threatened with great bodily harm, he could not have availed himself of the protection of others defense unless he reasonably believed that Hooks was without fault in provoking the fray with Robinson. Because the chief purpose of jury instructions is to explain to the jury the law of the case, Cooper, 2 Va.App. at 500, 345 S.E.2d at 777, a trial court may refuse to grant an instruction which misstates the applicable law.

For the reasons stated, we reverse the judgment of conviction and remand the case for retrial if the Commonwealth be so advised.

Reversed and remanded.

[1] Instruction 6A: “If you believe that the defendant was without fault in provoking or bringing on the fight and if you further believe that the defendant reasonably inferred under the circumstances as they appeared to him that he was in danger of being killed or that he was in danger of great bodily harm, then the wounding was self-defense and you shall find the defendant not guilty.”

Instruction 6B: “If you believe that the defendant was injecting himself into a fight to assist James Hooks, who was in a fight with David Robinson, because he reasonably believed that James Hooks was in danger of great bodily harm, then the wounding was in defense of another.”

Yarborough v. Commonwealth, 217 Va. 971 – Va: Supreme Court 1977

Upon an indictment for the murder of Charles Augusta Vines, 972*972 defendant Rose Ella Yarborough was convicted by the trial court, sitting without a jury, of voluntary manslaughter and sentenced to confinement in the penitentiary for a term of five years. The writ of error awarded defendant to the March 2, 1976 judgment of conviction presents issues dealing with: (1) admissibility of certain incriminating statements made by the defendant, when intoxicated, during a custodial interrogation; and (2) application by the court below of the doctrine of excusable homicide in self-defense. We find no reversible error and affirm.

The facts are not in dispute. On September 11, 1975 near 6:30 p.m., defendant and Vines appeared at the back door of the residence of Rosa Lee McNeill, defendant’s sister-in-law, located in the City of Newport News. McNeill refused to admit them to her home because they “had been drinking” and were arguing.” Thereafter, the couple remained on McNeill’s back porch for about 35 minutes and continued to argue. Then McNeill, who had stayed within her home watching television, heard the sound of gunfire outside. She went to her back door, saw Vines “laying on the ground”, and determined he had been shot.”

Defendant, testifying as the only defense witness, said Vines had been her “boyfriend” for about seven years. She stated that during the period of their relationship they had argued and that Vines had been “violent” to her. She testified that on prior occasions, he had “shot me with a sawed off shotgun, shot half of my breast off and I had a hole in my arm”, all resulting in three separate operations. She also said that in the past defendant “throwed me down the steps one time and broke my shoulder.”

Testifying about the event in question, defendant said that shortly before the shooting, she and Vines, both of whom had been drinking intoxicating beverages, were together at her mother’s house, located near McNeill’s home, when Vines gave her a loaded .22 caliber revolver. At the time, according to defendant, Vines “said he wanted [the gun] for protection” — “protection” of whom being unclear from the record.

Defendant further testified the couple then went to McNeill’s back porch where Vines “got to arguing” with her. When the argument continued, Vines became “nasty” and “violent”. Finally, Vines “knocked” defendant from McNeill’s back porch into some nearby bushes. She then “shoved” him “back in the bushes” and then he “knocked” her to the ground and again into 973*973 the shrubbery. As defendant “tried to get up,” Vines, who was then close to defendant, reached down toward a boot he was wearing. Defendant knew he was carrying a 14-inch long-bladed knife in the boot so, as his hand was “a little past his knee”, she pulled the revolver from her “bosom” and shot him. Vines, who later died from one gunshot wound of the chest, never drew the knife.

Defendant testified: “I didn’t intend to shoot him; I tried to get him off of me because I knew when he was drunk he was violent.” Asked whether at the time she fired the weapon she was able to “retreat anywhere”, defendant said “I was — at that time . . . in the hedges; at that time it was thick.” Defendant stated she shot Vines without first asking him not to use the knife because she was “scared of him” and because she knew he would not heed her request; she said that when Vines shot her with the shotgun on the prior occasion, she first pleaded with him not to fire.

