self-defense instruction in Virginia

2017Appellant argued that she should be entitled to the self-defense instruction as to both Harris brothers as they were “acting in concert.” The trial court denied the motion under the authority of Commonwealth v. Sands, 262 Va. 724 , 553 S.E.2d 733 (2001), stating the present case was missing “an overt act that would put a person in imminent fear of harm [which would allow a trial c]ourt to give a self-defense instruction.” After deliberating, the jury found appellant guilty of murder in the second degree, aggravated malicious wounding, and two counts of use of a firearm in the commission of a f

2017Appellant argued that she should be entitled to the self-defense instruction as to both Harris brothers as they were “acting in concert.” The trial court denied the motion under the authority of Commonwealth v. Sands, 262 Va. 724 , 553 S.E.2d 733 (2001), stating the present case was missing “an overt act that would put a person in imminent fear of harm [which would allow a trial c]ourt to give a self-defense instruction.” After deliberating, the jury found appellant guilty of murder in the second degree, aggravated malicious wounding, and two counts of use of a firearm in the commission of a f

2010Because “the right to defend another ‘is commensurate with self-defense,’” id. at 385 , 412 S.E.2d at 201 , “the overt act indicative of immediate danger” required for a self-defense defense is also necessary for a defendant to claim the defense of others defense, Vlastaris, 164 Va. at 652 , 178 S.E. at 776 .

2010Because “the right to defend another ‘is commensurate with self-defense,’” id. at 385 , 412 S.E.2d at 201 , “the overt act indicative of immediate danger” required for a self-defense defense is also necessary for a defendant to claim the defense of others defense, Vlastaris, 164 Va. at 652 , 178 S.E. at 776 .

2024Bailey, 200 Va. at 96 .

2014Id. (citing Bailey v. Commonwealth, 200 Va. 92, 96 , 104 S.E.2d 28, 31 (1958)).

2025In addition, someone claiming self-defense must establish “‘that he was in imminent danger of harm’ by showing ‘an overt act or other circumstance that afford[ed] an immediate threat to safety.’” Jones v. Commonwealth, 71 Va. App. 70 , 86 (2019) (quoting Carter v. Commonwealth, 293 Va. 537, 544 (2017)).

2024In addition, someone claiming self-defense must establish “‘that he was in imminent danger of harm’ by showing ‘an overt act or other circumstance that afford[ed] an immediate threat to safety.’” Jones v. Commonwealth, 71 Va. App. 70 , 86 (2019) (quoting Carter v. Commonwealth, 293 Va. 537, 544 (2017)).

1997Pancoast v. Commonwealth, 2 Va. App. 28, 33 , 340 S.E.2d 833, 836 (1986). 4 Even assuming that appellant acted under duress in 3 We do not address the applicability of a self-defense instruction vis-a-vis the malicious wounding charge.

1997Pancoast v. Commonwealth, 2 Va. App. 28, 33 , 340 S.E.2d 833, 836 (1986). 4 Even assuming that appellant acted under duress in 3 We do not address the applicability of a self-defense instruction vis-a-vis the malicious wounding charge.

2025The defense also requires a finding that the degree of force used was “necessary to repel the aggressor.” Id. (regarding a self-defense claim raised by a defendant attacked in his own home).

2024The defense also requires a finding that the degree of force used was “necessary to repel the aggressor.” Id. (involving a self-defense claim raised by a defendant attacked in his own home); see also Peeples v. Commonwealth, 30 Va. App. 626, 635 (1999) (en banc) (explaining that the force used must be reasonable in relation to the threatened harm).

2019“Self-defense is an affirmative defense to a charge of murder, and in making such a plea, a ‘defendant implicitly admits the killing was intentional and assumes the burden of introducing evidence of justification or excuse that raises a reasonable doubt in the minds of the jurors.’” Commonwealth v. Sands, 262 Va. 724, 729 (2001) (quoting McGhee v. Commonwealth, 219 Va. 560, 562 (1978)).

2010The other self-defense instruction was on excusable use of force, applicable if the jury found Taylor was, at least in part, at fault: If you believe from the evidence that the defendant was to some degree at fault in provoking or bringing upon the difficulty, and if you further believe that when attacked: (1) He retreated as far as he safely could under the circumstances; (2) In a good faith attempt to abandon the fight; and (3) Made known his desire for peace by word or act; and (4) He reasonably feared, under the circumstances as they appeared to him, that he was in danger of bodily harm; a

2025Instead, these were credibility issues that were for the jury to decide, not for the trial court to resolve.3 “The credibility of [appellant’s] story was for the jury to determine in the light of all the other evidence, and he was entitled to have his version of the evidence presented to them under a proper instruction or instructions.” Spear v. Commonwealth, 213 Va. 599, 601 (1973) (holding that the trial court erred in not giving a justifiable homicide instruction when “[t]he refused instruction was predicated upon defendant’s evidence and was a correct statement of the law”); see also Liena

2025In addition, as noted by the Commonwealth, “‘[t]he weight of the credible evidence that will amount to more than a mere scintilla . . . is a matter to be resolved on a case-by-case basis’ by assessing the evidence in support of a proposition against the ‘other credible evidence that negates’ it.” Lienau, 69 Va. App. at 264 (second alteration in original) (quoting King v. 3 We emphasize that our conclusion is not predicated on the actuality that the jury would have found that appellant acted in the heat of passion upon reasonable provocation.

