Foster v. Com.

• Decision Date: 10 December 1991
• Docket Number: No. 1269-90-1,1269-90-1
• Citation: 412 S.E.2d 198,13 Va.App. 380
• Court: Virginia Court of Appeals
• Parties: Cleandrew FOSTER v. COMMONWEALTH of Virginia. Record

Page 198

412 S.E.2d 198

13 Va.App. 380

Cleandrew FOSTER v. COMMONWEALTH of Virginia.

Record No. 1269-90-1.

Court of Appeals of Virginia.

Dec. 10, 1991.

Patricia A. Cannon, Courtland, for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, COLEMAN and WILLIS, JJ.

COLEMAN, Judge.

Cleandrew Foster was convicted of unlawful wounding in violation of Code § 18.2-51. On appeal, he contends that the trial court erred by refusing to instruct the jury on self-defense and defense of others and that the Commonwealth's attorney violated the equal protection clause of the fourteenth amendment by using three peremptory challenges to exclude black members from the jury based on their race. We agree that the trial court erred by refusing to instruct the jury as to the law of self-defense; thus, we do not reach Foster's challenge to whether the jury was properly empaneled. Foster's proposed instruction on defense of others was an erroneous statement of the law; thus, the trial court did not err in refusing it.

On July 11, 1986, Foster, who was an inmate at the Southampton Correctional Center in Southampton County, Virginia, was playing horseshoes with several other inmates in the prison's recreation yard. Foster was standing at one end of the pit, and David Robinson and James Hooks, who were at the other end, were arguing over whose turn it was to play. Foster took his turn, and both Robinson and Hooks grabbed one of the horseshoes he had thrown. They engaged in a tugging match over the horseshoe. Robinson held another horseshoe in his right hand.

The evidence was in conflict as to the subsequent events. According to the Commonwealth's evidence, James Hooks moved behind Robinson after Hooks released the horseshoe. Robinson turned toward Hooks in anticipation of a fight, and when he did, Foster came from behind and hit Robinson in the head with a horseshoe. Robinson and Foster then began to fight. According to Foster's evidence, he walked from his end of the horseshoe pit to the other in order to prevent a fight between Hooks and Robinson. When Foster reached them, Robinson drew back a horseshoe as if to hit either him or Hooks, and, to defend against the blow, Foster struck Robinson one time. Then, either Foster walked away and Robinson pursued and hit him with a horseshoe, or the men began to exchange blows with horseshoes immediately. Thereafter, correctional officers interceded to break up the fight.

Foster was indicted by a grand jury in the Circuit Court for the County of Southampton, Virginia on one count of malicious wounding in violation of Code § 18.2-51. At trial, defense counsel offered jury instructions as to the law of self-defense and defense of others. ¹ The court refused them. The jury found Foster guilty of unlawful wounding and fixed his punishment at four years in the penitentiary. The trial judge sentenced Foster in accordance with the jury's verdict.

Foster contends that the trial court erred in refusing to instruct the jury on the law of self-defense and/or defense of others. A party is entitled to have the jury instructed according to the law favorable to his or her theory of the case if evidence in the record supports it. Delacruz v. Commonwealth, 11 Va.App. 335, 338, 398 S.E.2d 103, 105 (1990). Thus, in deciding whether the trial court should have instructed on self-defense or defense of others, we must look at the evidence in the light most favorable to Foster's theory of what occurred between him and Robinson, since a trial judge may not refuse to grant a proper, proffered instruction if evidence in the record supports the defendant's theory of defense. See id. Because evidence in the record tends to support Foster's self-defense theory, we agree with his contention that the proffered self-defense instruction should have been given. We reject his contention regarding the proffered defense of others instruction because it misstates the applicable law.

"[A] person who reasonably apprehends bodily harm by another is privileged to exercise reasonable force to repel the assault." Diffendal v. Commonwealth, 8 Va.App. 417, 421, 382 S.E.2d 24, 25 (1989). However, the amount of force used to defend oneself must not be excessive and must be reasonable in relation to the perceived threat. Id. at 421, 382 S.E.2d at 26. Further, "[i]f there is evidence in the record to support the defendant's theory of defense, the trial judge may not refuse to grant a proper, proffered instruction." Delacruz, 11 Va.App. at 338, 398 S.E.2d at 105. Where the conflicting evidence tends to sustain either the prosecution's or defense's theory of the case, the trial judge must instruct the jury as to both theories. Id. The jury as the finder of fact has the right to "reject that part of the evidence believed by them to be untrue and to accept that found by them to be true." Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958). Therefore, the trial court must instruct on both theories to guide a jury in their deliberations as to the law applicable to the case, depending upon how the jury decides the facts. See Cooper v. Commonwealth, 2 Va.App. 497, 500, 345 S.E.2d 775, 777 (1986).

At trial, Foster testified that he "thought he [Robinson] was going to hit me or Hooks so I reacted." Three other inmates, Steven Skutans, James Hooks, and Derrick Brown, also testified that Robinson drew back with a horseshoe in his hand as if he were going to strike either Foster or Hooks before Foster struck him. Additionally, both Foster and Derrick Brown testified that Foster struck Robinson once with a horseshoe and that he then began to walk away when Robinson "retaliated and came back at him." Based on the above evidence, Foster tendered jury instruction 6A which is nearly identical to the self-defense justifiable homicide instruction approved by the Supreme Court in Perricllia v. Commonwealth, 229 Va. 85, 93, 326 S.E.2d 679, 684 (1985). Nevertheless, the trial court refused to give instruction 6A.

We find that if the jury believed the foregoing evidence which Foster presented, as it had the right to do, that evidence supported Foster's self-defense theory. He proffered an instruction correctly stating the law of self-defense in Virginia. We cannot say, as a matter of law, that if Foster retaliated against a perceived attack with a horseshoe by Robinson with the same type instrumentality, by so doing, he used excessive or unreasonable force. The evidence raised factual issues regarding the reasonableness of the force used, the reasonableness of the perceived threat and whether Foster was without fault in the incident. These issues are properly within the province of the jury to resolve as part of considering the claim of self-defense. See Diffendal, 8 Va.App. at 421-22, 382 S.E.2d at 26.

The Commonwealth also contends that the trial court properly refused Foster's proffered self-defense instruction because he was not "without fault" when he interceded to stop the altercation between Hooks and Robinson. The question whether or not Foster was without fault in the incident is another factual issue to be resolved by a properly instructed jury. See Bell v. Commonwealth, 2 Va.App. 48, 58, 341 S.E.2d 654, 659 (1986) (not error for court to refuse instruction defining "fault" in self-defense context because "[i]t encompasses any form of conduct on the part of an accused which a jury may reasonably infer from the evidence to have contributed to an affray"). The jury could have found that Foster, by walking to the other end of the horseshoe pit to prevent an altercation, if that were his purpose, was not at fault and was entitled to stand his ground and to defend himself without withdrawing. Accordingly, we hold that the trial court erred by refusing to give to the jury a self-defense...