Commonwealth v. Hines

Mary Jane Hall, Judge

OPINION AND ORDER DENYING MOTION TO VACATE AND ALLOWING INDICTMENT TO BE AMENDED

Defendant moves to vacate his conviction of voluntary manslaughter as contrary to law, and the Commonwealth moves to amend the firearm charge from Virginia Code § 18.2-53.1 (use of a firearm in the commission of a felony) to § 18.2-53 (shooting in the commission of a felony). The Court has fully considered the legal memoranda and argument of counsel. As stated herein, Defendant's motion is OVERRULED; and the Commonwealth's motion is GRANTED.

Defendant argues that the Court's factual findings as set forth in its Letter Ruling of April 7, 2014 reveal that the Court's conclusions of law are plainly incorrect. He argues that "there is absolutely no duty to retreat in your own home" and that "one does not waive his right to assert a self-defense claim by arming himself and returning to confront his aggressor." Def's Motion at 5 (May 22, 2014).

The Court rejected Defendant's defense because the facts did not indicate that he was in reasonable fear of imminent death or injury to himself or his family from the victim, nor had the victim taken an overt step to suggest that he intended imminent deadly action. In these regards, the case is quite distinguishable from Gilbert v. Commonwealth, 28 Va. App. 466, 506 S.E.2d 543 (1998), on which Defendant strongly relies. The Court's statement in the prior opinion that Defendant had the opportunity to retreat and did in fact retreat was a finding of fact which demonstrated that Defendant was not in danger of any imminent deadly action. The victim, a long-time acquaintance and de facto member of the family, had never hurt Defendant or his family. In contrast, the Gilbert defendant had been beaten into unconsciousness and maimed by his assailants who had also expressed their intent to kill him. The controlling case law upon which the Gilbert Court relied requires that the person arming himself in self-defense "has been threatened with death or serious bodily harm and has reasonable grounds to believe that such threats will be carried into execution." Gilbert, 28 Va. App. at 473, 506 S.E.2d at 547 quoting Bevley v. Commonwealth, 185 Va. 210, 215, 38 S.E.2d 331, 333 (1946). The Court concluded that Defendant had not been threatened with death or serious bodily harm and did not have reasonable grounds to believe that the victim was going to hurt him. The Court did make the following statement on page 5 of its April 7 opinion: "Defendant was alarmed by the victim's belligerent conduct and became more alarmed and afraid when he perceived the gun. He should have retreated to safety but instead got a gun of his own, and out of fear and upon impulse, without conscious reflection or malice, he shot the victim."

The Court acknowledges that the quoted and italicized language seems to recognize a duty that does not exist under Virginia law, in that a homeowner has no obligation to retreat "if assaulted in his dwelling." Fortune v. Commonwealth, 133 Va. 669, 687, 112 S.E. 861, 867 (1922). The Court retracts that italicized language and clarifies its prior opinion to recognize that Defendant was not obliged to retreat; but inasmuch as he was able to leave the room safely and had no reasonable belief that the victim was going to hurt him or his family, the Court rejects the conclusion that he acted in self-defense when he returned to the room and immediately shot the victim five times. Therefore, the Court does not vacate its finding of guilt of the lesser-included charge.

The Commonwealth originally charged Defendant with using a firearm while committing one of the felonies listed in Virginia Code § 18.2-53.1. The Court found Defendant guilty of voluntary manslaughter, a lesser-included felony under the original indictment for first degree murder. Because voluntary manslaughter is not a predicate felony under the statute, the Commonwealth moves to amend the indictment to permit Defendant to be found guilty of shooting another person in the commission of a felony under Virginia Code § 18.2-53. The Court finds that this amendment does not change the nature and character of the offense nor come as a surprise to Defendant. The Court grants the motion and permits the indictment to be so amended. Accordingly, the Court, having previously vacated the finding of guilt under Virginia Code § 18.2-53.1, (use of a firearm in commission of a felony), now finds Defendant guilty of § 18.2-53 (shooting in the commission of a felony) under the amended indictment.

Pursuant to Rule 1:13 endorsements of counsel are waived.

The Clerk is directed to mail a copy of this order to counsel of record.

Entered: 9 June 2014

/s/_________

Mary Jane Hall, Judge