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Appellant’s self-defense claim rejected in wounding case

Virginia Lawyers Weekly//October 23, 2022

Appellant’s self-defense claim rejected in wounding case

Virginia Lawyers Weekly//October 23, 2022

Where appellant claimed self-defense or the defense of others after shooting the victim, the trial court properly credited the victim’s testimony and rejected appellant’s self-serving version of the events.


Flood’s conviction of aggravated malicious wounding arose from an incident where Flood shot Davis in the driveway of Davis’s home.

Cierra Davis and Erin Burgess, Flood’s cousin, attended a concert together. When Davis received a text from another woman, Burgess became upset. The two quarreled and fought at the concert. On the way home, the two continued to argue. Burgess called Flood. Davis testified that Burgess told her “You going to die tonight.”

Davis took Burgess’s phone and said she would give it back if Burgess left the car. Davis testified that Burgess tried to hit her with a liquor bottle but Davis was able to avoid the attempt to hit her. Davis said she put the liquor bottle in the trunk. Burges testified that Davis hit her in the head and Burgess suffered a concussion.

Davis also testified the Burgess kept trying to grab the steering wheel. Davis. Davis stopped the car and “eventually drove to her house without further incident.” Burgess denied that she tried to grab the steering wheel.

When they arrived at Davis’s house, Flood was there. Davis and Burgess provided competing versions of the circumstances relating to Flood shooting Davis. In addition, Flood testified that she shot Davis either in self-defense or the defense of Burgess, who, Flood claimed, was being beaten by Davis.

“The trial court found Flood guilty of aggravated malicious wounding and of using a firearm in the commission of a felony. The court said that it ‘considered all of the evidence’ and ‘the credibility’ of the witness testimony.”

Credibility contest

“The trial court heard three different versions of events from Davis, Burgess, and Flood, and it was the trial court’s prerogative to determine which version was credible.

“Davis testified that she was walking toward her front door with her hands in the air when Flood shot her. If believed, such testimony negates Flood’s claim that she shot Davis in self-defense or to protect Burgess.

“The trial court believed Davis’s testimony because Davis’s injury – to the upper torso just below her left armpit – was more consistent with Davis’s testimony that she walked with her hands up than with Flood’s testimony that Davis kept her left arm by her side.

“Because Davis’s testimony was not inherently incredible, the trial court could properly believe Davis and disbelieve Flood’s self-serving testimony to the contrary.

“Flood argues that the certificate of analysis supports her testimony because it shows that three cartridge cases were recovered from the scene, thus corroborating Flood’s testimony that she fired three shots, not two.

“While corroborative of one aspect of Flood’s testimony, however, it does not render Davis’s testimony inherently incredible. For one thing, the number of shots fired at Davis was less important to the trial judge than Davis’s testimony that she held her arms in the air.

“That fact was consistent with the bullet wound to Davis’s left armpit and inconsistent with Flood’s testimony that Davis’s left arm was down when she shot her. Davis may have been mistaken about how many shots Flood fired and still be correct about the critical aspects of the incident, such as whether she had her arms up when Flood shot her.

“Flood is wrong that Davis’s testimony could not be found credible because it was contradicted by Burgess’s testimony. A conflict between the testimony of different witnesses is up to the fact finder to resolve.

“The trial court considered witness credibility and found Davis more credible than Burgess, whose testimony at times also contradicted Flood’s version of events. For example, Flood testified that she arrived at Davis’s car as Davis was choking and hitting Burgess.

“But Burgess testified that Davis had stopped choking her a couple minutes before Flood arrived and that Davis did not strike her.

“Flood also testified that, at the time of the shooting, she was standing on the sidewalk behind the car facing toward the house, while Davis was facing the street. Burgess testified, however, that Flood was standing to the side of the car facing away from the house while Davis was near the back of the car facing toward the house, a detail consistent with Davis’s testimony.

“Confronted with those three conflicting versions of events, the fact finder could select the narrative that it found most credible. …

“[W]e find no error in the trial court’s decision to reject Flood’s defense that she shot Davis in self-defense or to protect Burgess.”


Flood v. Commonwealth, Record No. 0874-21-1, Aug. 9, 2022. CAV (Raphael) From the Circuit Court of the City of Chesapeake (Banks Jr.) Trevor Jared Robinson for appellant. Justin B. Hill, Jason S. Miyares for appellee. VLW 022-7-317, 11 pp. Unpublished opinion.

VLW 022-7-317

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