Com. v. Cary, Record No. 050395.

• Decision Date: 13 January 2006
• Docket Number: Record No. 050395.
• Citation: 623 S.E.2d 906
• Parties: COMMONWEALTH of Virginia v. Rebecca Scarlett CARY.
• Court: Virginia Supreme Court

623 S.E.2d 906

COMMONWEALTH of Virginia v. Rebecca Scarlett CARY.

Record No. 050395.

Supreme Court of Virginia.

January 13, 2006.

Stephen R. McCullough, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on briefs), for appellant.

Joseph R. Winston, Special Appellate Counsel (Virginia Indigent Defense Commission, on brief), for appellee.

Present: All the Justices.

KOONTZ, Justice.

In an unpublished opinion, the Court of Appeals of Virginia vacated Rebecca Scarlett Cary's convictions in a jury trial for the first-degree murder of Mark Beekman, Code § 18.2-32, and the use of a firearm in the commission of that crime, Code § 18.2-53.1. The Court of Appeals reversed the convictions on the ground that the trial court erred in excluding evidence of Beekman's prior threats and acts of violence against Cary and in failing to grant her proffered jury instructions on self-defense, right-to-arm, and voluntary manslaughter based upon a "heat of passion" theory. Cary v. Commonwealth, Record No.2031-03-1, slip op. at 1-2, 2004 WL 2933587 (December 21, 2004). We awarded the Commonwealth an appeal from the judgment of the Court of Appeals pursuant to Code §§ 17.1-411 and 19.2-317(C).¹

BACKGROUND

Because the principal issue we consider in this appeal is whether the trial court erred in refusing to grant a proper instruction of law proffered by the accused, we view the facts relevant to the determination of that issue in the light most favorable to Cary. Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001); see also Commonwealth v. Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221 (2002); Commonwealth v. Alexander, 260 Va. 238, 240, 531 S.E.2d 567, 568 (2000). When so viewed, the evidence at trial showed that Cary and Beekman were involved in a tumultuous relationship for more than 15 years during which time Beekman fathered three of Cary's four children. Although the two had cohabited in the past, they were not living together in 2002. They habitually argued violently regarding Beekman's failure to provide child support for his children.

On May 23, 2002, Cary purchased a handgun "to protect me and my children and our home" because she lived in a "bad neighborhood." In August 2002, Cary allegedly told Beekman's sister that she had purchased the handgun and threatened to kill Beekman because he continued to fail to provide child support. Cary allegedly made a similar statement to Tracy Tabron the day before Beekman was killed. Cary denied making these statements.

On the evening of September 6, 2002, Beekman went to Cary's apartment in the City of Norfolk. Cary detected the odor of alcohol on Beekman's person and knew from past experience that Beekman became violent when intoxicated. Post-mortem tests subsequently confirmed that Beekman had a highly-elevated blood alcohol level and also that he had recently used cocaine. The couple immediately began to quarrel over Beekman's failure to provide Cary with child support, and Beekman called Cary vulgar names and attacked her, grabbing her by the hair and hitting her in the "face and sides." Beekman refused to leave the apartment despite Cary's request that he do so.

Cary testified that when Beekman went to use the bathroom in the apartment, she decided to retrieve the handgun from where she kept it, but found that Darron, her teenage son, had already done so. Cary took the handgun from Darron and removed its ammunition clip, intending to use the apparently unloaded weapon to frighten Beekman into leaving the apartment.

When Beekman came out of the bathroom, Cary was sitting on a couch in the living room. Beekman again refused to leave the home and "was still verbally assaulting" Cary, threatening that he would "smack" her, "`F' [her] up," and "break [her] up." As Beekman "was getting ready to come into the living room," Cary pointed the handgun at Beekman, and it discharged. The bullet struck Beekman in the chest. Cary could not "remember doing anything [to make the handgun] go off" and "believe[d] it was on safety" and unloaded. Cary subsequently testified that she thought Beekman intended to resume his physical assault on her.

Cary instructed her son to call 911 and proceeded to apply pressure to the wound in Beekman's chest. Cary pulled Beekman's body outside of the home, later explaining that she did so because "the ambulance could get to him a whole lot faster. . . instead of them having to come all through the house." Emergency medical technicians arrived and attempted to revive Beekman, but were unsuccessful.

