Yarborough v. Com.

Decision Date22 April 1977
Docket NumberNo. 760761,760761
CourtVirginia Supreme Court
PartiesRose Ella YARBOROUGH v. COMMONWEALTH of Virginia. Record

Alvin B. Fox, Newport News (R. Rick Reiss, Ellenson, Fox & Wittan, Inc., Newport News, on brief), for plaintiff in error.

Jim L. Chin, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

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

COMPTON, Justice.

Upon an indictment for the murder of Charles Augusta Vines, defendant Rose Ella Yarborough was convicted by the trial court, sitting without a jury, of voluntary manslaughter and sentenced to confinement in the penitentiary for a term of five years. The writ of error awarded defendant to the March 2, 1976 judgment of conviction presents issues dealing with: (1) admissibility of certain incriminating statements made by the defendant, when intoxicated, during a custodial interrogation; and (2) application by the court below of the doctrine of excusable homicide in self-defense. We find no reversible error and affirm.

The facts are not in dispute. On September 11, 1975 near 6:30 p. m., defendant and Vines appeared at the back door of the residence of Rosa Lee McNeill, defendant's sister-in-law, located in the City of Newport News. McNeill refused to admit them to her home because they "had been drinking" and were "arguing." Thereafter, the couple remained on McNeill's back porch for about 35 minutes and continued to argue. Then McNeill, who had stayed within her home watching television, heard the sound of gunfire outside. She went to her back door, saw Vines "laying on the ground", and determined he had been shot.

Defendant, testifying as the only defense witness, said Vines had been her "boyfriend" for about seven years. She stated that during the period of their relationship they had argued and that Vines had been "violent" to her. She testified that on prior occasions, he had "shot me with a sawed off shotgun, shot half of my breast off and I had a hole in my arm", all resulting in three separate operations. She also said that in the past defendant "throwed me down the steps one time and broke my shoulder."

Testifying about the event in question, defendant said that shortly before the shooting, she and Vines, both of whom had been drinking intoxicating beverages, were together at her mother's house, located near McNeill's home, when Vines gave her a loaded .22 caliber revolver. At the time, according to defendant, Vines "said he wanted (the gun) for protection" "protection" of whom being unclear from the record.

Defendant further testified the couple then went to McNeill's back porch where Vines "got to arguing" with her. When the argument continued, Vines became "nasty" and "violent". Finally, Vines "knocked" defendant from McNeill's back porch into some nearby bushes. She then "shoved" him "back in the bushes" and then he "knocked" her to the ground and again into the shrubbery. As defendant "tried to get up," Vines, who was then close to defendant, reached down toward a boot he was wearing. Defendant knew he was carrying a 14-inch long-bladed knife in the boot so, as his hand was "a little past his knee", she pulled the revolver from her "bosom" and shot him. Vines, who later died from one gunshot wound of the chest, never drew the knife.

Defendant testified: "I didn't intend to shoot him; I tried to get him off of me I knew when he was drunk he was violent." Asked whether at the time she fired the weapon she was able to "retreat anywhere", defendant said "I was at that time . . . in the hedges; at that time it was thick." Defendant stated she shot Vines without first asking him not to use the knife because she was "scared of him" and because she knew he would not heed her request; she said that when Vines shot her with the shotgun on the prior occasion, she first pleaded with him not to fire.

Leaving Vines lying on the ground, defendant ran to her mother's home and hid the revolver under a mattress. She then "ran around the block", because she was "excited", and eventually returned to the scene. In the meantime, Vines had been removed from the area by ambulance and the police had arrived to investigate. When defendant returned, she approached the officers who, by then, suspected defendant "was involved" in the crime. After being given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and being told she would be charged with murder if Vines died, defendant stated "I shot him." She then led one of the officers to the room where the revolver was hidden and identified it as being the weapon she used to shoot Vines.

