State v. Baker

• Decision Date: 05 May 1987
• Docket Number: No. 17188,17188
• Citation: 356 S.E.2d 862,177 W.Va. 769
• Parties: STATE of West Virginia v. Margaret BAKER.
• Court: West Virginia Supreme Court

Page 862

356 S.E.2d 862

177 W.Va. 769

STATE of West Virginia v. Margaret BAKER.

No. 17188.

Supreme Court of Appeals of West Virginia.

May 5, 1987.

Syllabus by the Court

1. The amount of force that can be used in self-defense is that normally one can return deadly force only if he reasonably believes that the assailant is about to inflict death or serious bodily harm; otherwise, where he is threatened only with non-deadly force, he may use only non-deadly force in return.

2. "Once there is sufficient evidence to create a reasonable doubt that the killing resulted from the defendant acting in self-defense, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense." Syllabus Point 4, State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978).

Gayle Fidler, Asst. Atty. Gen., for appellant.

Joseph A. Colosi, Welch, for appellee.

MILLER, Justice:

The defendant, Margaret Baker, appeals her conviction for voluntary manslaughter and assigns as primary error that she was entitled to a judgment of acquittal as self-defense was shown as a matter of law. We agree.

The deceased, George Swims, was killed at a bar operated by the defendant and her friend, a Selva Rich. The autopsy revealed that the deceased had five gunshot wounds in various parts of his body. He had been drinking and, at the autopsy, he was found to have 0.18 percent alcohol in his blood.

The argument that led to the fatal shooting occurred after the deceased had demanded some beer and had been refused service by the bartender, an Orville Cottle. There was substantial evidence that the deceased was intoxicated when he came into the bar. He pushed his way past the bartender and said he was going to get his own beer. One of the patrons went to get Mr. Rich who owned the bar and who lived downstairs. When Mr. Rich came into the bar, he advised the deceased to leave. An argument ensued with the deceased striking Mr. Rich in the stomach with a door he had pulled off a beer cooler.

At this point, Mr. Rich struck the deceased with a pistol, whereupon the deceased began to choke Mr. Rich and drag him toward the storeroom. Mr. Rich's gun, a .38 caliber pistol, had fallen to the floor during this struggle. The defendant, who had been yelling at the deceased to leave Mr. Rich alone, picked the gun up and fired a warning shot.

The deceased then released Mr. Rich and started toward the defendant stating, "I'll kill you Bitch. I'll kill you, Bitch." She shot the deceased as he continued to come toward her and she fired several more times in rapid succession. The defendant was backing away and at one point stated, "I don't want to hurt you." After the shooting, the defendant ran out of the bar and into the downstairs apartment where she lived with Mr. Rich. The deceased walked out of the bar and collapsed outside. He was still alive when the emergency vehicle arrived, but died after he reached the hospital.

Both the defendant and other witnesses testified as to the violent reputation of the deceased. The defendant testified that she believed the deceased intended to kill her or to inflict serious bodily injury. The defendant was about fifty-four years of age at the time and was of a rather small stature. The deceased was in his twenties and was considerably bigger, weighing approximately two hundred fifteen pounds.

The pivotal question on the self-defense issue here is whether under the circumstances, the defendant was entitled as a matter of law to employ deadly force against the deceased who was unarmed. We spoke to this point in State v. W.J.B., --- W.Va. ---, ---, 276 S.E.2d 550, 554 (1981):

"The more particular statement as to the amount of force that can be used in self-defense is that normally one can return deadly force only if he reasonably believes that the assailant is about to inflict death or serious bodily harm; otherwise, where he is threatened only with non-deadly force, he may use only non-deadly force in return." (Citations omitted).

We can assume, since neither side argues to the contrary, that the defendant had a right to intervene in the initial fight between her live-in companion, Mr. Rich, and the deceased. See State v. Saunders, --- W.Va. ---, 330 S.E.2d 674 (1985); State v. Wilson, 145 W.Va. 261, 114 S.E.2d 465 (1960). ¹ It was this intervention that caused the deceased to start after the defendant. Certainly, the defendant could consider the attack on Mr. Rich in assessing her degree of vulnerability.

The State in support of its argument that self-defense was not shown as a matter of law relies on State v. Clark, --- W.Va. ---, 331 S.E.2d 496 (1985). There, the defendant had attempted to intervene in an argument that the victim was having with a third party. As the defendant approached the victim who was, an older and smaller man, the victim pulled out a pistol and shot the defendant causing two superficial wounds.

The evidence was in conflict as to how the victim was killed. The State's evidence indicated the defendant fell on the victim and was able to seize the gun and fire three shots into the victim's abdominal area. The defendant testified that in the course of wrestling with the victim, the gun was discharged. We concluded in Clark, --- W.Va. at ---, 331 S.E.2d at 500, that the issue of self-defense could not be resolved as a matter of law because "a person is not justified in shooting or employing a deadly weapon after the adversary has been disarmed or disabled."

Here, there was no evidence suggesting that at any point the deceased was disabled such that the defendant could be said to have no reasonable expectation that she would not be subject to serious bodily harm. Her testimony indicated that after the shooting, the deceased was still coming toward her. She testified that when she fled the bar she thought he was still pursuing her....