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Full Opinion
STATE of West Virginia, Plaintiff Below, Appellee,
v.
Tanya D. HARDEN, Defendant Below, Appellant.
Supreme Court of Appeals of West Virginia.
*631 Darrell V. McGraw, Jr., Attorney General, Robert D. Goldberg, Assistant Attorney General, Charleston, WV, for Appellee.
Russel S. Cook, Esq., J.L. Hickok, Esq., West Virginia Public Defender Services, Charleston, WV, for Appellant.
KETCHUM, J.:
This case is before the Court upon the appeal of Tanya A. Harden (defendant) from the final order of the Circuit Court of Cabell County sentencing the defendant to a term of life imprisonment with the possibility of parole following defendant's conviction for first degree murder.
The defendant, who asserted a claim of self-defense at trial, has submitted several assignments of error in support of her appeal. After careful consideration of the parties' arguments, the record, and relevant authorities, we find one of those assigned errors to be dispositive. Specifically, we find that the State failed to prove beyond a reasonable doubt that the defendant's actions were not made in self-defense. Accordingly, for the reasons set forth in this opinion, we vacate the defendant's conviction and remand this matter to the circuit court with directions to enter a judgment of acquittal.
I.
Background
On September 5, 2004, the defendant was arrested upon her admission to having shot and killed her husband, Danuel Harden. At trial, the defendant asserted a claim of self-defense, arguing that her actions precipitously followed a "night of domestic terror" that ended only when the defendant shot and *632 killed the decedent. The evidence adduced[1] at the defendant's trial showed that the decedent, while drinking heavily (with a blood alcohol count ultimately reaching 0.22% at the time of his death) subjected the defendant to a several-hour-long period of physical and emotional violence. This violence included the decedent brutally beating the defendant with the butt and barrel of a shotgun, brutally beating the defendant with his fists, and sexually assaulting the defendant. An emergency room physician at Cabell Huntington Hospital, who examined the defendant on the morning of the shooting, testified that the defendant "had contusions of both orbital areas, the right upper arm, a puncture wound with a foreign body of the right forearm, contusions of her chest, left facial cheek, the left upper lip" and that "X-rays done at the time demonstrated a nasal fracture."
In addition to the physical violence summarized above, the evidence adduced at trial also showed that the decedent repeatedly threatened to kill the defendant and the defendant's nine-year-old son B.H.,[2] ten-year-old daughter A.H., and ten-year-old B.K. (a friend of A.H.'s who had been invited for a "sleep over"). This evidence included testimony from two of the children. B.H. testified to seeing and hearing the decedent say to the defendant "I am going to go get the gun and shoot you" and that the decedent did, in fact, go to a back room in the defendant's home and get a shotgun, and returned to the room with the gun where the decedent subsequently struck the defendant with the butt of the gun in the shoulders and arms while she was seated in a recliner. In addition to B.H.'s testimony, B.K. also testified that she was frightened by what she could hear from her bedroom and had difficulty falling asleep, and that after finally falling asleep, she was awakened by more sounds of fighting, at one point over-hearing the defendant say to the decedent that "she didn't want to get killed with her two kids."
It is conceded by the State that the defendant suffered a "night of domestic terror." During its opening statement the State described the evening's violence as a "knock-down-drag-out" fight. By the time of the State's closing argument, the State conceded to the jury that "Yes, she had a night of terror." In its brief to this Court, the State concedes that the decedent's death followed an "evening of physical and sexual abuse."
