COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Lemons
Argued at Norfolk, Virginia
FRED BYRON GILBERT
OPINION BY
v. Record No. 2527-97-1 JUDGE JAMES W. BENTON, JR.
NOVEMBER 10, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY
E. Everett Bagnell, Judge
W. Alan Maust for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Fred Byron Gilbert was indicted and tried for the murder of
Perry Buchanan and use of a firearm in the commission of murder.
The trial judge convicted Gilbert of voluntary manslaughter. On
appeal, Gilbert contends the trial judge erred in ruling that the
evidence (1) was insufficient to prove self-defense and (2) was
sufficient to support a conviction of voluntary manslaughter.
Because we conclude that the evidence supports Gilbert's claim of
self-defense, we reverse his conviction.
I.
In the Commonwealth's case-in-chief, the evidence proved
Perry Buchanan went to a restaurant at night accompanied by his
brother, his six-year-old daughter, and his friend, Felton
Benton. Benton, the only person in that group who was a witness
at trial, testified that he and the Buchanan brothers drank
whiskey at Benton's house earlier that evening from 6:00 p.m.
until 9:00 p.m. After Buchanan and his brother drank beer at the
restaurant, Buchanan said, "I've got to go down the road . . .
and tend to a little business." Buchanan then took the group to
a house in the country.
Benton testified that he had not previously met Gilbert and
was unable to describe the homeowner who invited them to enter.
Benton said he toured the house with the homeowner and then
watched television with Buchanan's daughter. Benton testified
that while the homeowner and the Buchanan brothers were drinking
at a bar in the room, he fell asleep on the couch. He was
awakened by a gunshot. When he saw Buchanan lying on the floor,
he woke Buchanan's brother. Benton also claimed that he saw
someone standing momentarily at the front door, but he could not
identify that person. He further testified that Buchanan's
six-year-old daughter telephoned the police.
Deputy Sheriff James Garrett was dispatched to Gilbert's
house. He testified that the dispatcher's report stated the
telephone call came from Gilbert, not the six-year-old child.
When the deputy sheriff arrived at Gilbert's house at 11:40 p.m.,
Gilbert staggered to the front door covered in blood. Gilbert
was bleeding from his head, was bruised on his stomach and
shoulder, and had various scratches on his body. After the
deputy sheriff persuaded Gilbert to lie on the ground, the deputy
sheriff entered the house and saw Buchanan lying on the floor and
bleeding from his legs. The deputy sheriff testified that
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Buchanan's brother and Benton were very intoxicated and were
standing around Buchanan. Buchanan's six-year-old daughter was
also in the room. Benton told the deputy sheriff that he had
been asleep and did not know what happened.
When the deputy sheriff questioned Gilbert, Gilbert said he
had been in a fight, that Buchanan and his brother beat and
kicked him to the floor, and that he retrieved his gun and shot
Buchanan. The deputy sheriff observed a trail of blood "going
from the living, dining room area . . . down the hallway toward
the bedrooms." He found blood in Gilbert's bedroom. The deputy
sheriff also testified that more than eighteen metal staples were
used to close Gilbert's head wound and that Gilbert gave him "a
pair of vice grips" that had been used to beat Gilbert.
After Gilbert was treated for his injuries, the deputy
sheriff again spoke with Gilbert and wrote the following
statement:
Before being arrested, Fred Gilbert said that
he feared for his life that he remembered
being hit by [Buchanan's brother], he thinks,
and that he was on the ground and they were
kicking him. He remembers someone saying we
ought to kill the son of a bitch. He also
said he was in the bathroom bleeding and he
thought about all the knives he has thinking
they might kill him. He said he went to his
bedroom and got the gun from between the
mattresses. He didn't say anything else.
The medical examiner's report indicates that one bullet
entered both of Buchanan's legs and severed an artery. When
Buchanan arrived at the hospital, his blood ethanol level was
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".23% ethanol by weight by volume." The report also stated that
Buchanan died from complications of shock caused by a massive
hemorrhage from an artery in his left thigh that was severed by a
bullet.
