Schmuhl v. Commonwealth

• Decision Date: 11 September 2018
• Docket Number: Record No. 1572-16-4
• Citation: 818 S.E.2d 71,69 Va.App. 281
• Court: Virginia Court of Appeals
• Parties: Andrew Gilbert SCHMUHL v. COMMONWEALTH of Virginia

69 Va.App. 281

818 S.E.2d 71

Andrew Gilbert SCHMUHL

v.COMMONWEALTH of Virginia

Record No. 1572-16-4

Court of Appeals of Virginia, Richmond.

SEPTEMBER 11, 2018

Bradley R. Haywood (Sheldon, Flood & Haywood, PLC; Office of the Public Defender, on briefs), Alexandria, for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Beales, Decker and AtLee

OPINION BY JUDGE RANDOLPH A. BEALES

A grand jury indicted Andrew Schmuhl ("appellant") on seven felony counts for acts he committed during a home invasion on November 9, 2014. He was charged with two counts of abduction with intent to gain pecuniary benefit, two counts of aggravated malicious wounding, two counts of using or displaying a firearm during the commission of an aggravated malicious wounding, and burglary while armed with a deadly weapon. Appellant filed a pretrial notice of his intent to pursue an involuntary intoxication defense. Based upon this theory, appellant sought to present evidence of his mental state on the night in question. Specifically, appellant intended to show that he was suffering from "a medication induced delirium

." The trial court, however, ruled that such evidence was not admissible under appellant’s involuntary intoxication defense because appellant did not argue that he was insane. Subsequently, after a more than three-week jury trial, appellant was convicted on all seven charges, and he was sentenced to two terms of life in prison plus an additional 98 years. Following a timely appeal to this Court, we granted six of the twelve assignments of error appellant raised in his petition for appeal.¹ We are now reviewing the following assignments of error:

VII. The trial court erred in finding that Stamper v. Commonwealth bars evidence of mens rea unless the defendant presents a statutory insanity defense.

VIII. The trial court erred in finding that delirium

, as well as other serious effects of drugs, were insanity defenses,

and not properly the subject of an involuntary intoxication defense. The error derived from application of the wrong standard for distinguishing between intoxication and insanity.

IX. The trial court erred in circumscribing the manner in which the defendant was permitted to prove affirmative defenses, such as by excluding expert evidence, redacting records, and barring the use of certain words.

X. The trial court erred in excluding mental state evidence offered in support of an unconsciousness defense.

XI. The trial court erred in refusing an unconsciousness jury instruction, finding that unconsciousness merged with intoxication in this case.

XII. The trial court erred in denying an instruction defining intoxication.

For the reasons that follow, we now affirm appellant’s convictions.

I. BACKGROUND

A. The Home Invasion

"Applying familiar principles of appellate review, we will state the facts in the light most favorable to the Commonwealth," as we must, because the Commonwealth was the prevailing party in the trial court. Ervin v. Commonwealth, 57 Va.App. 495, 499, 704 S.E.2d 135, 137 (2011) (en banc ). So viewed, the evidence established that on the evening of November 9, 2014, Leo Fisher ("Fisher") was in his McLean, Virginia home with his wife, Susan Duncan ("Duncan"). Duncan was preparing dinner when she alerted Fisher that a vehicle had come up their driveway. When the doorbell rang, Fisher answered the door. As he opened it, an intruder (later determined to be appellant) pushed the door inward and knocked Fisher off balance, forcing his way into the home. Appellant used a Taser on Fisher to subdue him. He also then bound Fisher’s hands and feet with plastic zip ties.

Hearing what she described as "some weird noises," Duncan testified that she went to the foyer where she found Fisher lying on the floor. She stated that appellant then came toward her, grabbed her, and bound her hands and feet with zip ties. Appellant flashed a badge and identified himself as being with the "Virginia SEC."² He said he was arresting Fisher because he claimed that Fisher had "sent an email placing a hit on a member of the Knights [Templar]," a drug cartel, in the amount of $370,000.

Appellant then forcibly moved the couple to their back bedroom and closed the curtains. During the move to the bedroom, Fisher recognized the intruder as Andrew Schmuhl. Fisher had met appellant on numerous occasions because appellant’s wife, Alecia Schmuhl, had worked as an attorney in the law firm where Fisher was the managing partner.³ Fisher also testified that he had fired Alecia Schmuhl for performance-related reasons on October 27, 2014 – approximately two weeks prior to the home invasion. However, Fisher did not let appellant know that he recognized appellant because he did not want to "do anything that would upset him or get him angry."

