Commonwealth v. Sands

Present: All the Justices

COMMONWEALTH OF VIRGINIA

v. Record No. 010071 OPINION BY JUSTICE CYNTHIA D. KINSER
November 2, 2001
VICTORIA SHELTON SANDS

FROM THE COURT OF APPEALS OF VIRGINIA

A jury convicted the defendant, Victoria Shelton

Sands, of the first degree murder of her husband, Thomas

Lee Sands, and of the use of a firearm in the commission of

murder. The Court of Appeals of Virginia, finding that the

trial court erred in refusing to give the defendant’s

requested jury instruction on self-defense, reversed the

convictions and remanded the case for a new trial. Sands

v. Commonwealth, 33 Va. App. 669, 682, 536 S.E.2d 461, 467

(2000). This appeal by the Commonwealth followed.

Although the defendant had suffered considerable

physical abuse at the hands of her husband before fatally

shooting him, we find no evidence of an overt act

indicative of the deceased’s imminent intention to kill or

seriously harm his wife at the time of the shooting, such

as to make a self-defense instruction appropriate. Thus,

we will reverse the judgment of the Court of Appeals and

reinstate the defendant’s convictions.
 FACTS

Thomas Lee Sands began beating his wife approximately

two years after they were married in 1983. Over time, the

abuse grew more severe, finally becoming a daily

occurrence. The defendant repeatedly asked her husband for

a divorce or suggested that they go their “different ways,”

but he always refused her attempts to end their

relationship and responded by beating her again. The

defendant believed that she could not leave because Thomas

threatened to kill her and her family if she did so. After

one such episode in July 1998, Thomas kept his wife hostage

in their residence for three weeks.

In August 1998, the defendant sought the assistance of

her parents in an attempt to have her husband arrested for

his illegal activities. 1 In the defendant’s words, “If I

could get Tommy busted on all this stuff, . . . I could get

him out of my life.” However, shortly after the

defendant’s mother spoke with a law enforcement officer

about her daughter’s situation, the defendant’s parents

were critically injured in an automobile accident,

resulting in their hospitalization. The defendant was

1
During the last eight to ten years of the marriage,
Thomas was not lawfully employed; he instead sold cocaine,
marijuana, and “bootleg” whiskey. He also regularly
carried a gun.

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afraid to take any other action herself because she

believed her husband would kill her if he discovered her

plans.

On the evening of August 22, 1998, the defendant

returned home after visiting her injured parents in the

hospital. At that time, according to the defendant, Thomas

“went into a rage,” beat her, and threatened to kill her.

Around 11:00 a.m. the next morning, a neighbor observed the

defendant walk out of her kitchen door onto the back porch

with a gun in her hand. The gun was raised in a “semi-

fire” position. The defendant claims she was trying to get

the gun out of the house to hide it for her own protection.

The defendant’s husband, however, followed her onto

the back porch where the couple again fought. During that

scuffle, Thomas pushed his wife into a sink, opened a door,

and threw her down several concrete steps onto the ground.

At some point during that incident, he seized the gun that

the defendant had been carrying, and while she was lying on

the ground with Thomas sitting on top of her, he fired two

shots into the ground near her. The couple then went back

inside the house, where Thomas demonstrated how to cock the

gun, placed it on a counter between them, and taunted the

defendant to “pick the gun up and shoot [him].” The fight

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ended temporarily when the couple’s four-year-old son

entered the room.

Soon thereafter, the defendant’s aunt, Sallie Hodges,

arrived at the house. Hodges described her niece as “real

sad,” with a bruise on the side of her face. Although the

defendant had planned to return to the hospital to care for

her parents, Thomas would not allow her to leave with

Hodges. He kept pacing the floor and pointing his finger

at Hodges, while stating, “I’ll kill you and your whole

family. . . . I’ve knocked off a few and I can knock off a

few more.” He likewise would not allow his wife to leave

with her brother who had also stopped at the house.

For the rest of the day, Thomas drank beer, used

cocaine, physically abused his wife, and threatened to kill

her. He would intermittently watch television in the

bedroom for short periods of time, but always returned to

the assault upon his wife. The defendant admitted that she

also used some cocaine that day.

Around 10:00 p.m., the defendant telephoned Hodges and

asked her to come over and get the couple’s son. While the

defendant was on the telephone with Hodges, a neighbor

stopped by the house and agreed to take the child to

Hodges’ home. The defendant testified that she wanted her

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son out of the house because she “sensed” that her husband

was going to kill her.

The defendant then telephoned her sister-in-law,

Angela Shelton, and asked her to come to the house. After

that telephone call, Thomas beat his wife again. During

that episode, which the defendant described as “the

longest,” Thomas used his fists and the butt of a gun to

attack her. He also pushed the barrel of the gun up into

his wife’s nose.

