State v. Harden

interpre equitable Despite perceived this 679 S.E.2d 628 by the grandfather clause given to the tation Virginia, West Plaintiff STATE of court, subject not provision circuit Below, Appellee, v. interpretation, because it the lower court’s Carvey, See ambiguous. HARDEN, Tanya Defendant Thus, D. the lower at 843. Below, Appellant. statutory provi interpretation court’s grandfather clause erroneous. sion is No. 34268. Virginia § Code 15- within West contained Supreme Appeals Court of (2004) exempts membership 1B-26 Virginia. West Virginia Air National Guard in the West employed were as fire persons who those April Submitted 2009. statute, date of the fighters on the effective Decided June 2009. 2, 2004, who were not members June but Dissenting Opinion of Chief Justice at that Air National Guard Virginia the West July Benjamin 2009. time. Plaintiff was a member Undisputedly, the Virginia Air National Guard and

of the West firefighter by Adjutant

employed as a time of the effective date of at the

General Accordingly, Plain-

the relevant statute. grandfa- fall within the simply does not

tiff Virginia provision of West Code

ther clause

§ 15-1B-26. Conclusion

IV. reasons, foregoing we answer

For the question follows:

certified case, Adjutant of this

Under the facts Virginia on West Code

General’s reliance complete

§ is a defense to the 15-1B-26 claim that he was discriminated

Plaintiffs Adjutant General in viola-

against by the Rights Virginia Human

tion of the West not fall within

Act and the Plaintiff does requirement of mili- exception grandfather

tary membership in the clause provisions of

contained within the West § 15-1B-26.

Virginia Code question answered.

Certified Moreover, suggest persons were fire- violated unless all who no evidence to there was fighters purview fell within the were not treated all the individuals in the class grandfather Moreover, with the statute. equally. Consequently, in- clause contained the lower court Id. any Equal raise correctly Equal the Plaintiff failed to Protection determined argument appeal. Virginia on would Protection Clause of the West Constitution McGraw, Jr., Attorney General,

Darrell V. Goldberg, Attorney Robert D. Assistant Gen- eral, Charleston, WV, Appellee. for Cook, Hickok, Esq., Esq., Russel S. J.L. Virginia Services, West Public Defender Charleston, WV, Appellant. for KETCHUM, J.: upon This ease is before Court (defendant) appeal Tanya A. Harden of the final order of the Circuit Court of Cabell County sentencing the defendant to a term of imprisonment possibility pa- life with the of following role defendant’s conviction for first degree murder. defendant, who asserted a claim of trial, at

self-defense has submitted several assignments support of error in her ap- peal. After careful consideration of the record, parties’ arguments, the and relevant authorities, assigned we find one of those dispositive. Specifically, errors to be prove beyond find that the State failed to a doubt ac- reasonable tions were not made in self-defense. Ac- cordingly, for the reasons set forth in this opinion, we vacate the defendant’s convic- the circuit tion and remand this matter to judgment court with directions to enter a acquittal.

I.

Background 5, 2004, September On defendant having arrested her admission shot husband, and killed her Danuel Harden. At trial, a claim of the defendant asserted self- defense, arguing precipitous- that her actions ly “night followed a of domestic terror” that only when the defendant shot and ended The evidence adduced1 dant to the decedent that “she didn’t lulled the decedent. trial that the dece- get the defendant’s showed want to killed with her two kids.” at (with dent, heavily drinking a blood while It is conceded the State that the defen- ultimately reaching 0.22% at alcohol count “night dant suffered a of domestic terror.” death) subjected of his the defen- the time During opening its statement the State de- several-hour-long period physical a dant to evening’s scribed the violence as “knock- violence. This violence includ- and emotional fight. By down-drag-out” the time of the brutally beating the defen- ed the decedent closing argument, State’s the State conceded shotgun, with the butt and barrel of dant “Yes, night she had a fists, brutally beating the with his Court, terror.” In its brief to the State this An sexually assaulting the defendant. concedes that the decedent’s death followed at Hunt- emergency physician room Cabell Hospital, “evening examined the defendant and sexual abuse.” ington who morning shooting, of the testified that on Notwithstanding the fact that it does not the defendant “had contusions of both orbital dispute night that the defendant endured a areas, arm, right upper puncture extreme violence the hands of the dece foreign body fore- wound with dent, argues that the State nonetheless chest, cheek, arm, of her facial contusions left claim of self-defense is “untena upper lip” “X-rays and that the left done at closing argument, In its the State ar ble.” the time demonstrated a nasal fracture.” jury ... gued to the that “the law on self- In addition to the violence sum- says deadly in defense order to use force above, marized the evidence adduced at trial you appre in self-defense must find that the repeatedly the decedent also showed at hension existed the time the defendant threatened to kill the defendant and the de- shot, attacked, or in this case the [dece B.H.,2 nine-year-old ten-year- son fendant’s addition, In the State maintained dent].” (a A.H., daughter ten-year-old old B.K. that the defendant did not have a reasonable friend of A.H.’s who had been invited for a any apprehend basis to from the de over”). “sleep included This evidence testi- deadly at cedent the time she used force mony from two of the children. B.H. testi- against the decedent because there had been seeing hearing say the fied to decedent “cooling period, off’ and the evidence going go get defendant “I am to the lying showed that the decedent was down on you” gun and shoot and that the decedent or, possibly “asleep” alternately, pos a couch fact, did, go in in to a back room the defen- sibly “passed out drunk” when defendant get shotgun, home and and returned dant’s argued him.3 The State further shot gun to the room with the where the decedent jury deadly defendant’s use force subsequently struck the defendant with the was not reasonable because the defendant gun in the butt of the shoulders and arms any danger posed could have retreated from while she seated in a recliner. In addi- was decedent, by evidenced the fact that testimony, B.K. tion B.H.’s also testified the decedent “is on that couch with a BAC of frightened that she what she could got shotgun, .22 and she has control of that difficulty hear from her bedroom and had law, ... she could have called the and she falling asleep, finally falling and that after asleep, she was awakened more sounds of could have walked out of that trailer. Peri fighting, point over-hearing at one the defen- But she didn’t.” od. discussion, significant infra, duty 1. We discuss in detail the evidence 3.In of the State’s III, beyond adduced at the defendant's trial in Section proven have a reasonable doubt that the redundancy, provide To minimize did the fact not act infra. a brief summary purposes of this evidence for "suspicion conjecture” the State resorts to "Background.” describing disposition when at the decedent’s escaped time he was shot has not us. keeping customary practice

2. with our children, involving testimony cases of minor appeal only by we refer to the children in this their initials. III.2., II. force. In Section we address the argument State’s that the defendant’s actions Standard of Review were unreasonable because the defendant appeal argues On the defendant duty had a to retreat from her home in lieu the State failed to submit sufficient evidence of using deadly force the decedent. prove beyond a reasonable doubt that her III.3., In Section we address sufficiency actions were not made self-defense. We of the State’s evidence. previously reviewing held that “[a] III.l. court should not reverse a criminal case on Apprehension Danger passed upon by the facts which have been jury, unless the court can that there is long-standing tenet of our self-de A guilt reasonable doubt and that the verdict fense doctrine is that a defendant’s use of misapprehen must have been the result of force must be based a reason sion, passion prejudice.” Syllabus apprehension by able the defendant that he Sprigg, Point State v. 137 or she peril imminent of death or (1927). Syllabus S.E. 746 bodily injury. Accord Point Point of8 Easton, Cain, 510 S.E.2d State v. 20 W.Va. 679 we held that: In such a case as to the imminency of We have further held that: danger, which threatened prisoner, appellate The function of an court when necessity and the killing in the first reviewing sufficiency of the evidence to prisoner instance the judge; but he support a criminal conviction is to examine peril, acts at his pass must the evidence admitted at trial to determine upon his action in premises, viewing evidence, believed, whether such if is suffi- said prisoner’s actions from the stand-point cient to convince a person reasonable of at the time of killing; if guilt beyond defendant’s a reasonable believe from all the facts and circum- Thus, inquiry doubt. the relevant case, stances in the prisoner that the had whether, viewing after the evidence in the believe, grounds reasonable and did be- light prosecution, most favorable to the lieve, imminent, danger and that the any rational trier of fact could have found killing necessary was preserve his own proved essential elements of the crime protect life or to him great bodily beyond a reasonable doubt. harm, he is using deadly excusable for Guthrie, Syllabus Point 194 W.Va. defense, weapon in his otherwise he is not. 461 S.E.2d 163 us, In the case before it is clear that the mind, With these standards in we turn to State does not believe that the defendant had presented. the issues a reasonable basis to believe that she inwas danger imminent of bodily death or serious III. injury deadly at the time she used force Discussion the decedent. The State acknowl- edges that the decedent’s death followed an complexity Given the of the issues raised “evening physical of and sexual in- abuse” analysis in our of whether the State submit- decedent, flicted the defendant ted sufficient prove, beyond evidence to argues but notwithstanding “night this doubt, reasonable the defendant’s ac- juror terror” a reasonable could have found self-defense, tions were not made in we will that the defendant’s use of lethal force was divide our discussion into three sections. not reasonable under our law. III.l., Section argu- address the State’s ment that the defendant’s use of argument lethal force The point State’s on this precludes law, unreasonable because our straightforward. law argues, Our the State “apprehension an danger previously requires deadly enter- employed only force be tained,” i.e., prior repel threats of violence or apprehension acts of death or serious violence, justifying deadly bodily injury use of existing deadly the time used, any lowing language relevant to issue specifically excludes