Leaving Vines lying on the ground, defendant ran to her mother’s home and hid the revolver under a mattress. She then “ran around the block”, because she was “excited”, and eventually returned to the scene. In the meantime, Vines had been removed from the area by ambulance and the police had arrived to investigate. When defendant returned, she approached the officers who, by then, suspected defendant “was involved” in the crime. After being given the warnings required by Miranda Arizona, 384 U.S. 436 (1966), and being told she would be charged with murder if Vines died, defendant stated “I shot him.” She then led one of the officers to the room where the revolver was hidden and identified it as being the weapon she used to shoot Vines.

Defendant first contends the evidence shows she was “heavily intoxicated” when given the Miranda warnings and when she made the foregoing inculpatory statements. She argues that, accordingly, the trial court erred by receiving such statements in evidence through the testimony of one of the investigating officers because, as the result of her intoxication, defendant lacked the capacity to knowingly and intelligently waive her privilege against self-incrimination and her right to the assistance of counsel. The pertinent law as applied to this evidence fails to support this contention. 974*974

Two of the investigating officers testified and stated the defendant was “intoxicated” at the scene. These opinions were based on their observations of defendant’s “mannerism and the way she was talking.” The officers smelled the odor of liquor on defendant’s person and testified she was “staggering about” and “constantly weeping.” But at trial defendant said she “had been drinking a little bit . . . not much, though” immediately preceding the shooting. She further stated she knew “what was happening” and “going on” at the time she was warned and when she discussed the shooting with the police.

Statements made during a custodial interrogation and while intoxicated are not per se involuntary or inadmissible. United States Brown, 535 F.2d 424, 427 (8th Cir. 1976). The test is whether, by reason of the intoxication, the defendant’s “will was overborne” or whether the statements were the “product of a rational intellect and a free will.” Townsend Sain, 372 U.S. 293, 307 (1963). In this case, the evidence fully supports the trial court’s ruling that defendant made a knowing and intelligent waiver of her Miranda rights and that the statements were voluntary. The defendant testified she had been “drinking” only “a little bit” just before the events in question and that she understood “what was going on” at the time. Moreover, her conduct immediately after the shooting, and during the ensuing investigation, demonstrates she was not too intoxicated to understand and appreciate the Miranda warnings. For example, she immediately went to her mother’s home after the shooting and secreted the pistol; she voluntarily returned to the scene and reported to the police officers; she led an investigator to the place where the revolver was hidden; and she identified the gun to the officer as the murder weapon. Clearly, the defendant’s will was not “overborne” and her statements were the “product of a rational intellect and a free will.” See United States Cox, 509 F.2d 390, 392 (D.C. Cir. 1974); Fant Peyton, 303 F.Supp. 457 (W.D. Va. 1969).

Defendant next contends the trial court “erred as a matter of law in ignoring the theory of excusable homicide in self-defense and in precluding the defendant from relying upon such defense.” She points to certain comments made during the trial by the court below and interprets them to mean the court improperly refused to consider the foregoing defense when, under the evidence, the defendant was entitled to rely thereon. 975*975 Actually, defendant’s argument reaches farther han the above-stated position which, if sustained, would warrant a reversal and remand; she seeks a judgment here of acquittal as a matter of law, not a new trial, contending the “evidence is sufficient to sustain her plea of excusable homicide se defendendo.”

Killing in self-defense may be either justifiable or excusable homicide. “Justifiable homicide in self-defense occurs where a person, without any fault on his part in provoking or bringing on the difficulty, kills another under reasonable apprehension of death or great bodily harm to himself.” Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, 31 (1958); Dodson Commonwealth, 159 Va. 976, 167 S.E. 260 (1933). “Excusable homcide in self-defense occurs where the accused, although in some fault in the first instance in provoking or bringing on the difficulty, when attacked retreats as far as possible, announces his desire for peace, and kills his adversary from a reasonably apparent necessity to preserve his own life or save himself from great bodily harm.” 200 Va. at 96, 104 S.E.2d at 31. But bare fear that a person intends to inflict serious bodily injury on the accused, however well-grounded, unaccompanied by any overt act indicating such intention, will not warrant killing such person. Harper Commonwealth, 196 Va. 723, 731, 85 S.E.2d 249, 254 (1955).