When police arrived following the shooting, Cary first claimed that an unknown assailant had shot Beekman outside the home and that Beekman had come to the home's door "holding his chest and gasping for air." Cary repeated versions of this fabrication to the police several times that night.

When the police subsequently interviewed Cary two days after the shooting, she claimed to be unable to remember what had happened but that her memory "was starting to come back." However, she denied having a handgun in the home and when asked if she had shot Beekman, Cary responded, "I don't think so." As the interview progressed, Cary ultimately admitted to police that she had shot Beekman, but maintained that she had only intended to frighten him into leaving the home and that the handgun had discharged accidentally. Cary also told police that after the shooting, she gave the handgun to her son to give to his uncle, who disposed of it. The handgun was never recovered.

On December 4, 2002, a grand jury indicted Cary for the first-degree murder of Beekman and use of a firearm in the commission of a felony. On April 7, 2003, a jury trial commenced in the Circuit Court of the City of Norfolk (trial court) with the Commonwealth presenting evidence in accord with the above-recited facts.

Relevant to the issues raised in this appeal, during her direct testimony in her defense Cary sought to introduce evidence of Beekman's prior threats and acts of violence against her. The Commonwealth objected to the introduction of such evidence, contending that "a defendant cannot introduce evidence of a victim's reputation for violence or evidence of specific facts of violence unless the defendant first adduces evidence of self-defense." The Commonwealth asserted that because Cary was claiming the shooting occurred accidentally, she could not also claim self-defense. The Commonwealth asserted further that, in any case, there had been no evidence of any overt act by Beekman at the time of the shooting that would have placed Cary in reasonable fear for her life or safety. The Commonwealth contended that, when Beekman went to the bathroom, he had effectively ended his assault on Cary and did nothing afterwards to place her in fear.

Cary responded that she was entitled to assert concurrent claims of accident and self-defense and that these claims were not mutually exclusive. Cary contended that the evidence did show an overt act sufficient to put Cary in fear for her life or safety. Cary maintained that Beekman's uninvited presence in the home, his verbal and physical abuse of her, and his refusal to leave after repeated requests, were part of a pattern of behavior that she could have reasonably believed would continue when Beekman returned from the bathroom, given his continued verbal abuse and refusal to leave the home. Moreover, Cary maintained that the space of time between the actual assault on her and the shooting was sufficient to permit the jury to find that Cary remained in imminent danger. At this point in the proceeding, however, Cary did not assert the argument that Beekman was actually advancing toward her when the gun discharged.

Before ruling on the admissibility of the anticipated evidence of Beekman's prior acts of violence, the trial court asked Cary's counsel if she had "presented all the evidence that. . . supports the establishment of [a] prima facie case [for] self-defense . . . including overt acts in support of that particular defense." Counsel responded that the series of actions by Beekman that preceded the shooting constituted the overt act necessary to establish an apprehension of imminent harm and that it was for the jury to determine whether Cary's fear was reasonable.

The trial court then ruled that Beekman's assault on Cary prior to the shooting was not an overt act sufficient to support a claim of self-defense, agreeing with the Commonwealth that when Beekman stopped the attack to go to the bathroom, Cary was no longer in imminent danger. The trial court reasoned that Cary's presence of mind in retrieving the handgun and of removing the ammunition clip showed that she was no longer in fear. The trial court further reasoned that at the time of the shooting, Cary did not claim that she was "using that weapon to repel any act or prevent any act by [Beekman] at that moment in time." Accordingly, the trial court ruled that Cary would not be entitled to present evidence of Beekman's prior threats and acts of violence against her and that she could not assert a defense of self-defense.

After the trial court made this ruling, Cary continued her testimony. During redirect examination, Cary testified that immediately prior to shooting Beekman, "[h]e was coming back. I am not sure whether he was walking or running." After this evidence was received, Cary did not request the trial court to reconsider its prior ruling that there was no evidence of an overt act by Beekman after he returned from the bathroom that would have caused Cary to be in reasonable fear for her life or safety.

Outside the presence of the jury, however, the trial court permitted Cary to proffer evidence of Beekman's prior threats and acts of violence against her. That evidence, presented by Cary and her son, established that Beekman had raped Cary when they first met and that he had physically abused her and her children throughout their relationship. On one...