Notwithstanding the fact that it does not dispute that the defendant endured a night of extreme violence at the hands of the decedent, the State nonetheless argues that the defendant's claim of self-defense is "untenable." In its closing argument, the State argued to the jury that "the law ... on self-defense says that in order to use deadly force in self-defense you must find that the apprehension existed at the time the defendant attacked, or in this case shot, the [decedent]." In addition, the State maintained that the defendant did not have a reasonable basis to apprehend any danger from the decedent at the time she used deadly force against the decedent because there had been a "cooling off" period, and the evidence showed that the decedent was lying down on a couch possibly "asleep" or, alternately, possibly "passed out drunk" when the defendant shot him.[3] The State further argued to the jury that the defendant's use of deadly force was not reasonable because the defendant could have retreated from any danger posed by the decedent, evidenced by the fact that the decedent "is on that couch with a BAC of.22 and she has got control of that shotgun, she ... could have called the law, and she could have walked out of that trailer. Period. But she didn't."
*633 II.
Standard of Review
On appeal the defendant argues that the State failed to submit sufficient evidence to prove beyond a reasonable doubt that her actions were not made in self-defense. We have previously held that "[a] reviewing court should not reverse a criminal case on the facts which have been passed upon by the jury, unless the court can say that there is reasonable doubt of guilt and that the verdict must have been the result of misapprehension, or passion and prejudice." Syllabus Point 3, State v. Sprigg, 103 W.Va. 404, 137 S.E. 746 (1927). Accord Syllabus Point 1, State v. Easton, 203 W.Va. 631, 510 S.E.2d 465 (1998).
We have further held that:
The function of an appellate court when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.
Syllabus Point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
With these standards in mind, we turn to the issues presented.
III.
Discussion
Given the complexity of the issues raised in our analysis of whether the State submitted sufficient evidence to prove, beyond a reasonable doubt, that the defendant's actions were not made in self-defense, we will divide our discussion into three sections. In Section III.1., we address the State's argument that the defendant's use of lethal force was unreasonable because our law precludes an "apprehension of danger previously entertained," i.e., prior threats of violence or acts of violence, as justifying the use of deadly force. In Section III.2., we address the State's argument that the defendant's actions were unreasonable because the defendant had a duty to retreat from her home in lieu of using deadly force against the decedent. In Section III.3., we address the sufficiency of the State's evidence.
III.1.
Apprehension of Danger
A long-standing tenet of our self-defense doctrine is that a defendant's use of deadly force must be based upon a reasonable apprehension by the defendant that he or she was at imminent peril of death or serious bodily injury. In Syllabus Point 8 of State v. Cain, 20 W.Va. 679 (1882), we held that:
In such a case as to the imminency of the danger, which threatened the prisoner, and the necessity of the killing in the first instance the prisoner is the judge; but he acts at his peril, as the jury must pass upon his action in the premises, viewing said actions from the prisoner's stand-point at the time of the killing; and if the jury believe from all the facts and circumstances in the case, that the prisoner had reasonable grounds to believe, and did believe, the danger imminent, and that the killing was necessary to preserve his own life or to protect him from great bodily harm, he is excusable for using a deadly weapon in his defense, otherwise he is not.
In the case before us, it is clear that the State does not believe that the defendant had a reasonable basis to believe that she was in imminent danger of death or serious bodily injury at the time she used deadly force against the decedent. The State acknowledges that the decedent's death followed an "evening of physical and sexual abuse" inflicted upon the defendant by the decedent, but argues notwithstanding this "night of terror" a reasonable juror could have found that the defendant's use of lethal force was not reasonable under our law.
The State's argument on this point is straightforward. Our law, the State argues, requires that deadly force be employed only to repel an apprehension of death or serious bodily injury existing at the time deadly *634 force is used, and specifically excludes any apprehension of danger previously entertained as justifying the use of deadly force. Under the circumstances of the defendant's case, the State argues, the defendant did not have a reasonable basis to apprehend any imminent danger from the decedent at the time she used deadly force because the facts suggested that there had been a "cooling off" period after the decedent's violent acts. Therefore, the State argues, because the decedent's violent acts had ended, those violent acts constituted "an apprehension of danger previously entertained" and could not justify the defendant's use of deadly force.