force is belief that danger previously enter- of the defendant’s apprehension of reasonableness deadly imminent: the use of force. or serious justifying death tained as of the defendant’s circumstances Under the for the to have been order Defendant case, did not argues, the defendant the State justified in the use of force self- any apprehend a reasonable basis defense, provoked must not have she at the danger from the decedent imminent aggressor. her or have been the assault on deadly force because the facts used time she words, more, without do not consti- Mere “cooling had been a off’ suggested that there aggression. Further- provocation or tute the decedent’s violent acts. period after more, apprehen- you must find Therefore, argues, the de- the State because at the time that the sion existed defendant ended, those violent violent acts had cedent’s apprehension attacked the victim. No apprehension “an acts constituted justify danger previously entertained will justify and could not previously entertained” (Emphasis homicide. the commission of deadly force. use of added).4 the record that the State It is clear from portion that the referenced It is obvious largely Syllabus arguments on bases its instruction was the trial court’s self-defense McMillion, of our decision State Point 6 entirely Syllabus Point 6 of State v. on based (1927)(emphasis 138 S.E. 732 McMillion, supra. question our review added), we held that: where presents is whether Point 6 of thus plea of the bur- Under his McMillion, argument based and the State’s imminency showing the of the dan- den of thereon, prec- conflicts with our more recent appre- ger upon the defendant. No rests mental holding prior edent danger previously entertained hension of relevant evidence on abuse a decedent is justify the homi- will the commission of of a defen- the issue of the reasonableness existing cide; apprehension it must he an bodily death or serious dant’s belief that at the time the fired fatal injury imminent. find that it does. were We shot. analysis by noting that begin our We argu- its clear that the State bases It is also the “reason precedent establishes that trial court’s self-defense instruc- ment on the instruction, that he or ableness” of a defendant’s belief tion. This self-defense State, risk of death or seri- she was at “imminent” contained the fol- was offered the instruction, the victim. No given, ihat the defendant attacked is as follows: 4. The entire as danger previously apprehension entertained of 12 INSTRUCTIONNO. STATE’S justify will the commission of homicide. (AsModified) which she acted The circumstances under jury of the that one The Court instructs produce in as to the mind must have been such by you questions in case determined this to be similarly prudent person, situ- of a reasonable ated, in self- not the Defendant acted is whether or per- that the other the reasonable belief justify her Under the so as to acts. defense her to kill her or to do son was then about State, not the if the Defendant was laws of this addition, bodily the defen- harm. In serious grounds aggressor, had reasonable to be- actually believed that she was dant must have actually she was in lieve and did believe that bodily danger of death or serious in imminent bodily danger of death or serious imminent deadly used to and that force must be harm which she could save herself harm from repel it. assailant, deadly by using her force present, self-defense is If evidence of deadly employ then had the force she beyond prove a reasonable doubt must State deadly By force is in order to defend herself. in defense. Defendant did not act self that the likely to cause death or meant force which is prove you failed to If find that the State has bodily harm. beyond Defendant a reasonable doubt that the self-defense, to have been In order for the Defendant you must find the did not act words, justified force in self- you in the use guilty. In if other Defendant defense, provoked the must not have as- she doubt as to whether or not have a reasonable aggressor. your Mere her have been the ver- sault on words, Defendant acted more, provo- guilty. without do not constitute be not dict must Furthermore, you aggression. must Given As Modified: cation or Ferguson, Judge. Alfred E. apprehension at the time existed find that

803 bodily two-part inquiry, a victim domestic that injury tragically is a with violence ous objective and an com- subjective component killing ends with the defendant’s batter Cain, Point 8 of State v. ponent. ing spouse, testimony is entitled elicit “to inquiry requiring we this supra, described prior physical beatings about she re pass upon [the that “the must defen- jury may fully ceived in order that the evalu premises, viewing said dant’s] action in the ate and consider defendant’s mental state stand-point at actions from the [defendant’s] at the time commission the offense.” killing!.]” time We further held Dozier, 192, 197-198, State v. 163 W.Va. 255 v. Syllabus Point 8 of State Cain that 552, (1979), S.E.2d 555 citing State v. Har “all jury must believe from the facts (de din, 149, (1922) 91 W.Va. 112 S.E. 401 ease, circumstances in that the [defen- fendant entitled to evidence introduce that believe, grounds had dant] reasonable quarrelsome decedent awas man who had believe, danger imminent.” did previously attacked defendant and threat life). ened recently, More addressed the reason we Cook, inquiry in v. 204 ableness State W.Va. similarly We have held that evidence of 591, (1999), 515 con S.E.2d 127 where we prior threats violence is relevant to “ne inquiry required two-part cluded gate Lambert, criminal intent.” State v. 173 finding “actually that a defendant believe 60, 63-64, 31, W.Va. 312 S.E.2d 35 danger [she] is in and that belief must 530, 542, Wyatt, State v. 198 W.Va. 482 Cook, State 204 be reasonable one.” v. 147, explained S.E.2d 159 we that a 591, 601, 127, 137, citing S.E.2d W.Va. 515 defendant’s domestic abuse was relevant “to (Iowa Elam, 314, 328 N.W.2d State malice, intention, establish either the lack of 1982) (“[T]he sub justification test of is both awareness, negate and thus or tend to objective. jective and The actor actual must negate necessary element of one or the ly believe he is in and that belief charged.” other offenses In State v. Plum one.”). be a must reasonable 536, 540, ley, 184 401 S.E.2d stated, Plainly inquiry the reasonableness (1990) (citations added), omitted)(emphasis First, as follows. a defendant’s belief we further noted that: death or serious was imminent the reasonableness of an individual’s be subjectively be must shown to have been liefs and actions in must self-defense reasonable, which that a is to ... “in light viewed the circum [the] actually believed, upon all based the circum- stances in he acted at the time and perceived him time stances or her at the by subsequently developed used, not measured deadly force was that such force was Reppert, facts.” necessary prevent bodily death or serious (1949). Moreover, Second, injury. that the defendant’s belief explained reasonableness objectively must be reasonable when consid- ering may depend past ac surrounding all of the conduct the circumstances decedent, threats, force, including the tions the defendant’s use of of situated, violence, general person, similarly reputation. to that another and [State W.J.B., [602,] reasonably formed be- 166 v.] could the same W.Va. [550,]

