State v. Brooks

• Decision Date: 14 November 2003
• Docket Number: No. 31158.,31158.
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Sheila Jean BROOKS, Defendant Below, Appellant.

591 S.E.2d 120

214 W.Va. 562

STATE of West Virginia, Plaintiff Below, Appellee, v. Sheila Jean BROOKS, Defendant Below, Appellant.

No. 31158.

Supreme Court of Appeals of West Virginia.

Submitted October 7, 2003.

Decided November 14, 2003.

Dissenting in part, and concurring in part Opinion of Justice Maynard December 8, 2003.

Thomas J. Gillooly, Esq., Charleston, for Appellant.

Darrell V. McGraw, Jr., Esq., Attorney General, Jon R. Blevins, Esq., Assistant Attorney General, Charleston, for Appellee.

PER CURIAM.

This case is before this Court upon appeal of a final order of the Circuit Court of Mercer County entered on January 23, 2002. In that order, the court sentenced the appellant and defendant below, Sheila Jean Brooks,¹ to one year imprisonment and imposed a fine of $500.00 for her conviction of misdemeanor battery. However, the court also suspended the appellant's sentence and placed her on probation for three years with six months of home confinement. The court further ordered the appellant to perform 450 hours of community service.

In this appeal, the appellant contends that the trial court erred by refusing to give the jury her self-defense instruction. She also asserts that the trial court erred by refusing to admit certain evidence at trial. This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the final order is affirmed.

I. FACTS

The appellant was indicted on February 14, 2001, and charged with burglary and malicious assault by "striking Sharlene McCoy on the head with a crowbar." Subsequently, the burglary charge was dismissed, and the indictment was amended to charge the appellant with malicious assault by "causing serious bodily injury to Sharlene McCoy by biting her arm and index finger." The indictment arose out of events that occurred on December 16, 2000.

Around 5:00 a.m. on the day of the alleged offense, the appellant went to a house occupied by Sharlene McCoy and Katherine Barker in Bluefield, West Virginia.² Ms. Barker had previously lived with the appellant, and the appellant says that she went to the house to persuade Ms. Barker to return home with her. When she arrived at the house, the appellant stood in the yard yelling and pleading for Ms. Barker to come home. After receiving no response, the appellant left. She returned twenty minutes later and again yelled for Ms. Barker and put some of her possessions in the yard.³ This time, Ms. Barker told the appellant to leave and threatened to call the police if she did not do so. The appellant left but returned around 7:00 a.m.

When the appellant came back to the house for the third time, she was carrying a crowbar and a crescent wrench. She proceeded to enter the house and go upstairs where she confronted Ms. Barker and Ms. McCoy. A fight and struggle ensued, which ended with Ms. McCoy subduing the appellant, and Ms. Barker phoning the police.

At trial, Ms. Barker and Ms. McCoy testified that the appellant first attacked Ms. Barker with the crowbar, striking her in the elbow as she jumped from her bed. Ms. McCoy said the appellant then turned to her, brandished the crowbar, and said, "Do you f---ing want some of this?" Ms. McCoy said that she then "engaged" the appellant in order to defend herself and a struggle ensued. She wrestled the crowbar from the appellant, threw it aside, and sat on the appellant's back to hold her down. However, according to Ms. McCoy, the appellant then produced the crescent wrench and continued to try to attack her. During the struggle, the appellant bit Ms. McCoy's index finger and forearm. The appellant suffered a broken nose.

In contrast, the appellant testified at trial that she was concerned about her friend, Ms. Barker, and went to the house to "rescue" her. With regard to the struggle with Ms. McCoy, the appellant testified that she did not remember who hit whom first. She stated:

All I remember is being spun around and pinned down on the floor with the crowbar. I couldn't breath[e]. She was choking me. I think at that particular time I got a hold of her arm and bit it.

The appellant maintained that her actions were in self-defense.

Following a two-day jury trial, the appellant was found guilty of misdemeanor battery. As noted above, the circuit court sentenced the appellant to one year imprisonment and imposed a fine of $500.00, but then suspended the sentence and placed the appellant on probation for three years with six months of home confinement. The court further ordered the appellant to perform 450 hours of community service.⁴ Subsequently, the appellant filed this appeal.

II. STANDARD OF REVIEW

As set forth above, the appellant asserts error because the trial court failed to give the jury the self-defense instruction she proposed. "As a general rule, the refusal to give a requested jury instruction is reviewed for an abuse of discretion. By contrast, the question of whether a jury was properly instructed is a question of law, and the review is de novo." Syllabus Point 1, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996). As we explained in Syllabus Point 4 of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995):

A trial court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not mislead by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.

The appellant also claims the trial court erred by refusing to allow her to introduce certain evidence at trial. In Syllabus Point 1 of State v. Martisko, 211 W.Va. 387, 566 S.E.2d 274 (2002), this Court held that "`[a] trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard.' Syl pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998)." Accordingly, with these standards in mind, we will now determine whether the trial court committed reversible error.

III. DISCUSSION

A. The Self-Defense Instruction

The appellant first contends that the trial court erred by refusing to give the jury her self-defense instruction. As discussed above, the appellant testified at trial that Ms. McCoy seized the crowbar from her and attempted to use it to choke her. The appellant's defense theory was that even if she was viewed as the initial aggressor because she gained entry into the house by force,⁵ the situation quickly changed, and Ms. McCoy became the aggressor and she became the victim. Thus, the appellant claimed that her actions toward Ms. McCoy were merely self-defense. She proposed that the jury be given a self-defense instruction. The State objected.

After consideration, the trial court determined that the jury should be advised of the law regarding self-defense. Accordingly, the court gave the jury instruction proposed by the appellant which is set forth below, but excluded the italicized language.

One of the questions to be determined by you in this case is whether or not the Defendant acted in self-defense so as to justify her acts. Under the laws of this state, if the Defendant was not the aggressor, and had reasonable grounds to believe and actually did believe that she was in imminent danger of death or serious bodily harm from which she could save herself only by using deadly force against her assailant, then she had the right to employ deadly force in order to defend herself. By deadly force is meant force which is likely to cause death or serious harm.

You should be cautious in deciding who was the aggressor because a defendant's role may shift from aggressor to victim during the course of an altercation because only reasonable and proportionate force may be used to repel an assault. Where a person assaulted uses disproportionate force to repel an attack, the privilege of self-defense is lost and the person so assaulted is entitled to defend themselves.

In order for the Defendant to have been justified in the use of deadly force in self-defense, she must not have provoked the assault on her or have been the aggressor. Mere words, without more, do not constitute provocation or aggression. Mere provocation by words or conduct, no matter how insulting, does not destroy the privilege of self-defense, even though a reasonable woman should realize that the provocation will probably induce the attack. But if the actor actually intends her provocative words or actions to induce an attack, they amount to a challenge to fight, and as such, to a consent similar to that given in a case of mutual affray. In the case of a fight or affray by mutual consent, each party gives consent to those blow[s] from which she is unable to protect herself. But each consents to the other using such force as is reasonably necessary to defend herself against her opponent's attack. The circumstances under which she acted must have been such as to produce in the mind of a reasonable prudent person, similarly situated, the reasonable belief that the other person was then about to kill her to do her serious bodily harm. In addition, the Defendant must have actually believed that she was in imminent danger of death or serious bodily harm and that deadly force must be used to repel it. If evidence of self-defense is present, the State must prove beyond a reasonable doubt that the Defendant did not act in self-defense. If you find that the...