Morgan v. Com., Record No. 1527-05-1.

• Decision Date: 10 July 2007
• Docket Number: Record No. 1527-05-1.
• Citation: 646 S.E.2d 899,50 Va. App. 120
• Parties: William Allen MORGAN v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

646 S.E.2d 899

50 Va. App. 120

William Allen MORGAN v. COMMONWEALTH of Virginia.

Record No. 1527-05-1.

Court of Appeals of Virginia, Chesapeake.

July 10, 2007.

Andrew M. Sacks (Sacks & Sacks, on brief), Norfolk, for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: Chief Judge FELTON, Judges FRANK and BEALES, JJ.

FELTON, JR., Judge.

A jury convicted William Allen Morgan (appellant) of malicious wounding in violation of Code § 18.2-51 and use of a firearm during the commission of a felony in violation of Code § 18.2-53.1. On appeal, he contends the trial court erred in granting the Commonwealth's motion in limine, precluding him from presenting a "settled insanity" defense, and in "granting the Commonwealth's proposed jury instructions and refusing [his] proposed instructions as to the allocation of the burden of proof with respect to [his alternate] insanity defense." Finding no error, we affirm appellant's convictions.

I. BACKGROUND

"Under familiar principles of appellate review, we view the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed below." Banks v. Commonwealth, 41 Va.App. 539, 543, 586 S.E.2d 876, 877 (2003). Consistent with this principle, the evidence shows that on September 24, 1985, appellant shot his estranged wife eight times, causing permanent injury. Appellant fled the scene before police and medical personnel arrived. His vehicle was found abandoned two weeks later at the Norfolk Naval Base.¹ Almost seventeen years later, on May 1, 2002, appellant was arrested in Florida, where he had been living under an assumed name. He was eventually returned to Virginia to stand trial for the malicious wounding of his estranged wife and for use of a firearm during the commission of a felony.²

Appellant filed a notice with the trial court on July 2, 2003, that he intended to present a "settled insanity" defense, alleging that his "actions were the result and/or product of a mental disease or defect produced by long-term substance abuse, . . . including, but not limited to, alcohol and xanax abuse." On February 22, 2005, one day before appellant's scheduled jury trial, the Commonwealth made an oral motion in limine to preclude appellant from presenting expert testimony and other evidence in support of such a defense. The Commonwealth argued that appellant should not be permitted to present a "settled insanity" defense to the jury because he had conceded that he did not suffer from a permanent mental defect or disease.

Appellant acknowledged that his "condition [had] abated over a period of time when he stopped drinking, stopped using [ ] drugs, [and] had some treatment for his liver . . . ." However, he argued that the defense of "settled insanity" in Virginia "does not depend for its legal efficacy upon whether the defendant's insanity is temporary, intermittent, or permanent." Relying on Herbin v. Commonwealth, 28 Va.App. 173, 503 S.E.2d 226 (1998), he asserted that the duration of his mental defect or disease is immaterial so long as his long-term substance abuse produced a mental defect or disease that met Virginia's definition of insanity.

The trial court rejected appellant's argument, ruling that "settled insanity [ ] is not recognized [in Virginia] as a valid defense unless it's permanent." Thus, it held that "because [appellant's] condition was not permanent, he does not currently meet the standard to be declared insane. He cannot avail himself of the settled insanity defense." The trial court explained:

all the parties agree that [appellant] is no longer suffering from any condition that would meet the legal definition of insanity. He is, thus, asserting a temporary settled insanity defense or as [the Commonwealth] stated . . . a settled insanity in remission type of defense.

* * * * * *

The [S]upreme [C]ourt has clearly said that to be acceptable [the settled insanity] has to be permanent. . . .

* * * * * *

[Appellant's] condition cannot be permanent as required by case law if it no longer exists . . . [and][i]f it's not permanent, then it's temporary.

Appellant's trial was subsequently continued to allow appellant to prepare an alternate defense. At trial, appellant did not deny shooting his estranged wife, but entered a plea of not guilty by reason of insanity due to involuntary intoxication. At the close of all the evidence, he proffered jury instructions A through E, allocating to the Commonwealth the burden of proving his sanity. The trial court refused appellant's proffered instructions, concluding that his instructions were contrary to established law. The trial court then instructed the jury in accordance with the Commonwealth's proffered instructions, which placed on appellant the burden of proving his insanity at the time of the offense.

The jury rejected appellant's alternate defense of insanity by reason of involuntary intoxication, and returned a guilty verdict for both charges. The trial court imposed the jury's sentence verdict of a total of 15 years imprisonment. This appeal followed.