lief. [1981]. 556 briefly Having thus summarized Summers, Finally, in State v. 118 W.Va. standard which the reasonableness of 118, 188 a trial S.E. we addressed measured, to defendant’s actions are we turn very court’s similar self-defense instruction prohibition the issue of absolute McMillion’s ease, given to in the that and “apprehension danger no of previously that closely paralleled which also Point 6 justify entertained” used to homi be Summers, In our decision McMillion. having cide as been committed in self-de (Mr. Summers) the defendant was convicted fense. imprison and sentenced to life murder precedent following trial, clearly Our es- ment trial. At Mr. Summers since McMillion defendant, that a who tablishes has been had asserted claim of self-defense. The reversing conviction In the defendant’s had on the decedent that showed evidence Summers, that the instruction we concluded the life of both threatened previous occasions decedent’s jury to consider the permitted wife, that and his Mr. Summers purpose of deter- “only prior conduct threat prior occasion on a had also for decedent had cause to mining the defendant whether wife. Mr. Sum Summers’ rape Mr. ened time of the believe at the believe and did the decedent he shot that mers testified in imminent dan- shooting that wife was his decedent, door, killing the through a screen bodily harm at the great death or ger of threatening his observing the decedent after at of the deceased.” hands witnesses, blackjack. The State’s wife with that at further concluded 188 S.E. 875. We however, “came that the decedent testified jury “by limiting the in its court so the trial through the side door confectionery into the evidence, committed of the consideration anyone; using force toward without jury “the on the basis that plain error” time behind the at the Summers was Mrs. permitted to consider the have been should customers; and that waiting on the counter previous conduct of decedent of the evidence get within reach did not decedent] [the determining whether the purpose of for the 120, 188 at 118 W.Va. Summers].” [Mrs. manslaughter.” Id. was murder or homicide S.E. at 874. precedent since that our It is clear us Mr. Summers’ reviewing the record of the decedent’s vio- provides that McMillion trial court had appeal, we concluded of death are and threats lent criminal acts following- giving the subjec- plain error committed the determination of relevant to belief instruction: of the defendant’s tive reasonableness of death or at imminent risk that she was jury in de- instructs The court say, under bodily injury. This is to at the the defendant termining whether case, subjec- the defendant’s the facts of this acting in deceased was he time shot belief that death or serious tive jury must his wife the defense of the lawful imminent, deadly force was and that in the ease that the evidence believe threat, necessarily necessary repel surrounding time at the the circumstances had, pre- that the decedent included the fact gave good him prisoner were such death, preceding physically his cipitously believe, believe, did that his cause to and re- sexually the defendant assaulted death or in imminent wife was the defendant the life of peatedly threatened of the at the hands great bodily harm the children. and the lives of necessary deceased, to fire said it was a defendant hold that where We therefore danger’. such protect her from shot to plea evidence asserted a has conduct, any, if of the deceased at acts and previously had showing the decedent shooting may prior time and life of the defen- or threatened the abused5 determining by the considered the defendant’s evidence of dant is relevant such cause to defendant had whether the deadly force was the time state of mind at such fired said shot under believe and determining the circum- whether used. belief, the de- or conduct but no acts for the a reasonable basis stances formed would excuse the prior to that time ceased or she was at believe that he defendant to shooting the deceased. defendant for bodily injury or of serious imminent risk decedent, inqui- 120-121, death at the hands Summers, 188 S.E. at First, belief added.) the defendant’s ry two-fold. (Emphasis 875. (2) apprehension placing another in reasonable analogy, By way domestic violence 5. our harm; (3) physical statute, W.Va.Code, [2001], creating fear of defines 48-27-202 harassment, psychological by abuse or mean the harm or "abuse” to "Domestic violence” acts; (4) committing threatening either sexual following of the acts occurrence of one or more members, are de abuse as those terms assault or sexual family as that between or household —8b—1, Code, (I) seq., W.Va.Code, and W.Va. et fined W.Va. Code, —8d—1, 61 48-27-204: term in is defined (5) holding, seq., confin and intentionally, knowingly 61 et attempting or to cause person abducting ing, detaining another or causing physical another recklessly harm to or person’s weapons; will. deadly that dangerous or with or without

805 reasonable, doctrine, subjectively be which is to as the “castle” “castle” must rule or rule,6 believed, actually precedent succinctly “home” our say that the defendant states perceived “[a] that man attacked in his own all the circumstances home an based may intruder invoke the law of deadly or her at the force was self-defense him time 4, retreating.” Syllabus without Point necessary State used, pre that to such force was 176, 179 Preece, (1935). v. 116 W.Va. S.E. Second, 524 injury. bodily or vent death 1, W.J.B., Accord Point State v. 166 objectively the defendant’s belief must 602, 276 W.Va. S.E.2d 550 considering when all of the cir reasonable surrounding the defendant’s use cumstances present The distinction of the issue is that force, deadly to that another is intruder, the decedent was not an but instead situated, similarly person, could have reason lawful co-occupant having equal entitlement ably Our holding formed the same belief. in present with the defendant to be therein. McMillion, Syllabus Point 6 of State v. 104 2, Crawford, Syllabus Point State 66 W.Va. 1, (1927), expressly 138 S.E. 732 114, added), (1909)(emphasis S.E. 110 we overruled. held that: murder, On a trial for to instructions We further where it hold that is de jury asserting right to stand that termined the defendant’s actions were retreat, ground his and not based on the reasonably not made evidence theory deadly on, of a attack deceased decedent had or that the abused threatened castle, and on dwelling, defendant in his life of the defendant is nonetheless rele inapplicable are tuhere the evidence shows negate negate vant or tend and deceased were at the time defendant offense(s) necessary charged, element of the jointly occupying homicide the house malice or such as intent. occurred; where killing the ordinary concluded, Having thus find the State’s self-defense, propounded rules as to in oth- unpersuasive. arguments above-described er given request instructions of de- III.2. fendant, applicable. being alone Dull) to Retreat Similarly, Boggs, in State v. 615-616, we held that a argument In addition to its defen- defendant, who awas co-habitant of a house use of

dant’s force unreasonable where the decedent and decedent’s wife also “cooling there peri- because had been a off’ lived, was not to an entitled instruction on od, State that argues further the same ground “defendant’s his stand “cooling period provided off’ the defendant grounds retreat” on that the dece opportunity to retreat from her home so co-occupant dwelling. dent was a of the same avoid Our as to further attacks. review of during closing shows argu- the record question that our decisions in Craw- argument, ments State advanced this ford, Boggs present and other similar cases telling the “could whether we should continue follow the have walked out of that trailer. Period. But occupant of proposition that an a home has Implicit argument she didn’t.” in this is that duty co-occupant to retreat when a duty the defendant had a retreat from her placed same home has attacked otherwise home. occupant bodily inju- of serious ry or death. We conclude we should general proposition, precedent As a our not. clearly self-defense cases state where an conclusion, unlawful intrusion occurred in the In reaching has sancti- we have con- home, ty occupant supreme of one’s of the home sidered the decisions of other courts duty Generally has no to retreat. described that have addressed a issue. similar Initial- W.J.B., everyone 6. 166 W.Va. at 607 n. "... 'the house of is to him as his fortress, castle well at 553 n. for his S.E.2d we noted that: defence violence, against injury repose; as for his Perkins, (2nd R. Criminal 1022 n. 1 Law Ed. Case, 91a, 91b, ..Semayne’s Rep. Co. 5 77 1969), traces the “caslle” rule to this statement: 194, (1620)." Eng. Rep. 195 806 (1949); Crawford, 66 Virginia v. Virginia in the West is note that West

ly, we then, 114, (1909). im 110 minority jurisdictions who 66 S.E. Since apparent duty of a home the to occupant joined an pose has their ranks. one more state co-occupant. In a from an attack retreat Ordway, v. A2d 819 See Rhode Island 619 (Fla.1999), State, 1044 732 So.2d v. (R.I.1992). Massachusetts, Weiand Jersey New to Court was asked Supreme Florida imposing and North Dakota have statutes in v. Bob its decision State earlier reconsider attacked in duty a to retreat when (Fla.1982). Bobbitt, bitt, 724 So.2d 415 legal right with to be by someone a home we findings similar to those made the court See Mass. Gen. Laws premises. on the is to that both Crawford, in made (1998); 278, § Ann. ch. 8A N.J. Stat. and the Florida in our decision Crawford 2C:3-4b(2)(b)(i) (West 1998); § N.D. Cent. held an occu in Bobbitt decision court’s (1997). However, 12.1-05-07(2)(b) § Code duty to when a retreat a had pant of home ex Jersey Supreme Court has New concluding co-occupant. attacked a strong with the pressed disagreement its vacated, in Bobbitt should be that its decision from statutorily imposed duty to retreat initially Court noted Supreme Florida home, recently urged the New and has a minori in Bobbitt reflected that its decision amending to Jersey legislature consider occupant’s duty duty to on ty view Gartland, Jersey See New v. statute. retreat, noted that West Vir specifically 564, 456, 149 694 A.2d 569-71 N.J. jurisdictions holding the one of the ginia was minority view: Weiand, So.2d 1051 n. 8.7 732 Bobbitt, in the time of our decision At noting that its earlier decision After duty a jurisdictions imposing to re

