Smith v. Com., 0488-92-2

• Decision Date: 14 September 1993
• Docket Number: No. 0488-92-2,0488-92-2
• Citation: 435 S.E.2d 414,17 Va.App. 68
• Parties: Jermaine Jerome SMITH v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 414

435 S.E.2d 414

17 Va.App. 68

Jermaine Jerome SMITH v. COMMONWEALTH of Virginia.

Record No. 0488-92-2.

Court of Appeals of Virginia.

Sept. 14, 1993.

Jody Ann Jacobson, Asst. Public Defender (David J. Johnson, Public Defender, on brief), for appellant.

Kathleen B. Martin, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: COLEMAN, WILLIS and ELDER, JJ.

COLEMAN, Judge.

In a bench trial, Jermaine Jerome Smith was found guilty of voluntary manslaughter. We must decide whether the evidence proved as a matter of law that Smith acted in self-defense when he intentionally killed Donnell Skinner. The question is whether the killing was an excusable homicide.

Based on familiar principles, we review the evidence in the light most favorable to the Commonwealth and grant to it all reasonable inferences fairly deducible therefrom. The undisputed evidence proved that Smith retreated as far as possible and killed Skinner only to avoid being killed himself. Accordingly, we hold that the facts establish excusable self-defense as a matter of law. Therefore, we reverse the manslaughter conviction and dismiss the charges against Smith.

On October 31, 1991, at approximately 2:00 a.m., Smith shot Donnell Skinner in the apartment of Crystal White, Smith's girlfriend. Donnell Skinner and James Thompson came to White's apartment to continue a discussion with Smith regarding some missing drugs. Earlier that night, Smith had been confronted by Skinner and Thompson on the street after Smith had taken several packets of cocaine that he "found" hidden near White's apartment building. When Skinner and Thompson accused Smith of stealing their cocaine and demanded its return, Smith gave them one of the packets. He kept the others, however, and went to White's apartment. Soon thereafter, Skinner and Thompson arrived, spoke briefly with Smith about their missing drugs and, after getting no satisfaction, they left. Fifteen minutes later, they returned and accused Smith and White of stealing their drugs. Both Skinner and Thompson displayed firearms during the confrontation. Unbeknownst to Skinner and Thompson, Smith was armed with a pistol in his back pocket.

Skinner grabbed White and put his gun to her face. Smith, who knew that Skinner had a reputation "for robbing and shooting people," urged White to tell Skinner anything that she knew about the missing cocaine. Skinner took White into the bathroom and informed her that he was not going to hurt her. However, when he returned to the living room, he told Smith that he was going to kill White. Attempting to placate Skinner, Smith and another friend, Lamont, who was in the apartment, gave Skinner approximately $200 for the missing drugs. Despite this attempt to forestall violence, Skinner continued to make threats, saying, "[W]hy don't we just go ahead and do what we said we were going to do.... [T]hey gonna tell on us.... [W]e gotta do what we gotta do."

Smith, who at this time had backed from the living room into the kitchen, saw Thompson cock his gun. Skinner, with his gun in hand, began to turn toward Smith. As Skinner did so, Smith drew his pistol and fired at Skinner, hitting him in the head. Thompson returned fire, and Smith continued shooting randomly until all his ammunition had been fired. He then peered into the living room, at which time Thompson, who was lying on the floor, shot Smith in the arm. Smith fled out the door to a neighbor's apartment. From there, he went by taxi to the hospital. Smith, Thompson, and Skinner had all been shot. Skinner, who was shot twice, died from a gunshot wound to the head.

At the hospital, Smith first told a detective that he had been shot in public by a stray bullet and knew no details about the shooting. Later, on November 5, 1991, Smith told the detective in a videotaped interview about the shooting in White's apartment. At trial, Smith claimed that he killed Skinner in self-defense. The trial judge found, however, that by taking the drugs, Smith had instigated a conflict with Skinner and Thompson and, therefore, that the killing had been during mutual combat.

Self-defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt about his guilt. McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978). Whether an accused proves circumstances sufficient to create a reasonable doubt that he acted in self-defense is a question of fact. Yarborough v. Commonwealth, 217 Va. 971, 979, 234 S.E.2d 286, 292 (1977). A trial judge's factual findings will not be disturbed on appeal unless plainly wrong or without evidence to support them. Id.

Killing in self-defense may be either justifiable or excusable. If it is either, the accused is entitled to an acquittal. Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, 31 (1958).

"Justifiable homicide in self-defense occurs [when] a person, without any fault on his part in provoking or bringing on the difficulty, kills another under reasonable apprehension of death or great bodily harm to himself." Id. If an accused "is even slightly at fault" in creating the difficulty leading to the necessity to kill, "the killing is not justifiable homicide." Perricllia v. Commonwealth, 229 Va. 85, 94, 326 S.E.2d 679, 685 (1985); Dodson v. Commonwealth, 159 Va. 976, 981, 167 S.E. 260, 261 (1933). Any form of conduct by the accused from which the fact finder may reasonably infer that the accused contributed to the affray constitutes "fault." Bell v. Commonwealth, 2 Va.App. 48, 58, 341 S.E.2d 654, 659 (1986).

Excusable homicide in self-defense occurs where the accused, although...