II. ANALYSIS

A. "Settled Insanity" Defense

On appeal, appellant first contends that the trial court erred, as a matter of law, when it granted the Commonwealth's motion in limine precluding his proffered evidence of "settled insanity" from being presented to the jury.

"In Virginia ... insanity is an affirmative defense that the defendant must establish to the satisfaction of the fact finder." Shifflett v. Commonwealth, 221 Va. 760, 769, 274 S.E.2d 305, 310 (1981). To present evidence of insanity to the fact finder, an accused must first make a prima facie showing that his evidence meets the requirements of the affirmative defense. See White v. Commonwealth, 272 Va. 619, 629, 636 S.E.2d 353, 358 (2006) (no error in refusing to allow evidence of "settled insanity" defense to be admitted for jury's consideration because accused's proffered evidence insufficient to establish prima facie defense of insanity). "Prima facie evidence is `[e]vidence that will establish a fact or sustain a judgment unless contradictory evidence is produced.'" Id. at 626, 636 S.E.2d at 357 (quoting Black's Law Dictionary 598 (8th ed.2004)).

"`Virginia law recognizes two tests by which an accused can establish criminal insanity, the M'Naghten Rule and the irresistible impulse doctrine.'" Bennett v. Commonwealth, 29 Va.App. 261, 277, 511 S.E.2d 439, 446 (1999) (quoting Godley v. Commonwealth, 2 Va.App. 249, 251, 343 S.E.2d 368, 370 (1986)). Under the M'Naghten Rule,

"it must be clearly proven that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong."

Price v. Commonwealth, 228 Va. 452, 457-58, 323 S.E.2d 106, 109 (1984) (quoting M'Naghten's Case, 10 C. & F. 200, 8 Eng. Rep. 718, 722-23 (1843)). The irresistible impulse defense is available "where the accused's mind has become `so impaired by disease that he is totally deprived of the mental power to control or restrain his act.'" Godley, 2 Va.App. at 251, 343 S.E.2d at 370 (quoting Thompson v. Commonwealth, 193 Va. 704, 716, 70 S.E.2d 284, 292 (1952)).

"It is well settled in Virginia that, `except in cases of first degree and capital murder, where proof of voluntary intoxication may negate deliberation and premeditation, such intoxication, whether from drugs or alcohol, is no defense to a criminal charge.'" Herbin, 28 Va.App. at 183-84, 503 S.E.2d at 231. However, common law has long recognized that the long-term, chronic, and habitual abuse of alcohol or drugs will support a defense of insanity where such abuse creates a mental defect or disease that meets the requirements of either of Virginia's insanity tests. See White, 272 Va. at 626, 636 S.E.2d at 357; Little v. Commonwealth, 163 Va. 1020, 1024, 175 S.E. 767, 769 (1934). See also Gills v. Commonwealth, 141 Va. 445, 450-51, 126 S.E. 51, 53 (1925); Boswell v. Commonwealth, 61 Va. (20 Gratt.) 860, 872 (1871); Herbin, 28 Va.App. at 184, 503 S.E.2d at 231. This common law exception to the general prohibition of voluntary intoxication as a defense to a criminal charge is known as the doctrine of "settled insanity." Herbin, 28 Va.App. at 184, 503 S.E.2d at 231 (citing Arey v. Peyton, 209 Va. 370, 375, 164 S.E.2d 691, 695 (1968)). See also Bieber v. People, 856 P.2d 811, 815 (Colo.1993) (en banc) ("The doctrine of `settled insanity' draws a distinction between voluntary intoxication, universally recognized as not constituting a defense, and `insanity' arising from long-term use of intoxicants but separate from immediate intoxication.").

Appellant argues the trial court erroneously ruled that the applicability of the "settled insanity" defense is limited to mental defects or diseases that are permanent in duration. He asserts that our decisions in Herbin and Vann v. Commonwealth, 35 Va.App. 304, 313 n. 3, 544 S.E.2d 879, 883 n. 3 (2001), "impl[y] that it is not the length or duration of the actual mental disease or defect induced by long-term alcohol/substance abuse, but the nature and quality of its effect upon the defendant's mental processes . . ." that is dispositive to determining whether an accused may present a "settled insanity" defense to the fact finder. (Emphasis in original). We disagree.

"From its inception to the present, the settled insanity doctrine has been consistently characterized as a state of mind resulting from `long-continued,' `habitual,' `prolonged,' or `chronic' alcohol or drug abuse leading to a more or less permanent or `fixed' state of insanity." State v. Sexton, 904 A.2d 1092, 1102 (Vt.2006) (citations omitted). See, e.g., A. Levine, Note, Denying the Settled Insanity...