those minority position, a the We- Bobbitt reflected treat, imposed duty a to four states went on to conclude that Bobbitt iand court in the a attacked home retreat when vacated, holding that: should be guest. co-occupant invited See Con are two distinct reasons for There 372, Shaw, A2d v. Conn. 441 185 necticut First, agree longer no conclusion. can (1981); Ky. Kentucky, 225 Oney v. 561 minority that relies on (1928); with view Bobbitt’s 590, Hampshire New 723 9 S.W.2d 36, possessory Grierson, concepts property law and N.H. 69 A2d 851 96 v. (1976)("a obliged when jurisdictions having person not to retreat ad 7. Our review of other dwelling to while in house or this leads us conclude he assaulted his dressed issue thereof, our decision curtilage conclusion—that Weiand court's whether the assail within the position represents minority well occupant of ant an intruder or another lawful —is Crawford See, McGrandy, People Mich. grounded. e.g., 162, v. 9 State, premises.’’); Thomas 266 Ark. v. 187, (1967)(Wife, prosecut App. 156 N.W.2d 48 32, (1979) ("occupant of house 583 37 S.W.2d husband, stabbing fatally her was not for ed co-occupant, duty but has to retreat from no dwelling obliged spouses' before to retreat from fight.”); pursue assailant to continue cannot self-defense.); using State extreme resistance 157, State, 619, Baugh 215 Ala. 112 So. 159 v. (Minn., Glowacki, N.W.2d v. 630 392 (1927)("A dwelling, person attacked in own his 2001)("There duty to retreat from one's is no entitling him to otherwise under conditions acting in the in self-defense own home when required to retreat is not strike in home, regardless aggressor whether the is a although in the same his assailant also resides duty retreat the lack of co-resident. But place dwelling. no which the law There is obligation abrogate reason not to act does ably State, retreat.”); requires v. 40 him to Gainer Therefore, using when force in self-defense. 382, (retreat (1978) not Md.App. A.2d 391 856 party claims self- in all in which situations spent required though the victim sometimes even retreat, defense, duty key even absent Lenkevich, house); People evening v. at the inquiry will still be into the reasonableness 117, (1975)("person 229 N.W.2d 298 394 Mich. of force and the level force under use dwelling bound to his own is not assailed in case.”); specific of each Common circumstances ground at his and resist but stand retreat 100, Pa.Super. Derby, A.2d v. 451 678 wealth tack, proceeds some the attack whether 784, (1996.)(Husband equal right wife have intruder.”); occupant State v. or from an other home, duty occupy wife did their 1339, 323, Thomas, St.3d 673 N.E.2d home, 77 Ohio though even safe to retreat from marital Grantham, (1997)(same); 224 S.C. 1343 using deadly possible, force retreat was before 41, (1953)(same); Leeper, v. 291 State 77 S.E.2d hands wife feared at whose husband (Iowa 200 N.W. 199 Iowa 1924)(same). bodily injury.); State Brown death ing, N.C.App.

807 Women,” Battered 15 Women’s Rts. L. duty to retreat from impose a rights to (1993)). 101,112-113 Second, Rep. So.2d at 726. 415 residence. understanding of on our increased based Weiand, So.2d at 1051-1053. violence in victims of domestic plight of Supreme In addition to the Florida Court’s Bobbitt, in we years our decision since Weiand, in we have decision considered the policy reasons for there are sound find that supreme court decisions of several other duty from the imposing a to retreat not early particular One note that states. case when a defendant resorts residence very persuasive we find on the issue is an against a co- deadly force in self-defense opinion by Supreme written then New York occupant. The more recent decisions Tomlins, Judge People Court Cardozo in v. supreme confronting this issue courts state 240, 243-244, 213 N.Y. 107 N.E. 496 duty to recognized imposing Tomlins, a father killed his son after his potential- has a retreat from the residence him in son attacked the father’s home. At damaging effect on victims of domestic ly trial, unsuccessfully the father claimed self- claiming self-defense. violence and defense was convicted murder. On assigned as error the trial

appeal, father duty father had a court’s instruction widely recognized that domes It nowis using retreat from own home before his repeated “attacks are often tic violence deadly force. time, the home is escape from over conviction, reversing the defendant’s great rarely possible without the threat of concluded, Judge part, in that: Cardozo v.] violence or death.” personal [State now, Thomas, It is not and never has been the 673 N.E.2d Ohio St.3d [(1997)]. [1339,]1343 law that a man assailed his own dwell quoted As there, ing, is bound to retreat. If assailed Jersey Supreme Court: New ground, he stand his and resist the duty Imposition of the to retreat on duty attack. He is under no to take to the who finds herself the battered woman highways, fugitive and the from his fields unilateral, unprovoked attack target of a years own home. More than two hundred inherently in her own unfair. home ago it was said Lord Chief Justice abuse, During repeated past instances (1 486): Crown, HALE of the Hale’s Pleas “retreated,” only caught, to be she has house, In case a man is in his own assailed inside, severely beat- dragged back can, fly he ‘need not as far as he escape, again. manages If en she defendendo, other for he hath cases se confront her. Where will other hurdles protection of house to excuse him his transpor- go money, if no no she she has flying, give up be to from for that would tation, if are left behind and her children possession to his adver of his house enraged man? in the “care” of an sanctuary sary by flight. ‘Flight is for his shelter, shelter, sanctuary, if not is, in exception in the home. That there such a duty to [the retreat] What is, think, situation, duty that as no to retreat means for a battered woman is law in States as in stranger who attacks her the settled the United long as it is a home, It held the United fight England. was so in her she has Supreme duty no to re- States Court Beard United back and labors under (158 550, 15 39 L.Ed. If the attacker is her husband or States U.S. S.Ct. treat. 1086). however, In that there was a full review partner, she must re- case live-in authorities, and the rule was held to threat of or serious treat. The death (and, merely just to one’s house but also bodily injury may be as real extend real) surrounding grounds---- The rule statistically, is more when her hus- home, proceeds partner her in but is the same whether the attack band or attacks Gartland, occupant or an in she must retreat. some other still from adjudged in Jones v. Maryanne E. truder. It was so (quoting A.2d at 570-71 (76 14). ‘Why, Legal Ala. it was there Kampmann, “The Victimization State 808 from, home, one in

inquired, dwelling place ‘should retreat his own his or her or of house, by partner a co- abode, when assailed or temporary by co-occupant a who also tenant, any by more than when sailed a right upon premises, has a lawful to be the stranger lawfully upon premis- who is the may invoke the law of and in self-defense flee, far, es? Whither shall he and how force, deadly such circumstances use without may permitted and when he be to return?’ retreating, occupant reasonably where the We think that the conclusion there reached believe, believes, and he does or she is at by principle, and we have not is sustained bodily injur imminent risk of death or serious any to to the con- been referred decision y.9 determining whether the circum retreat, trary. duty in The to as defined stances formed a reasonable basis for the charge judge, appli- the of the trial is one occupant to believe that he or she was at affray cable to cases of sudden or chance bodily injury imminent risk of serious or medley, language early to the of the use co-occupant, death at the hands of the books. think that [Citations omitted]. We First, inquiry occupant’s is two-fold. be justified if the situation the defendant as a reasonable, subjectively lief must be which is believing reasonable man in that he was say believed, occupant actually to attacked, murderously to be about he had perceived based all the circumstances ground. to stand his by deadly him or her the time force was Tomlins, 243-244, People v. 213 N.Y. at used, necessary that such pre force was to added.) (Emphasis N.E. 496. bodily injury. Second, vent death or serious occupant’s objectively belief must be rea review, Based on our we no see rational considering sonable when all of the circum legal imposing upon occupant basis for an of surrounding occupant’s stances use of duty a home the to retreat from his or her force, deadly which who, is to that another co-occupant home to abandon it to a situated, person, conduct, similarly could have reason by engaged his or her is in such ably the same in formed belief. Our decision improper place as to in occupant behavior Syllabus Crawford, bodily Point State v. injury. of or death serious (1909), use, may expressly 66 S.E. 110 is occupant such circumstances the over retreating, deadly ruled. without force if the occu- reasonably