With these principles in mind, we now turn to the comments of the trial judge which defendant contends demonstrate the court below refused to apply the doctrine of excusable homicide. But we will not set forth the trial court’s comments out of the context in which they were made, so far as we are able to ascertain that context from the transcript, which contains only excerpts from the colloquy between court and counsel, and which does not fully set forth the arguments on the law of the case of either the prosecutor or defense counsel. We will italicize the court’s comments which are singled out and relied on by defendant to sustain her position.

The Commonwealth’s case-in-chief was presented through the testimony of two of the investigating officers and McNeill, who stated defendant told her the killing was in “self-defense or something.” At the conclusion of this evidence the following transpired: 976*976

}”MR. OLSON [prosecutor]: That’s the Commonwealth’s case, your Honor.”

}”COURT: The Commonwealth rests.”

}”MR. FOX [attorney for defendant]: Move to strike, Judge. The Commonwealth has brought out the evidence we would bring out. It was a case of self-defense. We don’t know what happened there. Other than the fact that this man –”

}”COURT: Where is the self-defense? Where is any evidence of self-defense?”

}”MR. FOX: The Commonwealth has brought that out.”

}”COURT: I must have missed it.”

}”MR. FOX: From the witness McNeill as to what happened, and she said [defendant] told her as to the circumstances of the shooting. We admit from the evidence that we are the one who fired the gun, but the Commonwealth hasn’t brought out the reason, other than the fact of our statement that it was self-defense.”

}”COURT: It takes more than a statement of self-defense. It takes more than that. That’s a conclusion.”

}”MR. FOX: Yes sir, we’ll put on the evidence.” The defendant then testified and rested her case. No evidence in rebuttal was offered by the Commonwealth. Then, according to the record, each counsel presented his closing argument to the court, neither of which was transcribed. But the record does contain a transcript of the following colloquy which occurred during the argument of defendant’s attorney:

}”MR. FOX: Judge, if we subscribe to that theory, I would be representing a corpse today, with what this man’s record was. I don’t know.”

}”COURT: I’m surprised — a little surprised that the Commonwealth is willing to talk about manslaughter. Here this woman going with that man who had broken her shoulder, shot her breast off with a shotgun, one time or another. She said she’s scared of him. Yet, she continued to go with him. Armed herself. And then she gets in an argument with him and shoots him. I don’t — looks like to me, Mr. Fox, she put herself in that position. Frankly.”

{“I don’t see any self-defense in this matter. I really don’t. He never pulled the gun; she said he was going for it. Maybe he 977*977 was. He never pulled it. I think she’s guilty of manslaughter too.”

}”MR. FOX: What more did she have to do under these circumstances with what this man did for her?”

}”COURT: In the first place, she had no business arming herself and being — and going in volatile company where this man had shot her once, broken her shoulder once. She’s got no business to do that, and then arm herself to protect herself.”

}”MR. FOX: She didn’t arm herself. The evidence ought to be brought out from the Police Department this was this man’s gun. He gave it to her.”

}”COURT: She had the gun.”

}”MR. FOX: He gave it — he had the bullets on him.”

}”COURT: I think she’s guilty — I really think she’s guilty of second degree murder, but I’m going to find her guilty of voluntary manslaughter.”

During the March 2, 1976 sentencing hearing, held about one month after the trial, the record shows that after the pre-sentence report had been discussed, counsel again presented argument to the court. This argument has also been omitted from the record; however the transcript does contain the following statements made by the trial judge:

}”COURT: This man was — that the deceased was not a paragon of virtue, of course, is shown by the evidence. And assuming everything is true that this woman said about how this man had mistreated her and that he had maimed her in the past and attempted to kill her on occasion, or on, maybe, several occasions, let’s assume that all of that is absolutely gospel just as it came from her mouth.”

{“She isn’t charged with carrying on an affair with the man who was disposed to violence. That’s not the charge. What she did was she went with the man, whom she knew was disposed to violence, armed herself, and became voluntarily intoxicated at the same time. And she killed him, and from the — the physical evidence at least, he was armed too, but he had not drawn his weapon, according to the physical evidence. The weapon was in his sock when he was admitted to the hospital.”

{“And — I say that the word has got to go out that people can’t arm themselves and place themselves in the position 978*978 where they — voluntarily, where they can expect violence to erupt and then claim self-defense. You just cannot do that.”

