Com. v. Alexander, Record No. 991786.

• Decision Date: 09 June 2000
• Docket Number: Record No. 991786.
• Citation: 531 S.E.2d 567,260 Va. 238
• Parties: COMMONWEALTH of Virginia v. Jon Douglas ALEXANDER.
• Court: Virginia Supreme Court

531 S.E.2d 567

260 Va. 238

COMMONWEALTH of Virginia v. Jon Douglas ALEXANDER.

Record No. 991786.

Supreme Court of Virginia.

June 9, 2000.

Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellant.

Robert B. Armstrong for appellee.

Present: CARRICO, C.J., LACY, HASSELL, KEENAN, KOONTZ, and KINSER, JJ., and WHITING, Senior Justice.

WHITING, Senior Justice.

In this appeal, we decide whether a deadly weapon may be brandished in defense of personal property.

Jon Douglas Alexander was charged with attempted murder in Rockbridge County. At a preliminary hearing on that charge, the general district court reduced the charge to that of brandishing a firearm in violation of Code § 18.2-282 and convicted defendant Alexander of that charge.¹

The defendant appealed his conviction to the circuit court. In a jury trial, the defendant tendered, but the court refused to grant, instructions advising the jury that if it found the defendant had brandished the firearm because he reasonably felt that it was necessary to protect his personal property from loss, the jury could find him not guilty. The jury found the defendant guilty of the crime charged and the circuit court entered judgment on the verdict.

Upon the defendant's appeal, the Court of Appeals of Virginia held that the trial court had erred in refusing the tendered instructions, and it reversed and remanded the case. Alexander v. Commonwealth, 28 Va.App. 771, 780, 508 S.E.2d 912, 916; 30 Va.App. 152, 153, 515 S.E.2d 808, 808 (1999)(en banc). We granted the Commonwealth an appeal from that judgment. The facts are recited in an agreed statement. In accordance with familiar appellate principles, we will view those facts in the light most favorable to the proponent of the refused instruction, the defendant in this case. Blondel v. Hays, 241 Va. 467, 469, 403 S.E.2d 340, 341 (1991).

Michael T. Eustler, an agent of the lienholder of the defendant's vehicle, sought to repossess the vehicle. When Eustler arrived at the defendant's home, the defendant agreed to its repossession provided he could remove certain papers and tools valuable to him and having nothing to do with the vehicle being repossessed. Although Eustler agreed to permit the defendant to retrieve the items, Eustler "jacked up" the vehicle as the defendant was partially in the front seat. Eustler approached the defendant in a belligerent manner, and demanded the keys to the vehicle.

Feeling threatened, the defendant entered his house and emerged with the keys as well as an unloaded rifle which he placed in a flower bed that was close to the vehicle. When Eustler again approached in a belligerent manner, the defendant retrieved the rifle and held it at his side. The defendant felt compelled to raise the rifle to his shoulder when he thought that Eustler was going to assault him. However, the defendant did not point the gun at Eustler until Eustler kept coming at him, at which time, Eustler "finally backed off." Eustler later called the police.

Although the trial court instructed the jury to find the defendant not guilty if it found that he brandished the rifle in reasonable defense of his person, the court refused to include a similar provision in the instructions if the jury believed that the defendant brandished the rifle in reasonable defense of his property. The Court of Appeals agreed with the defendant's contention that he was entitled to the refused jury instruction.

We need not resolve the defendant's claim that Eustler's actions were "unwarranted and illegal ... in attempting, by other than peaceful means, to unlawfully take [defendant's] personal property." Even if Eustler's actions were unwarranted or illegal, the defendant, as an owner of personal property, did not have the right to assert or defend his possessory rights thereto by the use of deadly force. In Montgomery v. Commonwealth, 98 Va. 840, 842-43, 36 S.E. 371, 372 (1900), we said:

The law is clearly stated by a learned judge in State v. Morgan, 3 Ired. 186, 38 Am. Dec. 714, as follows: "When it is said that a man may rightfully use as much force as is necessary for the protection of his person and property, it should be recollected that this rule is subject to this most important modification, that he shall not, except in extreme cases, endanger human life or do great bodily harm. It is not every right of person, and still less of property, that can lawfully be asserted, or every wrong that may rightfully be redressed by extreme remedies. There is a recklessness — a wanton disregard of humanity and social duty in taking or endeavoring to take, the life of a fellow-being, in order to save one's self from a comparatively slight wrong, which is essentially wicked, and the law abhors. You may not kill, because you cannot otherwise effect your object, although the

...