pant believes such force to be III.3. necessary prevent his or her death or bodily injury presented by serious the co- Sufficiency of the Evidence occupant’s criminal behavior. begin analysis We sufficiency our of the occup Accordingly, by briefly we hold that an reviewing State’s evidence is, provocation, required who without attacked elements of our self-defense doc- ant8 occupant occupant 8. we reasonably deadly While use the terms and co-occu- believes that pant holding, general necessary. exchanges in our these terms are force is Given that heated terms, nature and may not exclusive of other such as commonplace between household occu "roommates” or "co-tenants.” pants, greater we believe that the threat of immi bodily injury necessary nent death or serious today 9. While we have out set certain standards justify deadly the use of force between co- home, occupant dwelling under which an aof or Therefore, occupants. expressly we decline to place temporary duty abode does not have a involving extend to self-defense cases co-occu co-occupant retreat when attacked a pants holding Syllabus Point home, dwelling place temporary same 276 S.E.2d 550 abode, clarify we wish to that this standard is not provides that: equal standards that have been established occupant dwelling using deadly against is not limited in for force an intruder into Indeed, using deadly against dwelling. force an unlawful intrud- do not believe that the use deadly occupant er occupant to the situation where the force one a co- death, occupant presents threatened with nature of circum- same posed deadly stances but he if intruder into a home. For use force the unlawful example, Virginia, under the intruder law in West threatens imminent violence occupant dwelling may respond deadly felony of a with or the commission of a and the occu- merely reasonably physi- pant deadly force to an intruder who threatens believes force is neces- felony sary. cal violence or the commission of where holding pertains to circumstances where Our Point 7 of State v. trine as it Cain, occupant a home has killed a co- and the numerous one cases that we have tenets, home. decided under occupant of the same its makes clear the specific elements and circumstances that III.3.A. person’s must exist before use of Elements of Self-Defense force is excusable under our law.10 The first century ago, than a this Court set More required element is that a defendant show required self-de elements our forth that he or “aggressor” she was not the Syllabus in Point 7 of State v. fense doctrine provoke did not require- attack. This Cain, (1882), 20 679 where we held W.Va. ment reflects the common law rule that “one that: physical who is at fault or who is aggres- without fault himself is at- When one rely can sor on self-defense.” State v. tacked another such manner or Smith, 654, 656, 820, 170 W.Va. 295 S.E.2d under such circumstances as to furnish (1982). See, Brooks, e.g., 822 State v. 214 grounds apprehending reasonable for a de- 562, (2003)(defendant 591 S.E.2d 120 life, sign away to take his or to do him way person’s who forced her into another harm, great bodily and there is rea- some home, then dwelling, struck resident of the grounds believing danger for sonable aggressor was and therefore not entitled to imminent, design that such will be accom- though self-defense instruction even resident plished, person and the assaulted has rea- defendant). repel used force to believe, ground to and does be- sonable required second and third elements lieve, imminent, danger may such he act are that a defendant show that the circum- appearances such and without re- stances of the attack formed a “reasonable” assailant, treating, kill if his he has reason- believe, basis to and that the defendant did believe, believe, grounds able and does believe, that he or she was at “imminent” killing necessary in that such order to bodily injury. risk of death or serious As we apparent danger; killing and the avoid the III.l., Opinion, have held in Section of this excusable, under such circumstances is al- the “reasonableness” of a defendant’s belief out, though may it afterwards turn that death or serious was “im- false, appearances were and that there subjective objective minent” is both a and an design in fact neither to do him some inquiry. injury danger, nor that it would be required The fourth that a element is de judge done. But of all this the must fendant must show that or her actions his all evidence and from the circumstances “proportionate” danger. were the case. W.J.B., 608, 166 W.Va. at 276 S.E.2d 524, Hughes, In State v. 476 (citations omitted), we noted that: (1996) (citations omitted), S.E.2d the amount of force that can be used in succinctly more stated the elements of our normally self-defense is that one can re- doctrine as follows: self-defense deadly only reasonably turn if force he aggressor defendant who is not the [A] inflict believes that the assailant is about to believe, grounds and has reasonable harm; otherwise, bodily or serious death believe, actually does that he is in immi- where he is threatened with non- bodily nent of death or serious force, deadly only non-deadly he use harm from which he could save himself force in return. only by using deadly force his as- employ deadly example deadly An sailant has of when the use of force force in defend order to himself. was not reasonable is that set forth State defense, category 10. The elements we set forth in Point 7 the second sets forth the ac essentially person v. the re our decision State Cain can be tions a is entitled to take once categories. category category quired divided into three The first circumstances exist and the third weigh sets forth the circumstances which sets forth how a fact finder should must be shown to have existed when force evidence and what it must find all the should person proven. used before a claim is entitled to self- elements be injury as a result of the decedent’s conduct. Wykle, 208 W.Va. brutally the defendant’s The record is clear that the decedent where we held during unarmed victim nine times attacked the defendant the hours im- stabbing of an mediately preceding where the the decedent’s death. a knife was not with slapped point, acknowledging that the victim The State concedes this only provocation was during argument. evening face that the defendant suffered “an the defendant’s physical “night and sexual abuse” and The final element of self-defense terror” at the hands of the decedent. Evi- requires present a defendant doctrine dence introduced at the defendant’s trial re- on all of the above ele evidence” “sufficient garding “evening and sexual being entitled to a self-defense before ments “night abuse” and of terror” is summarized shifting proof the burden of instruction and as follows. previously defined We to State. being cre evidence as that which sufficient testify At trial the State called K.B. to as to whether the ates a reasonable doubt evening to her recollections of the of her there acted in self-defense. “Once defendant sleep K.B. that over. testified she recalled to create a reasonable is sufficient evidence overhearing the defendant and decedent ar- killing resulted from the de doubt guing argument appeared and that the to be self-defense, prosecu acting fendant drinking. about the decedent’s At some beyond prove tion must a reasonable doubt point during evening, K.B. testified the defendant did not act self-de the defendant came to their room told Kirtley, Point fense.” go them to to bed. asked if there When was 249, 252 S.E.2d 374 162W.Va. anything unusual about the defendant when doorway, she came bedroom K.B. tes-

111.3.B. had, like, tified “She bruises on her Application eyes.” the Law Following of Facts to the defendant’s instruc- tions, go sleep, K.B. and A.H. laid down to to briefly reviewed the elements Having thus although K.B. could still hear the defendant doctrine, apply them of our self-defense arguing and decedent and testified that she the defendant’s case to deter- to the facts of Finally frightened. falling asleep, was K.B. mine, first, whether the evidence was suffi- by testified that she was awakened sounds of doubt on the cient to create a reasonable and, arguing again becoming fright- more second, whether the issue of ened, A.H. woke to ask her about what was prove beyond to a rea- State met its burden going parents A.H. K.B. that her on. told the defendant’s actions sonable doubt probably just “tumbling were around” and were not self-defense. however, K.B., worry it. not to about testi- 111.3.C. difficulty trying get fied that she had to back the Defendant Submitted Whether sleep, point and at one overheard the her Sufficient Evidence of the decedent that “she Claim of Self-defense get didn’t want to killed with her two kids.” Provocation. There is no evidence concluded, testimony After K.B.’s A.H. any did in the record that the defendant deed testify was called to as to her recollections of provoked or act that the attack her evening. A.H. testified that she also Accordingly, the decedent. has being recalled awakened K.B. and that sufficient evidence that defendant established your parents fighting?” K.B. her “Are asked attack, provoke she did not but this just figured they wrestling and that “I were proven beyond a reasonable doubt element is normally like we do. We used to wrestle all as an uncontested issue. time, worry I so told her not to about it.”

