Present: All the Justices
WILLIAM WHITE, JR.
v. Record No. 051737 OPINION BY JUSTICE DONALD W. LEMONS
November 3, 2006
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the defendant was
improperly denied the opportunity to present evidence to a
jury supporting his insanity defense.
I. Facts and Proceedings Below
William White, Jr. (“White”) intended to present evidence
of his insanity at his jury trial on charges of first degree
murder, a violation of Code § 18.2-32, and assault and battery
of a police officer, a violation of Code § 18.2-57. However,
the trial court granted the Commonwealth’s motion in limine to
preclude White from presenting such evidence. Consequently,
White entered a conditional plea of nolo contendere reserving
the right to appeal the trial court’s ruling on the motion in
limine.
On March 29, 2002, White was traveling in North Carolina
when his car broke down on an interstate highway, and he made
arrangements for a person he did not know, Elton Giliken
("Giliken"), to drive him to New York. At approximately 10:00
p.m. while traveling through Greensville County, Virginia,
White directed Giliken to take him to a residence. White went
to the front door at the house and inquired about someone
named “Q.” White returned to the car and then requested that
Giliken take him to a specific motel near Route 301. At the
motel, White went to a room and asked the occupants for “Q.”
He came back to Giliken’s car, and then returned to the same
motel room where he conducted a conversation through the door
with the occupant. At this point, Giliken was concerned about
White’s actions and attempted to dial 911 on his cell phone,
but was unable to get service. White returned to the car and
asked Giliken to drive to the back of the motel where there
were other rooms. White ingested what appeared to be cocaine,
pulled out a knife, tied a bandana around his head, and asked
Giliken to wait for him. Then he said, “I’m going to go kill
me two mother f**kers” and exited the car. Giliken sped away
and notified the police about White’s behavior and provided a
description of him.
Minutes later, motel guests staying next door to the
victim’s room heard banging sounds and saw a man run by
outside their window. Upon entering the room, the motel
guests discovered the victim’s body, which was later found to
have had 27 stab wounds. Police investigating the murder
determined that White was a primary suspect and a warrant was
issued for his arrest.
2
The following day, State Police Trooper K.W. Spencer
noticed a man walking on Interstate Highway 95 who was dressed
in a “white fur coat, no shirt, red tights, and yellow
shorts.” The trooper stopped to speak with the man, who was
subsequently identified as White, and informed him that he
“could not walk on [I-]95.” White was reluctant to leave the
interstate and argued that his family was looking for him and
“wouldn’t be able to see him” if he left the interstate
highway. The trooper left but returned a few minutes later.
On this occasion, he spotted White walking backwards on an
exit ramp headed toward the interstate. White approached the
trooper’s car and expressed frustration at Trooper Spencer for
checking on him again. Trooper Spencer called for backup.
After a physical altercation, Trooper Spencer and another
officer subdued White. At that time, they discovered that a
warrant for murder had been issued for White.
Prior to his trial, White followed the procedural steps
required by statute to raise an insanity defense. He
requested a psychiatric evaluation to determine his mental
state at the time of the alleged offense and his competency to
stand trial. He gave timely notice to the Commonwealth of his
intent to present evidence of insanity pursuant to Code
§ 19.2-168. The trial court appointed Dr. William D. Brock, a
3
licensed clinical psychologist, to conduct the psychiatric
examination and provide a report.
The Commonwealth sought to preclude White from presenting
any evidence regarding his state of mind at the time of the
offense. In its motion in limine, the Commonwealth asserted
that Dr. Brock’s report did not support an insanity defense,
that expert testimony is a “necessary predicate to asserting
an insanity defense,” and that the defendant cannot “rise
above his own evidence” citing to Massie v. Firmstone, 134 Va.
450, 114 S.E. 652 (1922).1 Opposing the Commonwealth’s motion,
defense counsel argued that Dr. Brock’s report could be
“helpful” in establishing the existence of a mental disease or
defect, and proffered additional testimony from lay witnesses
to support White’s defense on this issue.
The trial court granted the Commonwealth’s motion stating
that “the introduction of the proffered testimony would not
rise to the level of that which would warrant admissibility on
the issue of insanity.” As a result, the trial court barred
the admission of any evidence to support White’s insanity
defense. After this ruling, White changed his plea to nolo
contendere reserving his right to appeal the trial court’s
ruling. White was then convicted and sentenced to life in
1
The application, if any, of Massie v. Firmstone to this
case is not an issue presented on appeal.
