Humphrey v. Com.

• Decision Date: 23 October 2001
• Docket Number: Record No. 1982-00-2.
• Citation: 553 S.E.2d 546,37 Va. App. 36
• Parties: William Michael HUMPHREY v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

553 S.E.2d 546

37 Va. App. 36

William Michael HUMPHREY v. COMMONWEALTH of Virginia.

Record No. 1982-00-2.

Court of Appeals of Virginia, Richmond.

October 23, 2001.

Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, P.C., on briefs), Richmond, for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J.,, ELDER and CLEMENTS, JJ.

ELDER, Judge.

William Michael Humphrey (appellant) appeals from his jury trial conviction for possessing a firearm after having been convicted of a felony in violation of Code § 18.2-308.2. On appeal, he contends the trial court erroneously concluded that he could not assert necessity or self-defense as a defense to the charge and, therefore, erroneously rejected a proffered jury instruction on self-defense. We hold that the common law defense of necessity remains available, upon an appropriate factual predicate, as a defense to a charge of possessing a firearm after having been convicted of a felony under Code § 18.2-308.2. Here, the evidence, viewed in the light most favorable to appellant, entitled him to such an instruction. Therefore, we reverse his conviction and remand for additional proceedings consistent with this opinion.¹

I. BACKGROUND

In reviewing the trial court's refusal to grant a proffered jury instruction, we view the evidence in the light most favorable to appellant. See, e.g., Boone v. Commonwealth, 14 Va.App. 130, 131, 415 S.E.2d 250, 251 (1992)

. So viewed, the evidence showed that appellant, a convicted felon, had actual possession of a shotgun long enough to fire two shots.

On the evening of December 29, 1999, appellant was at his house trailer with Mark King. The trailer was located "in the woods" of New Kent County on property owned by appellant's father. A few minutes after King arrived, sometime after dark, Phillip Skipper and his brother, Franky Skipper, drove up to appellant's trailer and appeared as if they had been drinking. The four then "[sat] around . . . drinking" and "having a good time." Appellant had consumed six beers during the course of the evening from about 6:00 p.m. forward. Within an hour or so, appellant's girlfriend arrived at the trailer, and appellant asked the others to leave. King prepared to go, but the Skippers resisted appellant's request. Appellant then complained to Phillip Skipper that he had told Phillip not to bring Franky to appellant's trailer any more because Franky had stolen appellant's Coleman lamp. When the Skipper brothers "started giving [appellant] a hard time," appellant asked them to leave his property and told them they were trespassing. "[N]o fists or [violence]" were involved and no weapons were displayed, but the discussion involved "heated" words and "cussing." Franky Skipper "threatened [appellant]," telling him, "I will get you, you son of a bitch, or something like that," and "I'll . . . fix your ass." King then drove away, and the Skippers followed behind him in their white pickup truck bearing the logo, "James River Heating & Air Conditioning," in blue lettering, with Phillip Skipper at the wheel.

Fifteen to twenty minutes later, as appellant was turning off the light in the trailer's kitchen, appellant and his girlfriend heard gunshots. Appellant called the police to report a shooting in progress. He then opened the front door and saw flashes of gunfire coming from the bottom of the driveway in the direction of his home. The gunfire was coming from the passenger side of the same white pickup truck that the Skippers had been driving earlier. The shooter was leaning across the hood of the truck from the passenger side, but appellant could not see the shooter or the driver well enough to identify either of them.

The truck eased closer and the shooting continued. Appellant testified that "[he] was in fear for [his] life and [his] girlfriend's life, too." He told her to go to the bedroom, which was toward the back of the trailer, because he "[did not] want her to get hit" by gunfire. Appellant then ran twenty-five to thirty yards, directly through the line of fire, to a nearby shed owned by his father. From the shed, appellant retrieved a shotgun. Appellant's father had left the shotgun on appellant's front porch several days earlier, and appellant had moved the shotgun to the shed at his father's request. Appellant ran back to the front porch and fired two shots into the air "just to try to scare them away . . . just till the police got there." The occupants of the truck may have fired an additional shot or two but left almost immediately. Appellant then tossed the shotgun on top of his trailer, re-entered the house, and called the police a second time.

