CHARLESTON – The West Virginia Supreme Court has overturned a Cabell County woman's conviction for killing her husband, ordered her to be set free and for the lower court to enter a judgment of acquittal on her behalf.

Tanya A. Harden was sentenced to life in prison in the 2004 killing of Danuel Harden. Tanya asserted that she killed her husband in self-defense after a "night of domestic terror."

Tanya contended that a drunken Danuel savagely beat and sexually assaulted her and repeatedly threatening to kill Tanya, her two children and a friend who was at the Harden home for a sleep over.

Prosecutors agreed that Tanya was the victim of physical and sexual abuse on the evening of the killing, but they rejected the defendant's argument that she killed Danuel in self-defense.

The state called the claim "untenable," according to court records, and told 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, (Danuel.)"

The state said this was not the case with Tanya because there had been a "cooling off" period during which Danuel was lying on the couch either asleep or passed out drunk.

Prosecutors said Tanya could have retreated from the situation at this time and that using deadly force was unreasonable.

In the Supreme Court's opinion overturning the conviction, Justice Menis Ketchum wrote that the state did not prove beyond a reasonable doubt that Tanya didn't act in self-defense.

"We ... hold that where a defendant has asserted a plea of self-defense, evidence showing that the decedent had previously abuse or threatened the life of the defendant is relevant evidence of the defendant's state of mind at the time deadly force was used," Ketchum wrote.

Ketchum added that determining the reasonableness of a self-defense claim has to include whether a defendant believed using deadly force, based on the circumstances, is necessary to protect themselves and that another person similarly situated would form the same conclusion.

On the state's argument that Tanya should have simply left the home when Danuel was asleep, Ketchum noted that the situation is different from self-defense cases that involve an intruder coming into someone's home.

Ketchum noted that the court had previously held that an occupant of a home has a duty to retreat if they feel threatened by a co-occupant.

"The question that our decisions … 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," Ketchum wrote. "We conclude that we should not."

Ketchum wrote that West Virginia is in the minority of states that assign a co-occupant of a home a duty to retreat if they fear danger.

And Ketchum added that there's no clear cut proof that Danuel was sleeping when he was killed.

Ketchum noted that evidence that Danuel was lying on the couch at the time he was killed does not prove that he was sleeping or passed out, as the state contended. Ketchum said it is equally plausible that Danuel was still awake and renewing his threats against Tanya and the children, as she contended.

"Reviewing the record, there is just no evidence, only conjecture, that the defendant's 'night of terror' had ended or that the defendant and the children in her care were safe from death or serious bodily injury," Ketchum wrote.

Justice Brent Benjamin cast the lone dissent in the case.

Supreme Court case number: 34268

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