Sands v. Com., Record No. 1567-99-3.
| Decision Date | 07 November 2000 |
| Docket Number | Record No. 1567-99-3. |
| Citation | 33 Va. App. 669,536 S.E.2d 461 |
| Court | Virginia Court of Appeals |
| Parties | Victoria Shelton SANDS v. COMMONWEALTH of Virginia. |
Philip G. Gardner (R. Reid Young, III; Gardner, Gardner, Barrow & Sharpe, P.C.; Law Offices of R. Reid Young, III, on briefs), Martinsville, for appellant.
Richard B. Smith, Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: COLEMAN, WILLIS and ELDER, JJ.
Victoria Shelton Sands (appellant) was convicted in a jury trial for the first degree murder of her husband, Thomas Sands (Sands), and use of a firearm during the commission of murder. On appeal, she contends the trial court erred by refusing to instruct the jury on the law of self-defense. We agree. We, therefore, reverse the convictions and remand for a new trial.
In reviewing the trial court's refusal to grant a defendant's proffered jury instruction, we view the evidence in the light most favorable to the defendant. See Boone v. Commonwealth, 14 Va.App. 130, 131, 415 S.E.2d 250, 251 (1992)
. So viewed, the evidence showed that appellant and Sands were married in 1983. Two years after they were married, Sands began beating appellant. The beatings became progressively worse over time and, "[a]t the end], they occurred] on a daily basis." Sands was not gainfully employed for the last eight to ten years of their marriage, during which time he used and sold cocaine, marijuana and moonshine.
Appellant wanted to take her four-year-old son, leave Sands and get a divorce. Sands told her she could not leave and threatened repeatedly to kill her and her parents if she did. She said she believed Sands would have found and killed her if she had gone to a shelter. Sands also refused appellant's requests that he leave the marital residence. Whenever she broached the subject of divorce, he beat her. When she broached the subject in late July 1998, Sands beat her and then held her hostage in their home for three weeks.
On August 12, 1998, appellant spoke to her parents and asked for their help in trying to get Sands arrested for his illegal activities, in the hope that his arrest and conviction would free her from his repeated abuse and threats. However, on August 17, before appellant's parents were able to take any significant action, they were seriously injured in an automobile accident. Appellant "knew ... [she] couldn't do anything further on that front because, if she took any direct action to report Sands' activities to the police herself, she believed Sands would find out and kill her.
On August 17, 1998, Sands accompanied appellant to the hospital in North Carolina to visit her injured parents. Sands returned home that day while appellant remained with her parents. When appellant and Sands spoke several times that week, Sands expressed his anger at the fact that appellant wanted to stay to care for her hospitalized parents rather than to come home to him. When appellant returned home on the evening of Saturday, August 22, 1998, intending to stay only overnight before returning to help her parents in North Carolina, Sands was angry because she had been gone and did not call to say she was coming home. Sands said he had been up all week since returning home the previous Monday. Sands "went into a rage," beat appellant, and threatened to kill her, saying, "you will die, I promise you, you will die." Appellant did not flee the marital home because she was afraid Sands would come after her and kill her as he had threatened. Between Saturday night and Sunday morning, Sands hit appellant "[h]undreds and hundreds of times," and threatened her with a gun he always carried, which he repeatedly put up her nose.
At approximately 11:00 a.m. on Sunday, August 23, appellant tried to hide Sands' gun, and the couple got into another argument on the back porch of their home. Despite the fact that appellant held the firearm during this time, Sands pushed her into a sink and "threw" her down five or six concrete steps. Appellant found herself lying on the ground with Sands sitting on top of her holding the firearm. After Sands pinned appellant to the ground, he again told her he would kill her, and he fired two shots into the ground near her. Once back inside the house, Sands tried to goad appellant into shooting him. He picked up the gun, which he had previously placed on the counter, and cocked it. Sands then said, "[I]f you want to shoot me here's the gun between us." The couple's four-year-old son entered the room, and the conflict came to a temporary end.
