Record No. 1783-92-1


1994 Va. App. LEXIS 370

June 14, 1994, Decided


Herman T. Benn (Benn & Benn, on brief), for appellant.

Thomas D. Bagwell, Assistant Attorney General (Stephen D. Rosenthal, Attorney General; Virginia B. Theisen, Assistant Attorney General, on brief), for appellee.


Present: Judges Baker, Benton and Bray.




Richard Allen Reid appeals his convictions for voluntary manslaughter, in violation of Code § 18.2-35, and stabbing, cutting, or wounding another person in the commission of a felony, in violation of Code § 18.2-53. Reid contends that the trial judge erred in failing to find that Reid acted in self-defense when he killed Willis Savage. We agree and reverse the convictions.



Officer J. A. Coleman testified that he received a call to investigate a stabbing at Reid’s apartment. When Coleman entered the apartment at 11:44 p.m. he found Savage’s body. Reid told him, “He came at me and I had to defend myself.” Coleman testified that he noticed no injuries to Reid. Officer Charles R. Terrell, Jr., who also responded to Reid’s apartment, testified that Reid showed no signs of intoxication. Reid told Terrell that “[Savage] had a knife. I took it from him and I struck him with it.”

Several hours after the police arrived, Reid gave a statement to police. He stated that he and Savage were involved in a long standing romantic relationship and recounted the following events preceding Savage’s death:

   I came home about 11:00 p.m. or 11:30 p.m. [Savage] was inside my apartment when I walked in. Well, let me get this all straight. He came to my apartment Friday night about 2:00 a.m., Saturday morning. I don’t remember the exact time. He got to my apartment, but it was around 2:00 a.m. on Saturday morning. He spent the week end with me. Sunday morning, I left home and went to church. That was a little after 10:00 a.m. I got back home about 3:00 p.m. and he was gone. I left home today about 3 o’clock and came back home about 11:00 tonight and [Savage] was there. Me and [Savage] had a argument. I asked him why he left when I told him to stay home. He hit me in my face with his fist.  He knocked off my glasses. We got to fighting. I struck at him with my hands to get him off of me. Then we fell on the floor. You see, when he slapped me in my face, he pulled a butcher knife from somewhere. He told me you can start at me if you want to, but I got something for you. That’s when I saw the butcher knife in his hand. I got the knife away from him and I struck at him with the knife. Then he said, [Reid], you stabbed me. Then he fell on the floor where you found him. Then I called the Rescue Squad and the Police.

Dr. Faruk Presswalla, a deputy chief medical examiner, testified that Savage died from a single stab wound to the chest that cut the aorta. Dr. Presswalla also testified that although there was only a single external wound to Savage’s chest, the sharp object that caused the wound had in fact travelled in three separate directions. He testified that such a “redirection” pattern is consistent with a knife being inserted into the body, then twice partially withdrawn, and twice reinserted. Dr. Presswalla also testified, however, that “if after the knife is thrust into the victim there is still a struggle in which the victim and the assailant move together with the knife still there then, of course, it could get redirected and you could have redirected paths.” Dr. Presswalla further testified that Savage had a single superficial wound to the web between his thumb and index finger on his left hand. He characterized it as a “defense wound” typically incurred by someone attempting to ward off a blow or grasp the knife used by the attacker. Finally Dr. Presswalla noted that Savage had a blood alcohol level of .20 and a urine alcohol level of .24.

Reid testified that when he left his apartment that morning to go to church, Savage was in the apartment. When he returned from church at approximately three o’clock in the afternoon Savage was not in the apartment. Reid left the apartment again and returned at approximately eleven o’clock in the evening. He stated that after he entered his apartment he left again to visit one of his neighbors. When he again returned to the apartment, Savage was in the apartment on Reid’s bed.

Reid testified that he told Savage “Good evening” and asked him why he was not at the apartment that afternoon when Reid returned from church. Reid testified that Savage responded, “I’m grown, you don’t have anything to do with  me and I’m not worrying about you because if you tried to do anything to me I got something I’m going to ‘F…’ you up.” Reid then asked Savage what was wrong, and Savage responded by getting up from the bed and hitting Reid in the mouth “knock[ing his] teeth aloose.” Reid testified that he and Savage then scuffled and that when Savage had him down on the bed he realized that Savage had a knife.

Reid testified that Savage cursed him and then told him, “I’m going to kill you. I’m going to cut your damn throat.” Reid then testified as follows:

   A: And that’s when I grabbed his hand and started tussling with him, trying to keep him from taking my life because he had told me that he was going to do it.

   Q: Told you he was going to do what?

   A: Told me he was going to kill me.

   Q: When did he last tell you that?

   A: When he had me down on the bed when I discovered the knife.

