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Virginia homicide defense and self defense – No obligation to retreat in one’s own home

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Alcohol and guns do not mix. Homicide and lesser assaults often result.

Inside defendant/appellant Marvin Hines’s home, Wayne Hudson — drunk since the previous afternoon — was in “the heat of this out-of-control temper tantrum,” while having a gun in his hand. Hines walked away to obtain Hines’s own handgun and to return in the hopes that doing so would de-escalate the tense situation. Hines v. Virginia___ Va. ___ (Oct. 27, 2016).

Hines’s plan to calm down rip-roaring drunk, gun-totingn Hudson with a display of Hines’s own handgun sounds like a fanciful thought at best. However, Virginia self defense law does not require sounder thinking when in one’s own home. A Virginia homeowner is permitted to carry a handgun anywhere in his or her house, unless precluded by such laws as those prohibiting a felon to be in possession of handguns. My having lived in the North my entire life before moving to Arlington, Virginia, to start law school in neighboring Washington, D.C., Virginia’s liberal handgun laws make it the most wild, wild west place I have ever lived handgun law-wise, for better (great for being true to the Second Amendment) or worse (bad because so many people who take advantage of such liberal handgun laws).

Had Hines kept his retreat permanent and called the police to deal with the drunk ticking time bomb that was Wayne Hudson, I would not even be writing this blog entry.

Hines returned, visibly armed but not aiming the gun, to Hudson. Hudson — who lived down the street with Hines’s sister — pointed his gun at Hines with Hudson’s gun cocked. In self defense, Hines shot at Hudson approximately five times. Three bullets hit Hudson, and Hudson died.

The prosecution obtained an indictment against Hines for first degree murder under Va. Code § 18.2-32 and use of a firearm in the commission of first degree murder under Va. Code § 18.2-53.1. The trial court successfully convinced the trial judge to amend the firearm count of the indictment to guilt for shooting another person in the commission of a felony under Va. Code § 18.2-53. (Such an amendment changed the character and nature of that count, Va. Code § 19.2-231, so should not have been permitted without Hines’s consent; that issue was mooted by Hines’s obtaining a reversal of his conviction, in the state Supreme Court.)

After a two-day bench trial, the trial judge allowed the parties to brief any remaining issues, and in a series of two letter opinions found Hines guilty of voluntary manslaughter and the remaining shooting count. Hines got a great sentencing result, receiving only a time-served/suspended sentence of five years in prison for voluntary manslaughter and two years for the shooting count.

The trial judge issued a written opinion concluding that Hines was credible as a witness and through his testimony. Nevertheless, the trial judge concluded that Hines’s successful initial retreat from Hudson nixed Hines’s ability to be acquitted on the claim of self defense.

In a post trial motion to vacate the conviction, Hines’s lawyer reminded the trial judge that one has no obligation to retreat from danger in one’s own home. The trial judge denied the vacatur motion in writing by acknowledging no duty to retreat, but instead saying that Hines did not demonstrate “’that he was in reasonable fear of imminent death or injury to himself or his family from the victim, nor had the victim taken an overt step to suggest that he intended imminent deadly action.'”

Virginia’s Court of Appeals declined appellate relief. The Supreme Court of Virginia unanimously righted the trial court’s and Court of Appeals’s wrong by holding the trial judge to his initial finding that Hines provided credible testimony. The Supreme Court reversed Hines’s conviction by determining that Hines’s testimony satisfied all grounds for acquittal based on self defense:

To establish a claim of self-defense, a defendant must show that he reasonably feared death or serious bodily harm at the hands of his victim. McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978). Whether the danger is reasonably apparent is judged from the viewpoint of the defendant at the time of the incident. Id. The defendant must also show that he was in imminent danger of harm, that is, a showing of an overt act or other circumstance that affords an immediate threat to safety. Commonwealth v. Cary, 271 Va. 87, 99, 623 S.E.2d 906, 912 (2006). Finally, when a party assaults a homeowner in his own home, as in this case, the homeowner has the right to use whatever force necessary to repel the aggressor. Fortune v. Commonwealth, 133 Va. 669, 687, 112 S.E. 861, 867 (1922)…


Had the trial judge not said that Hines provided credible testimony, Hines would not have prevailed in appealing his voluntary manslaughter conviction. Had Hines not talked to police in a manner consistent with his trial testimony (Hines talked to the police, and I have repeatedly warned criminal suspects against talking with the police) after the incident, the trial judge would less likely have found Hines’s testimony credible. Had Hines’s lawyer (listed as Jon Babineau for trial and both appeals courts) not stuck by Hines’s side through the long and hard-fought battle through the trial court proceedings, unsuccessfully before the Court of Appeals, and finally successfully with a unanimous  Virginnia Supreme Court vindication, Hines may not have finally prevailed.

Trial judge Mary Jane Hall’s two written opinions in Hines’s case shed further light on his road to victory in the state Supreme Court. Judge Hall’s initial April 7, 2014, opinion finding guilt for voluntary manslaughter is here. 88 Va. Cir. 130 (Norfolk Cir. Ct.). Judge Hall subsequently issued a June 9, 2014, opinion and order denying vacatur of the manslaughter count, granting the Commonwealth’s motion to amend the firearm count to shooting another person in the commission of a felony, and finding Hines guilty of that count. Judge Hall wrote in that second opinion (which apparently is not available free online):

The Commonwealth originally charged Defendant with using a firearm while committing one of the felonies listed in Virginia Code § 18.2–53.1. The Court found Defendant guilty of voluntary manslaughter, a lesser-included felony under the original indictment for first degree murder. Because voluntary manslaughter is not a predicate felony under the statute, the Commonwealth moves to amend the indictment to permit Defendant to be found guilty of shooting another person in the commission of a felony under Virginia Code § 18.2–53. The Court finds thai this amendment does not change the nature and character of the offense nor come as a surprise to Defendant. The Court grants the motion and permits the indictment to be so amended. Accordingly, the Court, having previously vacated the finding of guilt under Virginia Code § 18.2–53.1, (use of a firearm in commission of a felony), now finds Defendant guilty of § 18.2–53 (shooting in the commission of a felony) under the amended indictment.

Com. v. Hines (Norfolk Cir. Ct. June 9 2014), WL 8240506. 

Congratulations to Hines for finally getting vindicated, and thanks to his lawyer Jon Babineau for sticking out his defense of Hines.