Criminal Law James R. Elkins College of Law || West Virginia University Fall, 2011 West Virginia Self Defense Cases Basic Law of Self-Defense: “When one without fault himself is attacked by another in such a manner or under such circumstances as to furnish reasonable grounds for apprehending a design to take away his life, or to do him some great bodily harm, and there is reasonable grounds for believing the danger imminent, that such design will be accomplished, and the person assaulted has reasonable ground to believe, and does believe, such danger is imminent, he may act upon such appearances and without retreating, kill his assailant, if he has reasonable grounds to believe, and does believe, that such killing is necessary in order to avoid the apparent danger; and the killing under such circumstances is excusable . . . . ” State v. Cain, 20 W. Va. 679 (1882) You will notice that this case was decided in 1882. The danger in citing old cases like Cain is that the law may be altered by later court decisions or changed by statutory enactment. However, this seems not to be the case with self-defense in West Virginia; the law has changed little in the last 125 plus years. In State v. Hughes, decided in 1996, the court reaffirms the basic law of self defense: [A] defendant who is not the aggressor and has reasonable grounds to believe, and actually does believe, that he is in imminent danger of death or serious bodily harm from which he could save himself only by using deadly force against his assailant has the right to employ deadly force in order to defend himself. State v. Hughes, 197 W. Va. 518, 524, 476 S.E.2d 189, 195 (1996) See generally: West Virginia Homicide Jury Instructions Project: Self-Defense Burden of Proof: “Once there is sufficient evidence to create a reasonable doubt that the killing resulted from the defendant acting in self-defense, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense.” State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978) Raising Self-Defense and Obtaining a Jury Instruction: What quantum of proof must be introduced by the defendant in order to raise a self defense issue and to obtain a jury instruction on self defense ? The Court in State of West Virginia v. Knotts (and other cases) states that the defendant must produce "sufficient evidence." See also, State of West Virginia v. Cook (W.Va. Sup.Ct.App. 1999), setting forth, again the "sufficient evidence" test with the note that the burden of proof placed upon the defendant "is not a high standard." It is, of course, the sufficiency of the evidence that is in question and the "sufficient evidence" test is no test at all, that is, it provides no guidance as to the level or quantum of proof that the defendant must establish before the burden is shifted to the prosecution to prove (beyond a reasonable doubt) that the defendant did not act in self-defense. In State of West Virginia v. Headley [on-line text] 210 W.Va. 524; 558 S.E.2d 324, the Court comments on the evidence which must be produced by the defendant to be entitled to a jury instruction on self-defense and begins to flesh out the "sufficient evidence" standard set forth in State v. Cook. The Court finds that: The evidentiary threshold that must be satisfied to justify the giving of an instruction that embodies a litigant's theory of the casie is minimal. The threshold that must be met in order to warrant a jury instruction on a particular theory, such as self-defense, would necessarily be particularly modest in criminal cases where personal liberty as opposed to a mere proerty interest is at stake. This Court has long held that "[w]here [in a trial by jury] there is competent evidence tending to support a pertinent theory in the case, it is the duty of the trial court to give an instruction presenting such theory when requested so to do.'" The Court goes on to cite a syllabus point from a 1911 opinion to the effect that: "If there be evidence tending in some appreciable degree to support the theory of proposed instructions, it is not error to give such instructions to the jury, though the evidence be slight, or even insufficient to support a verdict based entirely on such theory." And then, more telling still, "Even where the evidence is scant, the trial court has a duty to allow a defendant to get her theory before the jury." And, the Court notes, that especially in self defense cases, it is "within the province of the jury to weigh the evidence." Duty to Retreat: The early statement of the basic law of self-defense, as set forth in State v. Cain, 20 W. Va. 679 (1882), suggests that West Virginia is a "no retreat" jurisdiction. The issue gets addressed in State v. Laura, 93 