4
prison for the first degree murder charge, and five years for
the assault and battery of a police officer.
A panel of the Court of Appeals reversed White’s
conviction, White v. Commonwealth, 44 Va. App. 429, 605 S.E.2d
337 (2004), but upon rehearing en banc, White’s conviction was
affirmed, White v. Commonwealth, 46 Va. App. 123, 616 S.E.2d
49 (2005). White appealed to this Court upon one assignment
of error: that the Court of Appeals erred in affirming the
trial court’s ruling which precluded the introduction of any
evidence of the defendant’s mental state at the time of the
offense.
II. Analysis
A. Proffered evidence
The defendant proffered evidence in support of his
intended plea of insanity that included the original report
submitted by Dr. Brock as well as lay witness testimony. Dr.
Brock’s report noted that White’s medical history reflected
two hospitalizations for psychiatric treatment, the first
occurring in Louisiana several months before the alleged
offense, and the second shortly after his arrest. Each time
White was treated with Haldol, an anti-psychotic medication.
Prior to this report, Dr. Brock did not review hospital
records from the Louisiana inpatient treatment because they
were unavailable, but he opined that during that
5
hospitalization White was likely treated for a “drug-induced
psychosis” caused by “rather heavy abuse” of narcotics. White
reported to Dr. Brock that he used cocaine “multiple times
daily” for at least three months preceding his arrest on these
charges.
White reported to Brock that he was traveling to New York
because “‘God’ had something for him to do there;” he believed
that God’s purpose would be revealed during the trip; he heard
the voices of “both God and the Devil” during much of his
journey; he was drawn to a particular motel room because of
the number “15” on the door because “he believed the number 14
to be a holy number and the number 15 to then mean ‘14 and
me;’” the number “15” on the door caused him to believe that
“he was to go to that room and, apparently, do battle with the
individuals in it.”
With regard to White’s mental state at the time of the
offenses, Dr. Brock opined that “[b]y all indications, Mr.
White was, indeed, experiencing symptoms of a psychosis at the
time of the offenses for which he currently stands charged.”
The report cites numerous factors supporting Dr. Brock’s
opinion, including (1) White’s history of psychiatric
treatment for psychosis, (2) White’s decision to return to
drug abuse and quit taking his anti-psychotic medication after
the Louisiana hospitalization, (3) White’s account of the
6
events surrounding the offense, and (4) his “bizarre behavior”
in walking backwards down the interstate after being warned by
police to stay away from that area.
Dr. Brock opined that while White “seems to meet the
threshold criteria for an insanity defense,” his defense may
not be “viable” for two reasons. First, White’s psychotic
symptoms “appear to have either been the result of, or have
been exacerbated by (most likely the former), his voluntary
and excessive use of cocaine.” Second, White “made
significant efforts to not be identified or get caught” which
would indicate that he knew right from wrong.
Dr. Brock submitted a second letter to the court after he
had an opportunity to review the records from White’s first
hospitalization. In this letter, he stated that the medical
records “confirm[ed]” his prior hypothesis that White “was
suffering from a drug-induced psychosis” at the time of his
hospitalization in Louisiana, resulting from “his abuse of
cocaine, antihistamines and marijuana.” Dr. Brock concluded
that White’s psychotic symptoms were “almost surely the result
of his substance abuse and not some other mental condition.”
Additionally, White proffered the testimony of Joseph W.
Skinner (“Skinner”), a licensed clinical social worker, who
had treated White weekly for a period of about six months
during his pre-trial incarceration. Skinner was not qualified
7
as an expert pursuant to Code § 19.2-169.5; however, he was
offered as a lay witness. Skinner would have testified that
White told him on “many occasions” that he heard the voice of
God “both before and after the incident and at times when he
was not taking drugs.”
White next proffered the testimony of his roommate, Troy
Whidbee, who would have testified that “at some time . . .
prior to coming to Virginia, that [White] had advised him that
someone was out to kill him” and “God needed soldiers.”
Next, White’s mother would have testified that her son was
hearing voices prior to coming to Virginia, that he reported
having “seen God in the woods,” and “that God and the Devil
were talking to him trying to get him to do things regarding
hurting himself and/or others. That he believed God and the
Devil were fighting over his soul.” She would have testified
that White had drawn red circles around “spiders” in his jail
cell, which he alleged were brought there by jail personnel in
order to kill him, and that the spiders could not cross the
line because “the red symbolized the blood of Christ.”
