Herbin v. Com.

• Decision Date: 18 August 1998
• Docket Number: Record No. 1553-97-4.
• Court: Virginia Court of Appeals
• Parties: Jervon Lamant HERBIN, s/k/a Jervon Lamont Herbin v. COMMONWEALTH of Virginia.

503 S.E.2d 226

28 Va. App. 173

Jervon Lamant HERBIN, s/k/a Jervon Lamont Herbin v. COMMONWEALTH of Virginia.

Record No. 1553-97-4.

Court of Appeals of Virginia, Richmond.

August 18, 1998.

Paul A. Maslakowski, Assistant Public Defender, for appellant.

Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: WILLIS, ANNUNZIATA and OVERTON, JJ.

ANNUNZIATA, Judge.

The appellant, Jervon Lamont Herbin, appeals his convictions for attempted rape (Code § 18.2-67.5), malicious wounding (Code § 18.2-51), abduction (Code § 18.2-47), and two counts of forcible sodomy (Code § 18.2-67.1). Appellant contends the trial court erred by refusing to give his proffered jury instructions on insanity. He further asserts the trial court erred in not admitting into evidence letters from the victim's mother. Finding no error, we affirm.

Appellant was a temporary houseguest at the Ashburn, Virginia home of his school acquaintance, Maria Wheeler (Maria). Due to a gunshot wound suffered eight days prior to the offenses, appellant was injured and using crutches. On the morning of January 27, 1996, only appellant and the victim, Maria's daughter, Valerie Wheeler (Valerie), were present in the home. Appellant requested Valerie's help putting on his socks and, after returning to her room to finish a phone call, Valerie entered appellant's room.

After assisting appellant with his socks, Valerie asked if she could help him with anything else. Appellant pulled out a kitchen knife and stated, "Don't make this difficult for me." He instructed Valerie to remove her shirt. In response to Valerie's pleas for appellant to stop his attack, appellant stated his intention to have sexual intercourse with her. He again demanded that Valerie take off her shirt, and she yielded to his demand. As appellant turned away from Valerie for a moment, she attempted to knock him over. Her attempt barely moved him, and appellant turned around and stabbed Valerie several times. Following this exchange, Valerie ceased struggling.

At appellant's instruction, Valerie removed her pants and sat on the side of the bed. Appellant put down the knife and, ignoring Valerie's protests, forced her to perform oral sex on him. Soon after, Valerie was instructed to lie down on the bed, which she did. In response to Valerie's protestations, appellant stated he had to commit the crime because she always told the truth and would tell her mother. After appellant unsuccessfully attempted sexual intercourse with Valerie, he instructed Valerie to perform oral sex for a second time, which she did. When he was unable to become erect, appellant pulled up his pants and paced around the room.

While pacing, appellant attempted to convince Valerie to touch the knife and asked her whether her family owned guns and whether the car had automatic or manual transmission. Valerie answered his questions and pleaded for appellant to call the hospital. In response to Valerie's request, appellant voiced his fear the police would arrest him if he called the hospital. Thinking aloud, appellant considered excuses he could present to the hospital; he stated that he could tell the hospital that Valerie was hurt in a kitchen accident or that she was injured while taking the knife from him as he attempted to commit suicide.

After threatening Valerie's life if she moved, appellant went into her bedroom to use the phone. Appellant pretended to call for emergency assistance twice. After pretending to call for assistance, appellant actually called for emergency services, and told the emergency operator that Valerie had been injured in a kitchen accident. When the paramedics arrived, the appellant told a paramedic that Valerie had slipped on a rug and accidentally stabbed herself. Appellant told a police officer that he was trying to commit suicide, and Valerie was accidentally stabbed trying to take the knife away. After Valerie informed the paramedic of the incident, police arrested appellant.

At trial, appellant testified that he felt disturbed and out of control on the morning of January 27. More specifically, he testified that he had the feeling that "nothing is wrong or right." Appellant further testified that he had no recollection of the incident or the emergency call, that he did not remember anything before noticing Valerie sitting in a pool of blood, and that he regained his awareness sometime between the emergency call and the arrival of the ambulance. Appellant's testimony was contradicted by a number of witnesses who testified as to the voice and demeanor of appellant the day of the attack. Both Maria and Michael Wheeler (Michael) said his behavior was normal before they left for work. Valerie testified that, during the attack, appellant's voice was even and conversational and that he did not appear nervous. The Emergency Medical Technician stated that appellant was quiet and cooperative; one police officer on the scene noted his docile nature. Another officer testified that appellant was not despondent and spoke in a normal tone while in custody. Additionally, the officer testified that appellant stated that he faced thirty years in prison for the offense and would probably serve twenty to twenty-six years of his sentence.

