Frizzell v. Commonwealth

• Decision Date: 24 July 2018
• Docket Number: Record No. 0028-17-3
• Court: Virginia Court of Appeals
• Parties: DAVID MILLER FRIZZELL v. COMMONWEALTH OF VIRGINIA

DAVID MILLER FRIZZELL v. COMMONWEALTH OF VIRGINIA

Record No. 0028-17-3

COURT OF APPEALS OF VIRGINIA

JULY 24, 2018

UNPUBLISHED

Present: Judges Humphreys, Alston and Decker

Argued at Richmond, Virginia

MEMORANDUM OPINION^* BY JUDGE ROSSIE D. ALSTON, JR.

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY

James J. Reynolds, Judge

David B. Hargett (Hargett Law, PLC, on brief), for appellant.

Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

David Miller Frizzell ("appellant") appeals his convictions for attempted capital murder and use of a firearm in the commission of a felony. Appellant contends that (1) the Circuit Court of Pittsylvania County ("trial court") erred when it denied appellant's motion to suppress; (2) the trial court erred in excluding expert testimony about appellant's ability to premeditate; and (3) the trial court erred in declining to give three jury instructions proffered by appellant. For the reasons stated below, we affirm the trial court's rulings.

BACKGROUND

On October 30, 2015, Deputy Sheriff Jason Woods ("Woods") was on patrol and received a report regarding suspected property damage and reckless driving by an individual driving a white sport utility vehicle ("SUV") at a nearby park. The eyewitnesses who had reported the incident told Woods that they saw the SUV, driven by an older, white male withsome facial hair, doing "doughnuts"¹ on the grass of the park, causing dirt and grass to spew everywhere. Based upon this description, Woods realized he was already familiar with the SUV and its owner, appellant, from an interaction a year earlier. Woods searched for the SUV and observed it parked at a trailer park, with appellant standing beside it. Woods drove farther down the road and called for backup, but when he returned to the trailer park a few minutes later, the SUV was gone.

Woods drove to the park to inspect the damage and observed that the grass area in the park was "tore up pretty bad, as far as ruts and tire tracks." Woods estimated that the property damage exceeded $1,000 and intended to seek an arrest warrant for appellant for felony destruction of property. As Woods drove back to his station to speak with a magistrate, he again observed the SUV, which he began following. Woods observed a female in the driver's seat, another male in the passenger seat, and appellant in the back seat. Woods had followed the SUV for a short time when the SUV began to pull to the side of the road. Woods activated his emergency lights as he came to a stop behind the SUV.

Steven Holland, the other male passenger in the vehicle, said that when Woods stopped behind the SUV, appellant "got fidgety and started to get out." Appellant exited the SUV and, ignoring Woods' directives to get back inside, walked around to the driver's side of the vehicle. Appellant attempted to pull the female driver, Juanita Haley ("Haley"), appellant's girlfriend, out of the SUV. Haley ran toward Woods and said, "I don't know what's wrong with him, he's drunk." Haley testified that appellant had recently become severely depressed and that heconsumed heavy amounts of alcohol on a daily basis. Haley further stated that on the date of the incident, appellant had consumed an entire bottle of Jim Beam whiskey and had also smoked marijuana.

Woods ordered appellant to step away from the SUV. Appellant turned to look at Woods and started walking toward him. Woods noticed that appellant had bloodshot eyes and a "blank look on his face." Woods drew his taser and pointed it at appellant, ordering him to stop walking. Appellant did not comply, and after several more commands, when appellant was about six feet away from Woods, Woods tased him. Appellant "tensed up" and started backing up toward the SUV, but then put his hand into his left pocket while stating, "Jason, you've done fucked up now." Woods dropped his taser and drew his gun, ordering appellant to remove his hand approximately five times. Appellant quickly pulled a gun from his pocket and fired it at Woods. Woods fired four shots in response. Appellant was struck once in the leg but did not appear to notice.

Other officers arrived at the scene and approached appellant, observing that he had "a thousand-yard stare" before tasing him again and ultimately placing him under arrest. After being handcuffed, appellant remarked, "[c]an you please take the damn probes out of my back." Woods testified that he informed an officer at the scene that he thought appellant had shot him and that appellant, overhearing, then stated "[o]h, you're not hit, you're fine."