It is clear from the record that the State bases its arguments largely on Syllabus Point 6 of our decision in State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927)(emphasis added), where we held that:
Under his plea of self-defense, the burden of showing the imminency of the danger rests upon the defendant. No apprehension of danger previously entertained will justify the commission of the homicide; it must be an apprehension existing at the time the defendant fired the fatal shot.
It is also clear that the State bases its argument on the trial court's self-defense instruction. This self-defense instruction, which was offered by the State, contained the following language relevant to the issue of the reasonableness of the defendant's belief that death or serious bodily injury was imminent:
In order for the Defendant to have been justified in the use of deadly force in self-defense, she must not have provoked the assault on her or have been the aggressor. Mere words, without more, do not constitute provocation or aggression. Furthermore, you must find that the apprehension existed at the time that the defendant attacked the victim. No apprehension of danger previously entertained will justify the commission of homicide. (Emphasis added).[4]
It is obvious that the referenced portion of the trial court's self-defense instruction was based entirely on Syllabus Point 6 of State v. McMillion, supra. The question our review thus presents is whether Syllabus Point 6 of McMillion, and the State's argument based thereon, conflicts with our more recent precedent holding that prior physical and mental abuse by a decedent is relevant evidence on the issue of the reasonableness of a defendant's belief that death or serious bodily injury were imminent. We find that it does.
We begin our analysis by noting that our precedent establishes that the "reasonableness" of a defendant's belief that he or she was at "imminent" risk of death or serious *635 bodily injury is a two-part inquiry, with a subjective component and an objective component. In Syllabus Point 8 of State v. Cain, supra, we described this inquiry as requiring that "the jury must pass upon [the defendant's] action in the premises, viewing said actions from the [defendant's] stand-point at the time of the killing[.]" We further held in Syllabus Point 8 of State v. Cain that the jury must believe from "all the facts and circumstances in the case, that the [defendant] had reasonable grounds to believe, and did believe, the danger imminent."
More recently, we addressed the reasonableness inquiry in State v. Cook, 204 W.Va. 591, 515 S.E.2d 127 (1999), where we concluded that the two-part inquiry required a finding that a defendant "actually believe that [she] is in danger and that belief must be a reasonable one." State v. Cook, 204 W.Va. 591, 601, 515 S.E.2d 127, 137, citing State v. Elam, 328 N.W.2d 314, 317 (Iowa 1982) ("[T]he test of justification is both subjective and objective. The actor must actually believe that he is in danger and that belief must be a reasonable one.").
Plainly stated, the reasonableness inquiry is as follows. First, a defendant's belief that death or serious bodily injury was imminent must be shown to have been subjectively reasonable, which is to say that a defendant actually believed, based upon all the circumstances perceived by him or her at the time deadly force was used, that such force was necessary to prevent death or serious bodily injury. Second, that the defendant's belief must be objectively reasonable when considering all of the circumstances surrounding the defendant's use of deadly force, which is to say that another person, similarly situated, could have reasonably formed the same belief.
Having thus briefly summarized the standard by which the reasonableness of the defendant's actions are measured, we turn to the issue of McMillion's absolute prohibition that no "apprehension of danger previously entertained" may be used to justify a homicide as having been committed in self-defense.
Our precedent since McMillion clearly establishes that a defendant, who has been the victim of domestic violence that tragically ends with the defendant's killing the battering spouse, is entitled "to elicit testimony about the prior physical beatings she received in order that the jury may fully evaluate and consider the defendant's mental state at the time of the commission of the offense." State v. Dozier, 163 W.Va. 192, 197-198, 255 S.E.2d 552, 555 (1979), citing State v. Hardin, 91 W.Va. 149, 112 S.E. 401 (1922) (defendant entitled to introduce evidence that decedent was a quarrelsome man who had previously attacked defendant and threatened defendant's life).