W. Va. 250, 116 S.E. 251 (1923) where the court finds that: “In defending himself, his family or his property from the assault of an intruder, one is not limited to his immediate home or castle; his right to stand his ground in defense thereof without retreating extends to his place of business also and where it is necessary he may take the life of his assailant or intruder.” In Laura, however, the court was dealing with self defense in the home and of one's property, in which case a "no retreat" rule would clearly not apply. And so, in State v. Preece, 116 W.Va. 176, 179 S.E. 524 (1935) we find the Court affirming that "[a] man attacked in his own home by an intruder may invoke the law of self-defense without retreating." (cited in a footnote in State v. Wykle (Sup. Ct. App. W.V., 2000)(assigned case). Contrary to these various intimations that West Virginia does not impose a "duty to retreat," we find Justice Davis, in State v. Cook, suggesting that there is a duty to retreat (even though these statements would be what we call dicta as the defendant in Cook was defending her husband on their own property, where the defendant's husband had no opportunity and no duty to retreat from his assailant). E.g., Justice Davis, in a footnote, cites State v. Clark: "In cases of assault, not made with the intent to kill or do great bodily harm, or when the person assaulted is not in his dwelling-house, he cannot justifiably kill his assailant without first having retreated 'to the wall.'" State v. Clark, 51 W. Va. 457, 41 S.E. 204 (1902). If Clark is an adequate statement of law in West Virginia, it appears there is a duty to retreat, unless the imminent threat against which one defends himself takes place in the home. The problem with this reading of Clark is that the duty to retreat is being applied in a case involving non-deadly assault. Justice Davis goes on, however, to cite an early West Virginia case which, by syllabus point, states that "[t]o reduce homicide in self-defense to excusable homicide, it must be shown that the [defendant] was closely pressed by the other party, and retreated as far as he conveniently or safely could, in good faith, with the honest intent to avoid the violence of the assault." State v. Zeigler, 40 W. Va. 593, 21 S.E. 763 (1895). In still other cases, particularly those in which the parties are involved in a mutual combat, the court has established a clear duty of a mutual combatant to retreat when involved in a mutual fray, in which both are deemed at fault: [W]hen there is a quarrel between two or more persons and both or all are in fault, and a combat as a result of such quarrel takes place and death ensues as a result; in order to reduce the offense to killing in self-defense, two things must appear from the evidence and circumstances in the case: first, that before the mortal shot was fired the person firing the shot declined further combat, and retreated as far as he could with safety; second, that he necessarily killed the deceased in order to preserve his own life or to protect himself from great bodily harm. . . ." State v. Foley, 131 W. Va. 326, 47 S.E.2d 40 (1948) To further complicate the issue, there is no reference to the "duty to retreat" to be found in the West Virginia "Proposed Jury Instruction for Self-Defense" (although that, in and of itself, does not, of course, lend support to the proposition that no such duty exists). Justice Davis's exploration of the "duty to retreat" rule in Cook, runs directly counter to the statement in State v. Boggess that: The law of self defense is that if Gregory Dale Boggess was not the aggressor, and he had reasonable grounds to believe that he was in imminent danger of death or serious bodily harm from which he could save himself only by using deadly force against his assailant, he had the right to stand his ground without retreating and repel force with force and to use 'deadly force' in order to defend himself. This sounds like a clear expression of "no duty to retreat." Boggess was decided in 1998, Justice Davis writes the opinion in Cook in 1999, a year later. The problem in determining whether the law of West Virginia imposes a "duty to retreat" in self defense cases (as Justice Davis seems to argue) or whether, there is, by law, "no duty to retreat," is made all the more murky by the West Virginia Supreme Court's persistent practice of citing syllabus points without looking to the actual facts and holdings of the cases from which the syllabus points are lifted. It would help if the court actually read it's own cases, and interpreted them, rather than simply restating syllabus points. Deciding appellate opinions by presenting syllabus points (which