{“And — I recognize that this woman would probably never be a threat to anyone on the street, but that doesn’t give her the right to take someone’s life because she would never take another one.”

The defendant contends the italicized language demonstrates conclusively “the trial court erroneously instructed itself” and that the trial judge “misapprehended the standard against which the Defendant’s conduct is to be measured.” We disagree.

Absent clear evidence to the contrary in the record, the judgment of a trial court comes to us on appeal with a presumption that the law was correctly applied to the facts. Furthermore, we will not fix upon isolated statements of the trial judge taken out of the full context in which they were made, and use them as a predicate for holding the law has been misapplied. In this case, taking the foregoing comments as a whole, we construe the trial judge’s statements as furnishing alternative bases, one correct and one erroneous, for his finding of defendant’s guilt.

On the one hand, he clearly, and correctly, made a finding of fact that the defense of self-defense had not been sustained by the evidence. Such was the obvious import of his comment in response to defendant’s motion to strike made at the conclusion of the Commonwealth’s case-in-chief when he said, in effect, that more than a conclusory statement is necessary to furnish a factual basis for self-defense. And then during the colloquy following the closing arguments on the day of trial, the court said: “I don’t see any self-defense in this matter. I really don’t. He never pulled the gun.” This train of thought continued to the sentencing hearing when the court observed Vines “had not drawn his weapon.” The clear meaning of these latter comments is that, factually, the plea of excusable homicide in self-defense had not been sustained because the vital element of a “reasonably apparent necessity” to kill did not exist. Stated another way, the court either decided not to believe all the defendant said, as it had a perfect right to do, or it held, as a matter of fact, that Vines’ mere reaching down toward his boot was not such an overt act indicative of his intention to kill or do great bodily harm to defendant as would excuse the homicide. In 979*979 essence, whether or not defendant showed such circumstance of excuse to create a reasonable doubt that she acted in self-defense was an issue of fact. That being the case, we cannot say a judgment of conviction having the foregoing factual basis “is plainly wrong or without evidence to support it.” Code | 8-491.

On the other hand, many of the trial judge’s comments, supra, tend to show he concluded the defendant, as a matter of law, was not entitled to rely upon a plea of self-defense. The court apparently focused, in part, on the inapplicable doctrine of justifiable homicide only, as indicated by repeated references to defendant’s fault, and may have ignored, at times, the applicable doctrine of excusable homicide. But, at the most, such an interpretation, if correct, of what the trial judge may have believed was the relevant law merely furnishes an alternative, albeit incorrect, basis for his judgment. The fact remains, as we have said, it is clear he considered the proper doctrine of excusable homicide. So where, as here, we can be satisfied the conviction was based on a correct application of the law, we will not reverse the judgment, even though an incorrect theory may also have been considered by the court.

For these reasons, the judgment of conviction will be Affirmed.

Buckley v. City of Falls Church, 371 SE 2d 827 – Va: Court of Appeals 1988

In this criminal appeal we decide that necessity is not a defense to a charge of trespassing on the premises of a women’s medical clinic in order to give anti-abortion literature to patients considering an abortion. The defense of necessity is not available to these defendants since there were reasonable and legal alternatives to their violation of the law.

The defense of necessity traditionally addresses the dilemma created when physical forces beyond the actor’s control render “illegal conduct the lesser of two evils.” United States v. Bailey, 444 U.S. 394, 410, 100 S.Ct. 624, 634, 62 L.Ed.2d 575 (1980). If one who is starving eats another’s food to save his own life, the defense of necessity may bar a conviction for the larceny of the other’s food. Sigma Reproductive Health Center v. State, 297 Md. 660, 676, 467 A.2d 483, 491 (1983). The essential elements of this defense include: (1) a reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack of other adequate means to avoid the threatened harm; and (3) a direct causal relationship that may be reasonably anticipated between the action taken 828*828 and the avoidance of the harm.[1] United States v. Cassidy, 616 F.2d 101, 102 (4th Cir.1979). One principle remains constant in modern cases considering the defense of necessity: if there is “a reasonable, legal alternative to violating the law, `a chance both to refuse to do the criminal act and also to avoid the threatened harm,’” the defense is not available. Bailey, 444 U.S. at 410, 100 S.Ct. at 635 (quoting W. LaFave & A. Scott, Criminal Law § 49 at 379 (1972)).