In analyzing Gilbert's self-defense argument, the trial
judge accepted Gilbert's version of the events. Gilbert
testified that he knew Buchanan and that he had spoken to
Buchanan at the restaurant the night of the incident. Buchanan
asked if Gilbert had alcoholic beverages at home and if they
could drink at Gilbert's house. Gilbert agreed. Buchanan, his
brother, his daughter, and Benton later arrived at Gilbert's
house "out in the country." Gilbert had not previously known
Benton and had once met Buchanan's brother.
Gilbert testified that he, the Buchanan brothers, and Benton
stood around a breakfast bar, which divided the kitchen from the
living room. They were drinking whiskey and playing a game of
hand strength with "vice grips." Buchanan's daughter watched
television. When Gilbert won the game, Buchanan's brother struck
him on the head with one of the vice grips, causing him to fall
to the floor and lose consciousness. As Gilbert regained
consciousness and tried to rise, Buchanan and his brother punched
and kicked Gilbert until he again fell to the floor. While he
was on the floor, Gilbert heard one of the brothers say, "we
ought to kill the son of a bitch." At that time, Gilbert could
not account for Benton's presence.
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When Buchanan and his brother turned away, Gilbert could
barely walk and moved to an adjacent bathroom where he noticed
that he had suffered an open wound to his head. Concerned that
the brothers might find his hunting knives and aware that his
house was isolated in the country, Gilbert went to his bedroom
and retrieved a gun from under his mattress. Gilbert testified
that he knew Buchanan and his brother had reputations for
violence.
Gilbert came from the bedroom and told the brothers "to get
the hell out of [his] house." Gilbert testified that, as he held
his gun pointing to the floor, Buchanan and his brother looked
surprised and initially did not move. Benton, who was then
sitting on a couch with Buchanan's daughter, held her after she
began screaming and crying. When Gilbert repeated his demand
that they leave, Buchanan, who was standing five or six feet away
from Gilbert, "made a move" toward Gilbert. Gilbert fired his
gun, aiming "low" so as to "scare [Buchanan]." The bullet struck
Buchanan in the leg, causing him to fall to the floor. Gilbert
then telephoned the police. He confirmed the deputy sheriff's
testimony that he, the Buchanan brothers, and Benton were
intoxicated.
The evidence also proved that the Commonwealth prosecuted
Buchanan's brother for maiming Gilbert. Gilbert testified for
the Commonwealth in that prosecution. However, prior to
Gilbert's trial, Buchanan's brother died of causes unrelated to
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this incident.
At the conclusion of the evidence, the trial judge found
that Gilbert was not at fault in the confrontation. The trial
judge accepted as fact that Gilbert was hit on the head,
receiving a laceration that "was no small injury," and that
Gilbert's bruises substantiated Gilbert's testimony that he had
been kicked and beaten. The trial judge also noted that "[a]t
one point if [Gilbert] had pulled out a gun and shot [Buchanan]
it may well have been self-defense because [Gilbert] did suffer a
substantial beating." However, the trial judge concluded that
after Gilbert was able to exit the fray and leave the room, he
was not privileged to return with a gun and shoot Buchanan, even
after "one of the Buchanans made a move toward him."
II.
An accused who claims self-defense to a charge of homicide
"implicitly admits the killing was intentional and assumes the
burden of introducing evidence of justification or excuse that
raises a reasonable doubt in the mind[] of the [trier of fact]."
McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810
(1978). The Supreme Court summarized the principles of
self-defense by noting the following:
The law of self-defense is the law of
necessity . . . . [A] defendant must
reasonably fear death or serious bodily harm
to himself at the hands of his victim. It is
not essential to the right of self-defense
that the danger should in fact exist. If it
reasonably appears to a defendant that the
danger exists, he has the right to defend
against it to the same extent, and under the
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same rules, as would obtain in case the
danger is real. A defendant may always act
upon reasonable appearance of danger, and
whether the danger is reasonably apparent is
always to be determined from the viewpoint of
the defendant at the time he acted. These
ancient and well-established principles . . .
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emphasize the subjective nature of the
defense, and why it is an affirmative one.
