Imminent self defense

COURT OF APPEALS OF VIRGINIA
The law does not require a person to suffer the last lethal blow
before being able to take up his weapon to defend his life." Smith,
17 Va. App. at 72, 435 S.E.2d at 417.
Because the evidence, viewed in the light most favorable to
appellant, would support a finding that the homicide was justifiable,
appellant had no duty under the law of self-defense to retreat in
order to be entitled to the instruction. See, e.g., Gilbert, 28 Va.
App. at 472, 506 S.E.2d at 546. However, even assuming that a
finding of "imminent harm" requires consideration of an accused's
ability to flee to avoid the harm, see Sam, 13 Va. App. at 325, 411 S.
E.2d at 839, the evidence, again viewed in the light most favorable
to the appellant, supported a finding that appellant believed she
could not flee because Sands would find and kill her and a finding
that this belief was reasonable under the circumstances.

We also hold the outcome of appellant's case is not controlled by
Mealy v. Commonwealth, 135 Va. 585, 115 S.E. 528 (1923). In Mealy,
the defendant testified that she had left her husband several times
previously due to his ongoing abuse but that she voluntarily
reconciled with him "because [he] . . . 'would come and out-talk
her'" and "promise to 'do better.'" Id. at 588, 115 S.E. at 528.
Further, Mealy previously had threatened to kill her husband, and on
the evening in question, the altercation began when Mealy took from
the post office and opened a letter addressed only to her husband.
See id. at 588-89, 115 S.E. at 529. Thus, Mealy was not entirely
without fault in beginning the altercation and was entitled, at most,
to an acquittal based on excusable rather than justifiable homicide
if she established that she retreated and announced a desire for
peace. Although Mealy's husband had threatened to kill her shortly
before his death, Mealy escaped from him, and he began eating his
supper before she returned with a gun and shot him in the back. See
id. at 589, 115 S.E. at 529. Therefore, no evidence supported a
finding that Mealy perceived an imminent threat from which she was
unable to retreat. See id. at 590, 115 S.E. at 529. She testified
merely that "'[she] shot him'" because "'[she] was tired of him
beating [her].'" Id. at 589, 115 S.E. at 529. She previously had
left the home and returned not because he threatened her but because
he promised to "do better."