The consensus of courts that have addressed this issue is that the defense of necessity is not a valid defense for criminal trespass charges which stem from political or moral protests. Cleveland v. Municipality of Anchorage, 631 P.2d 1073 (Alaska 1981); Gaetano v. United States, 406 A.2d 1291 (D.C.1979); People v. Smith, 161 Ill.App.3d 213, 112 Ill.Dec. 745, 514 N.E.2d 211 (1987); People v. Stiso, 93 Ill.App.3d 101, 48 Ill.Dec. 687, 416 N.E.2d 1209 (1981); People v. Krizka, 92 Ill.App.3d 288, 48 Ill.Dec. 141, 416 N.E.2d 36 (1980); Sigma, 297 Md. 660, 467 A.2d 483 (1983); City of St. Louis v. Klocker, 637 S.W.2d 174 (Mo. App.1982); State v. Horn, 126 Wis.2d 447, 377 N.W.2d 176 (1985). One of the reasons why the necessity defense has been found to be inapplicable in such cases is the availability of alternative, noncriminal means of accomplishing the defendants’ purposes. Bailey, 444 U.S. at 410, 100 S.Ct. at 634; United States v. Seward, 687 F.2d 1270, 1275 (10th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 789, 74 L.Ed.2d 995 (1983); United States v. Best, 476 F.Supp. 34, 46 (D.Colo.1979); Cleveland, 631 P.2d at 1078-79; Nelson v. State, 597 P.2d 977, 980 (Alaska 1979); Griffin v. United States, 447 A.2d 776, 778 (D.C.1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983); State v. Marley, 54 Hawaii 450, 472, 509 P.2d 1095, 1109 (1973); Sigma, 297 Md. at 678, 467 A.2d at 492; Commonwealth v. Hood, 389 Mass. 581, 592, 452 N.E.2d 188, 195 (1983); Commonwealth v. Brugmann, 13 Mass.App. 373, 380, 433 N.E.2d 457, 462 (1982); State v. Champa, 494 A.2d 102, 104 (R.I.1985); State v. Olsen, 99 Wis.2d 572, 578, 299 N.W.2d 632, 636 (1980); LaFave & Scott, supra. § 50 at 387.

In this case, reasonable, noncriminal means were available to achieve the defendants’ purposes. The defendants sought to communicate with patients concerning the impact of an abortion on both the fetus and the patient. This message could have been communicated off the clinic’s private property by direct intervention with the patients, to the extent they were receptive to it, or by the use of placards, billboards or other media. That these other alternatives may have been thought by the defendants to be less effective or less efficient does not justify criminal action to accomplish their purposes. Since there were reasonable, legal alternatives to trespass that would have achieved the defendants’ purposes, we hold that the defense of necessity is not available to them. Thus, the trial court did not err in prohibiting the defendants from presenting the defense of necessity, and we affirm the convictions.

AFFIRMED.

[1] Because we conclude that reasonable, alternative means were available to these defendants, we do not decide whether the threatened harm perceived by the defendants was, in fact, the greater of “two evils,” nor do we decide whether their belief of that fact was reasonable. Similarly, we do not decide whether there existed a direct causal relationship between their conduct and the avoidance of the alleged harm.

Gnadt v. Com., 497 SE 2d 887 – Va: Court of Appeals 1998

Charlton E. Gnadt, Jr. was charged with sexual battery in violation of Code § 18.2-67.4. At the conclusion of the Commonwealth’s case-in-chief, the court granted a motion to strike the charge of sexual battery and amended the charge to simple assault. The defendant objected, contending that assault and battery was not a lesser-included offense of the original charge and that the evidence was insufficient to prove lack of consent. The court overruled the objection and convicted the defendant of assault and battery. Finding that assault and battery is a lesser-included offense of the original charge of sexual battery and that the touching was without consent, we affirm.