Id.
The distinction between justifiable and excusable
self-defense claims is well established. "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). When the accused is free from fault in bringing on
the fray, the accused "need not retreat, but is permitted to
stand his [or her] ground and repel the attack by force,
including deadly force, if it is necessary." Foote v.
Commonwealth, 11 Va. App. 61, 67, 396 S.E.2d 851, 855 (1990).
"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." Bailey, 200
Va. at 96, 104 S.E.2d at 31. If a killing is proved to be either
justifiable or excusable, the accused must be acquitted. Id.
Gilbert contends he did not provoke the difficulty and
"kill[ed] upon reasonable apprehension of death or great bodily
injury to himself." The Commonwealth argues that Gilbert's claim
of self-defense was defective because he had not "retreated as
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far as possible, announced his desire for peace and then shot his
weapon only to preserve his own life."
The Commonwealth, as did the trial judge, misperceived the
nature of the defense. Only if Gilbert's shooting of Buchanan
was excusable, and not justifiable, was Gilbert under a duty to
retreat as far as possible before shooting Buchanan. The trial
judge found and the evidence proved, however, that Gilbert was
not at fault in inviting the Buchanans to his house for drinks.
Indeed, no evidence proved Gilbert was at fault in bringing on
the fray. The fact that Gilbert had "been drinking [whiskey with
the Buchanan brothers prior to the assault upon him] does not
ipso facto deprive him of the right of self-defense." Hawkins v.
Commonwealth, 160 Va. 935, 941, 169 S.E. 558, 560 (1933).
Long ago the Supreme Court noted that "'a [person] is not
obliged to retreat if assaulted in his [or her] dwelling, but may
use such means as are absolutely necessary to repel the assailant
from his [or her] house . . . even to the taking of life.'"
Fortune v. Commonwealth, 133 Va. 669, 687, 112 S.E. 861, 867
(1922) (citation omitted). In assessing the means that Gilbert
used, we note the "fundamental doctrine that a person who has
been threatened with death or serious bodily harm and has
reasonable grounds to believe that such threats will be carried
into execution, has the right to arm himself [or herself] in
order to combat such an emergency." Bevley v. Commonwealth, 185
Va. 210, 215, 38 S.E.2d 331, 333 (1946). See also Pike v.
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Commonwealth, 24 Va. App. 373, 375, 482 S.E.2d 839, 840 (1997)
(noting that "[t]he common law in this state has long recognized
the right of a landowner to order a trespasser to leave, and if
the trespasser refuses to go, to employ proper force to expel
him").
Gilbert suffered a brutal and unprovoked attack in his home
and reasonably feared for his safety. The attack occurred late
at night in an isolated, rural area. Gilbert testified that he
"could barely walk" after he was beaten and kicked and that his
attackers openly suggested killing him. The testimony by the
deputy sheriff and Gilbert concerning Buchanan's reputation for
violence support Gilbert's claim of "reasonable apprehension
. . . and . . . the likelihood of [Buchanan's] aggressive
behavior." Edwards v. Commonwealth, 10 Va. App. 140, 142, 390
S.E.2d 204, 206 (1990). This evidence, which the trial judge
accepted, proved that Gilbert reasonably feared death or serious
bodily harm "at the time of the shooting," Taylor v.
Commonwealth, 185 Va. 224, 227-28, 38 S.E.2d 440, 441 (1946),
that after Gilbert ordered Buchanan to leave Buchanan made "some
overt act indicative of imminent danger to [Gilbert] at the
time," Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249,
255 (1955), and that "the amount of force used [was] reasonable
in relation to the harm threatened." Diffendal v. Commonwealth,
8 Va. App. 417, 421, 382 S.E.2d 24, 26 (1989).
Gilbert properly raised the claim of justifiable
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self-defense. An accused who acts in self-defense is entitled to
an acquittal. Bailey, 200 Va. at 96, 104 S.E.2d at 31. Because
Gilbert introduced evidence of justifiable self-defense
sufficient to raise a reasonable doubt as to his guilt, we
reverse the judgment.
Reversed and dismissed.
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