Appellant was transported to the hospital for treatment for his leg wound. While at the hospital, Special Agent Matthew Wade ("Wade") of the Virginia State Police interviewed appellant. Wade testified that as they left the hospital and appellant was placed in a vehicle for transport to the jail, appellant "dropped his head and said, 'I'll never see the light of day again.'"

At the conclusion of the Commonwealth's evidence, appellant made a motion to strike, arguing that the evidence did not establish that he could have acted with premeditation ordeliberation due to his intoxicated state. The Commonwealth responded that appellant had demonstrated the capability to premeditate both through his awareness that the SUV had stopped, which became evident when he removed Haley from the car, and through his statements during the course of the encounter showing that he knew what was happening and who was involved.

The trial court denied the motion to strike, reasoning that "the evidence, if believed, could support a verdict of attempted capital murder . . . [because] premeditation need not exist for any particular length of time."

In his case-in-chief, appellant called Dr. Frank Russell ("Russell") as an expert witness in clinical psychology, to offer an opinion on the effect of alcohol and marijuana on appellant's ability to premeditate. Russell admitted that he had never testified about that particular subject, but stated that he is a mental health expert and often performs competency evaluations on criminal defendants. The trial court allowed Russell to testify that alcohol and marijuana can potentially affect a person's ability to premeditate. However, Russell had partially based his testimony on out-of-court statements by appellant. The trial court asked Russell if he could "exorcise [sic]" appellant's statements from his opinion, inquiring "[i]n other words, is it possible for you to formulate an opinion without relying on the information provided by [appellant]?" Russell stated, "[n]ot wholly." Based on Russell's response, the trial court precluded Russell from opining on appellant's specific mental state.

After appellant rested his case and during the jury instructions phase of the trial, the trial court granted several standard instructions addressing the presumption of innocence, the reasonable doubt standard, and charging that appellant had no burden to produce any evidence.

The parties disagreed on three instructions that are now at issue in this appeal: Instruction 21, the voluntary intoxication instruction, Instruction 14, the premeditation instruction, and an imperfect self-defense instruction.

Instruction 21 stated, in pertinent part:

If you find that the defendant was so greatly intoxicated by the voluntary use of alcohol that he was incapable of deliberating or premeditating, then you cannot find him guilty of any offense greater than attempted second degree murder.

Appellant proffered an alternative ("Refused Instruction A") which read:

If, at the time of the attempted homicide, [appellant's] state of mind was caused by voluntary intoxication or other factors, and was such that a reasonable doubt exists as to his having acted deliberately and with premeditation, you cannot find him guilty of any offense greater than second degree murder.

(Emphasis added).

Instruction 14, the premeditation instruction, read:

"Willful, deliberate and premeditated" means a specific intent to kill, adopted at some time before the killing, but which need not exist for any particular length of time.

Appellant's proffered alternative instruction ("Refused Instruction B") added this language as a second paragraph:

For the attempt to kill to be willfull [sic], deliberate, and premeditated, it is necessary that it should have been done on purpose, and not by accident, or without design; that [appellant] must have reflected with a view to determine whether he would kill or not; and that he must have determined to kill as a result of that reflection before he does the act-that is to say, the attempt to kill must be a premeditated attempt to kill on consideration.

Finally, appellant's proffered imperfect self-defense instruction ("Refused Instruction E") provided, in relevant part:

(3) That [appellant] was the initial aggressor in the conflict but began the conflict without malice; and

(4) That [it] appeared to [appellant] that it was necessary to attempt to kill Jason Woods in order to save himself from death or great bodily harm; and

(5) That [appellant's] belief was reasonable in that the circumstances as they then appeared to him were sufficient tocreate a belief of death or great bodily harm in the mind of a reasonable person.

(Emphasis added).

The trial court denied each of appellant's proposed instructions, concluding that the principles stated therein were in some instances an incorrect statement of the law and in other instances were encompassed by Commonwealth's Instructions 21 and 14. The jury found appellant guilty of attempted capital murder and use of a firearm while in the commission of a felony. This appeal followed.

ANALYSIS

I. The trial court did not err in denying appellant's motion to suppress.

"Upon review of the [trial] court's denial of a suppression motion, 'the burden is upon [appellant] to show that the ruling, when the evidence is considered most favorably to the Commonwealth,...