We have similarly held that evidence of prior threats and violence is relevant to "negate criminal intent." State v. Lambert, 173 W.Va. 60, 63-64, 312 S.E.2d 31, 35 (1984). In State v. Wyatt, 198 W.Va. 530, 542, 482 S.E.2d 147, 159 (1996), we explained that a defendant's domestic abuse was relevant "to establish either the lack of malice, intention, or awareness, and thus negate or tend to negate a necessary element of one or the other offenses charged." In State v. Plumley, 184 W.Va. 536, 540, 401 S.E.2d 469, 473 (1990) (citations omitted)(emphasis added), we further noted that:
the reasonableness of an individual's beliefs and actions in self-defense must be... viewed "in [the] light of the circumstances in which he acted at the time and not measured by subsequently developed facts." State v. Reppert, 132 W.Va. 675, 691, 52 S.E.2d 820, 830 (1949). Moreover, we have explained that the reasonableness of the conduct may depend upon past actions of the decedent, including threats, violence, and general reputation. [State v.] W.J.B., 166 W.Va. [602,] 614, 276 S.E.2d [550,] 556 [1981].
Finally, in State v. Summers, 118 W.Va. 118, 188 S.E. 873 (1936), we addressed a trial court's self-defense instruction very similar to that given in the defendant's case, and which also closely paralleled Syllabus Point 6 of our decision in McMillion. In Summers, the defendant (Mr. Summers) was convicted of murder and sentenced to life imprisonment following trial. At trial, Mr. Summers had asserted a claim of self-defense. The *636 evidence showed that the decedent had on previous occasions threatened the life of both Mr. Summers and his wife, and that the decedent had also on a prior occasion threatened to rape Mr. Summers' wife. Mr. Summers testified that he shot the decedent through a screen door, killing the decedent, after observing the decedent threatening his wife with a blackjack. The State's witnesses, however, testified that the decedent "came into the confectionery through the side door without using force toward anyone; that Mrs. Summers was at the time behind the counter waiting on the customers; and that [the decedent] did not get within reach of [Mrs. Summers]." 118 W.Va. at 120, 188 S.E. at 874.
In reviewing the record of Mr. Summers' appeal, we concluded that the trial court had committed plain error by giving the following instruction:
The court instructs the jury that in determining whether the defendant at the time he shot the deceased was acting in the lawful defense of his wife the jury must believe from the evidence in the case that the circumstances at the time surrounding the prisoner were such as gave him good cause to believe, and did believe, that his wife was in imminent danger of death or great bodily harm at the hands of the deceased, and it was necessary to fire said shot to protect her from such danger. The acts and conduct, if any, of the deceased at the time and prior to the shooting may be considered by the jury in determining whether the defendant had such cause to believe and fired said shot under such belief, but no acts or conduct of the deceased prior to that time would excuse the defendant for shooting the deceased.
Summers, 118 W.Va. at 120-121, 188 S.E. at 875. (Emphasis added.)
In reversing the defendant's conviction in Summers, we concluded that the instruction permitted the jury to consider the decedent's prior conduct "only for the purpose of determining whether the defendant had cause to believe and did believe at the time of the shooting that his wife was in imminent danger of death or great bodily harm at the hands of the deceased." 118 W.Va. at 121, 188 S.E. at 875. We further concluded that the trial court "by so limiting the jury in its consideration of the evidence, committed plain error" on the basis that "the jury should have been permitted to consider the evidence of the previous conduct of decedent for the purpose of determining whether the homicide was murder or manslaughter." Id.
It is clear to us that our precedent since McMillion provides that the decedent's violent criminal acts and threats of death are relevant to the determination of the subjective reasonableness of the defendant's belief that she was at imminent risk of death or serious bodily injury. This is to say, under the facts of this case, the defendant's subjective belief that death or serious bodily injury was imminent, and that deadly force was necessary to repel that threat, necessarily included the fact that the decedent had, precipitously preceding his death, physically and sexually assaulted the defendant and repeatedly threatened the life of the defendant and the lives of the children.
