Opinion
Record No. 2262-91-2
April 27, 1993
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND THOMAS N. NANCE, JUDGE.
Craig S. Cooley for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Stewart Garnett Rucker was convicted of voluntary manslaughter and possession of a sawed-off shotgun. He contends that the evidence was insufficient to support the convictions and that the trial judge erred in refusing to strike the evidence on the charge of possession of a sawed-off shotgun. We reverse the conviction of voluntary manslaughter and affirm the conviction for possession of a sawed-off shotgun.
The evidence proved that Rucker was awakened at 4:30 p.m. by dogs barking on the front porch of the house in which he rented a room. Rucker got out of bed and went to the porch where he saw Frank Scott yelling at Scott's dogs. Scott had been drinking wine that afternoon. Rucker asked Scott if he would take the dogs to the rear of the house. He told Scott that he worked at night and needed his rest. Rachael Mercer, Scott's friend, testified that the noise had also bothered her, but she said nothing to Scott.
Rucker returned to his room. A few minutes later, while Rucker was sitting in his room, Scott went to Rucker's door and expressed disagreement concerning Rucker's comments to him. Mercer testified that while she was in the kitchen cooking a fight ensued and she went to investigate. When she reached the hallway, she saw Rucker, who was 65 years of age, beating Scott with a broom. Rucker said Scott had attacked him with the broom and that during the scuffle he had taken the broom from Scott. Mercer stated that after she threatened to call the police Rucker went to his room and shut the door. Mercer assisted Scott to the room they shared and helped him onto the bed. Scott needed assistance because he had been drinking and had a bad leg. As she was aiding Scott, he was threatening to retaliate against Rucker and said that he intended to get an ax.
When Mercer went to the kitchen to resume cooking, Scott got out of bed and obtained a long-handled ax. He then went to Rucker's door and "hit the door . . . bam bam." As Scott prepared to hit the door again with the ax, Mercer said Rucker opened the door. Rucker said the force of the second blow opened the door. Both agreed, however, that as Scott was preparing to swing the ax again, Rucker turned, removed a shotgun from under his bed, and shot Scott.
Voluntary manslaughter is the intentional killing of another upon sudden heat of passion engendered by great provocation.Davidson v. Commonwealth, 167 Va. 451, 456, 187 S.E. 437, 439 (1936). "[T]he law affords . . . protection for the commission of a homicide . . . when the homicide is justifiable or excusable." Id. at 455, 187 S.E. at 439.
In Virginia, homicide (or attempted homicide) in self-defense is classified either as justifiable or excusable. Justifiable self-defense arises when the defendant is completely without fault. In such a case, the defendant need not retreat, but is permitted to stand his ground and repel the attack by force, including deadly force, if it is necessary. Excusable self-defense arises when the defendant, who was at some fault in precipitating the difficulty, abandons the fight and retreats as far as he safely can before he attempts to repel the attack.
Foote v. Commonwealth, 11 Va. App. 61, 67-68, 396 S.E.2d 851, 855 (1990) (citations omitted).
"[T]o excuse homicide by the plea of self-defense, it must appear that the slayer had no other possible (or at least probable) means of escaping from his assailant, and that he killed the assailant to avoid his own destruction." Byrd v. Commonwealth, 89 Va. 536, 538-39, 16 S.E. 727 (1893). "[W]hether the danger is reasonably apparent is always to be determined from the viewpoint of the defendant at the time he acted." McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978).
The Commonwealth contends that the evidence does not prove that Rucker did all he could to avoid Scott as Scott wielded the ax. Although the evidence proved that Rucker initially asked Scott to take his dogs to the rear of the house, that evidence does not prove that Rucker was at fault in precipitating the fight that followed or Scott's assault with an ax. The evidence proved Scott had been drinking alcoholic beverages and had a blood alcohol concentration of .15 and a vitreous alcohol level of .21 by weight by volume. Furthermore, Scott had gone to Rucker's room in anger and precipitated a fight. After Rucker went into his room and closed his door, Scott threatened to attack Rucker. Indeed, Scott returned to Rucker's doorway with a long-handled ax and began to carry out the threat. Thus, when Rucker faced Scott across the open doorway, Scott was holding the long-handled ax poised to strike again.
The shotgun that Rucker fired was under the bed in his room within arm's reach of the door. The photographic evidence and the testimony establish that Rucker's room was quite small. Although the Commonwealth argues that Scott never walked into Rucker's room, the evidence proved Scott was angry, intoxicated, and wielding a long-handled ax. Moreover, the evidence proved that Scott's body was found on the floor inside Rucker's room. The ax was found inside Rucker's room, nine feet from the doorway.
The evidence sufficiently proved that Rucker reasonably believed that Scott intended to inflict great injury upon him and that Rucker had no possibility to retreat beyond the small room. It cannot reasonably be suggested that Rucker could have safely attempted to close the door while Scott was poised to swing the long-handled ax. In the extreme circumstance that Rucker faced, with no place to retreat except into the small room, we find based on the evidence that he was justified in repelling the potentially lethal attack with deadly force.
The evidence proved beyond a reasonable doubt that Rucker retrieved the shotgun and used it to shoot Scott. The evidence further proved that the shotgun violated the Sawed-Off Shotgun Act. See Code §§ 18.2-299 and 18.2-300. Any claim that the trial judge erred in failing to strike the evidence concerning the shotgun violation lacks merit.
For these reasons, we reverse the voluntary manslaughter conviction and affirm the conviction for possession of a sawed-off shotgun.
Affirmed in part and reversed in part.