   Q: Were you afraid he was going to kill you?

   A: Yes . . . .

   Q: All right. What happened next?

   A: And that’s when I, some way of another I got him from off of me and whenever I come up, with my feet — I won’t laying all the way on the bed. My feets was on the floor.  And when I — By my feets being on the floor, that’s when I pressed down on my feet and got up, came up.

   And soon as I came up that’s when he said to me, he said, “Al, I’m cut.” And when he said that he fell about the distance from me to about the — Well, from me to right here and fell right in the hallway where he was laying.

Reid testified that he then dropped the knife, went to the kitchen, and called the rescue squad and the police. Reid testified that he told the police of the injury to his teeth and that he showed his loose tooth to the officer who handcuffed him.

At the close of evidence, the trial judge made the following findings:

   A lot of what the Commonwealth has said [regarding the possibility that Savage was never armed and that Reid could have attacked Savage without provocation] is speculation about [Reid] having the knife beforehand. If the proof was that the defendant in this case had the knife beforehand and went after the victim I don’t think there’s any question I’d find the defendant guilty of second degree murder. But in this case I believe some of what the defendant said.

    But [the Assistant Commonwealth’s attorney] is exactly right. Once [Reid]  disarmed him he had a duty to stop right there. This is a typical case of two — or a domestic case is what it is. They got into a fight and this defendant killed him.

   I’m going to find him guilty of voluntary manslaughter and use of the knife in the commission of that crime.

 Because the trial judge based his decision upon the finding that Savage initially assaulted Reid with a knife, our review is limited to whether the trial judge properly held that Reid was required to “stop right there” after disarming Savage.



“Self-defense is an affirmative defense which the accused must prove by introducing sufficient evidence to raise a reasonable doubt of his guilt.” Smith v. Commonwealth, ___, Va. App. ___, ___, 435 S.E.2d 414, 416 (1993). In Virginia, killing in self-defense may be either justifiable or excusable homicide:

   “Justifiable homicide in self-defense occurs where a person, without any fault on his part in provoking or bringing on the difficulty, kills another under reasonable apprehension of death or great bodily harm to himself.” “Excusable homicide in self-defense occurs where the accused, although in some fault in the first instance  in provoking or bringing on the difficulty, when attacked retreats as far as possible, announces his desire for peace, and kills his adversary from a reasonably apparent necessity to preserve his own life or save himself from great bodily harm.”

Yarborough v. Commonwealth, 217 Va. 971, 975, 234 S.E.2d 286, 290 (1977) (citations omitted). “The only case [of excusable homicide] in which the law does not require the party to retreat at all, or under any circumstances, is when he is assaulted in his own house; there he need not fly as far as he can; for he has the protection of his house to excuse him from flying; as that would be to give up by his flight the possession of his house to his adversary.” Dodson v. Commonwealth, 159 Va. 976, 983, 167 S.E. 260, 262 (1933). In all cases, however, “the assault must be of such a character as to expose him to imminent danger.” Id.



It is undisputed that Reid killed Savage in Reid’s apartment. That the trial judge found that Savage attacked Reid with a knife is manifest in his finding that “[Reid] disarmed [Savage].” The only theory by which  Reid could have been required to desist from combat is that once Reid disarmed Savage, he could have no longer been in reasonable apprehension of death or serious bodily injury.

The only facts in evidence concerning the status of the fight between Reid and Savage, after Savage was disarmed, is Reid’s statement that “[Savage] came after me so I struck at him.” Nothing in the record tends to prove that Savage abandoned his attack once disarmed. Reid testified that the stabbing took place while the two men scuffled. To conclude that Savage was somehow retreating, or had stopped his threatening behavior would be speculative. See also Smith v. Commonwealth, ___ Va. at ___, 435 S.E.2d at 417 (“‘One who is assaulted may and usually does defend himself, but the ensuing struggle cannot be accurately described as mutual combat . . . [or] . . . every fight would be mutual combat”).

The Commonwealth argues that the two redirected pathways of the wound in Savage’s chest disprove Reid’s claim that he merely “struck at Savage.” However, for circumstantial evidence to prove guilt beyond a reasonable doubt, it must be inconsistent with every reasonable hypothesis of 0 innocence. Boykins v. Commonwealth, 210 Va. 309, 312, 170 S.E.2d 771, 773 (1969). Dr. Presswalla testified that the redirected wounds were consistent with the knife being thrust into Savage just once and then in an ongoing scuffle, being moved about. That testimony is consistent with Reid’s account of acting in self-defense.

Because the trial judge improperly concluded that Reid had an obligation to retreat once Savage was disarmed, we reverse the convictions and dismiss the indictments.

Reversed and dismissed.

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