Reasonableness. We next turn to A.H. also testified she could hear defen- just the issue whether the defendant dant and in the other room—“I submitted decedent actually thumping. thumping.” sufficient evidence that I she believed heard heard When sounds, thumping A.H. and had a reasonable basis to believe that asked to describe the they bodily “[jjust she was at death that it sounded like were risk of or serious testified really ground fell on the A. Yeah. But I didn’t stomping their feet or think he they would have. something. just figured I were wres- normally do.” After tell- tling like we would Q. Why you didn’t think he would? worry, A.H. said she fell back ing K.B. not Well, they they A. fight because would — K.B., sleep only again to be awakened they just get before over it and it her that B.H. was in the room. who informed fine morning. would be the next room, Upon seeing B.H. in the A.H. testified mom or one of them to explain that she “hollered for When asked to further about what him, get and he went back to the he come and saw and did when the decedent went to get shotgun, living got room.” B.H. testified that “I on her, matter, lap mom’s and asked ‘What’s the child, B.H., youngest The defendant’s everything going okay?’ Mommie? Is to be testify. portion A of B.H.’s also called to said, ‘Yeah, okay, Bubby. And she it’s Go testimony is as follows: sleep.’” seeing back to When asked about Q. you Did see Dad hurt Mom that the decedent hit the gun, defendant with the night? B.H. testified that the decedent hit her with A. I seen him hit her with a back end of gun in the arms and shoulders. B.H. gun. asked, you [saying] was also “Do remember Q. you hap- ... else And when did —what you gun that saw [the decedent] take the pened? point belly it to [the defendant’s] and asked They just kept arguing and stuff. A. responded her if to die?” B.H. she wanted Q. happened? was Mom when that might Where “I remember that.”11 happened? A. what When Bennet, Emergency Dr. Lori Room Q. you you saw—when saw Mom When physician Huntington Hospital, at Cabell was get gun— hit with the testify. also called to Dr. Bennet testified in a A. She was reclinen that she examined the defendant on the morning shooting, of the and that the defen- Q. gun What kind of was it? dant informed her she “was assaulted her shotgun A. All I it was a know is black that the husband” and circumstances of the some kind. included that the decedent had assault Q. gun did that come from? Where “struck her about the head and back with the my he A. Out of dad’s back room where gun a her the butt of and threatened with usually guns comput- kept all of his gun” and that “she was struck with a fist and er and stuff. gun during the altercation.” When asked sustained, injuries about what the defendant Q. gun get living How did the into the Dr. Bennet testified that “she had contusions room? areas, arm, right upper of both orbital A. He carried it. [Dad] puncture foreign body with of the wound Q. you go get chest, ... Did see him it? forearm, contusions of her left cheek, lip” upper facial the left and that “X- A. Uh-huh. rays done at the time demonstrated a nasal Q. Why go get ... did he it? fracture.” fighting A. I heard him —I heard them going go get and he “I said am Photographic evidence of the defendant’s gun you,” really and shoot and that’s injuries described Dr. Bennet were also got reason I think he it. during photo- introduced trial. These Q. you going graphs depict very Did the defendant with two think he was to shoot large eyes,”

Mom? a battered and swollen “black testimony, approximately had 11. The record reflects two and events relevant to their each years passed one-half respective had from the date of the read their the children to themselves beginning decedent’s death to the of the defen- given shortly statements after the decedent's court, observing dant’s trial. The trial refreshing death as a means of their memories. having difficulty recalling children were point nose, bruising on her that she knew at this that “none of us lips, multiple bruised breasts, arms, thighs parts of legs, going and other was to walk out of the house.” of the shirt worn body. photograph A her on, evening wore the defendant As at the time of the decedent’s the defendant testified that the decedent “made me have introduced, de- also brutal attack was (Crying). After he beat me. sex with him. blood on it. picted copious amounts of (Crying).” Photographic evidence and trial Examiner was also The State Medical testimony spatter the State’s blood ex- findings. testify to his This called to decedent, pert at the established showing testimony serology tests included death, lying naked time of his was from the had a alcohol level of that the decedent blood (not- living on the room couch waist down 0.22%, testified which the Medical Examiner withstanding three children were nearly three times the 0.08% level where nearby) leg upwards with bent and rest- one presumed intoxicated person would be ing against the back of the couch and the Also, autopsy revealed Virginia. West sprawled alongside edge leg other gash on his the decedent had small couch. the dece- hand that could be consistent with assault, Following the defendant the sexual having the defendant in the face. dent struck that the defendant continued to be testified own defendant also testified on her verbally physically aggressive, and that The defendant testified that the de- behalf. her, taunting daring the decedent started her early evening drinking in the cedent started her, him that he would shoot to shoot very, “getting started and that the decedent point got it that she this on, evening wore very angry” and as the shotgun and him. The de- decedent’s shot verbally increasingly abu- decedent became explained thought go- fendant that “I I was making that he was sive and started threats was,” ing I I and that to die. knew she going to kill her. When asked what “would have killed them chil- [the decedent going thought when the decedent said he was dren], the decedent “said that too” because her, was a “[i]t to kill the defendant testified nobody going to walk out of the house him, change going and I knew it was to night.” that ordeal, happen.” point during the the At one that the It is clear to this Court evidence child, youngest that her defendant testified trial, only por- at the defendant’s a adduced B.H., lap her and climbed on her ran over to briefly tion of which we have summarized going on. The and asked her what was above, evidence that the defen- was sufficient told her son that ev- defendant testified she believe, dant did and had a reasonable basis okay go erything would be and to back to believe, to that her life was at risk of death sleep nothing “so he couldn’t see else.” bodily injury. or serious The defendant further testified that the hours, just “beating on for and it was went Imminency. next consider We during beating and verbal abuse” continuous whether the defendant submitted sufficient told the defendant he which the decedent grounds evidence that she had reasonable to her, going kill going to that she “wasn’t believe, believe, and did day” to live to the next and that “the see death or was “immi children live.” The ex- wouldn’t defendant testimony nent.” The defendant’s estab plained “I and I was that was so seared precipitously preceding that the de lished life, my seared for and not mine but the decedent, shooting fendant’s the the my three home” and that the kids that was sexually decedent assaulted the defendant shotgun my “put decedent even to son’s and thereafter continued to threaten the de going kill him.” head and said he was to children, the lives of the fendant’s life and physically well assault the defendant. happened asked what after the dece- as When head, put gun dent their the Considered in context with the evidence dis to son’s above, the violence and talking defendant “I to him so cussed said started hours, ongoing went threats had been for several that he would leave B.H. alone and he suf- beating back The defendant testified it is clear that the defendant submitted to me.” could have defendant was entitled to a self-defense in- she ficient evidence struction, believe, believed, turn we to the issue whether the reasonably and did beyond prove State met its burden to bodily injury were immi- rea- death or serious sonable doubt that the defendant’s actions nent. Initially, were not made in self-defense. we Proportionality. The next element argues note that the defendant that the State the evidence showed is whether considered presented response no rebuttal evidence in “proportionate” the defendant’s actions to be her case-in-chief pos- and therefore could not above, danger. As discussed sibly proof. have met its burden of In State sufficiently established evidence submitted McClanahan, 70, 73, kill that the decedent had threatened to argu- we addressed a similar Further, and the children. and noted that: ment sufficiently shows that the decedent evidence Legally there distinction between deadly weapon—(cid:127) defendant with a beat the evidence, and, reason, proof and for this B.H., shotgun—as witnessed and tes disagrees the Court with the defendant’s decedent, and as was further tified claim that the State is under a burden to photographs depicting evidenced from the adduce rebuttal evidence. As is in 1 stated body. In multiple bruises on the defendant’s Cleckley, F. Handbook on Evidence far addition, placed had the shot the decedent 1-2(B) (1994): Virginia Lawyers § West gun B.H.’s head threatened Proof is all of the before evidence Further, had sexu shoot him. decedent trier of fact relevant to a fact in issue Finally, ally assaulted the defendant. which tends to establish the existence or immediately preced defendant testified nonexistence of such fact. While evi- decedent, ing shooting her the decedent received, dence is defined as information life, again had threatened her the lives of the proof persuasion produced by children, physically assaulted her. This evidence, i.e., consideration evidence, in the context of all the other evi effect of evidence. dence, sufficiently would warrant the use of Accordingly, the standard is not whether the deadly force. ease, presented State a rebuttal but whether Sufficiency. final con element adduced at trial the evidence was sufficient her sidered is whether the defendant met proof. meet the State’s burden of record, proof. Our review of the burden of noted, previously repeat we but As above, us that the trial discussed convinces context, herein for where the defendant has give court was correct in its decision to a challenged appeal sufficiency on upon self-defense instruction based the evi evidence, State’s we view that evidence in the clearly in dence this case-the evidence was Syllabus light most favorable to the State. sufficient to create a reasonable doubt that Guthrie, 657, Point v. 194 W.Va. State killing acting resulted from the defendant are further mindful S.E.2d We Therefore, previ in self-defense. as we have in holding of our that: Guthri.e stated, ously the burden shifted to the State challenging A criminal defendant prove beyond a reasonable doubt that the sufficiency support of the evidence to a in defendant did not act self defense. See heavy conviction takes on a burden. An Kirtley, supra. Point appellate court must review all the evi- dence, circumstantial, in whether direct or III.3.D. light prosecution to the most favorable Whether State Met its and must credit all inferences and credibil- Burden of Proof ity jury might have assessments Having prosecution. determined that the defen drawn in favor of the The dant submitted sufficient to create a evidence need not be inconsistent with ev- evidence ery guilt long reasonable doubt as to the of whether issue conclusion save that of so beyond jury guilt her were made in can find a reasonable actions judge Credibility trial are was correct doubt. determinations for therefore, and, her Finally, that the defendant “shot appellate court. jury and not a only lying be set aside unarmed husband while he was on his jury verdict should a evidence, no re- contains from behind. when the record couch” weighed, it is from gardless of how Opinion, we have noted in this As beyond guilt find a reason- jury could argument premised, part, upon in State’s prior the extent our cases able doubt. To assumption the incorrect that the decedent’s inconsistent, they expressly are over- are immediately preceding conduct in the hours ruled. not relevant to the reason- his death were Guthrie, supra. v. Syllabus Point State of the defendant’s use of ableness must, clearly according to our we While argument prem- force. The State’s is also light in the the evidence precedent, construe ised, upon assumption the incorrect part, State where a defen favorable to the most duty that the defendant had to retreat challenges sufficiency of the evi dant using deadly force. her home before With dence, say not to that we must aban this is made, points these we examine the sufficien- Instead, reasoning doing. in so don sound cy of the State’s evidence. light evidence in the most we construe the Having fully considered the record in this State, apply and then it to favorable construing the evidence in the appeal, and legal appeal, In this the relevant standard. State, light most favorable to the we find that legal proof beyond the relevant standard prove beyond failed the State’s evidence the defendant did not doubt that reasonable did reasonable doubt that the defendant not In State v. kill decedent self-defense. believe, a reasonable basis to and did Goff, 272 S.E.2d 457 believe, was in imminent she jury on the offered a standard instruction or serious at the time of death of innocence and burden of presumption deadly force was used the decedent. instruction, part, proof. defined This found The mere fact that the decedent was beyond a doubt” to mean: “proof reasonable being couch after shot creates on the A doubt is a doubt based reasonable “suspicion conjecture,” or State su- Goff kind upon reason and common sense —the might possibly have pra, that the decedent make a reasonable of doubt that would “asleep” possibly “passed have been been beyond a person to act. Proof hesitate drunk,” beatings, and that the brutal out doubt, therefore, proof must be reasonable assault, kill and threats to the defen- sexual convincing character that a rea- of such a had dant and the children ended. rely person would not hesitate to sonable act it. The fact that even the State cannot certainty disposition any with the decedent’s that a defendant will remember compelling evi- at the time of his death is suspicion on mere is never to be convicted Ev- dence of reasonable doubt on this issue. conjecture. sexually had as- idence that the decedent 9, 272 v. 166 W.Va. at 54 n. S.E.2d State Goff defendant, lay and thereafter saulted at 463 n. 9. sprawled naked from the waist down on the standards, Applying these we consider living proof room couch does not amount to sufficiency Initially, of the State’s evidence. beyond a reasonable doubt that the defen- candidly acknowledges we note that the State drunk; asleep passed dant or out in- was “evening that the defendant suffered an of stead, equally plausible it is that the dece- “night of physical and sexual abuse” doing exactly what the dent could have been of decedent and terror” at the hands doing, he was which was defendant testified thereby many of conse- concedes of facts renewing to kill her and the chil- his threats However, quence analysis. in our the State becoming physically aggres- again dren and notwithstanding nonetheless maintains that sive. abuse, evening of and sexual record, just light Reviewing there is no evi- “the evidence most favor- viewed dence, only conjecture, that suggests [decedent] able to the State had ended or that the de- sleeping “night him” of terror” [defendant] when the shot Supposition conjecture are not were wise. in her care the children fendant As bodily injury. evidence. from death or safe III.2., Opin- of this in Section have found we Davis, Cook, writing In State v. Justice for duty ion, have a did not the defendant Court, properly noted that while we must deadly using home before from her retreat “[mjindful jury’s province be of the over the entitled her attacker. Our law against force presented on the issue of [self-de evidence of under the circumstances defendant fense], permit injustice this Court will not subjective belief that she case to her this adequately to occur because a failed bodi- danger of death or serious imminent presented the evidence at trial.” understand threat, that without injury and to abate ly principle, and conclude agree We with that deadly force.12 retreating, with the use of Cook, is such a case.” State v. “[t]his that by the evi- the circumstances shown Under at at 515 S.E.2d 138. Accord ease, use of the defendant’s dence this ingly, prove hold that the State failed to we herself, re- deadly protect without force beyond a reasonable doubt the defen subjectively reasonable. treating, is were not made in self-defense dant’s actions over-whelming evidence Additionally, the therefore, and, the defendant’s conviction and any person reasonable demonstrates must be vacated and this matter sentence have believed similarly situated would entry judgment immediate of a remanded for immi- bodily injury were or serious death acquittal.13 multiple evidence nent. Uneontested {e.g., photographs and sources witnesses IV. injuries numerous depicting the defendant’s Conclusion was naked from and that the decedent herein, For the reasons set forth we vacate down), supra, discussed established