In the bedroom, appellant "started interrogating [the couple]." Fisher stated that appellant "seemed like he had a set of questions in different topics that he was going to ask us about. And to me he seemed to be going through it quite systematically." Fisher described appellant as "acting like a lawyer taking a deposition," and he indicated that appellant asked appropriate follow-up questions.

Appellant also asked Fisher, "[D]o you know why anybody would’ve put a hit on you?" Fisher recounted the specific exchange between him and appellant to the jurors: "I said, I don’t know why anybody would do that. And [appellant] said, well, didn’t you let somebody go lately? And at first I wasn’t sure what he meant but he—I realized he was talking about Alecia. He never used her name." Fisher acknowledged that he had recently fired someone, and, despite the fact that no one had mentioned Alecia’s name, appellant asked, "[W]hy was she let go?"

When appellant moved the couple from the bedroom to the home office, he closed multiple window blinds, which prevented anyone outside the home from observing the events inside. Appellant told the couple that "there might be a sniper" outside.

Both Fisher and Duncan testified that appellant communicated with a third person during the course of the home invasion. Duncan testified, "Once I saw him out in the foyer .... He was flipping [the outdoor lights] on and off signaling somebody." Another time, Duncan observed that appellant "had th[e] door wide open and he was standing [t]here and he was talking to a woman outside." Fisher testified that appellant stepped away from the couple to speak on the phone at least five times during the home invasion. "[A]fter each call he would say things like, I was just talking to my partner. Sometimes he would say I was talking to my boss." Appellant directed Fisher to access and open his office email, which Fisher testified contained information on the firm’s employees as well as other information valuable to the firm. Appellant searched through some of the emails and, according to Fisher’s testimony, became frustrated after apparently failing to find the information for which he was looking.

After appellant moved the couple back to the bedroom, he separated them by placing Duncan in the bathroom. Appellant told Duncan that separating them was necessary "because there may be things your husband won’t tell me in front of you." Fisher testified that appellant’s questioning then continued on various topics. Appellant asked Fisher whether the couple kept a large amount of money in the house. Fisher testified that he thought, "Maybe he wants money." He further testified, "And so I said to him, ‘you know, we don’t have any money here but we can go to the bank.’ "

Appellant then attacked Fisher. "[H]e knocked me over, put a pillow over my face and cut my throat on the bed." Appellant also stabbed Fisher in the head and in the left shoulder. Fisher screamed to Duncan, "[H]e’s killing me!" Duncan, upon leaving the bathroom, saw appellant "on top of Leo and he was cutting his throat." Appellant yelled, "Get out, ma’am, get out now! Don’t come in here, get out!" Duncan testified that she saw appellant raise a gun "[s]o I turned my head but I felt the bullet hit me. I fell down on the floor. And then I got up, I felt myself getting up and I knew I was alive." The bullet had grazed Duncan’s head and had lodged in the ceiling.

As Duncan reached for a nearby phone, appellant jumped on her and stabbed her repeatedly across her neck, back, and shoulders. Appellant only ceased his attacks when Duncan pretended to be dead. As appellant left the room, Fisher testified, "I was on the floor and he came past me and he kicked me in the head .... [H]e said, ‘You’re going to die.’ "

Duncan hit the panic button on the home’s security system, thereby activating an audible alarm. As she went to call 911, she saw appellant in the front foyer as he left the house. After the police arrived, multiple officers noticed the odor of gas, and it was later determined that gasoline had been poured on the rug in the foyer. No gasoline was on the rug prior to that evening.

Fisher and Duncan were able to observe appellant’s demeanor while he was in their home for approximately three hours. Duncan characterized appellant as "very forceful, authoritative. Very much in control." Even though appellant argued that he was overmedicated, and, thus, involuntarily intoxicated, Duncan testified that appellant did not stumble or slur his speech. Fisher likewise testified that appellant did not slur his speech at any point during the home invasion.

B. Pursuit and Arrest of Appellant

The first police officers to arrive at the home found Fisher on the front porch. Fisher was bleeding severely from his neck, and Officer Joseph Shifflett testified that he had to stuff his hands inside the wounds

in Fisher’s neck to slow the bleeding. Despite the severity of his wounds, Fisher was conscious and identified appellant as his attacker. A "flash message" was then sent to police units to be on the lookout for appellant’s vehicle.

Officer Daniel Custard...