When a criminal defendant is charged with a horrendous crime, sometimes s/he would much prefer to offer the jury an opportunity instead to convict for a lesser count that brings a lower sentencing risk, than to roll the dice with the jury’s having an either-or choice of convicting or acquitting on the lead count. When offered the option to convict on a lesser count rather than only to choose between convicting or acquitting on one count, a jury may be more inclined to convict only on the lesser count, whether as a compromise among the jurors, or out of jury nullifying cringing at the defendant’s risking a harsher sentence for the lead count.

Sometimes the prosecution avoids charging a lesser count, in the hopes that a jury will be reluctant merely to let a defendant get off the hook with a conviction for a lesser count when the jury is convinced the defendant committed a serious crime. When that happens, the defendant may still ask the judge to instruct the jury that it is free to only convict on a lesser count.

In Virginia, “’A defendant is entitled to have the jury instructed only on those theories of the case that are supported by [more than a scintilla of] evidence.'” Witherow v. Virginia, ___ Va. App. ___ (Dec. 1, 2015)  (quoting Eaton v. Virginia, 240 Va. 236, 255, 397 S.E.2d 385, 397 (1990)).

James Scott Witherow, II, was prosecuted for shooting his wife in the chest. In his own testimony, Witherow painted an ugly picture of a wife who in one fell swoop harangued him about his smoking, declared her intent on finding a divorce lawyer, and attacked him with a knife. He testified that he shot in self defense to scare his wife to stop her assault, and not to hit her with a bullet. Witherow’s wife, however, testified that after the wife’s heated verbal assaults, the defendant called her into the room where he was aiming the gun at her.

Let us now pause here for a real-life tangential view of the foregoing scenario, by my saying that my criminal defense work reveals through interacting with clients and their cases, and through talking, hearing, and reading about other’s cases, people — beyond only defendants, particularly since plenty of criminal defendants are innocent — being at far from their best to the lowest of the low. The foregoing scene makes for a depressing, cathartic black and white movie scene by the Coen Brothers, Werner Herzog in Stroszek fashion,  or Brian De Palma in Scarface chainsaw murder scene fashion (a very violent scene).

Despite Witherow’s compelling testimony of self defense (were his testimony believed) his trial judge refused Witherow’s lawyer’s request to give the jury the option to convict Witherow on the lesser offense of unlawful wounding and assault and battery. The jury proceeded to convict Witherow of malicious wounding, use of a firearm in the commission of a felony, and shooting into an occupied building, neither of which conviction was challenged on appeal.

In reversing Witherow’s malicious wounding conviction for the trial court’s refusing giving the jury the option to convict on a lesser count than malicious wounding, the Court of Appeals said:

“[T]here is more than a scintilla of evidence that would support the theory that appellant lacked malice because he was acting in the heat of passion founded ‘upon . . . fear.’ Barrett, 231 Va. at 106, 341 S.E.2d at 192; see Boone v. Commonwealth, 14 Va. App. 130, 133, 415 S.E.2d 250, 251-52 (1992) (A defendant’s testimony about his intent may, alone, rise above the quantum of ‘a mere scintilla’ and be enough to require a trial court to give a proffered instruction on the lesser-included offense.). As noted above, ‘[h]eat of passion excludes malice when provocation reasonably produces fear . . . that causes one to act on impulse without conscious reflection.’ Graham, 31 Va. App. at 671, 525 S.E.2d at 571 (emphasis added). As appellant could have been reasonably provoked to fear when Carter was attempting to stab him with a knife, there is more than a scintilla of evidence to support the conclusion that the shooting was done without malice, in the heat of passion.

Witherow leaves the prosecutor free to re-prosecute Witherow for malicious wounding. I expect that a retrial will go forward.