waist the defendant’s conviction and sentence and precipitously fol- death the decedent’s remand this matter to the circuit court for having physically and the decedent’s lowed entry judgment acquittal on the in- of a defendant, as well as sexually assaulted the returned her in this action. dictment numerous occasions— having threatened —on released. The The defendant is ordered defendant and the lives the life of the Clerk of the Court shall issue our mandate estab- Uncontested evidence also children. forthwith, which shall direct the circuit court heavily drinking that the decedent was lished judgement acquittal immediate- enter alcohol level of 0.22%— and had blood receipt ly upon of the mandate. nearly person that where a would three times Virginia. intoxicated in West presumed Judgment of and Remanded for Vacated mind, intoxicated the uncon- In this state Acquittal. behav- evidence is that the decedent’s tested immediately preceding was vio- his death BENJAMIN dissents and ior Chief Justice lent, placed the unpredictable, criminal and separate opinion. files bodily or serious risk of death BENJAMIN, Justice, dissenting: Chief the defen- injury. Under such circumstances (Filed 2009) July herself, protect force to dant’s use majority I because I believe dissent retreating, objectively reasonable. without that the State failed to prove opinion’s other- conclusion evidence failed to The State’s booth, 366, 379-380, family have a Mechling, Flea Market home In State 12. license, recognized family 324-325 driver’s have friends "[bjattered extremely an permission that women are at without the decedent’s marital home heightened risk of violence—and even death—at unjustly supervision, accused and was often and separate they their the moment seek to seeing of other men. the decedent the It clear from the record that abusers.” spouse. In addition to defendant was a battered that the defendant’s 13. Because we have found violence we have the and emotional judgment and a must be vacated conviction Opinion, the record in detail in this discussed retrial, entered, barring acquittal thereby we do the dece- that the defendant married also shows remaining to the defendant’s not need address old, during years and dent when she was sixteen assignments of error. marriage permitted to work outside her was not beyond a that prove presented reasonable doubt the The evidence at trial does not support the were not in defendant’s claim of self-defense. actions self-defense defendant’s Here, The alleged belief that at the the defendant resorted is erroneous. force, time she used that force was self-help previously that type a has not to necessary prevent bodily injury law, serious by our but permitted been objectively death to the defendant is not majority now vindicated. While there is has reasonable under new Point 3. the defendant was brutalized no doubt that words, similarly other person, another situat- decedent, heard, jury and by the as the ed, could not have formed the that it belief criminally decedent should been necessary was shoot decedent actions, question I prosecuted for his prevent head to a standard in our wisdom of self-defense pre- death to himself or The herself. State jurisprudence which sanctions the use of through sented evidence at trial the testimo- deadly force to defend one’s self from a Mahmoud, ny Dr. Deputy Hamada Chief incapacitated, person who is unconscious or Medical Examiner and for the State a foren- poses and who no threat of imminent harm. pathologist, sic that the decedent was shot question I also how such a lessened self- right above his ear with a left and downward standard, may which defense be seen trajectory. Dr. Mahmoud also testified that condoning tacitly encourag- some as or even stippling found around the entrance ing self-help vigilan- the use violence or shotgun pellets wound as well as the 25 setting, tism in a domestic can be seen as a wadding the shell’s found in the decedent’s positive advancement efforts to reduce cavity shotgun brain indicate that the blast domestic violence. Our focus should be on range, specifically came from close one to violence, appropriate, the reduction where Castle, away. Sergeant five feet David setting. Retaining in the domestic an “immi- Officer, Huntington Police testified both requirement nent harm” for self-defense high velocity and low spatter blood and blood setting goal the domestic achieves this while pooling present carpet on the indicated that permitting opportunity victims the to meet lying the decedent flat on his back when violence domestic with more domestic vio- he was shot from further behind. He testi- actually lence when needed to defend fied from the blood stain evidence that the emotionally charged one’s self. In the envi- lying just left hand decedent’s above his violence, ronment which surrounds domestic resting pillow, head and on a and the dece- worry rational, objective I further right clutching dent’s hand was a blanket. may definition which we accord to this new Sergeant Castle concluded from this that the standard of “self-defense” in the vacuum of holding decedent could not have been legal yield setting academic or will to an weapon at the time the defendant him.1 shot irrational, self-serving, justi- and narcissistic evidence, From this a reasonable trier of fact to, spur fication to a troubled mind in the defendant, could conclude that while moment, “right” perceived some domestic decedent, standing behind the fired a shot- wrong thereby defend one’s honor as gun range blast from right close into the words, much as one’s self. In other in the temple lay of the decedent as he flat on the world, real the line legitimate between a A sofa. rational trier of fact could also infer non-legitimate defense of self in a one’s that because the decedent made no effort to highly charged may emotional environment prevent walking up the defendant from get blurred —a situation which I fear him firing shotgun into blast his work victims of domestic temple, violence as the decedent must have been uncon- much as for them. Finally, scious. a rational trier of fact could veracity 1. shotgun had reason to doubt son with the or that the defendant was testimony sexually prior defendant's at trial. In a recorded assaulted the decedent However, gave Sergeant shooting. testimony statement James in her trial County M. McCallisler of the put Cabell Sheriff's defendant claimed that the decedent had Department day shooting, shotgun on the of tire to their head son’s and threatened to him, played jury, for the the defendant did not shoot and that the decedent had forced the indicate that the decedent had threatened their defendant to have sex with him.

