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Trial court erred by refusing to give self-defense instruction

Virginia Lawyers Weekly//October 16, 2018

Trial court erred by refusing to give self-defense instruction

Virginia Lawyers Weekly//October 16, 2018

A jury convicted Thomas Lienau of involuntary manslaughter. The court reversed, holding it was error to not give the jury a self-defense instruction when such an instruction was requested by Lienau and supported by the facts.


Lienau owned a townhouse, where he resided in the basement. On the evening of July 16, 2015, Lienau heard an intruder in his home at night and armed himself. When he encountered the intruder, Lienau fired one shot and killed him. The intruder turned out to be the brother of Lienau’s roommate (Mohammed), whom Lienau had ordered to leave the house earlier in the night.

Both immediately after the shooting and in a statement he gave police at the police station, Lienau maintained that he never intended to pull the trigger. He said it happened “unfortunately too fast” “and [he] wasn’t thinking.” He explained that he “didn’t think about it that deeply” at the time but was “try[ing] to piece some of it” together during the interview. He said, “With an intruder and the door broken in . . . I just saw red.” He said he was in a “rage” and shaking so much he would not have been able to hit a target if he had been aiming. He admitted that he was upset at Mohammed’s actions earlier that evening, especially after he had already kicked him out. He said, “I let my temper, my emotions, get the better of me.”

The Commonwealth charged Lienau with murder. At the conclusion of the trial, Lienau moved to strike the evidence on the basis that the Commonwealth had failed to prove the shooting was not an accident. The trial court denied the motion. Lienau then requested a jury instruction on the law of self-defense, arguing that he was in a “frightening and self-defense situation.” The trial court refused the instruction. The jury found Lienau guilty of involuntary manslaughter. This appeal followed.

Self-Defense Instruction

“The trial court’s ‘broad discretion in giving or denying instructions requested’ is reviewed for an abuse of discretion.”  However, “if there is evidence in the record to support the defendant’s theory of defense, the trial judge may not refuse to grant a proper, proffered instruction.”  The issue is whether there was sufficient credible evidence in the record, viewed in the light most favorable to Lienau, to support the defendant’s right to have the jury instructed on the legal principles of self-defense. We conclude there was.

From Lienau’s viewpoint, Mohammed’s overt act of breaking into Lienau’s home in the dark of night could be viewed by a jury as “indicative of imminent danger at the time.” The act appeared even more menacing, from Lienau’s viewpoint, because Mohammed broke in with such force that he severely damaged the dead-bolted front door. This evidence of Mohammed’s overt act of breaking through the door, Lienau’s immediate response of loading the rifle he kept for self-defense, followed immediately by his confronting of the intruder constituted “more than a mere scintilla” of credible evidence that Lienau had a “reasonable apprehension of death or great bodily harm to himself.”

The Commonwealth argues that the instruction was not warranted because Lienau never claimed he was afraid; he said he was “raging.” However, it was for the jury to determine how the events reasonably appeared to Lienau and what weight to give Lienau’s statements to police. Accordingly, the trial court erred by refusing the requested self-defense instruction to guide the jury in its deliberations. And we cannot say that the error would not have affected the ultimate verdict.

Lienau’s Sufficiency Argument

Lienau also argues the trial court erred in denying his renewed motion to strike the evidence on the basis that the “Commonwealth’s evidence did not prove beyond a reasonable doubt that [Mohammed’s] death was not accidental. Therefore, the evidence was insufficient to find Mr. Lienau guilty of involuntary manslaughter.”

Our response to this argument is simple; although the trial court declined to find that the Commonwealth failed to meet its burden, the jury did. The jury acquitted Lienau of murder and voluntary manslaughter, the two offenses requiring proof of an intentional killing, and convicted him instead of involuntary manslaughter, which only requires proof of an accidental killing. Thus, to the extent that Lienau argues that the evidence was insufficient to prove the shooting was intentional, the jury agreed and convicted him of involuntary manslaughter. Because the argument has been effectively rendered moot by the verdict, we reject Lienau’s argument that the trial court erred in denying the motion to strike.

Concurring In Part, Dissenting In Part

(Malveaux, J.). I concur in the majority opinion that Lienau’s sufficiency argument is without merit. However, I respectfully dissent from the majority holding that the trial court erred in refusing appellant’s proffered jury instruction.

The majority concludes there was sufficient evidence to support giving a self-defense instruction, because Mohammed’s forceful breaking and entering of appellant’s home was evidence of an overt act indicative of an imminent danger to appellant. Further, there was evidence that this act produced in appellant a reasonable apprehension of death or great bodily harm, because appellant responded to the signs of a break-in by loading his rifle for self-defense. But appellant’s putative act of self-defense was not the loading of his rifle—it was the firing of the bullet that struck Mohammed. That was the “incident” at the time of which there must be more than a scintilla of evidence that appellant reasonably apprehended an imminent danger, based upon an overt act by Mohammed at that time, in order to justify a self-defense jury instruction and appellant’s use of force.

Appellant never stated that Mohammed made threatening gestures or furtive movements during this encounter. He never stated that Mohammed displayed a weapon, or that Mohammed was moving toward him when he fired his rifle. The crime scene detective who investigated the shooting testified that he could not say whether Mohammed was stationary or in motion when he was shot. Based upon the facts of the shooting, I can find no scintilla of evidence of an overt act by Mohammed that would justify giving a self-defense instruction. Further, when examining the encounter through appellant’s viewpoint, I can find no scintilla of evidence that an imminent danger of death or great bodily harm was reasonably apparent to him when he fired his rifle. Consequently, I find no error by the trial court in refusing to give appellant’s self-defense jury instruction.


Lienau v. Commonwealth, Record No. 0685-17-4, Sept. 11, 2018. CAV (Petty), from Fairfax Cir. Ct. (Azcarate). Peter D. Greenspun for Appellant; Katherine Quinlan Adelfio for Appellee. VLW No. 018-7-228, 22 pp.

VLW 018-7-228

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