are, in effect, a kind of boilerplate language) seems to encourage conclusions without argument, and conclusions based on sloppy/weak analysis. Appellate decision making with an over-reliance on syllabus points demeans the work of the Court. Law (and the evolution of law) is as much a matter of argument (and sound reasoning) as it is the persistent statement of legal rules. The West Virginia Supreme Court in State v. Dinger, in a 2005 case, seems to have finally resolved the "duty to retreat"/"no duty to retreat" issue. In Dinger, the Court notes that: A person who is without fault in an altercation has no duty to retreat while acting in self defense. If the person is in a substantial degree at fault, he must retreat if able to do so, however, if from the fierceness of the attack or if they are prevented from retreating, or for other reasons they are unable to retreat, they will be excused by the law from not doing so.” State v. Dinger, 624 S.E.2d 572, 575 (W.Va., 2005) The Court also notes that: It is only the faultless, who are exempt from the necessity of retreating while acting in self-defense. Those in fault must retreat, if able to do so; if from the fierceness of the attack or for other reasons they are unable to retreat, they will be excused by the law for not doing so. Id. at 576 (W.Va., 2005)(citing State v. Cook, 515 S.E.2d 127, (W.Va.,1999). Deadly Force: "The amount of force that can be used in self-defense is that normally one can return deadly force only if he reasonably believes that the assailant is about to inflict death or serious bodily harm; otherwise, where he is threatened only with non-deadly force, he may use only non-deadly force in return." State v. Baker, 177 W. Va. 769, 356 S.E.2d 862 (1987); State v. Bongalis, 180 W. Va. 584, 378 S.E.2d 449 (1989). Aggressor: In State v. Smith, 170 W. Va. 654, 656, 295 S.E.2d 820, 822 (1982), the court noted “the general common law rule that one who is at fault or who is the physical aggressor can not rely on self-defense[.]” (citing State v. Watson, 164 W. Va. 642, 651, 264 S.E.2d 628, 633 (1980). The Court observed in State v. Asbury (W.Va.Sup.Ct.App., 1992) [on-line text] that in West Virginia this general rule--self-defense cannot be claimed by a defendant "who is the physical aggressor" is followed. (Does this mean that one who has initiated the conflict by inflammatory words may still be entitled to a claim of self-defense?) Mutual Combat: Where both parties are deemed at fault (that is to have been aggressors) and a death results: [W]hen there is a quarrel between two or more persons and both or all are in fault, and a combat as a result of such quarrel takes place and death ensues as a result; in order to reduce the offense to killing in self-defense, two things must appear from the evidence and circumstances in the case: first, that before the mortal shot was fired the person firing the shot declined further combat, and retreated as far as he could with safety; second, that he necessarily killed the deceased in order to preserve his own life or to protect himself from great bodily harm. . . . State v. Foley, 131 W. Va. 326, 47 S.E.2d 40 (1948)(Syllabus pt. 6); see also State v. Gibson, 186 W. Va. 465, ___ n.3, 413 S.E.2d 120, 126-27 n.3 (1991); State v. Zannino, 129 W. Va. 775, ___, 41 S.E.2d 641, 644 (1947). Evidence Allowed to Show the Character of the Victim: "In a prosecution for murder, where self-defense is relied upon to excuse the homicide, and there is evidence showing, or tending to show, that the deceased was at the time of the killing, making a murderous attack upon the defendant, it is competent for the defense to prove the character or reputation of the deceased as a dangerous and quarrelsome man, and also to prove prior attacks made by the deceased upon him, as well as threats made to other parties against him; and, if the defendant has knowledge of specific acts of violence by the deceased against other parties, he should be allowed to give evidence thereof." State v. Louk, 171 W. Va. 639, 301 S.E.2d 596 (1983). See also: State v. Hardin, 91 W.Va. 149, 112 S.E. 401 (1922); State v. Gwinn, 169 W.Va. 456, 288 S.E.2d 533 (1982). [For a more more limited use of character evidence which is permitted to show the character of the victim, see the South Carolina case, State v. Amburgey (1945): "The rule has long been established in this State [South Carolina] that evidence of other specific instances of violence on the part of the deceased are not admissible unless they were directed against the defendant, or if directed against others, were so closely connected in point of time or occasion with the homicide as reasonably to indicate the state of mind of the deceased at the time of the homicide, or to produce reasonable apprehension of great bodily harm." State v. Amburgey, 206 S.C. 426, 429, 34 S.E.2d 779, 780 (1945)] But note that: "When in a prosecution for murder the defendant relies upon self-defense to excuse the homicide and the evidence does not show or tend to show that the defendant was acting in self-defense when he shot and killed the deceased, the defendant will not be permitted to prove that the deceased was of dangerous, violent and quarrelsome character or reputation." State v. Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971) Imperfect Self Defense: The West Virginia Supreme Court has held that even where the self-defense act is not a complete defense, it may serve to reduce murder to voluntary manslaughter because of provocation. The Court provided the following string citation in support of the incomplete defense: The doctrine of "[i]mperfect self-defense has been applied in other jurisdictions where a defense of self-defense fails because the defendant was the aggressor, or maintained an unreasonable belief of danger, or reacted with an unreasonable amount of force." People v. Stinson, 2005 Mich. App. LEXIS 918, 2005 WL 839485, *2 (Mich. Ct. App.)' People v. Vasquez, 136 Cal. App. 4th 1176, 39 Cal.Rptr. 3d 433, 435 (2006) ("Imperfect self-defense is the actual, but unreasonable, belief in the need to resort to self-defense to protect oneself from imminent peril. When imperfect self-defense applies, it reduces a homicide from murder to voluntary manslaughter because the killing lacks malice aforethought."); Watkins v. State, 79 Md. App. 136, 555 A.2d 1087, 1088 (Md. Ct. Spec. App. 1989) ("Where [the defendant] unreasonably perceives the danger or unreasonably responds with more than necessary force, it is a case of imperfect self-defense, which mitigates the level of blameworthiness down to the manslaughter level even though it does not totally exculpate."); Moore v. State, 859 So. 2d 379, 383 (Miss. 2003) ("This Court has recognized the theory of imperfect self-defense whereby an intentional killing may be considered manslaughter if done without malice but under a bona fide (but unfounded) belief that it was necessary to prevent great bodily harm."); State v. Tierney, 356 N.J. Super. 468, 813 A.2d 560, 570 (N.J. 2003) ("Imperfect self-defense means an honest subjective belief on the part of the killer that his or her actions were necessary for his or her safety, even though an objective appraisal by reasonable people would have revealed not only that the actions were unnecessary, but also that the belief was unreasonable."); State v. Simmons, 167 N.C. App. 512, 606 S.E.2d 133, 138 (N.C. Ct. App. 2004) ("If the defendant was the aggressor or used excessive force, he has lost the benefit of perfect self-defense but may be entitled to the defense of imperfect self-defense."); Commonwealth v. Serge, 2003 PA Super 470, 837 A.2d 1255, 1266 (Pa. 2003) ("An imperfect self-defense . . . is more in the nature of perception based upon faulty analysis of the circumstances, or state of mind arising from a pattern or history of interaction, which would lead to a reaction based on fear of one's safety arising out of previous abuse."); State v. Garcia, 883 A.2d 1131, 1139 (R.I. 2005) ("The theory underlying the doctrine of imperfect self-defense is that when a defendant uses deadly force with an honest but unreasonable belief that it is necessary to defend himself, the element of malice, necessary for a murder conviction, is lacking."); State v. Lo, 2003 WI 107, 264 Wis. 2d 1, 665 N.W.2d 756, 771 (Wis. 2003) ("[W]hen imperfect self-defense is placed in issue by the trial evidence, the state has the burden to prove that the person had no actual belief that she was in imminent danger of death or great bodily harm, or no actual belief that the amount of force she used was necessary to prevent or terminate this interference."). Problem Case: State of West Virginia v. W.J.B., 276 S.E. 2d 550 (Sup.Ct.App. W.Va., 1981)(W.J.B. was adjudicated as a juvenile delinquent by the circuit court based on a finding that W.J.B. committed voluntary manslaughter. He appealed the adjudication, challenging the sufficiency of the evidence on the grounds that the State has not met its burden of rebutting his evidence of self-defense.)