Lienau v. Commonwealth

Citation69 Va.App. 254,818 S.E.2d 58
Decision Date11 September 2018
Docket NumberRecord No. 0685-17-4
Parties Thomas Robert LIENAU v. COMMONWEALTH of Virginia
CourtCourt of Appeals of Virginia

Peter D. Greenspun (Anastasia T. Kranias ; Greenspun Shapiro PC, on briefs), Fairfax, for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellee.

Present: Judges Petty, Malveaux and Senior Judge Annunziata

OPINION BY JUDGE WILLIAM G. PETTY

Thomas Robert Lienau heard an intruder in his home at night and armed himself. When he encountered the intruder, Lienau fired one shot and killed him. A jury convicted Lienau of involuntary manslaughter.1 Lienau argues on appeal that the trial court erred in refusing to give the jury an instruction on self-defense. We agree. Accordingly, we reverse and remand.

I. BACKGROUND

Usually, this Court "review[s] the evidence in the light most favorable to the Commonwealth, the prevailing party in the trial court." Dawson v. Commonwealth, 63 Va.App. 429, 431, 758 S.E.2d 94, 95 (2014). However, "[w]hen reviewing a trial court’s refusal to give a proffered jury instruction, we view the evidence in the light most favorable to the proponent of the instruction." Commonwealth v. Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221 (2002). We must therefore view the evidence in the light most favorable to Lienau.2

Thomas Robert Lienau owned a small townhouse, where he resided in the basement. Near his bed, he kept a lever-action rifle that he had received for his twelfth birthday. He kept the rifle unloaded, but attached two bullets to the rifle stock with an elastic band. He later explained to investigators that he kept the rifle near his bed "for self-defense, for anyone who breaks in." The main floor of the home had the living areas, and the second floor contained bedrooms, one of which he rented to J.R. Najim. J.R. owned a gun, which he sometimes kept in his second-floor room. Lienau did not permit J.R.’s brother, Mohammed Najim, in the house because, as Lienau described him, he was "out of control," "wacked out," "always wasted," and "always in trouble." Nevertheless, Lienau had once found Mohammed asleep on the living room couch without permission. Lienau "kicked him out" and warned J.R. that Mohammed was not to be in the house. On another occasion, Mohammed entered the home without permission and came down the stairs to Lienau’s living area in the basement. This "scared [Lienau] to death." He told Mohammad, "Don’t you ever come in this house again. You’re not invited here; I’ve told you that before. Get out!"

On the evening of July 16, 2015, Lienau received a phone call from J.R. asking him to come to J.R.’s second-floor room to mediate a fight between J.R. and Mohammed, who, unbeknownst to Lienau, had come to visit J.R. J.R. and Mohammed continued yelling and threatening to kill each other, so Lienau told them to leave the house. Lienau believed Mohammed was high on drugs at the time.3 After J.R. and Mohammed left the house at about 5:50 p.m., Lienau locked the front door. About a half an hour later, Mohammed returned and began to pound on Lienau’s front door and to kick it with his bare feet. Mohammed was causing a disturbance in the neighborhood, and a neighbor sent Lienau a text message that Mohammed was pounding the door and incessantly ringing the doorbell, really upset because the door was locked. Lienau sent a text message to J.R. saying that he needed to come get Mohammed. Finally, the pounding stopped, and Lienau believed Mohammed had left.

Shortly before 10:00 p.m., Lienau was home alone in his basement when he heard a loud bang and footsteps on the main floor. He carried the unloaded rifle up the basement stairs to investigate. Although he had fully locked the deadbolt earlier, he now saw the door open. An intruder had burst into the home with so much force that pieces of door trim and door frame lay in the living room with the metal deadbolt strike plate still attached. Lienau took the two bullets from the elastic band, loaded one in the rifle, and put the other in his pocket. Although Lienau had not yet seen the intruder, he strongly suspected the intruder was Mohammed.

With his now-loaded rifle, Lienau approached the stairwell to the second floor. Lienau saw Mohammed come from the second floor to the top of the stairs. Lienau aimed the rifle at Mohammed’s legs, wanting to scare him. Lienau was shaking badly and, although he said he did not intend to pull the trigger, the rifle discharged. The bullet travelled upward through Mohammed’s left calf and through his right thigh, ending in the stair tread of the top step, below the level of the second floor. Although Lienau rendered first aid, Mohammed died shortly thereafter from his wound

.