We therefore hold that where a defendant has asserted a plea of self-defense, evidence showing that the decedent had previously abused[5] or threatened the life of the defendant is relevant evidence of the defendant's state of mind at the time deadly force was used. In determining whether the circumstances formed a reasonable basis for the defendant to believe that he or she was at imminent risk of serious bodily injury or death at the hands of the decedent, the inquiry is two-fold. First, the defendant's belief *637 must be subjectively reasonable, which is to say that the defendant actually believed, based upon all the circumstances perceived by him or her at the time deadly force was used, that such force was necessary to prevent death or serious bodily injury. Second, the defendant's belief must be objectively reasonable when considering all of the circumstances surrounding the defendant's use of deadly force, which is to say that another person, similarly situated, could have reasonably formed the same belief. Our holding in Syllabus Point 6 of State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927), is expressly overruled.
We further hold that where it is determined that the defendant's actions were not reasonably made in self-defense, evidence that the decedent had abused or threatened the life of the defendant is nonetheless relevant and may negate or tend to negate a necessary element of the offense(s) charged, such as malice or intent.
Having thus concluded, we find the State's arguments above-described unpersuasive.
III.2.
Duty to Retreat
In addition to its argument that the defendant's use of deadly force was unreasonable because there had been a "cooling off" period, the State further argues that the same "cooling off" period provided the defendant the opportunity to retreat from her home so as to avoid further attacks. Our review of the record shows that during closing arguments the State advanced this argument, telling the jury that the defendant "could have walked out of that trailer. Period. But she didn't." Implicit in this argument is that the defendant had a duty to retreat from her home.
As a general proposition, our precedent in self-defense cases clearly state that where an unlawful intrusion has occurred in the sanctity of one's home, an occupant of the home has no duty to retreat. Generally described as the "castle" doctrine, "castle" rule or "home" rule,[6] our precedent succinctly states that "[a] man attacked in his own home by an intruder may invoke the law of self-defense without retreating." Syllabus Point 4, State v. Preece, 116 W.Va. 176, 179 S.E. 524 (1935). Accord Syllabus Point 1, State v. W.J.B., 166 W.Va. 602, 276 S.E.2d 550 (1981).
The distinction of the present issue is that the decedent was not an intruder, but instead a lawful co-occupant having equal entitlement with the defendant to be present therein. In Syllabus Point 2, State v. Crawford, 66 W.Va. 114, 66 S.E. 110 (1909)(emphasis added), we held that:
On a trial for murder, instructions to the jury asserting defendant's right to stand his ground and not retreat, based on the theory of a deadly attack by deceased on, and on defendant in his dwelling, or castle, are inapplicable where the evidence shows defendant and deceased were at the time of the homicide jointly occupying the house where the killing occurred; the ordinary rules as to self-defense, propounded in other instructions given at the request of defendant, alone being applicable.
Similarly, in State v. Boggs, 129 W.Va. 603, 615-616, 42 S.E.2d 1, 8 (1946), we held that a defendant, who was a co-habitant of a house where the decedent and decedent's wife also lived, was not entitled to an instruction on "defendant's right to stand his ground and not retreat" on the grounds that the decedent was a co-occupant of the same dwelling.
The question that our decisions in Crawford, Boggs and other similar cases present is whether we should continue to follow the proposition that an occupant of a home has a duty to retreat when a co-occupant of the same home has attacked or otherwise placed the occupant in danger of serious bodily injury or death. We conclude that we should not.
