779 S.E.2d 223
Va. Ct. App.2015Background
- Appellant James Witherow (retired police officer) shot his wife Marlene Carter in the chest during a domestic dispute; he was convicted by a jury of malicious wounding (and other offenses not challenged on appeal).
- At trial Witherow testified Carter had thrust a bowie knife at him in the bedroom, he grabbed a revolver from a closet shelf, and fired to scare her so he could escape; he said he did not aim and acted to get away.
- Carter testified Witherow pointed the gun at her and shot her; evidence at the scene included a knife, broken closet paneling, a revolver on the bed, and cuts on shirts and Witherow’s hands.
- The jury received instructions on aggravated malicious wounding and malicious wounding; the trial court refused Witherow’s proffered Instruction A (which proposed unlawful wounding and assault and battery as lesser-included offenses) and Instruction B (a reasonable-doubt-grading instruction).
- The jury convicted for malicious wounding; Witherow appealed, arguing the trial court erred in refusing the lesser-offense instructions because there was more than a scintilla of evidence negating malice (heat of passion or lack of intent).
- The Court of Appeals reversed and remanded, holding the refused instructions should have been given because appellant’s testimony provided sufficient evidence to raise a reasonable doubt as to malice and to permit lesser findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by refusing instructions on lesser-included offenses (unlawful wounding; assault & battery) | Commonwealth: Evidence supported malicious wounding; if self‑defense was asserted, jury could acquit rather than convict of a lesser offense | Witherow: His testimony that he fired to scare Carter (after she thrust a knife) supplies more than a scintilla of evidence negating malice and supports lesser offenses | Court: Reversed — trial court abused discretion; evidence (appellant’s testimony) warranted instructions on unlawful wounding and assault & battery |
| Whether a reasonable-doubt grading instruction (Instruction B) should be given when lesser-offense instructions are warranted | Commonwealth: Not dispositive because jury could find self-defense; no independent evidence for lesser offenses | Witherow: If Instruction A should be given, Instruction B must follow to guide grading of offenses | Court: Held Instruction B should have been given because Instruction A should have been given and B clarifies grading under reasonable doubt |
Key Cases Cited
- Commonwealth v. Vaughn, 263 Va. 31 (2002) (standards for reviewing refusal to give proffered jury instructions)
- Barrett v. Commonwealth, 231 Va. 102 (1986) (heat of passion from fear can negate malice; lesser-offense instruction required when evidence supports imperfect self-defense/heat of passion)
- Williams v. Commonwealth, 64 Va. App. 240 (2015) (lesser-included instruction required when any credible evidence supports it)
- Eaton v. Commonwealth, 240 Va. 236 (1990) (defendant entitled to instruction only when supported by more than a scintilla of evidence)
- Boone v. Commonwealth, 14 Va. App. 130 (1992) (defendant’s testimony about intent may alone justify giving lesser-included offense instruction)
- Crockett v. Commonwealth, 187 Va. 687 (1948) (grading instruction clarifying reasonable doubt among offense levels is proper)
- McClung v. Commonwealth, 215 Va. 654 (1975) (plea of self-defense and claim of passion are not mutually exclusive; evidence of passion can require lesser instruction)