Finally, White proffered the testimony of two correctional
officers who would have testified that White had expressed to
them on several occasions after his arrest that he was hearing
voices.
B. Insanity Defense
8
Virginia has long recognized the common law defense of
insanity. See Boswell v. Commonwealth, 61 Va. (20 Gratt.)
860, 876 (1871). A criminal defendant is presumed to have
been sane at the time of the commission of a criminal act.
E.g., Stamper v. Commonwealth, 228 Va. 707, 717, 324 S.E.2d
682, 688 (1985). However, under the M’Naghten test for
insanity, recognized in Virginia, the defendant may prove that
at the time of the commission of the act, he was suffering
from a mental disease or defect such that he did not know the
nature and quality of the act he was doing, or, if he did know
it, he did not know what he was doing was wrong. E.g.,
Commonwealth v. Chatman, 260 Va. 562, 567, 538 S.E.2d 304, 306
(2000); Price v. Commonwealth, 228 Va. 452, 457, 323 S.E.2d
106, 108-09 (1984); Boswell, 61 Va. at 868. We have
previously stated:
The first portion of M'Naghten relates to an
accused who is psychotic to an extreme degree. It
assumes an accused who, because of mental
disease, did not know the nature and quality of
his act; he simply did not know what he was
doing. For example, in crushing the skull of a
human being with an iron bar, he believed that he
was smashing a glass jar. The latter portion of
M'Naghten relates to an accused who knew the
nature and quality of his act. He knew what he
was doing; he knew that he was crushing the skull
of a human being with an iron bar. However,
because of mental disease, he did not know that
what he was doing was wrong. He believed, for
example, that he was carrying out a command from
God.
9
Price at 459-60, 323 S.E.2d at 110 (citing 2 C. Torcia,
Wharton's Criminal Law § 100, at 9 (14th ed. 1979)). In any
case, when insanity is claimed as a defense, a mental disease
or defect must be the cause of the defendant's failure to "know
what he was doing" or to understand that "what he was doing was
wrong."
In this case, White maintains that he proffered sufficient
evidence to make a prima facie case of insanity and that it was
error for the trial court to refuse to allow this evidence to
be admitted for the jury's consideration. Prima facie evidence
is "[e]vidence that will establish a fact or sustain a judgment
unless contradictory evidence is produced." Black's Law
Dictionary 598 (8th ed. 2004). We need only examine White's
proffer of evidence supporting the existence of a mental
disease or defect to resolve this appeal.
C. Intoxication and "Settled Insanity"
Clearly, we have permitted the use of the insanity defense
when prolonged, habitual, and chronic alcohol or drug abuse has
created a mental disease or defect. We adopted the common law
distinction between temporary intoxication and permanent
insanity long ago. “Drunkenness is no excuse for crime.”
Boswell, 61 Va. (20 Gratt.) at 872. However, a mental disease
or defect caused by chronic abuse of alcohol or drugs will
support the defense of insanity. Id. (“[i]f permanent insanity
10
be produced by habitual drunkenness, then, like any other
insanity, it excuses an act which would be otherwise
criminal”). We have also commonly referred to this permanent
condition as "settled insanity." See Arey v. Peyton, 209 Va.
370, 375, 164 S.E.2d 691, 695 (1968). Although he does not use
the term, "settled insanity" is what White claims as his
condition at the time of the offenses.
The defense of "settled insanity" is not new and it
requires that the condition be produced over a significant
period of time. See, e.g., People v. Travers, 26 P. 88, 91
(Cal. 1891) ("[S]ettled insanity produced by a long-continued
intoxication affects responsibility in the same way as
insanity produced by any other cause."); Fisher v. State, 64
Ind. 435, 440 (1878) (recognizing settled insanity defense
"where the habit of intoxication, though voluntary, has been
long continued, and has produced disease, which has perverted
or destroyed the mental faculties of the accused"); State v.
