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Murder case may focus on dad's alleged sexual abuse

Shane Cubbage has a story to tell of alleged sexual abuse at home that ended last summer when he put a .38-caliber bullet in the back of his father’s head.

The 17-year-old wants a jury during his upcoming first-degree murder trial to hear from experts about “battered child syndrome,” and the long-term effects of abuse, Cubbage’s attorney said in court Monday. He wants to explain to the jury how he acted in self-defense, fearing bodily harm or imminent death, when he killed his 43-year-old father.

Chesapeake Circuit Judge V. Thomas Forehand Jr. could decide within two weeks if Cubbage’s abuse allegations can be used during the first phase of his Oct. 18 trial. During a hearing Monday, Forehand heard oral arguments from the prosecution and defense concerning the admission of mental-health and sexual-abuse evidence. Commonwealth Attorney Randall D. Smith argued that such evidence of Cubbage’s mental state is inadmissible, unless he plans to use insanity as a defense.

If convicted, the mental-health evidence could be used during the sentencing phase of the trial as mitigation to lessen the penalty.   Cubbage faces charges of first-degree murder and use of a firearm during the commission of the crime. He is accused in the May 5, 2003, shooting of his father, Forrest G. Cubbage, in the family’s Chesapeake home.   Although he was 16 at the time, Cubbage is being prosecuted as an adult.

Cubbage’s attorney, John Brown, is seeking to show that his client was forced to perform sexual acts against his will while at the family’s home in the 1500 block of Waterway Circle. The abuse allegedly occurred from September 2001 until May 4, 2003, the day before the senior Cubbage was killed.

Killing his father – at least in the teen’s perception – was the only way to avoid bodily harm or threat of death, Brown argued. Prosecutors have questioned Cubbage’s revelation of sexual abuse, particularly because he never mentioned it during police interrogations.

Furthermore, Smith argued that Cubbage could not have been acting in self-defense because he planned the killing.   “There has to be some immediate fear,’’ Smith argued.   When the shooting occurred, the teen’s mother had been away from home for about five months. She had been deployed to the Middle East aboard the amphibious assault ship Kearsarge.

On May 5, 2003, a Monday, the Hickory High School student allegedly planned the killing throughout the school day, Smith said.   As his father worked to put up wallpaper in the house, the teen walked up behind him with a revolver and fired the gun at the back of his head, according to court documents.   “He planned it, thought about it the day before,’’ Smith said, rejecting the notion of self-defense.

After the shooting, the teen retrieved a bucket from the garage and submerged his father’s head in water to ensure he was not breathing, Smith said. He then apparently tied plastic grocery bags around his father’s head and poured ammonia on the body before wrapping it in blankets.   “Then he has parties with friends for the next couple of days before he leaves for the western part of the state,’’ Smith said.   Cubbage drove to the mountains of Virginia before returning to surrender to police.



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