The victim, Pvt. Shawn A. Knowles, had been charged with driving under the influence. He appeared for the trial in the general district court. Charlton E. Gnadt, Jr. was the Assistant Commonwealth’s attorney prosecuting Knowles. After discussing a plea agreement, Gnadt told Knowles to accompany him to his office. When they arrived, Gnadt told Knowles that he needed to search him for weapons. He had Knowles take off his military jacket and stand against the wall. After an initial pat-down search, Gnadt told Knowles to unfasten his pants. Knowles complied. Gnadt placed his hands inside Knowles’ pants but outside his underwear. He rubbed his hands across Knowles’ buttocks and then around front over his genitals. Gnadt then placed his hands inside Knowles’ underwear and again moved them over his buttocks and around front, touching his genitals. Knowles said nothing and did not resist or protest in any way. He testified that he was nervous, scared, and felt he would be in more trouble if he resisted.

An assault and battery is an unlawful touching of another. It is not necessary that the touching result in injury to the person. Whether a touching is a battery depends on the intent of the actor, not on the force applied. Wood v. Commonwealth, 149 Va. 401, 140 S.E. 114 (1927). For a touching to be a crime, it must be unlawful. If the victim consents to the touching, the touching is not unlawful and therefore not a battery. If the touching exceeds the scope of the consent given, the touching is not consensual and thus is unlawful. If consent is coerced or obtained by fraud, the touching is unlawful. Banovitch v. Commonwealth, 196 Va. 210, 83 S.E.2d 369 (1954).

A touching may also be justified or excused. When it is, the touching is not unlawful and therefore not a battery. A police officer does not commit a battery when he touches someone appropriately to make an arrest. An unlawful arrest or an arrest utilizing excessive force is a battery because that touching is not justified or excused and therefore is unlawful. See generally, Roger D. Groot, Criminal Offenses and Defenses in Virginia 26 (3d ed.1994).

In this case, the touching was unlawful and constituted a battery. Any consent given was coerced by the defendant using the power he wielded over the victim to take advantage of the situation and to play on the victim’s vulnerability. The touching administered far exceeded the scope of any consent that may have been given voluntarily or which would have been justified or excused by any legitimate claim of authority to conduct a weapons search.

889*889 Assault and battery is a lesser-included offense of sexual battery as defined in Code § 18.2-67.4. A defendant commits sexual battery when he sexually abuses a victim against the victim’s will, by force, threat or intimidation, or through the use of the complaining witness’ mental incapacity or physical helplessness. Sexual abuse is defined in Code § 18.2-67.10(6) as an act committed with the intent to sexually molest, arouse, or gratify any person, where the accused intentionally touches the complaining witness’ intimate parts or material directly covering such intimate parts. The elements of the offense consist of an intentional touching administered with the intent to sexually molest, arouse, or gratify. The more specific and aggravated state of mind necessary to commit sexual abuse encompasses the less culpable mental state found in an assault and battery. Both offenses require a touching. Thus, each element of an assault and battery is encompassed within the elements of sexual battery. See Clark v. Commonwealth, 12 Va.App. 1163, 408 S.E.2d 564 (1991), and Johnson v. Commonwealth, 5 Va.App. 529, 365 S.E.2d 237 (1988).

For the foregoing reasons, we affirm. Affirmed.

Barnes v. Commonwealth, 214 Va. 24 – Va: Supreme Court 1973

Where there is evidence that victim was intoxicated at time of homicide, evidence of victim’s character or reputation for turbulence when in such condition is admissible on issue of self-defense. Issue of remoteness in time concerns weight of evidence and credibility of witnesses both of which are within province of jury.

Error to a judgment of the Hustings Court of the City of Petersburg. Hon. Oliver A. Pollard, Jr., judge presiding.

Morton B. Spero (Spero & Levinson, on brief), for plaintiff in error.

Linwood T. Wells, Jr., Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for defendant in error.

Per Curiam.

On an indictment for murder, William Barnes was tried by a jury and found guilty of involuntary manslaughter in the slaying of Robert Nelson Abbott. In accordance with the verdict, the trial court entered judgment on June 15, 1972, sentencing Barnes to the state penitentiary for five years. We granted a writ of error limited to a consideration of the trial court’s refusal to admit certain testimony concerning Abbott’s alcoholism and his allegedly aggressive behavior when intoxicated.