Officer Christopher Spare arrived fourteen minutes after appellant first called the police to report gunshots. When Officer Spare first arrived, appellant was not forthcoming about the shotgun he had retrieved, but he eventually told Spare he was a convicted felon and that the firearm was atop his trailer. Appellant and Spare inspected the trailer for evidence of gunshot damage but were unable to find any bullet holes that night. A few days later, appellant observed a bullet hole in the front side of the trailer, near the spot in the kitchen where appellant was standing when the shooting first began.

Appellant was indicted and tried for possessing or transporting a firearm, on or about December 29, 1999, after having been convicted of a violent felony. At trial, appellant admitted that he was a convicted felon and that he knew he was not allowed to possess a firearm. He testified that he feared for his life and wanted to protect himself and his girlfriend and that he "had no other choice at the time," because the Skippers had threatened him and he had already called the police. He said "[A] trailer is not the perfect place to be hiding when you're being shot at," and he testified he thought the Skippers could "[b]ust right through [the trailer] door" if he did not take steps to stop them. Appellant's girlfriend agreed that she and appellant "[were not] very well protected inside the trailer." When appellant was asked why he did not retreat to the back of the trailer or into the woods when the shooting began, appellant said, "I'm not going to be found . . . dead in the woods, me and my girlfriend. I had to do what I had to do." Appellant "put forward a defense of duress and necessity" and proffered the following jury instruction:

If you believe that [appellant] was without fault in provoking the altercation and if you further believe that [appellant] reasonably feared, under the circumstances as they appeared to him, that he was in danger of being killed or that he was in danger of great bodily harm, then his actions were in self-defense and you shall find [appellant] not guilty.

The trial court refused the instruction, giving multiple reasons for doing so. First, it ruled, as a matter of law, that appellant "[did] not have the right to use a firearm in self-defense" because he was a convicted felon. In so ruling, it adopted the reasoning asserted by the Commonwealth's attorney—that the statute prohibiting possession of a firearm by a convicted felon contained exceptions but did not include an exception for self-defense or necessity, which constituted an implicit rejection of such an exception. Second, it ruled that the evidence failed to establish sufficient danger, stating,

Well, if it's safe enough for his girlfriend to go to the rear bedroom of the trailer to get as far away from the line of fire—he instructs her to do that[,] [h]e could have done the same in regards to the self-defense instruction. He didn't tell her . . . let's stay out in the woods to get out of the house.

Third, the trial court adopted the Commonwealth's argument that "even if we took away the evidence [of what] occurred on [December 29, 1999,] [appellant] still knowingly possessed the gun having been convicted of a felony" because circumstantial evidence established that "he took [the gun] ... and put it in the shed" several days earlier.

II. ANALYSIS

A. AVAILABILITY OF NECESSITY DEFENSE TO CHARGE OF POSSESSION OF A FIREARM BY A CONVICTED FELON

Appellant contends the common law defense of necessity remained available as a defense to a charge of possessing a firearm after having been convicted of a felony pursuant to Code § 18.2-308.2, despite that code section's inclusion of specific exceptions for members of the armed services, law enforcement officers and those pardoned by the Governor. We agree and hold that the legislature's inclusion of exceptions for certain professions and for convicted felons who have been pardoned does not indicate an intention to abrogate the common law defense of necessity.

"The law of self-defense is the law of necessity." McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978).

The [common law] defense of necessity traditionally addresses the dilemma created when physical forces beyond the actor's control render "illegal conduct the lesser of two evils." . . . The essential elements of this defense include: (1) a reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack of other adequate means to avoid the threatened harm; and (3) a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm.

Buckley v. City of Falls Church, 7 Va.App. 32, 33, 371 S.E.2d 827, 827-28 (1988) (quoting United States v. Bailey, 444 U.S. 394, 410, 100 S.Ct. 624, 634, 62 L.Ed.2d 575 (1980)). "[T]he legislature may abrogate the common law rule by choosing to resolve the conflicting public policy matters by the enactment of law." Long v. Commonwealth, 23 Va.App. 537, 543, 478 S.E.2d 324, 327 (1996). Thus, "[t]he defense of necessity is available only in situations wherein the legislature has not itself, in its criminal statute, made a...