Khine v. Commonwealth

• Decision Date: 13 September 2022
• Docket Number: Record No. 0900-21-1
• Parties: William Winn KHINE v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

75 Va.App. 435

877 S.E.2d 514

William Winn KHINE

v.COMMONWEALTH of Virginia

Record No. 0900-21-1

Court of Appeals of Virginia, Norfolk.

September 13, 2022

Catherine French Zagurskie, Chief Appellate Counsel (Virginia Indigent Defense Commission, on briefs), for appellant.

David A. Mick, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Fulton, Ortiz and Raphael

OPINION BY JUDGE STUART A. RAPHAEL

Following a bench trial, the trial court convicted appellant William Winn Khine of first-degree murder for killing his wife, Khin Shwe. On appeal, Khine challenges the trial court's decision to admit a witness's hearsay statement that Shwe said the day before she was killed that she planned to tell Khine that she wanted a divorce. Khine also challenges the trial court's ruling, at the close of evidence, to strike Khine's irresistible-impulse insanity defense.

We find no error in the evidentiary ruling because the statement about Shwe's divorce plans was admissible under the state-of-mind exception to the hearsay rule. But the trial court erred in striking Khine's insanity defense because it failed to view the evidence in the light most favorable to Khine. Under that standard, Khine met his burden of production on his affirmative defense. The trial judge, sitting as the factfinder, should have instead determined whether Khine carried his burden of persuasion to prove by a preponderance of the evidence that Khine was totally deprived of the ability to resist the voices that he claims commanded him to kill his wife. So we vacate the conviction and remand the case for further proceedings consistent with this opinion.

BACKGROUND ¹

On March 10, 2017, Khine strangled Shwe to death with his hands and a pair of pajama bottoms. Shwe also suffered blunt-force trauma to her head

and upper arms, consistent with contusions caused by someone trying to control her. At the urging of his friend, Khine called 911 to report what he had done, telling the 911 operator that he had heard voices "controlling his mind" that told him to strangle Shwe. Khine reiterated his claim to the responding officers. The officers found Shwe's body and the pajama bottoms in the house. Khine did not conceal the evidence.

Khine was arrested and found competent to stand trial by two psychologists. One of them, Dr. Evan S. Nelson, described Khine's account of the voices that he claimed to be hearing:

Mr. Khine explained that he heard voices even now at the jail.... He could have a conversation with the voices but did not like to respond [to] them, and he did not find the voices to be a pleasant or enjoyable experience; he preferred to sleep as a means to cut them off.... Mr. Khine claimed that the voices sometimes told him to do things, like start a fight with the other inmates. However, nowadays he resisted doing what they proposed.

The grand jury returned an indictment for first-degree murder under Code § 18.2-32. The trial court granted defense counsel's motion for a psychological evaluation of Khine's sanity at the time of the offense. The court appointed Dr. Ann Vanskiver, a clinical psychologist, to perform an independent evaluation. The parties stipulated that Dr. Vanskiver was "an expert qualified to testify as to the Defendant's mental status at the time of [the] offense."

After studying Khine's case and meeting with him three times, Dr. Vanskiver reported that, "at the time of the offense, Mr. Khine was responding to delusional thoughts

and auditory hallucinations, resulting in his actions." Khine heard a voice that he called "the voice controller." Khine said that the voice controller commanded him to kill his wife. Khine "understood that his actions were wrong ... and he understood that the consequences of his actions would result in his wife's death." Still, Dr. Vanskiver found "evidence to suggest that [Khine] was experiencing symptoms to the extent of impairing his ability to resist the impulse to commit the offense" and that Khine "believed that the nature of the voice controller was that he needed to follow [its] commands." She explained that Khine "was unable to rationally think through the reality of the situation, and assaulted his wife, following the directives of the voices he was hearing." Dr. Vanskiver found that "Khine was indeed suffering from the symptoms consistent with an acute episode of psychosis

at the time of the alleged offense." She added that her investigation satisfied her that Khine was not overstating his symptoms and that he was not malingering.

The case was tried without a jury. The trial court denied Khine's motion to strike the Commonwealth's evidence and his renewed motion to strike after the defense rested. In its rebuttal case, the Commonwealth called two witnesses: a neighbor, Crystal Rosario, and a co-worker, Rebecca Simonton. Rosario testified that she had communicated with Khine nearly daily for nine months and had never observed him talking to himself or acting as if he were interacting with someone not present. Simonton testified that, the day before Khine killed Shwe, she witnessed Khine and Shwe leaving their store; both were visibly upset and Khine appeared angry. Simonton also testified, over Khine's objection, that Shwe told her she was planning to tell Khine that she wanted a divorce.

