COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Alexandria, Virginia
ROBERT DEWEY KNOTT
MEMORANDUM OPINION * BY
v. Record No. 2931-96-2 JUDGE RICHARD S. BRAY
APRIL 7, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
Martin W. Lester, Deputy Public Defender, for
appellant.
Eugene Murphy, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
A jury convicted Robert Knott (defendant) of voluntary
manslaughter. At trial, defendant relied upon the theory of
self-defense and argues on appeal that the evidence was
insufficient to support the verdict. We agree and reverse the
conviction. 1
Upon familiar principles, we view the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). We,
therefore, "'discard the evidence of the accused in conflict with
that of the Commonwealth, and regard as true all the credible
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
We decline to address the remaining issues raised by
defendant on appeal.
evidence favorable to the Commonwealth and all fair inferences
that may be drawn therefrom.'" Cirios v. Commonwealth, 7 Va.
App. 292, 295, 373 S.E.2d 164, 165 (1988) (citations omitted).
The parties are fully conversant with the record and this
memorandum opinion recites only those facts necessary to
disposition on appeal.
On January 9, 1996, defendant and the victim, Timothy Moore,
resided in a homeless shelter located in the City of
Fredericksburg. At approximately 11:30 p.m., a dispute arose
between defendant and Moore's friend, Joe Chase, and Moore
encouraged Chase to fight defendant, offering to ally with him
and "kick [defendant's] ass." Moments later, Moore, alone,
accosted defendant, "put his hands in front of [defendant's]
face" and repeatedly insulted and threatened him. Initially,
defendant "just stood there," but "swung" at Moore after Moore
spit on both defendant and another resident, Randy Kaufman.
2
Moore, intoxicated and much larger and more muscular than
defendant, "swang back," but Kaufman deflected the blows. Moore
continued to taunt and challenge defendant, but defendant moved
into an adjoining common area, ending the confrontation.
Moore, still enraged, returned to his bed and "beat[] his
fists" on the mattress while Chase attempted "to calm him down."
Meanwhile, defendant armed himself with a knife from the shelter
kitchen, returned to the sleeping area, "went to his bed" and
2
Moore's blood alcohol content tested at 0.22%.
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"lay[] down." Within seconds, a shirtless Moore approached,
cornered defendant, "pulled [him] up" from the bed, and declared,
"chicken s---'s back; I'm going to kill him." Defendant
resisted, and a struggle ensued, during which defendant stabbed
or cut Moore in the chest area. Moore, however, persisted,
wrestling defendant to the floor, holding him "down with his left
arm, and . . . punch[ing] him with his other arm." Defendant
then stabbed Moore, but Moore rose to his feet, again declaring
to defendant his intention "to kill your ass." Kaufman
intervened, pushed Moore against the lockers, and Moore
collapsed, dying shortly thereafter from the several knife wounds
inflicted by defendant during the affray.
Defendant testified that he "was losing consciousness" as
the fight progressed and "was afraid for [his] life at this
point." Realizing that he "couldn't get out of the situation" or
"break the grip of Tim Moore," he "grabbed the knife . . . and
. . . poked it at [Moore] hoping that he would release his grip."
Moore, however, "started choking [defendant] . . ., cutting off
[his] airway, so [defendant] stabbed him."
"Self-defense is an affirmative defense which the accused
must prove by introducing sufficient evidence to raise a
reasonable doubt about his guilt." Smith v. Commonwealth, 17 Va.
App. 68, 71, 435 S.E.2d 414, 416 (1993) (citing McGhee v.
Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978)).
"Killing in self-defense may be either justifiable or excusable
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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.'" Yarborough v.
Commonwealth, 217 Va. 971, 975, 234 S.E.2d 286, 290 (1977)
(citations omitted).
"The law of self-defense is the law of necessity, and the
necessity relied upon must not arise out of defendant's own
misconduct. Accordingly, a defendant must reasonably fear death
or serious bodily harm to himself at the hands of his victim."
McGhee, 219 Va. at 562, 248 S.E.2d at 810. "[W]hether the danger
is reasonably apparent is always to be determined from the
viewpoint of the defendant at the time he acted." Id. at 562,
248 S.E.2d at 810. "The law does not require a person to suffer
the last lethal blow before being able to take up his weapon to
defend his life." Smith, 17 Va. App. at 72, 435 S.E.2d at 417.
However, "fear alone" is not sufficient for defendant to act;
"there must be an overt act indicating the victim's imminent
intention to kill or seriously harm the accused," id. at 72-73,
435 S.E.2d at 417 (citing Yarborough, 217 Va. at 975, 234 S.E.2d
at 290), and "[a] person only has the privilege to exercise
reasonable force to repel the assault." Foote v. Commonwealth,
11 Va. App. 61, 69, 396 S.E.2d 851, 856 (1990) (citations
omitted).
Here, the Commonwealth's evidence clearly established that
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Moore was the aggressor, repeatedly provoking and intimidating
defendant with both verbal and physical assaults. After
defendant and Moore exchanged blows during the initial encounter,
defendant withdrew to the common area and, fearful of Moore,
armed himself with a knife before returning passively to his
bunk. However, unwilling to abandon his torment of defendant,
Moore again angrily attacked, grabbing defendant from his bed,
assaulting and repeatedly threatening to kill him. Such conduct,
together with Moore's demonstrated hostility, greater size,
intoxication, and violent rage created a reasonable apprehension
in defendant of death or great bodily harm. Under such
circumstances, defendant reasonably resorted to deadly force in
repelling Moore's attack, resulting in justifiable homicide as a
matter of law.
Accordingly, we reverse the conviction.
Reversed and dismissed.
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