When Shelton arrived, the defendant came to the door

to let her into the house. Shelton observed that the

defendant was crying and looked upset. The defendant asked

her sister-in-law to accompany her into the bathroom, where

Shelton helped the defendant pull up her shirt. Upon

seeing her injuries, the defendant “started shaking really,

really bad, and her eyes got real wild eyed[,]” according

to Shelton. Referring to her husband, the defendant then

stated, “He’s the devil. I got to get this devil out of my

house. He’s evil. He [is] gonna kill me.” The defendant

then ran “out of the bathroom and the door of the living

room, . . . came back to the kitchen, . . . opened the

cabinet door, . . . got the gun, and . . . went to the

bedroom” where she shot her husband five times while he was

lying in bed, watching television. When asked at trial if

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she said anything to her husband before shooting him, the

defendant answered, “No sir.” She also testified that her

husband said only, “What are you doing[?]” After shooting

her husband, the defendant walked back to the kitchen, put

the gun on a bar, and telephoned “911.” The first law

enforcement officer to arrive at the scene received a call

about the incident at approximately 11:00 p.m.

Several hours after the shooting, an emergency room

physician examined the defendant. That doctor observed

“multiple bruises and contusions throughout [the

defendant’s] body,” especially in the areas of her upper

arms and flanks. However, x-rays of her skull, spine, and

chest were normal. A police officer who investigated the

shooting and saw the defendant at the scene reported that

he observed bruising on the defendant’s arms and that her

nose “was kind of twisted to the side.”

At trial, the defense proffered the following jury

instruction on self-defense:

THE COURT INSTRUCTS THE JURY that if you believe
that the defendant was without fault in provoking or
bringing on the difficulty, and if you further believe
that the defendant reasonable [sic] feared, under the
circumstances as they appeared to her, that she was in
danger of being killed or that she was in danger of
great bodily harm, then the killing was in self-
defense, and you shall find the defendant not guilty.

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The circuit court denied the instruction on the basis that

there was “insufficient evidence for a self-defense

instruction.”

ANALYSIS

The question to be decided in this appeal is whether

the defendant was entitled to a jury instruction on self-

defense. Because the trial court refused to grant the

instruction proffered by the accused, we view the facts in

the light most favorable to the defendant. Commonwealth v.

Alexander, 260 Va. 238, 240, 531 S.E.2d 567, 568 (2000).

However, an instruction is proper only if supported by more

than a scintilla of evidence. Commonwealth v. Donkor, 256

Va. 443, 445, 507 S.E.2d 75, 76 (1998). If the instruction

is not applicable to the facts and circumstances of the

case, it should not be given. Hatcher v. Commonwealth, 218

Va. 811, 813-14, 241 S.E.2d 756, 758 (1978) (citing Banner

v. Commonwealth, 204 Va. 640, 647, 133 S.E.2d 305, 310

(1963)). Thus, it is not error to refuse an instruction

when there is no evidence to support it. See LeVasseur v.

Commonwealth, 225 Va. 564, 590-92, 304 S.E.2d 644, 658-59

(1983), cert. denied, 464 U.S. 1063 (1984).

The principles governing a plea of self-defense are

well-established. Self-defense is an affirmative defense

to a charge of murder, and in making such a plea, a

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“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.” McGhee v. Commonwealth, 219 Va.

560, 562, 248 S.E.2d 808, 810 (1978). The “bare fear” of

serious bodily injury, or even death, however well-

grounded, will not justify the taking of human life.

Stoneman v. Commonwealth, 66 Va. (25 Gratt.) 887, 900

(1874). “There must [also] be some overt act indicative of

imminent danger at the time.” Vlastaris v. Commonwealth,

164 Va. 647, 652, 178 S.E. 775, 776 (1935). See also

Yarborough v. Commonwealth, 217 Va. 971, 975, 234 S.E.2d

286, 290 (1977); Mercer v. Commonwealth, 150 Va. 588, 597,

142 S.E. 369, 371 (1928). In other words, a defendant

“must wait till some overt act is done[,] . . . till the

danger becomes imminent.” Vlastaris, 164 Va. at 652, 178

S.E. at 777. In the context of a self-defense plea,

“imminent danger” is defined as “[a]n immediate, real

threat to one’s safety . . . .” Black’s Law Dictionary 399

(7th ed. 1999). “There must be . . . some act menacing

present peril . . . [and] [t]he act . . . must be of such a

character as to afford a reasonable ground for believing

there is a design . . . to do some serious bodily harm, and

imminent danger of carrying such design into immediate

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execution.” Byrd v. Commonwealth, 89 Va. 536, 539, 16 S.E.

727, 729 (1893).

In holding that the trial court erroneously refused to

instruct the jury on self-defense, the Court of Appeals

construed the term “imminent” to mean something less than

“immediate.” Sands, 33 Va. App. at 678, 536 S.E.2d at 465

(quoting Sam v. Commonwealth, 13 Va. App. 312, 325, 411

S.E.2d 832, 839 (1991)). Applying its view of that term,

the Court of Appeals concluded that, “[u]nder the facts of

this case, the fact finder could reasonably have concluded

that [the defendant] was without fault in beginning the

altercation, reasonably apprehended she was in imminent

danger of death or serious bodily harm and, thus, was

justified in shooting her husband to prevent him from

killing her or further inflicting serious bodily harm upon

her.” Sands, 33 Va. App. at 679, 536 S.E.2d at 465.

We agree that the defendant reasonably believed that

she was in danger of serious bodily harm or death.