The uncontradicted evidence shows that on the night of January 2, 1972, Barnes, a nineteen year old high school senior, saw the decedent, whom he knew only by sight, in a restaurant in the City of Petersburg where both were drinking beer. Barnes asked Abbott for assistance in performing some cleanup duties at the dry cleaning establishment 25*25 where Barnes was employed after school hours. Abbott agreed to help and in exchange for his assistance, Barnes purchased some beer for the decedent, part of which the men took with them to the cleaning establishment. While they worked they drank some beer and liquor. An argument ensued, and Barnes shot and killed Abbott.

When the police arrived they found Abbott lying dead on the floor with an unsheathed straight razor in his hand. Barnes admitted to the officers that he had shot Abbott several times but asserted that he had done so in self-defense when Abbott advanced on him brandishing the razor.

The Commonwealth relied primarily upon the physical facts and the defendant’s admissions. As part of the Commonwealth’s evidence a laboratory analysis made by the Chief Medical Examiner was introduced that showed that Abbott’s blood alcohol content at the time of his death was .21 percent.

The defendant, before testifying in his own defense, attempted to introduce evidence of the decedent’s turbulent and violent personality while under the influence of alcohol. To this end defense counsel called two witnesses. He offered to have Mrs. Nancy Holt, Abbott’s former wife, testify concerning her knowledge, prior to their separation in 1967, of his drinking problem and aggressive tendencies while intoxicated. He offered to prove by Howard Wild, a rehabilitation officer at Central State Hospital, that the decedent, following separation from his wife, was hospitalized “as a habitual excessive drinker” until shortly before his death.

The trial court refused to permit the two proffered defense witnesses to testify on the ground that the aggressive tendencies of the decedent could not be shown in pleading self-defense unless the defendant was aware of them. The court held that evidence could be adduced to show the decedent’s condition on the day or night of the homicide but that no prior history of alcoholism could be developed. While defense counsel did not complete the record by proffering the testimony of the two witnesses, he adequately preserved his objection to the court’s ruling by summarizing what the evidence would show.

The Attorney General conceded before us that where an accused adduces evidence that he acted in self-defense, evidence of specific acts is admissible to show the character of the decedent for turbulence and violence, even if the accused is unaware of such character. 26*26 Stover Commonwealth, 211 Va. 789, 180 S.E.2d 504 (1971); Randolph Commonwealth, 190 Va. 256, 56 S.E.2d 226 (1949).

The defense sought to introduce the evidence of prior drinking problems in order to support the testimony which Barnes subsequently gave, in much greater detail than in his statement to the investigating officers, in justification of the homicide. For that purpose the evidence was relevant and material. Where, as here, there is evidence that the victim was intoxicated at the time of the shooting, evidence of his character or reputation for turbulence when in such condition is admissible on the issue of self-defense. 1 Wharton, Criminal Evidence | 236, at 513 (13th ed. C. Torcia 1972); Annot., 1 A.L.R.3d 571, at 593 (1965). See Hubbard Commonwealth, 190 Va. 917, 930, 59 S.E.2d 102, 108 (1950).

Thus the ultimate issue becomes whether such evidence of prior conduct was sufficiently connected in time and circumstances with the homicide as to be likely to characterize the victim’s conduct toward the defendant. Randolph,

190 Va. at 265, 56 S.E.2d at 230. Or stated alternatively, the test is whether the evidence of prior character is “so distant in time as to be void of real probative value in showing present character.” 3A Wigmore, Evidence | 928, at 755 (Chadbourn Rev. 1970).

Although the jury might have concluded that evidence of the decedent’s turbulent nature five years before was too remote, it might have determined that his aggressive tendencies surfaced whenever he drank to excess, and, in view of the evidence of Abbott’s intoxication at the time of his death, found that Barnes’s version of the slaying was credible. Once a nexus for relevancy of prior conduct or character has been established, as here, the issue of remoteness concerns the weight of the evidence and the credibility of the witnesses, both of which are within the province of the jury. See 5 id. | 1617 (3d ed. 1940). To bar such evidence altogether was error. Accordingly we will reverse the judgment and remand the case for a new trial, if the Commonwealth be so advised.

Reversed and remanded.

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