After receiving all evidence and hearing closing arguments, the trial court granted the Commonwealth's motion to strike Khine's insanity defense, finding as a matter of law that Khine failed to show that he was "totally deprived of the mental power to control or restrain" his actions. The court then convicted Khine of first-degree murder. The court sentenced Khine to forty-five years in prison with fifteen years suspended and a fine of $1,000 (which the court suspended).

ANALYSIS

Khine argues that the trial court erred in admitting Simonton's testimony—that Shwe said she planned to tell Khine she wanted a divorce—because the Commonwealth failed to show that Shwe's statement was communicated to Khine. He argues that the trial court erred in striking his insanity defense because, taking the facts in the light most favorable to Khine, he satisfied his production burden to show that an irresistible impulse caused him to kill Shwe. And he argues that the evidence was insufficient to convict him of first-degree murder because he was not guilty by reason of insanity.

A. Shwe's statement that she planned to tell Khine that she wanted a divorce was admissible under the Hillmon doctrine (Assignment of Error 1).

We review a trial court's evidentiary ruling under an abuse of discretion standard. Campos v. Commonwealth , 67 Va. App. 690, 702, 800 S.E.2d 174 (2017). If an admissibility determination involves a question of law, however, we review that issue de novo. Beckham v. Commonwealth , 67 Va. App. 654, 658, 799 S.E.2d 689 (2017). And by definition, a trial court "abuses its discretion when it makes an error of law." Porter v. Commonwealth , 276 Va. 203, 260, 661 S.E.2d 415 (2008) (quoting Koon v. United States , 518 U.S. 81, 100, 116 S.Ct. 2035, 2047-48, 135 L.Ed.2d 392 (1996) ).

" ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Va. R. Evid. 2:801(c). Hearsay is inadmissible unless permitted by an exception, and the party offering the evidence must "clearly show" that the exception applies. Clay v. Commonwealth , 33 Va. App. 96, 104, 531 S.E.2d 623 (2000) (en banc), aff'd , 262 Va. 253, 546 S.E.2d 728 (2001).

Khine argues that the trial court erred in admitting Simonton's hearsay testimony that Shwe said she planned to tell Khine she wanted a divorce. Simonton's statement was hearsay because it was offered for the truth of the assertion that Shwe planned to tell Khine that she wanted a divorce:

Q[:] What was that statement [Shwe] made to you regarding her relationship on March 9th?

A[:] She told me she was going to ask [Khine] or tell him she wanted a divorce.

The Commonwealth offered that evidence to show Khine's motive for killing Shwe and to prove that he committed first-degree murder, which requires a "willful, deliberate, and premeditated killing." Code § 18.2-32.

The Commonwealth maintains that Shwe's hearsay statement was properly admitted under the state-of-mind exception, which permits a "statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)." Va. R. Evid. 2:803(3). "Generally, statements made by a crime victim that show the victim's state of mind are admissible as an exception to the hearsay rule, provided the statements are relevant and probative of some material issue in the case." Clay v. Commonwealth , 262 Va. 253, 257, 546 S.E.2d 728 (2001).

"The key to the admissibility of evidence showing a victim's state of mind is thus its relevance to a material issue in the case." Hodges v. Commonwealth , 272 Va. 418, 436, 634 S.E.2d 680 (2006). "[F]or the state of mind of the victim to be relevant to prove the state of mind of the accused, some nexus must exist which inferentially implicates the accused," such as " ‘previous threats made by the defendant towards the victim, narrations of past incidents of violence on the part of the defendant or general verbalizations of fear of the defendant.’ "

Clay , 33 Va. App. at 105, 531 S.E.2d 623 (quoting Hanson v. Commonwealth , 14 Va. App. 173, 188-89, 416 S.E.2d 14 (1992) ).

Khine is correct that some statements by decedents that illuminate their state of mind have been held to be inadmissible when the prosecution failed to show that the statement was communicated to the defendant. In Hodges , for instance, the Supreme Court held that it was error to admit a witness's statement that the murder victim said she planned to testify against the defendant because there was "no evidence" that the victim's...