Wendell Wallace Terry v. Commonwealth of Virginia ( 2008 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Haley and Petty
Argued at Salem, Virginia
WENDELL WALLACE TERRY
MEMORANDUM OPINION ∗ BY
v. Record No. 2102-06-3 JUDGE JAMES W. HALEY, JR.
AUGUST 12, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Clifford R. Weckstein, Judge
Michelle C. F. Derrico (Copenhaver, Ellett & Derrico, on briefs), for
appellant.
Leah A. Darron, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
I. INTRODUCTION
Appealing his conviction for assault upon a law enforcement officer in violation of Code
§ 18.2-57(C), Wendell Wallace Terry argues the trial court erroneously applied a defense of
property standard, rather than a defense of person standard, in considering a claim of self-defense
raised in closing argument by his counsel. We conclude that assignment of error need not be
addressed. Terry denied committing any offense against the officers and, thus, produced no
evidence in support of self-defense. Thus, his assignment of error necessarily fails, and we,
accordingly, affirm his conviction.
II. FACTS
We recite only those facts necessary to the disposition of this appeal.
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Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Roanoke Police Officer C.J. Witt responded to a call of a breaking and entering in
progress at Linda Macy’s house on October 10, 2005. Terry had periodically stayed at Macy’s
house. Witt entered the home with his gun drawn. Terry was found near a kitchen table, on
which was mayonnaise, bologna, and bread. Witt asked Terry to show his hands. Witt testified
Terry then “went rapidly” to the sink, “grabbed a knife, a silver knife and raised it over his head
and started coming at me.” Witt and two other officers eventually knocked the knife from
Terry’s hand, wrestled him to the ground, and handcuffed him. The knife turned out to be a
butter knife.
Terry denied making any threatening movements toward the officers. He stated the
officers probably did see him grab a knife, but claimed he needed to spread the mayonnaise he
had retrieved from a refrigerator. He testified he never committed assault: “And I never went
like this. Why would I go like this? They would have shot me. I would have been a dead man
then. I wouldn’t be testifying.” He continued: “Why would I go after a butter knife? What?
Take a butter knife to a gun --- I’ve got three police officers with guns pointed at me. I’m going
to go and get a butter knife. I guess you would do that.” In short, Terry specifically denied he
made any threatening gestures whatsoever towards the officers and did nothing to defend
himself.
During closing arguments, nonetheless, defense counsel asked the court to consider that
Terry acted in self-defense. Counsel argued that “a man in his own home who has somebody
suddenly approach him, even if they are police officers . . . that he is aware of no lawful need for
the officers to be in his home at that point in time. And we would submit that his actions were
not unreasonable.”
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III. ANALYSIS
In Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001), the Virginia
Supreme Court wrote that: “The principles governing a plea of self-defense are well-established.
Self-defense is an affirmative defense to a charge . . . and in making such a plea, a ‘defendant
implicitly admits [his actions were] intentional and assumes the burden of introducing evidence
in justification or excuse that raises a reasonable doubt . . . .’” (quoting McGhee v.
Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978)). See also Commonwealth v.
Cary, 271 Va. 87, 99-100, 623 S.E.2d 906, 912-13 (2006); 40 Am. Jur. 2d Homicide § 139
(2008) (stating that “self-defense involves an intentional, admitted act on the part of the
defendant”); 1 Michie’s Jurisprudence Assault and Battery § 7 (2007) (noting that when “making
a plea of self-defense, a defendant implicitly admits the wounding was intentional; the issue is
whether the accused’s admittedly intentional act was either justifiable or excusable”). This Court
has noted such an admission: “When the defendant asserted the defense of heat of passion and
self-defense, he conceded he shot the victim.” Peeples v. Commonwealth, 30 Va. App. 626, 630,
519 S.E.2d 382, 383 (1999) (en banc). See also Hughes v. Commonwealth, 43 Va. App. 391,
403-05, 598 S.E.2d 743, 749 (2004).
In Graham v. Commonwealth, 31 Va. App. 662, 672, 525 S.E.2d 567, 572 (2000), we
noted: “Self-defense . . . is a defense to an act of violence that repels violence directed at the
defendant.” (Emphasis added). Because self-defense is an affirmative defense, “the accused has
the burden of persuading the fact finder that he or she acted in defense of self or another to the
degree necessary to raise a reasonable doubt about his or her guilt.” Lynn v. Commonwealth, 27
Va. App. 336, 352, 499 S.E.2d 1, 9 (1998); see also Smith v. Commonwealth, 17 Va. App. 68,
71, 435 S.E.2d 414, 416 (1993). The defendant has “the burden of coming forward—the
practical burden of producing whatever self-defense evidence he can.” Ronald J. Bacigal,
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Virginia Practice: Criminal Offenses and Defenses, at 161 (2007-08 ed.). Self-defense must be
“supported by more than a scintilla of evidence.” Sands, 262 Va. at 729, 553 S.E.2d at 736.
Terry expressly disclaimed that he committed any violence. We noted in Hughes that a
self-defense instruction was properly denied because: “Simply claiming they acted in
self-defense is insufficient. . . . No evidence suggests appellants . . . [acted] in self-defense.”
Hughes, 43 Va. App. at 404, 598 S.E.2d at 749. Here, it was not Terry who testified that he
acted in self-defense. Rather, it was his counsel who argued he did, without an evidentiary basis
to do so. Thus, whatever legal standard the circuit court may have applied to consider
self-defense is irrelevant since, as a matter of law, Terry was not entitled to seek acquittal based
upon self-defense. 1 Terry’s argument is therefore “self-defeating.” Lay v. Commonwealth, 50
Va. App. 330, 337, 649 S.E.2d 714, 717 (2007).
Affirmed.
1
In a factually similar case, the Court of Appeals of Georgia wrote:
As to the felony obstruction of a police officer count, the
record shows that appellants did not admit committing the
obstructionist acts that were alleged in the indictment and then
seek to justify those acts as a necessary defense against the police
officer’s use of force against them. Rather, appellants testified that
they had not committed those alleged obstructionist acts at all.
Thus, under the evidence, appellants either committed the alleged
acts of obstruction or they did not and no charge on self-defense as
to the felony obstruction of an officer count was authorized.
Love v. State, 391 S.E.2d 447, 448 (Ga. Ct. App. 1990).
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