McGhee v. Com.

• Decision Date: 22 November 1978
• Docket Number: No. 780214,780214
• Citation: 219 Va. 560,248 S.E.2d 808
• Parties: Opal Marie Hale McGHEE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 808

248 S.E.2d 808

219 Va. 560

Opal Marie Hale McGHEE v. COMMONWEALTH of Virginia.

Record No. 780214.

Supreme Court of Virginia.

Nov. 22, 1978.

John L. Gregory, III, Martinsville (Young, Kiser, Haskins, Mann, Gregory & Young, Ltd., Martinsville, on brief), for appellant.

James T. Moore, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

HARRISON, Justice.

Opal Marie Hale McGhee was convicted of murder in the second degree and of the use of a firearm in the commission of a felony. The sole basis of her appeal is that the court below erred in refusing to grant an instruction which would have placed on the Commonwealth the burden to prove beyond all reasonable doubt that the defendant did not act in self-defense.

It is not controverted that a defendant need only sustain a plea of self-defense to the point where the evidence in support thereof, when considered along with all other evidence produced in the case, raises a reasonable doubt in the minds of the jurors regarding the guilt of the accused. Jones v. Commonwealth, 187 Va. 133, 45 S.E.2d 908 (1948); Lamb v. Commonwealth, 141 Va. 481, 126 S.E. 3 (1925). However, in this case defendant argues that the Commonwealth has the burden of disproving beyond all reasonable doubt the defendant's affirmative plea of self-defense.

Counsel for defendant cites in support of his argument Martin v. Commonwealth, 218 Va. 4, 235 S.E.2d 304 (1977). There, the defendant was found guilty of second degree murder. He claimed that his shooting of the victim was an accident. We reversed because in none of the instructions granted by the trial court was the jury told that the burden was upon the Commonwealth to prove the killing was not accidental. We concluded that the jury's verdict may have resulted from the mistaken belief that the burden was upon the defendant to prove the killing was an accident.

It can be safely said that in Virginia there is no principle more firmly imbedded in the body of the law, or one that has been more often stated, than the principle that in every criminal case the evidence of the Commonwealth must show, beyond a reasonable doubt, every material fact necessary to establish the offense for which a defendant is being tried. This burden of proof never shifts. As we said in Hodge v. Commonwealth, 217 Va. 338, 341, 228 S.E.2d 692, 695 (1976), "any rule of state law which has the ultimate effect of shifting the burden of persuasion to the accused upon this critical issue is constitutionally infirm".

The defense that a killing was accidental presents a different issue from a claim that a killing was done in self-defense. For the Commonwealth to establish murder it must show those elements which completely negate an accidental killing, I. e., that the killing was willful, deliberate and malicious. Self-defense in Virginia is an affirmative defense, the absence of which is not an element of murder. In making this plea a defendant implicitly admits the killing was intentional and assumes the burden of introducing evidence of justification or excuse that raises a reasonable doubt in the minds of the jurors.

The law of self-defense is the law of necessity, and the necessity relied upon must not arise out of defendant's own misconduct. Accordingly, a defendant must reasonably fear death or serious bodily harm to himself at the hands of his victim. It is not essential to the right of self-defense that the danger should in fact exist. If it reasonably appears to a defendant that the danger exists, he has the right to defend against it to the same extent, and under the same rules, as would obtain in case the danger is real. 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. These ancient and well-established principles have been recited to emphasize the subjective nature of the defense, and why it is an affirmative one. As Chief Justice Hudgins pointed out in Harper v. Commonwealth, 196 Va. 723, 731, 85 S.E.2d 249, 254 (1955): " 'What reasonably appeared to the accused at the time of the shooting, as creating the necessity for his act, is the test and not what reasonably appeared to him, provided it would so appear to some other reasonable person under similar circumstances.' "

The issue involved in the instant case has been recently decided by the United States Court of Appeals in Frazier v. Weatherholtz, 572 F.2d 994 (4th Cir. 1978). There, Frazier was convicted of voluntary manslaughter and sentenced to a five-year term in the penitentiary. The trial court had instructed the jury at length in regard to the presumption of innocence and the prosecutor's burden of proving guilt beyond a reasonable doubt. On the question of self-defense the jury was instructed as follows:

"The court instructs the jury that...