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Hines v. Commonwealth

Supreme Court of Virginia

October 27, 2016



          PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Lacy, S.J.



         Marvin Hines was indicted for first degree murder of Wayne Hudson in violation of Code § 18.2-32 and use of a firearm in the commission of first degree murder in violation of Code § 18.2-53.1. Hines claimed he shot Hudson in self-defense. Following a bench trial, the trial court found Hines guilty of voluntary manslaughter. After granting the Commonwealth's motion to amend the indictment, the trial court also found Hines guilty of a violation of Code § 18.2-53, shooting another person in the commission of a felony. The Court of Appeals denied Hines' petition for appeal. Hines v. Commonwealth, Record No. 1496-14-1 (Feb. 12, 2015) (unpublished) (per curiam).

         In this appeal, Hines asks us to reverse the Court of Appeals' judgment denying his petition for appeal and holding that Hines did not shoot Hudson in self-defense, and to vacate his conviction of voluntary manslaughter. He also seeks reversal of the Court of Appeals' determination that the trial court did not err when it allowed amendment of the indictment to substitute a charge of violating Code § 18.2-53 for the original charge of violating Code § 18.2-53.1.


         Following a two-day ore tenus hearing, the trial court took the matter under advisement and subsequently issued a letter opinion reciting the following facts:

Victim Wayne Hudson had been the live-in boyfriend of Defendant's sister, Ruby Strange, for approximately 15 years. He lived on the same street as Defendant, and the two of them spent much time in each other's company. When Defendant shot Mr. Hudson in the early hours of May 30, 201[1], Mr. Hudson had been drinking since the afternoon of the previous day and was intoxicated. He had become extremely belligerent and argumentative, insisting that Mrs. Hines and neighbor Matt Thomas leave him alone and leave his girlfriend alone. Mr. Hudson's belligerent behavior caused alarm to Mrs. Hines. Mr. Thomas tried without success to get Mr. Hudson to calm down.
In the heat of this out-of-control temper tantrum happening in his own house, Defendant confronted Mr. Hudson. Defendant testified that he saw that Mr. Hudson had a gun in his hand. The Commonwealth hotly contests Defendant's testimony that the victim was armed and urges the Court to find otherwise. Defendant testified that upon his realization that this raging intoxicated man had a gun in his hand, he immediately retreated to an adjacent room, got a weapon of his own, and returned to the room. He testified that he planned to confront Mr. Hudson with his own weapon on the belief that Mr. Hudson would put his weapon down and would calm down once he realized that Defendant was armed. He testified to his concern for his wife and sister. Mr. Thomas saw Defendant pass by in the hallway on the way to rejoin Mr. Hudson, with the gun in his hand. Defendant fired the gun approximately 5 times thereafter, causing three bullet wounds to Mr. Hudson that proved fatal. Mr. Thomas testified that he did not see Mr. Hudson with a gun. He admitted that he told the police on the day of the shooting that he thought Mr. Hudson had a gun.

         In its letter opinion, the trial court rejected the Commonwealth's argument that Hudson did not have a gun, finding that "Defendant's testimony was credible, " and recited Hines' statements to law enforcement officials at the time of the shooting: that Hudson had a gun and had "cocked" the gun and pointed it at Hines, triggering Hines' reaction to shoot in self-defense. The trial court concluded that the "most reasonable interpretation of the physical and testimonial evidence [was] that Mr. Hudson did have a gun."

         The trial court concluded as a matter of law, however, that Hines did not carry his burden of proving his claim of self-defense because when he went to another room to retrieve his own gun, he "removed himself from [the] danger" presented by Mr. Hudson's possession of a gun. The trial court explained:

Defendant had the opportunity to retreat and did in fact retreat. He cannot assert any privilege to return to the room with a weapon of his own and trigger a shoot-out with . . . Mr. Hudson.
Defendant was alarmed by the victim's belligerent conduct and became more alarmed and afraid when he perceived the gun. He should have retreated to safety but instead got a gun of his own, and out of fear and upon impulse, ...

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