Riley, 13 S.W. 1063, 1064 (Mo. 1890) (holding that "long-
continued habits of intemperance producing permanent mental
disease amounting to insanity" may relieve defendant of
criminal responsibility); Cheadle v. State, 149 P. 919, 922
(Okla. Crim. App. 1915) (recognizing settled insanity due to
"excessive and long continued indulgence in alcoholic liquors,
technically called 'delirium tremens' "); State v. Kidwell, 59
11
S.E. 494, 495 (W.Va. 1907) (recognizing defense of settled
insanity "superinduced by habitual and long continued
intoxication"). For more recent cases illustrating the same
principle, see, e.g., Evans v. State, 645 P.2d 155, 158
(Alaska 1982) (recognizing insanity defense for "alcoholic
psychosis such as delirium tremens, resulting from long-
continued habits of excessive drinking"); Kiley v. State, 860
So. 2d 509, 511 n.3 (Fla. Dist. Ct. App. 2003) ("[T]he
defendant must show that his long term and continued use of
intoxicants produced a fixed and settled frenzy or insanity
either permanent or intermittent.") (quotation omitted); State
v. Clokey, 364 P.2d 159, 164 (Idaho 1961) (upholding
instruction defining settled insanity as "produced by long
continued intoxication"); State v. Smith, 490 P.2d 1262, 1264
(Or. 1971) (recognizing insanity defense where "excessive and
long-continued use of intoxicants produces a mental condition
of insanity, permanent or intermittent") (quotations omitted).2
White was 28 years old at the time of the offenses. In
his evaluation of White, Dr. Brock stated that White reported
2
While the Supreme Court of Vermont in State v. Sexton,
904 A.2d 1092 (Vt. 2006), declined to decide if settled
insanity was a defense to murder, its opinion provides a
thorough history of the defense and the reason for it. Id. at
1100-04. The Court found it unnecessary to decide if the
defense was available because, even if it were, proof of drug
usage for two weeks would be insufficient to establish the
defense. Id. at 1103-05.
12
"a significant substance abuse history. He reports rather
heavy abuse of cocaine, alcohol, and marijuana, as well as
occasional use of crack cocaine. By Mr. White's report, he had
been using cocaine multiple times daily for at least the three
months prior to his arrest on the current charges."
Dr. Brock also stated that White:
[H]as a history of one prior psychiatric
hospitalization while in Louisiana. This
occurred about three months ago. The records for
this hospitalization were not available at the
time of this evaluation. Mr. White reports that
he was treated through use of Haldol, an
antipsychotic medication, which would suggest
that he was being treated for psychotic symptoms
at that time. The lack of psychiatric symptoms
prior to age 27 or 28 and Mr. White's description
of rather heavy cocaine abuse at that time would
suggest that he likely was experiencing a drug-
induced psychosis at the time of that
hospitalization. Mr. White discontinued his
Haldol once he got out of the hospital and, by
his report, almost immediately began abusing
cocaine, marijuana, and alcohol (as well as
ecstasy) again.
After reviewing the medical files from White's treatment
in a psychiatric hospital while in Louisiana, Dr. Brock
informed White's attorney, "Review of these records confirms my
hypothesis that, at the time of his hospitalization in
Louisiana, Mr. White was suffering from a drug-induced
psychosis. This condition resulted from his abuse of cocaine,
antihistamines and marijuana." Dr. Brock concluded that the
"now available medical records simply confirm that Mr. White's
13
psychosis was almost surely the result of his substance abuse
and not some other mental condition." Dr. Brock added, "Again,
while his drug-induced psychotic state may potentially serve as
a mitigating factor, it does not, in my opinion, meet the
criteria necessary for an insanity defense."3
The requirement of proof of substance abuse of long-term,
chronic, and habitual nature is consistent with the concern we
expressed many years ago when we stated, "Insanity is easily
feigned and hard to be disproved, and public safety requires
that it should not be established by less than satisfactory
evidence." Wessels v. Commonwealth, 164 Va. 664, 674, 180
S.E. 419, 423 (1935). In order to establish the existence of
a mental disease or defect caused by alcohol or drug abuse,
i.e., settled insanity, White's evidence would have to
demonstrate long-term, chronic, and habitual abuse. White's
proffered evidence on this question was insufficient to
establish a prima facie defense of insanity.
III. Conclusion
3
Significantly, White's proffered testimony of Dr.
Skinner included no discussion of White's drug use, or its
duration, and concluded that White "had a type of psychosis
that was a religious obsession." Although Dr. Skinner
testified at the sentencing hearing, his testimony reflected
little on the subject of duration of abuse. Additionally, his
testimony was offered at the sentencing hearing and cannot be
considered by this Court on appeal because it was not
presented to the trial court contemporaneously with its
decision which was made upon motion in limine prior to the
guilt phase of trial.