817 well-grounded apprehension the decedent of death or seri additionally infer that because unconscious, bodily harm if the criminal pose immi- ous act is not he could not an 62, 33, 173 at 312 at done[.]” W.Va. S.E.2d bodily injury death to or nent risk of serious 1, Tanner, citing Syllabus Point State v. 171 reasonable conclusions defendant. These the 529, (W.Va.1982). 301 S.E.2d 160 In W.Va. negate the defen- drawn from the evidence case, instant defendant did not raise theory dant’s of self-defense. coercion, compulsion, the defenses of or du Syllabus disagree I with new While do not majority Wyatt, ress. The also State v. cites 5, application no to the facts Point it has 530, 198 W.Va. 482 S.E.2d 147 How co-occupant Simply because a of a this case. ever, Wyatt Spouse concerned the Battered legal obligation no to retreat residence has Syndrome by which was raised the defen in the face of the immi- from the residence supported by trial dant at and was not death, of serious or nent threat Finally, Plumley, evidence. State v. 184 co-occupant follow that the has it does not 536, 401 S.E.2d 469 and State W.Va. incapacitated person in right to shoot an Summers, 118, 118 W.Va. 188 S.E. 873 range. the facts of the head at close Because (1936) regard were both to self-defense or claim, support a self-defense this ease do not sum, defense of another. none of the wholly Syllabus 5 is irrelevant to the Point majority opinion cases cited in the stands for decision of this case. proposition in the absence of evi Further, Syllabus supporting Point 4 was created new dence a claim of evi majority from cloth and has whole dence that the decedent had abused or absolutely support precedent in the of this threatened the life of the no defendant is none may necessary precedent, negate Court’s evi- theless relevant and a Court. Under this charged. of the offense had abused or element dence that the decedent is admis- threatened the life of the defendant Moreover, having support in beside no a claim but is support sible to self-defense law, new Point 4 well have the necessary negate a element not admissible consequence promoting vigi unintended charged in the absence of self- of the offense lantism, attempt justice by an to affect one’s specific defenses enumerat- defense or other according own hand to one’s own understand addition, the eases cited ed this Court. ing wrong. properly The law opinion support Sylla- majority recognizes as a defense to murder that the simply Point 4 do not stand for bus defendant acted to defend himself or herself they Specifi- proposition for which are cited. bodily of imminent serious threat Dozier, cally, 255 W.Va. injury Significantly, threat of or death. (1979), permitted evidence of S.E.2d 552 bodily injury or must be immi death beatings the defendant had received bodily nent. An imminent threat of serious at the hands of the decedent where the injury separates killing in or death a self- defen- primary theory tvas dant’s retaliatory killing defense from a or of defense self- Har- The same is true of State v. words, preemptive killing. In other the re defense. din, (1922) 112 S.E. 401 91 W.Va. quirement that the threat is imminent distin de- which this Court stated that “where self killing guishes killing in self-defense from a homicide, upon is relied to excuse a fense previous wrong prevent to redress a tending there is evidence to establish that Thus, threat. the law is based non-imminent defense, competent to show the charac- it is recog proper understanding on violence!)]” party for ter of the deceased of self absent the element of nition defense 112 S.E. at 402-403. The case imminent threat would to countenance an Lambert, of State v. By placing violence and lawlessness. abso (1984) concerns the effect of the defenses lutely prior the use of evidence of no limit on coercion, compulsion, and duress negate conduct to an element of abusive provides charged, majority unwittingly per com- “[t]he criminal intent crime pulsion coercion that will excuse an other- claim that the most mits a defendant imminent, present, justified by allegation act wise criminal must be senseless murder is wronged that the decedent had the defendant impending, and such as would induce Therefore, posed a threat to the defendant. Until the or death. if 4, Syllabus majority properly creation of new Point such a had adhered to the review, totally foreign jurispru- notion was to our standard of it would have been com- pelled presented dence. to find that the State suffi- guilty cient evidence to find the defendant opinion Sadly, majority disregards first-degree murder. progress that this State has made in recent case, treatment, presented In the instant years prevention, in the the State evidence that the defendant shot the dece- remediation of domestic violence. Thanks to range dent from behind at close in the diligence legislature efforts of our courts, educate, temple lying while the society decedent was uncon- our now works to treat, aid, scious on the sofa. prevent scourge Because the decedent of vio- unconscious, there among family Spouses lence members. was no imminent who threat to the defendant when threatening find in abusive or she shot the themselves decedent. The previous situations now have resources that real defense was that the decedent had generations spouses abused abused and did not. case, evening. threatened her earlier that person the instant no reasonable be- Under law, however, appellant this is not a defense to quietly lieves that the should have Therefore, jury murder. properly endured the abusive actions of found the decedent. guilty. Unfortunately, the defendant But decedent the ma- asleep passed once the fell sofa, jority improperly replaced has out on the the threat of imminent harm sound ver- justice dict of the with its own appellant op- and the idea of over had several process. and created bad law in the resorting tions available short of to homicide. legal While there error herein on Finally, ignoring presented the evidence grounds other that merits the reversal of the trial, majority the State at of this granting defendant’s conviction and the of a Court abandons our standard of review and trial, majority’s new decision to vacate usurps fact-finding jury. role of the As the defendant’s conviction and bar retrial is quoted majority opinion, in the “the relevant contrary to whether, the evidence at trial and without inquiry viewing after the evi support Accordingly, under our law. I dis- light dence in the most favorable to the sent. any prosecution, rational trier of fact could

have found the essential elements proved beyond

crime a reasonable doubt.” Guthrie, part, Point (1995). 461 S.E.2d 163 First- defined, degree part, any murder is 679 S.E.2d 650 “willful, premeditated killing.” deliberate and NOBLE, G. Sharon Petitioner § W. 61-2-1 pre Va.Code The State Below, Appellee, sented evidence that the defendant took a shotgun, up walked behind her unconscious sofa, WEST VIRGINIA DEPARTMENT OF lying husband on the and fired the VEHICLES, Joseph Cicchirillo, MOTOR shotgun range right temple. at close into his Commissioner, Respondent Below, Ap- evidence, jury clearly From this could pellant. willful, find that the defendant committed a premeditated deliberate killing. Fur No. 34328. ther, above, presented as noted the State Supreme Appeals Court of evidence from which a rational trier of fact Virginia. West beyond could find a reasonable doubt that the defendant’s actions were not made in Submitted Feb. 2009. person lying self-defense. This is because a Decided June 2009. unconscious on a sofa with one hand raised above clutching his head and the other hand pose

a blanket cannot an imminent threat of

Case Details

Case Name: State v. Harden

Court Name: West Virginia Supreme Court

Date Published: Jul 27, 2009

Citation: 679 S.E.2d 628

Docket Number: 34268

Court Abbreviation: W. Va.