In reaching our conclusion, we have considered the decisions of other supreme courts that have addressed a similar issue. Initially, *638 we note that West Virginia is in the apparent minority of jurisdictions who impose upon an occupant of a home the duty to retreat from an attack by a co-occupant. In Weiand v. State, 732 So.2d 1044 (Fla.1999), the Florida Supreme Court was asked to reconsider its earlier decision in State v. Bobbitt, 415 So.2d 724 (Fla.1982). In Bobbitt, the court made findings similar to those we made in Crawford, which is to say that both our decision in Crawford and the Florida court's decision in Bobbitt held that an occupant of a home had a duty to retreat when attacked by a co-occupant. In concluding that its decision in Bobbitt should be vacated, the Florida Supreme Court initially noted that its decision in Bobbitt reflected a minority view on the duty of an occupant's duty to retreat, and specifically noted that West Virginia was one of the jurisdictions holding the minority view:
At the time of our decision in Bobbitt, of those jurisdictions imposing a duty to retreat, only four states imposed a duty to retreat when attacked in the home by a co-occupant or invited guest. See Connecticut v. Shaw, 185 Conn. 372, 441 A.2d 561 (1981); Oney v. Kentucky, 225 Ky. 590, 9 S.W.2d 723 (1928); New Hampshire v. Grierson, 96 N.H. 36, 69 A.2d 851 (1949); West Virginia v. Crawford, 66 W.Va. 114, 66 S.E. 110 (1909). Since then, one more state has joined their ranks. See Rhode Island v. Ordway, 619 A.2d 819 (R.I.1992). Massachusetts, New Jersey and North Dakota have statutes imposing a duty to retreat when attacked in the home by someone with a legal right to be on the premises. See Mass. Gen. Laws ch. 278, § 8A (1998); N.J. Stat. Ann. § 2C:3-4b(2)(b)(i) (West 1998); N.D. Cent. Code § 12.1-05-07(2)(b) (1997). However, the New Jersey Supreme Court has expressed its strong disagreement with the statutorily imposed duty to retreat from the home, and has recently urged the New Jersey legislature to consider amending the statute. See New Jersey v. Gartland, 149 N.J. 456, 694 A.2d 564, 569-71 (1997).
Weiand, 732 So.2d at 1051 n. 8.[7]
After noting that its earlier decision in Bobbitt reflected a minority position, the Weiand court went on to conclude that Bobbitt should be vacated, holding that:
There are two distinct reasons for our conclusion. First, we can no longer agree with Bobbitt's minority view that relies on concepts of property law and possessory *639 rights to impose a duty to retreat from the residence. 415 So.2d at 726. Second, based on our increased understanding of the plight of victims of domestic violence in the years since our decision in Bobbitt, we find that there are sound policy reasons for not imposing a duty to retreat from the residence when a defendant resorts to deadly force in self-defense against a co-occupant. The more recent decisions of state supreme courts confronting this issue have recognized that imposing a duty to retreat from the residence has a potentially damaging effect on victims of domestic violence claiming self-defense.
. . .
It is now widely recognized that domestic violence "attacks are often repeated over time, and escape from the home is rarely possible without the threat of great personal violence or death." [State v.] Thomas, 77 Ohio St.3d 323, 673 N.E.2d [1339,]1343 [(1997)]. As quoted by the New Jersey Supreme Court:
Imposition of the duty to retreat on a battered woman who finds herself the target of a unilateral, unprovoked attack in her own home is inherently unfair. During repeated instances of past abuse, she has "retreated," only to be caught, dragged back inside, and severely beaten again. If she manages to escape, other hurdles confront her. Where will she go if she has no money, no transportation, and if her children are left behind in the "care" of an enraged man?
. . . .
What [the duty to retreat] exception means for a battered woman is that as long as it is a stranger who attacks her in her home, she has a right to fight back and labors under no duty to retreat. If the attacker is her husband or live-in partner, however, she must retreat. The threat of death or serious bodily injury may be just as real (and, statistically, is more real) when her husband or partner attacks her in home, but still she must retreat. Gartland, 694 A.2d at 570-71 (quoting Maryanne E. Kampmann, "The Legal Victimization of Battered Women," 15 Women's Rts. L. Rep. 101, 112-113 (1993)).
Weiand, 732 So.2d at 1051-1053.
