THE COURT OF APPEALS OF VIRGINIA
PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and
Kelsey, JJ., and Lacy, S.J.
ELIZABETH B. LACY, SENIOR JUSTICE.
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(Feb. 12, 2015) (unpublished) (per curiam).
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.
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, 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.
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."
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
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 . . .
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, ...