Appellant presented evidence of his distress during the period leading up to the attack. He broke up with his girlfriend, the mother of his child, which, he claimed, led to renewed drug abuse. Eight days before the incident, he was shot in the hip trying to re-enter his mother's home after using crack cocaine. He was taken to the hospital and treated. Upon leaving the hospital, he temporarily moved in with the Wheelers. Shortly thereafter, appellant unsuccessfully attempted suicide by taking all of his Percocet painkillers. Appellant testified that he had a sexual relationship with Maria and cited immense distress derived from constant contact with Michael, who knew nothing of the relationship appellant claimed to have had with Maria.

Appellant introduced extensive evidence of his background of physical and sexual abuse, drug use, and suicide attempts. Appellant was institutionalized for most of the period from July 1976 to March 1978. From October 1993 until November 1994, appellant attended a sex offender treatment program at the Augustus Institute. Approximately three months before the attack, Hans Selvog, Assistant Clinical Director of the Augustus Institute, met with appellant and found him anxious, disjointed and exacerbated. A mental health evaluation, dated March 5, 1993, stated that appellant needed continued supervision and treatment and expressed concern for the appellant's short-term memory lapses. Selvog stated in a letter to appellant's attorney that appellant needed continued structure and supervision to treat his substance abuse and sexual disorders.

Maria testified that her relationship with appellant continued after the attack. She visited him, wrote letters to him, and sent him money. When asked about the extent of her relationship with appellant, she denied that any "physical relationship" occurred. Appellant attempted to introduce into evidence letters Maria wrote to him while appellant was incarcerated. Appellant argued that Maria's letters were necessary to impeach Maria's denial of an affair and to corroborate his testimony. After reviewing the letters, the trial court ruled the letters inadmissible on the basis that they constituted impeachment of Maria on a collateral matter.

At the conclusion of the evidence, appellant proffered four jury instructions related to his insanity defense. Instruction A described the possible verdicts of the case as not guilty, not guilty by reason of insanity, and guilty. Instruction B would have instructed the jury to find appellant not guilty by reason of insanity if it found him insane and defined "insane" as "not understand[ing] the nature, character, and consequences of his act," or "unable to distinguish between right and wrong." Instruction C stated that if the jury found appellant able to understand the nature of his act and to perceive that it was wrong, it should nonetheless find him not guilty if the jury found that appellant was motivated by an irresistible impulse stemming from a mental disease. Instruction D explained that, if the jury found appellant insane, he would be confined in a state hospital until the court ordered him released. At the instruction conference, the Commonwealth argued that the court should not give any instructions on insanity because there was no evidence that appellant had a diseased mind. The trial court agreed and refused the instructions on the ground that the evidence did not support the insanity defense.

I. Jury Instructions

Appellant first contends the trial court erred in refusing his proffered instructions on insanity. "If there is evidence in the record to support the defendant's theory of defense, the trial judge may not refuse to grant a proper, proffered instruction." Delacruz v. Commonwealth, 11 Va.App. 335, 338, 398 S.E.2d 103, 105 (1990) (citing Painter v. Commonwealth, 210 Va. 360, 365, 171 S.E.2d 166, 168 (1969)). "If a proffered instruction finds any support in the credible evidence, its refusal is reversible error." McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975) (citing Taylor v. Commonwealth, 186 Va. 587, 591, 43 S.E.2d 906, 908 (1947)).

"Instructions on insanity, as other instructions, must be supported by more than a mere scintilla of evidence." Gibson v. Commonwealth, 216 Va. 412, 417, 219 S.E.2d 845, 849 (1975). In determining whether evidence amounts to more than a scintilla, "we must look at the evidence in the light most favorable to [appellant]." Foster v. Commonwealth, 13 Va.App. 380, 383, 412 S.E.2d 198, 200 (1991).

"[T]he actual M'Naghten test for insanity, stated in the disjunctive, is the rule in Virginia." Price v. Commonwealth, 228 Va. 452, 459, 323...