2025Instead, these were credibility issues that were for the jury to decide, not for the trial court to resolve.3 “The credibility of [appellant’s] story was for the jury to determine in the light of all the other evidence, and he was entitled to have his version of the evidence presented to them under a proper instruction or instructions.” Spear v. Commonwealth, 213 Va. 599, 601 (1973) (holding that the trial court erred in not giving a justifiable homicide instruction when “[t]he refused instruction was predicated upon defendant’s evidence and was a correct statement of the law”); see also Liena

2024The attorney for the Commonwealth stated that the language of Instruction 23 came directly from Lienau v. Commonwealth, 69 Va. App. 254 (2018), aff’d on reh’g en banc, 69 Va. App. 780 (2019), and that Instruction 23 was needed because Instruction 16 does not define the term “imminent danger.” The trial court agreed with the attorney for the Commonwealth, and Instruction 23 was then given to the jury.

2019F. Failing to Properly Instruct the Jury “As a general rule, the matter of granting and denying instructions does rest in the sound discretion of the trial court.” Cooper v. Commonwealth, 277 Va. 377, 381 (2009).

2016Cooper, 277 Va. at 381 , 673 S.E.2d at 187 .

2004See Vaughn, 263 Va. at 37 , 557 S.E.2d at 223 (a defendant must have affirmative evidence to support a self-defense instruction); Graham, 31 Va.App. at 672 , 525 S.E.2d at 572 (a self-defense instruction is justified when the defendant repels a threat of death or great bodily harm). *405 Appellants claim that evidence in the record supports their theory that the victims were injured during the attack on appellants.

2004See Vaughn, 263 Va. at 37 , 557 S.E.2d at 223 (a defendant must have affirmative evidence to support a self-defense instruction); Graham, 31 Va.App. at 672 , 525 S.E.2d at 572 (a self-defense instruction is justified when the defendant repels a threat of death or great bodily harm). *405 Appellants claim that evidence in the record supports their theory that the victims were injured during the attack on appellants.

2010Because “the right to defend another ‘is commensurate with self-defense,’” id. at 385 , 412 S.E.2d at 201 , “the overt act indicative of immediate danger” required for a self-defense defense is also necessary for a defendant to claim the defense of others defense, Vlastaris, 164 Va. at 652 , 178 S.E. at 776 .

2010Because “the right to defend another ‘is commensurate with self-defense,’” id. at 385 , 412 S.E.2d at 201 , “the overt act indicative of immediate danger” required for a self-defense defense is also necessary for a defendant to claim the defense of others defense, Vlastaris, 164 Va. at 652 , 178 S.E. at 776 .

2010An assertion of self-defense by a defendant for a killing “‘implicitly admits the killing was intentional and assumes the burden of introducing evidence of justification or excuse that raises a reasonable doubt in the minds of the jurors.’” Sands, 262 Va. at 729 , 553 S.E.2d at 736 (quoting McGhee, 219 Va. at 562 , 248 S.E.2d at 810 ).

2010The other self-defense instruction was on excusable use of force, applicable if the jury found Taylor was, at least in part, at fault: If you believe from the evidence that the defendant was to some degree at fault in provoking or bringing upon the difficulty, and if you further believe that when attacked: (1) He retreated as far as he safely could under the circumstances; (2) In a good faith attempt to abandon the fight; and (3) Made known his desire for peace by word or act; and (4) He reasonably feared, under the circumstances as they appeared to him, that he was in danger of bodily harm; a

2025To avail oneself of the exception, “[the appellant] must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.” Holt v. Commonwealth, 66 Va. App. 199, 210 (2016) (en banc) (alteration in original) (quoting Redman v. Commonwealth, 25 Va. App. 215, 221 (1997)). “‘It is never enough for [an appellant] to merely assert a winning argument on the merits—for if that were enough, procedural default “would never apply, except when it does not matter.”’” Winslow v. Commonwealth, 62 Va. App. 539, 546 (2013) (quoting Alford v. Commonwealth, 56 Va. App.

2025To avail oneself of the exception, “[the appellant] must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.” Holt v. Commonwealth, 66 Va. App. 199, 210 (2016) (en banc) (alteration in original) (quoting Redman v. Commonwealth, 25 Va. App. 215, 221 (1997)). “‘It is never enough for [an appellant] to merely assert a winning argument on the merits—for if that were enough, procedural default “would never apply, except when it does not matter.”’” Winslow v. Commonwealth, 62 Va. App. 539, 546 (2013) (quoting Alford v. Commonwealth, 56 Va. App.