Both immediately after the shooting and in a statement he gave police at the police station, Lienau maintained that he never intended to pull the trigger. He said it happened "unfortunately too fast" "and [he] wasn’t thinking." He explained that he "didn’t think about it that deeply" at the time but was "try[ing] to piece some of it" together during the interview. He said, "With an intruder and the door broken in ... I just saw red." He said he was in a "rage" and shaking so much he would not have been able to hit a target if he had been aiming. He admitted that he was upset at Mohammed’s actions earlier that evening, especially after he had already kicked him out. He said, "I let my temper, my emotions, get the better of me."

The Commonwealth charged Lienau with murder. At the conclusion of the trial, Lienau moved to strike the evidence on the basis that the Commonwealth had failed to prove the shooting was not an accident. The trial court denied the motion. Lienau then requested a jury instruction on the law of self-defense, arguing that Lienau was in a "frightening and self-defense situation." The trial court refused the instruction. The jury found Lienau guilty of involuntary manslaughter. During sentencing, the trial court sustained the Commonwealth’s objection to certain evidence and cross-examination by Lienau. This appeal followed.

II. ANALYSIS

A. THE TRIAL COURT ERRED IN REFUSING THE SELF-DEFENSE INSTRUCTION

1. Standard of Review

This Court’s standard of review where the trial court refuses a jury instruction is well-established. "As a general rule, the matter of granting and denying instructions ... rest[s] in the sound discretion of the trial court." King v. Commonwealth, 64 Va.App. 580, 586, 770 S.E.2d 214, 217 (2015) (en banc ) (alterations in original) (quoting Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187 (2009) ). "The trial court’s ‘broad discretion in giving or denying instructions requested’ is reviewed for an abuse of discretion." Id. (quoting Gaines v. Commonwealth, 39 Va.App. 562, 568, 574 S.E.2d 775, 778 (2003) (en banc ) ).

However, "if 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 ." Id. at 587, 770 S.E.2d at 218 (quoting Foster v. Commonwealth, 13 Va.App. 380, 383, 412 S.E.2d 198, 200 (1991) ). "If a proffered instruction finds any support in credible evidence, ... its refusal is reversible error." Id. (quoting McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975) ). "Additionally, [w]here 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. (alteration in original) (quoting Foster, 13 Va.App. at 383, 412 S.E.2d at 200 ). The theory, however, must find support in the evidence. "A defendant is entitled to have the jury instructed only on those theories of the case that are supported by [more than a scintilla of] evidence." Id. (alteration in original) (quoting Eaton v. Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 397 (1990) ). " ‘The 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." Id. (omission in original) (quoting Woolridge v. Commonwealth, 29 Va.App. 339, 348, 512 S.E.2d 153, 158 (1999) ).

2. The Law of Self-Defense

A person’s right to defend himself in his own home has strong roots in this Commonwealth.

In the early times our forefathers were compelled to protect themselves in their habitations by converting them into holds of defense: and so the dwelling house was called the castle. To this condition of things, the law has conformed, resulting in the familiar doctrine that while a man keeps the doors of his house closed, no other may break and enter it, except in particular circumstances to make an arrest or the like—cases not within the line of our present exposition. From this doctrine is derived another: namely, that the persons within the house may exercise all needful force to keep aggressors out, even to the taking of life.

Fortune v. Commonwealth, 133 Va. 669, 687, 112 S.E. 861, 867 (1922) (distinguishing between an invited guest and one that enters forcefully) (quoting 1 Bish. New Cr. Law § 857, 858 (3th ed.) ), cited with approval in Hines v. Commonwealth, 292 Va. 674, 679-80, 791 S.E.2d 563, 565 (2016).

The Supreme Court has recognized that "[a] defendant may always act upon reasonable appearance of danger, and whether 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). "In the context of a self-defense plea, ‘imminent danger’ is defined as ‘an immediate, real threat to one’s safety ....’ " Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001) (omission in original) (quoting Black’s Law Dictionary 399 (7th ed. 1999) ). "There must be ... some act menacing present peril ... [and] the act ... must be of...

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