Defendant first contends the evidence shows she was "heavily intoxicated" when given the Miranda warnings and when she made the foregoing inculpatory statements. She argues that, accordingly, the trial court erred by receiving such statements in evidence through the testimony of one of the investigating officers because, as the result of her intoxication, defendant lacked the capacity to knowingly and intelligently waive her privilege against self-incrimination and her right to the assistance of counsel. The pertinent law as applied to this evidence fails to support this contention.

Two of the investigating officers testified and stated the defendant was "intoxicated" at the scene. These opinions were based on their observations of defendant's "mannerism and the way she was talking." The officers smelled the odor of liquor on defendant's person and testified she was "staggering about" and "constantly weeping." But at trial defendant said she "had been drinking a little bit . . . not much, though" immediately preceding the shooting. She further stated she knew "what was happening" and "going on" at the time she was warned and when she discussed the shooting with the police.

Statements made during a custodial interrogation and while intoxicated are not per se involuntary or inadmissible. United States v. Brown, 535 F.2d 424, 427 (8th Cir. 1976). The test is whether, by reason of the intoxication, the defendant's "will was overborne" or whether the statements were the "product of a rational intellect and a free will." Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963). In this case, the evidence fully supports the trial court's ruling that defendant made a knowing and intelligent waiver of her Miranda rights and that the statements were voluntary. The defendant testified she had been " drinking" only "a little bit" just before the events in question and that she understood "what was going on" at the time. Moreover, her conduct immediately after the shooting, and during the ensuing investigation, demonstrates she was not too intoxicated to understand and appreciate the Miranda warnings. For example, she immediately went to her mother's home after the shooting and secreted the pistol; she voluntarily returned to the scene and reported to the police officers; she led an investigator to the place where the revolver was hidden; and she identified the gun to the officer as the murder weapon. Clearly, the defendant's will was not "overborne" and her statements were the " product of a rational intellect and a free will." See United States v. Cox, 166 U.S.App.D.C. 57, 509 F.2d 390, 392 (1974); Fant v. Peyton, 303 F.Supp. 457 (W.D.Va.1969).

Defendant next contends the trial court "erred as a matter of law in ignoring the theory of excusable homicide in self-defense and in precluding the defendant from relying upon such defense." She points to certain comments made during the trial by the court below and interprets them to mean the court improperly refused to consider the foregoing defense when, under the evidence, the defendant was entitled to rely thereon. Actually, defendant's argument reaches farther than the above-stated position which, if sustained, would warrant a reversal and remand; she seeks a judgment here of acquittal as a matter of law, not a new trial, contending the "evidence is sufficient to sustain her plea of excusable homicide se defendendo."

Killing in self-defense may be either justifiable or excusable homicide. "Justifiable homicide in self-defense occurs where 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." Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, 31 (1958); Dodson v. Commonwealth, 159 Va. 976, 167 S.E. 260 (1933). "Excusable homicide in self-defense occurs where the accused, although in some fault in the first instance in provoking or bringing on the difficulty, when attacked retreats as far as possible, announces his desire for peace, and kills his adversary from a reasonably apparent necessity to preserve his own life or save himself from great bodily harm." 200 Va. at 96, 104 S.E.2d at 31. But bare fear that a person intends to inflict serious bodily injury on the accused, however well-grounded, unaccompanied by any overt act indicating such intention, will not warrant killing such person. Harper v. Commonwealth,196 Va. 723, 731, 85 S.E.2d 249, 254 (1955).

With these principles in mind, we now turn to the comments of the trial judge which defendant contends demonstrate the court below refused to apply the doctrine of excusable homicide. But we will not set forth the trial court's comments out of the context in which they were made, so far as we are able to ascertain that context from the transcript, which contains only excerpts from the colloquy between court and counsel, and which does not fully set forth the arguments on the law of the case of either the prosecutor or defense counsel. We will italicize the court's comments which are singled out and relied on by defendant to sustain her position.

The Commonwealth's case-in-chief was presented through the testimony of two of the...

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