2025To avail oneself of the exception, “[the appellant] must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.” Holt v. Commonwealth, 66 Va. App. 199, 210 (2016) (en banc) (alteration in original) (quoting Redman v. Commonwealth, 25 Va. App. 215, 221 (1997)). “‘It is never enough for [an appellant] to merely assert a winning argument on the merits—for if that were enough, procedural default “would never apply, except when it does not matter.”’” Winslow v. Commonwealth, 62 Va. App. 539, 546 (2013) (quoting Alford v. Commonwealth, 56 Va. App.

2025To avail oneself of the exception, “[the appellant] must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.” Holt v. Commonwealth, 66 Va. App. 199, 210 (2016) (en banc) (alteration in original) (quoting Redman v. Commonwealth, 25 Va. App. 215, 221 (1997)). “‘It is never enough for [an appellant] to merely assert a winning argument on the merits—for if that were enough, procedural default “would never apply, except when it does not matter.”’” Winslow v. Commonwealth, 62 Va. App. 539, 546 (2013) (quoting Alford v. Commonwealth, 56 Va. App.

2025Instead, these were credibility issues that were for the jury to decide, not for the trial court to resolve.3 “The credibility of [appellant’s] story was for the jury to determine in the light of all the other evidence, and he was entitled to have his version of the evidence presented to them under a proper instruction or instructions.” Spear v. Commonwealth, 213 Va. 599, 601 (1973) (holding that the trial court erred in not giving a justifiable homicide instruction when “[t]he refused instruction was predicated upon defendant’s evidence and was a correct statement of the law”); see also Liena

2024The defense also requires a finding that the degree of force used was “necessary to repel the aggressor.” Id. (involving a self-defense claim raised by a defendant attacked in his own home); see also Peeples v. Commonwealth, 30 Va. App. 626, 635 (1999) (en banc) (explaining that the force used must be reasonable in relation to the threatened harm).

2024See Smith v. Commonwealth, 68 Va. App. 399, 413 (2018).

2024“If there is evidentiary support for the conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.’” McGowan, 72 Va. App. at 521 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).

2023Covington v. Commonwealth, 136 Va. 665, 674 (1923) (reversing where the self-defense instruction included the requirement that the accused “must prove to the satisfaction of the jury” the elements of self-defense); Jones v. Commonwealth, 187 Va. 133, 142 (1948) (reversing where the self-defense instruction required the accused to “show to the jury” that he acted in self-defense).

2023Covington v. Commonwealth, 136 Va. 665, 674 (1923) (reversing where the self-defense instruction included the requirement that the accused “must prove to the satisfaction of the jury” the elements of self-defense); Jones v. Commonwealth, 187 Va. 133, 142 (1948) (reversing where the self-defense instruction required the accused to “show to the jury” that he acted in self-defense).

2023Covington v. Commonwealth, 136 Va. 665, 674 (1923) (reversing where the self-defense instruction included the requirement that the accused “must prove to the satisfaction of the jury” the elements of self-defense); Jones v. Commonwealth, 187 Va. 133, 142 (1948) (reversing where the self-defense instruction required the accused to “show to the jury” that he acted in self-defense).

2023Covington v. Commonwealth, 136 Va. 665, 674 (1923) (reversing where the self-defense instruction included the requirement that the accused “must prove to the satisfaction of the jury” the elements of self-defense); Jones v. Commonwealth, 187 Va. 133, 142 (1948) (reversing where the self-defense instruction required the accused to “show to the jury” that he acted in self-defense).

2022See Hughes, 39 Va. App. at 464 (holding that the evidence established that the defendant “created the situation” that resulted in his stabbing the victim, thus refuting the defendant’s self-defense claim).

2020“When an accused enters a voluntary and intelligent plea . . . to an offense, he waives all defenses except those jurisdictional.” Savino v. Commonwealth, 239 Va. 534, 538 (1990).

2020As we noted in Anderson v. Commonwealth, 69 Va. App. 396, 405 (2018), a trial court does not abuse its discretion by limiting a victim’s charges and convictions entered into evidence to only those charges and convictions that are relevant to a defendant’s self-defense claim.

2020Id. at 399-400 .

2020See Clauson v. Commonwealth, 29 Va. App. 282, 290-94 (1999) (extending a defendant’s waiver of all defenses upon a guilty plea to pleas of no contest). “[B]y entering a plea of nolo contendere, the defendant ‘implies a confession . . . of the truth of the charge . . . [and] agrees that the court may consider him guilty’ for the purpose of imposing judgment and sentence.” Commonwealth v. Jackson, 255 Va. 552, 555 (1998) (quoting Honaker v. Howe, 60 Va. (19 Gratt.) 50 , 53 (1869)). -6- Therefore, because appellant entered a no contest plea, the self-defense exception to Rule 2:404(a) is inapplic