Shortly thereafter, appellant's aunt, Sallie Hodges, came to the house to get the couple's son so she could care for him while appellant returned to North Carolina to look after her parents. Appellant appeared "sad" and the side of her face looked bruised. Sands was pacing and calling appellant derogatory names. Sands told Hodges he would not allow appellant to leave. He then said to Hodges, Appellant refused to allow Hodges to take the couple's son, and Hodges left.
When appellant's brother arrived to take appellant to visit their parents, Sands would not allow appellant to leave and told her brother that he would take appellant to North Carolina himself.
Sands remained home all day, where he used cocaine and drank alcohol. Periodically, he lay down to watch television in the bedroom for five or ten minutes, but he always got up to beat appellant again and threaten her with the gun. He continued this pattern throughout the day. As the day progressed, Sands continued to tell appellant he was going to kill her, and appellant said she believed he was going to do it.
At about 10:00 p.m., appellant was able to use the telephone. She called Hodges to come get the couple's four-year-old son and take him to her house. While appellant was on the phone with Hodges, Donald Wright, the couple's neighbor, came to the couple's house and agreed to take the child to Hodges' house. Appellant said she wanted her son away from the house because she "sensed" Sands was going to kill her. After appellant called Hodges, she then called her sister-in-law, Angela Shelton, and asked Shelton to come to her house. Before Shelton arrived, Sands beat appellant again. During this beating, which appellant described as the "longest," Sands hit appellant's head with the butt of his gun and again put the barrel of the gun up her nose. He then returned to his position in the bedroom in front of the television.
When Shelton arrived, appellant was crying and upset. Shelton and appellant went into the bathroom where Shelton helped appellant undress so they could look at appellant's bruised and beaten body. After seeing the extent of her injuries, appellant started shaking and said, Appellant then "ran out of the bathroom and the door of the living room, ... came back to the kitchen, . opened the cabinet door, . . . got the gun, . . . went to the bedroom and. . . shot [Sandal" five times while he was lying in bed, awake, watching television. After appellant shot Sands, she walked out of the bedroom, laid the gun down, and called the police.
An officer who saw appellant at the scene after the shooting testified that her bruises were readily apparent and that her nose was "twisted to the side." He thought her ribs and nose were broken.
After the shooting, appellant was examined by an emergency room physician, who found that she had "multiple bruises and contusions throughout her body, most of which were extensive in the upper arms and in the flanks." The deceased had bruising on the first and second knuckles of his right hand and on the first knuckle of his left hand.
Appellant's mother, aunt, and sister-in-law testified that they had seen bruises on appellant numerous times in the months preceding the shooting, and appellant's aunt and sisterin-law testified that they observed bruises on her the day of the shooting.
At trial, appellant proffered Instruction A on the law of justifiable homicide:
THE COURT INSTRUCTS THE JURY that if you believe that the defendant was without fault in provoking or bringing on the difficulty, and if you further believe that the defendant reasonably feared, under the circumstances as they appeared to her, that she was in danger of being killed or that she was in danger of great bodily harm, then the killing was in self-defense, and you shall find the defendant not guilty.
Although the parties' arguments on the instructions do not appear in the record, the trial court refused the instruction based on its "find[ing] that there is insufficient evidence [to support] a self-defense instruction."
Appellant argues the trial court erroneously refused to instruct the jury on the law of self-defense. She contends the evidence showed that she reasonably feared imminent death or serious bodily harm at the hands of the victim and that she was without fault in bringing on the difficulty. She asserts that, although her fear of death or great bodily harm and her ability to act on that fear arose over a period of time, rather than at a particular instant, the jury should have been instructed on self-defense so that it could determine the reasonableness of her fear of imminent death or great bodily harm.
A court's "responsibility in reviewing jury instructions is `to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.'" Darnell v. Commonwealth, 6 Va.App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). "[T]he trial court should instruct the jury only on those theories of the case which find support in the evidence." Morse v....
To continue reading
Request your trial
-
Com. v. Sands, Record No. 010071.
...requested jury instruction on self-defense, reversed the convictions and remanded the case for a new trial. Sands v. Commonwealth, 33 Va.App. 669, 682, 536 S.E.2d 461, 467 (2000). This appeal by the Commonwealth Although the defendant had suffered considerable physical abuse at the hands of......
- Morris v. Com., Record No. 1610-99-4.