(W.J.B. was arrested following the shooting death of Michael Watson.) The combined, undisputed testimony established a pattern of violence on the part of Watson, directed toward the family of W.J.B. over the course of the preceding year. At the time of the alleged offense, the juvenile was 17 years old, living at home with his mother and two sisters. His father was deceased. Michael Watson, at the time of his death, was 21 years old, a Parkersburg resident on parole from the State penitentiary for a burglary conviction. Watson's association with W.J.B.'s family began in the spring of 1978 when he began a courtship of the juvenile's 15-year-old sister. Their relationship was a stormy and intermittent one. It appears that the 15-year-old attempted to break off the relationship after she had suffered a number of beatings at Watson's hands. This apparently led Watson to force his attention on her. On at least one occasion in the summer of 1978, Watson pursued the girl at knifepoint as she fled into her home. Watson continued the pursuit throughout the house. When the juvenile and others attempted to intervene on his sister's behalf, Watson turned with the knife and threatened W.J.B. On a subsequent occasion, the 15-year-old and her older sister awoke when they heard Watson, in the early morning darkness, climbing on the rooftop beside their bedroom window. As the girls pushed the window closed, Watson broke through the window and chased them as they fled for protection into W.J.B.'s bedroom. Watson forced his way into the bedroom and forcibly dragged the 15-year-old from the bedroom into the family bathroom. When W.J.B. entered the bathroom behind them, Watson attacked the youth, striking him with his fists. This diversion allowed the girl to flee downstairs, where the family concealed her behind the kitchen refrigerator. Unable to locate her, Watson returned outside to the ladder he had used to climb to the roof and drove the ladder through the living-room door. In response to these and other assaults upon her home and family, the juvenile's mother had obtained, on separate occasions, three warrants for Watson's arrest based on charges of assault and battery, destruction of personal property, and contributing to the delinquency of a minor. Apparently, no formal disposition was made in regard to any of these charges. On the evening of Watson's death, several friends and family of the juvenile were present in the living room of the home watching television. Shortly after midnight, the juvenile's younger sister noticed Watson looking in the living-room window. As she stated, "It's Mike Watson," Watson broke in the living-room door, announcing, "You're damn right it's Mike Watson." It appeared that Watson had been drinking. The girl fled from the room screaming, and, chased by Watson, ran into W.J.B.'s bedroom where she locked herself in and barricaded the door with furniture. Several persons ran to a neighbor's house to call the police while Watson attempted, unsuccessfully, to break into the bedroom. Upon learning that the police had been called, Watson fled out an upstairs window. Two Parkersburg police officers responded to the call, but departed shortly thereafter, unable to locate Watson. Soon after their departure, Watson reappeared outside the house, shouting threats and challenges and throwing snowballs and other objects against the house. A passerby testified to a brief conversation that he had with Watson at this time, during which Watson appeared intoxicated and "clanked" a butcher knife and beer mug together in his hands while speaking of forthcoming "trouble." While Watson was outside he challenged W.J.B. to come outside and fight him, but W.J.B. declined and requested that Watson leave the family in peace. During this time, the family had again concealed the 15-year-old behind a barricaded bedroom door. The juvenile took a shotgun from his room and positioned himself on a living-room chair with the shotgun placed across his legs. Two family friends remained seated elsewhere in the living room. When Watson kicked open the living-room door a second time and confronted W.J.B., he again asked Watson to leave. Watson continued to challenge W.J.B. to fight and dared him to shoot. One of the witnesses testified that Watson held a butcher knife and tapped it against the door frame. At the trial, the juvenile testified that he did not recall seeing the knife, but that Watson's hand was obstructed from his view. Amid continued threats and profanity, Watson advanced upon W.J.B., whereupon the juvenile, without raising the shotgun from his lap, pulled the trigger, shooting Watson in the chest. He died immediately. When the police again arrived at the house, they found Watson lying in the doorway with a knife in his hand under his body. The juvenile freely admitted the shooting, and police took W.J.B. into custody and obtained his written statement of the incident. Should the adjudication of W.J.B. as a juvenile delinquent based on the finding that he committed voluntary manslaughter be overturned?