Nevertheless, that reasonable belief is not dispositive of

the issue before us in this appeal. The question here is

whether the circumstances immediately surrounding the

killing, specifically, the actions of the defendant’s

husband at that time, were sufficient to create a

reasonable belief of an imminent danger which had to be

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met. The Court of Appeals did not squarely address this

requirement of an overt act.

Even when viewed in the light most favorable to the

defendant, the evidence fails to reveal any overt act by

her husband that presented an imminent danger at the time

of the shooting. The last episode between the defendant

and her husband occurred after the defendant telephoned

Shelton. 2 Then, sufficient time elapsed for Shelton to

arrive at the couple’s home, and for the defendant to view

the extent of her injuries while in the bathroom with

Shelton, walk from the bathroom to the living room door,

turn around and proceed back into the kitchen, retrieve a

gun from a cabinet, and walk back into the bedroom where

her husband was reclining on the bed, watching television.

At that moment, the only reaction by the defendant’s

husband was his question, “What are you doing[?]” While we

do not doubt the defendant’s genuine fear for her life or

minimize the atrocities inflicted upon her, we cannot point

to any evidence of an overt act indicating imminent danger,

or indeed any act at all by her husband, when she shot him

five times while he reclined on the bed. Nor did the Court

2
The defendant acknowledges on brief that the last
assault occurred within an hour of the shooting.

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of Appeals cite to any such evidence. Thus, the defendant

was not entitled to an instruction on self-defense.

The requirement of an overt act indicative of imminent

danger ensures that the most extreme recourse, the killing

of another human being, will be used only in situations of

necessity. “The plea of self-defense is a plea of

necessity and the necessity must be shown to exist or there

must be shown such reasonable apprehension of the immediate

danger, by some overt act, as to amount to the creation of

necessity.” Vlastaris, 164 Va. at 651, 178 S.E. at 776.

CONCLUSION

For these reasons, we will reverse the judgment of the

Court of Appeals and enter final judgment reinstating the

convictions.

Reversed and final judgment.

JUSTICE KOONTZ, dissenting.

I respectfully dissent. The facts in this case as

recited by the majority fully support the majority’s

conclusion that Victoria Shelton Sands “reasonably believed

that she was in danger of serious bodily harm or death” as

a result of “the atrocities inflicted upon her” by her

husband on the day Sands shot and killed her husband.

Nevertheless, the majority finds “no evidence of an overt

act indicative of the deceased’s imminent intention to kill

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or seriously harm his wife at the time of the shooting such

as to make a self-defense instruction appropriate.” In my

view, the majority decides as a matter of law an issue that

was properly within the sole province of the jury.

I have no quarrel with the majority’s recitation of

the law applicable to this case. Clearly, “[w]hether the

defendant [acted] in self-defense depends on whether [she]

reasonably believed that it was necessary to [act] as [she]

did in order to save [her] own life or avoid serious bodily

harm.” Boone v. Commonwealth, 195 Va. 708, 712, 80 S.E.2d

412, 414 (1954). The majority is also correct that the

evidence must show some overt act by the deceased

indicative of imminent danger. Vlastaris v. Commonwealth,

164 Va. 647, 652, 178 S.E.2d 775, 777 (1935). “These are

ordinarily questions for the jury.” Boone v. Commonwealth,

195 Va. at 712, 80 S.E.2d at 414. And, a self-defense

instruction is proper if supported by more than a scintilla

of evidence. See Commonwealth v. Donkor, 256 Va. 443, 445,

507 S.E.2d 75, 76 (1998).

The majority concludes that the temporary cessation in

the victim’s brutalization of Sands removed her from

“imminent danger” and, thus, she was not entitled to have

the jury instructed on self-defense and to have the jury

consider the reasonableness of her perception that her life

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was in imminent danger when she shot the victim. The

majority reaches this conclusion by reasoning that imminent

danger means “a[n] immediate, real threat to one’s safety.”

In other words, the majority, in effect, concludes that

because there was no objective simultaneous threat to

Sands' life, her acknowledged subjective belief that she

was in imminent danger when she shot her husband could not

have been reasonable.

In my view, the pattern of brutalizing acts committed

upon Sands over the preceding twenty-four hours, coupled

with the repeated threats to kill her, constituted the

necessary “overt act” on the part of the victim such as to

make a self-defense instruction appropriate. Although the

victim was reclining in bed at the moment of the killing, a

jury could have concluded that Sands' belief that she

nevertheless remained in imminent danger of death or

serious bodily harm was reasonable under the circumstances.

As noted by the majority, the victim “would intermittently

watch television in the bedroom for short periods of time,

but always returned to the assault upon his wife.” There

is no evidence that this pattern would not continue so as

exclude a reasonable conclusion that at any moment the

victim would resume beating Sands and placing her life in

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danger. Thus, there was clearly more than a scintilla of

evidence to support a self-defense instruction.

Accordingly, I would hold that the trial court erred

in not instructing the jury on the elements of self-

defense, and for that reason, I would affirm the judgment

of the Court of Appeals reversing Sands' conviction and

remanding the case for a new trial.

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