Benjamin dissents in Cabell murder case

By Steve Korris | Aug 12, 2009



CHARLESTON – West Virginia Supreme Court Chief Justice Brent Benjamin says a recent decision will hinder the fight against reducing domestic violence.

In June, four of the five Justices on the state Supreme Court agreed that when Tanya Harden shot Danuel Harden in the head at close range from behind as he lay down, she acted reasonably to protect herself and three children.

In the majority opinion, Justice Menis Ketchum found "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."

"The fact that even the State cannot say with any certainty the decedent's disposition at the time of his death is compelling evidence of reasonable doubt," Ketchum wrote.

The Justices reversed Cabell Circuit Judge Alfred Ferguson, but only in a procedural sense. They really reversed their predecessors from 87 years ago.

They overruled the precedent Ferguson followed, State v. McMillion, a 1922 decision requiring apprehension of immediate danger for a plea of self defense.

Ferguson told jurors, "No apprehension of danger previously entertained will justify the commission of homicide."

Ketchum and colleagues Robin Davis, Margaret Workman and Thomas McHugh have repealed that rule.

But in his dissenting opinion, Benjamin asked how a lower standard for self defense could be a positive advance in reducing domestic violence.

Blurring the line between legitimate and non-legitimate defenses in charged emotional settings might work against victims of domestic violence, he wrote.

"I question the wisdom of a self defense standard in our jurisprudence which sanctions the use of deadly force to defend one's self from a person who is unconscious or incapacitated, and who poses no threat of imminent harm," Benjamin wrote in his

Danuel died on Sept. 5, 2004, with a blood alcohol content level of 0.22 percent.

Tanya went to Cabell Huntington Hospital, where emergency room physician Lori Bennet observed bruises all over her face and on an arm.

Bennet saw a puncture wound on an arm. An X-ray revealed a broken nose.

Tanya's son, nine years old on the night of the terror, testified at her trial in 2007.

"I seen him hit her with the back end of a gun," he said.

He said the gun came from a back room. He said he saw his father carry it into the living room.

He said he heard his father say he would shoot her, and he said he didn't think his father would have shot her.

"They would fight and they'd just get over it and it would be fine the next morning," he said.

Bennet described Tanya's injuries and said Tanya told her that Danuel assaulted her.

Jurors saw photographs of Tanya's injuries and the bloody shirt she wore.

Jurors listened to a taped statement that sheriff's sergeant James McCallister took from Tanya on the day Danuel died.

Tanya testified that Danuel started drinking and grew angrier as the evening wore on.

"It was a change in him and I knew it was going to happen," she said.

She said he told her she wouldn't live to see the next day. She said he told her the children wouldn't live.

"I was scared for my life and not only mine but the tree kids," she said.

She said he put the gun to her son's head and said he would kill him. She said he made her have sex. She said he dared her to shoot him.

"I thought I was going to die," she said. "I knew I was."

Jurors saw photos showing he died naked from the waist down.

Jurors found Tanya Harden guilty of first degree murder. Ferguson ordered life imprisonment with a possibility of parole.

On appeal, the Justices found that the state's case and Ferguson's jury instruction relied entirely on the McMillion decision.

Ketchum wrote that decisions since McMillion clearly provide that violent criminal acts and death threats are relevant in determining a defendant's reasonable belief that death or serious injury is imminent.

He wrote that Tanya submitted sufficient evidence on which she could have reasonably believed, and did believe, that death or injury was imminent.

"Evidence that the decedent had sexually assaulted the defendant, and thereafter lay sprawled naked from the waist down on the living room couch does not amount to proof beyond a reasonable doubt that the defendant was asleep or passed out drunk," he wrote.

He also rejected the state's claim that Tanya had a duty to retreat, writing that no one has a duty to retreat from his or her home.

Ketchum reached back about 300 years for a line from Lord Chief Justice Hale that, "Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in the home."

He wrote that Tanya married Danuel at 16. He wrote that Daniel wouldn't let her drive, work, or bring friends to the house without permission.

"Defendant is ordered released," he wrote.

Benjamin argued in dissent that jurors had reason to doubt Tanya's veracity.

Though she told jurors that Danuel forced her to have sex and threatened their son with the gun, he wrote, she had not made those statements on tape.

He wrote that the majority disregarded the state's progress in prevention, treatment and remediation of domestic violence.

"Spouses who find themselves in abusive or threatening situations now have resources that previous generations of abused spouses did not," he said.

Once Danuel fell asleep or passed out, he wrote, the threat of imminent harm was over and Tanya had options other than homicide.

Jurors could reasonably have found Tanya's action willful, deliberate and premeditated, he wrote.

"Unfortunately, the majority improperly has replaced the sound verdict of the jury with its own idea of justice and created bad law in the process," he wrote.

Public defenders Russell Cook and J. L. Hickok of Charleston represented Tanya Harden. Assistant attorney general Robert Goldberg represented the state.

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