Opinion
Record No. 0379-92-1
August 10, 1993
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK ROBERT W. STEWART, JUDGE.
A. Robinson Winn, for appellant.
Eugene Murphy, Assistant Attorney General (Margaret Ann B. Walker, Assistant Attorney General; Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Willis and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Juanita Inez Robinson (defendant) was convicted of second-degree murder and sentenced to twenty years in the state penitentiary. She now appeals, complaining that the trial court erroneously refused to instruct the jury on self defense. We disagree and affirm the conviction.
The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to a disposition of the issue before the Court. In accordance with well established principles, we view the evidence related to the instruction in issue in the light most favorable to the party that offered it, here, defendant. Boone v. Commonwealth, 14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992).
The evidence disclosed that, on the evening of May 16, 1991, a violent argument occurred between defendant and her sister, Joyce Odom, while Odom was visiting in defendant's home. Odom was "on top" of defendant, "choking" her during the struggle, and the sisters' uncle (Jackson) and their brother (Timmy) each "grabbed" one of the women to separate them. Jackson then released Odom to "another part of the room," but Timmy restrained defendant for an additional "twenty or twenty-five minutes" while Odom "was cleaning up the mess." During this period, the women continued "arguing a bit."
When Timmy finally "let go," Jackson recalled that defendant immediately "reached over and grabbed a frying pan of grease and swung it" at Timmy. Timmy testified that defendant then "picked up the knife and came up behind [Odom] and stabbed." Odom was unarmed and died from the injury.
It is well settled that if "more than a mere scintilla of credible evidence in the record supports a proffered instruction . . ., failure to give the instruction is reversible error." Boone, 14 Va. App. at 132, 415 S.E.2d at 251. "[T]he weight of the credible evidence that will amount to more than a mere scintilla . . . is a matter to be resolved on a case-by-case basis" by assessing the evidence in "support of a proposition" against the "other credible evidence that negates" it. Brandau v. Commonwealth, ___ Va. App. ___, ___, 430 S.E.2d 563, 565 (1993).
When considered in this perspective, we find no credible evidence to support a self defense instruction in the instant case. "[T]he law of self-defense is the law of necessity. A person only has the privilege to exercise reasonable force to repel the assault." Foote v. Commonwealth, 11 Va. App. 61, 69, 396 S.E.2d 851, 856 (1990) (citations omitted). Here, any aggression by Odom toward defendant terminated "roughly thirty minutes" before defendant fatally assaulted Odom, during which time defendant was restrained by Timmy. When she was released, she first attacked Timmy and then stabbed the unarmed victim from "behind."
Such evidence is clearly insufficient to support a self defense instruction, and it was properly refused by the trial court.
Affirmed.