In addition to the Florida Supreme Court's decision in Weiand, we have considered the supreme court decisions of several other states. One early case of particular note that we find very persuasive on the issue is an opinion written by then New York Supreme Court Judge Cardozo in People v. Tomlins, 213 N.Y. 240, 243-244, 107 N.E. 496 (1914). In Tomlins, a father killed his son after his son attacked him in the father's home. At trial, the father unsuccessfully claimed self-defense and was convicted of murder. On appeal, the father assigned as error the trial court's instruction that the father had a duty to retreat from his own home before using deadly force.
In reversing the defendant's conviction, Judge Cardozo concluded, in part, that:
It is not now, and never has been the law that a man assailed in his own dwelling, is bound to retreat. If assailed there, he may stand his ground, and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home. More than two hundred years ago it was said by Lord Chief Justice HALE (1 Hale's Pleas of the Crown, 486): In case a man is assailed in his own house, he `need not fly as far as he can, as in other cases of se defendendo, for he hath the protection of his house to excuse him from flying, for that would be to give up the possession of his house to his adversary by his flight. `Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in the home. That there is, in such a situation, no duty to retreat is, we think, the settled law in the United States as in England. It was so held by the United States Supreme Court in Beard v. United States (158 U.S. 550, 15 S.Ct. 962, 39 L.Ed. 1086). In that case there was a full review of the authorities, and the rule was held to extend not merely to one's house but also to the surrounding grounds.... The rule is the same whether the attack proceeds from some other occupant or from an intruder. It was so adjudged in Jones v. State (76 Ala. 8, 14). Why, it was there *640 inquired, `should one retreat from his own house, when assailed by a partner or co-tenant, any more than when assailed by a stranger who is lawfully upon the premises? Whither shall he flee, and how far, and when may he be permitted to return?' We think that the conclusion there reached is sustained by principle, and we have not been referred to any decision to the contrary. The duty to retreat, as defined in the charge of the trial judge, is one applicable to cases of sudden affray or chance medley, to use the language of the early books. [Citations omitted]. We think that if the situation justified the defendant as a reasonable man in believing that he was about to be murderously attacked, he had the right to stand his ground.
People v. Tomlins, 213 N.Y. at 243-244, 107 N.E. 496. (Emphasis added.)
Based on our review, we see no rational legal basis for imposing upon an occupant of a home the duty to retreat from his or her home and to abandon it to a co-occupant who, by his or her conduct, is engaged in such improper behavior as to place the occupant in danger of death or serious bodily injury. In such circumstances the occupant may use, without retreating, deadly force if the occupant reasonably believes such force to be necessary to prevent his or her death or serious bodily injury presented by the co-occupant's criminal behavior.
Accordingly, we hold that an occupant[8] who is, without provocation, attacked in his or her home, dwelling or place of temporary abode, by a co-occupant who also has a lawful right to be upon the premises, may invoke the law of self-defense and in such circumstances use deadly force, without retreating, where the occupant reasonably believes, and does believe, that he or she is at imminent risk of death or serious bodily injury.[9] In determining whether the circumstances formed a reasonable basis for the occupant to believe that he or she was at imminent risk of serious bodily injury or death at the hands of the co-occupant, the inquiry is two-fold. First, the occupant's belief must be subjectively reasonable, which is to say that the occupant actually believed, based upon all the circumstances perceived by him or her at the time deadly force was used, that such force was necessary to prevent death or serious bodily injury. Second, the occupant's belief must be objectively reasonable when considering all of the circumstances surrounding the occupant's use of deadly force, which is to say that another person, similarly situated, could have reasonably formed the same belief. Our decision in Syllabus Point 2, State v. Crawford, 66 W.Va. 114, 66 S.E. 110 (1909), is expressly overruled.
III.3.
Sufficiency of the Evidence
We begin our analysis of the sufficiency of the State's evidence by briefly reviewing the required elements of our self-defense doctrine *641 as it pertains to circumstances where one occupant of a home has killed a co-occupant of the same home.