14
We hold that the trial court did not err in excluding
White's proffered evidence of insanity. The judgment of the
Court of Appeals will be affirmed.
Affirmed.
JUSTICE KOONTZ, dissenting.
I respectfully dissent. I do so guided by the axiomatic
principle that an accused is entitled to have a jury issue
resolved by a jury and not by the trial court or appellate
courts, including this Court. Where, as here, there is
evidence to indicate that the accused was legally insane at
the time he committed a crime and there is other evidence
showing that he was not, that conflict in the evidence
presents an issue to be determined by the jury. Jones v.
Commonwealth, 202 Va. 236, 239-40, 117 S.E.2d 67, 70 (1960).
In my view, in the present case in considering the
Commonwealth’s motion in limine the trial court decided the
merits of the insanity defense of William White, Jr. as an
issue of law rather than permitting the jury to determine
factually whether White was or was not legally insane.∗
∗
White’s trial was scheduled to be conducted with a jury.
As a result of the trial court’s granting the Commonwealth’s
motion in limine on the morning of the trial, White’s sole
defense of insanity was eliminated from further consideration
in the guilt determination phase of the trial. Consequently,
White’s trial proceeded without a jury upon White’s
conditional plea of nolo contendere and the Commonwealth’s
uncontested summary of the evidence.
15
While insanity is an affirmative defense in Virginia that
the accused must prove to the satisfaction of the fact finder
by a preponderance of the evidence, Shifflett v. Commonwealth,
221 Va. 760, 769, 274 S.E.2d 305, 310 (1981), whether the
evidence would meet that standard is not at issue in this
appeal. Rather, the sole issue is whether the evidence
proffered by White in opposition to the Commonwealth’s motion
in limine to exclude all evidence of his insanity defense was
sufficient merely to establish a prima facie case of insanity.
I will not unnecessarily lengthen this opinion by
reciting the proffered evidence pertinent to this inquiry.
The majority accurately recites that evidence which is not in
dispute. However, under familiar principles of appellate
review, because the Commonwealth was the proponent of the
motion in limine, the evidence proffered in support and in
opposition to that motion is to be considered in a light
favorable to White, the non-moving party. Cf. Huffman v.
Love, 245 Va. 311, 314, 427 S.E.2d 357, 360 (1993) (evidence
viewed on appeal in light most favorable to one whose claim
was stricken at trial); see also McGowan v. Lewis, 233 Va.
386, 387, 355 S.E.2d 334, 334 (1987) (upon review of the grant
of a motion to strike, appellate court will consider the
evidence and all reasonable inferences arising therefrom in
the light most favorable to the non-moving party, resolving
16
any doubt as to the sufficiency of the evidence in favor of
that party); Food Lion v. Melton, 250 Va. 144, 149-51, 458
S.E.2d 580, 584-85 (1995) (same); Waters v. Safeway Stores,
Inc., 246 Va. 269, 270, 435 S.E.2d 380, 380 (1993) (same).
The thrust of the Commonwealth’s motion in limine was
that the only expert who had examined White was Dr. William
Brock, who would testify that White was not legally insane at
the time White committed the crimes in question because, in
Dr. Brock’s opinion, White was suffering from a drug induced
psychosis but knew the difference between right and wrong.
Accordingly, in the absence of any other expert evidence that
White suffered from a “disease of the mind,” White could not
introduce “lay evidence” to support his insanity defense.
We have stated, however, that “[t]here is nothing
sacrosanct about the evidence of an expert witness.” Wessells
v. Commonwealth, 164 Va. 664, 671, 180 S.E.2d 419, 422 (1935).
“The evidence of an expert witness [on insanity] should be
given the same consideration as is given that of any other
witness, considering his opportunity for knowledge of the
subject and subject matter as to which he testifies, his
appearance, conduct, and demeanor on the stand.” McLane v.
Commonwealth, 202 Va. 197, 206, 116 S.E.2d 274, 281 (1960).
And we also have stated that “[a]lthough sanity or insanity
may be established by lay witnesses, it is generally
17
recognized that it is advisable to adduce expert testimony to
better resolve such a complex problem.” Shifflett, 221 Va. at
769, 274 S.E.2d at 311. (Emphasis added). This is so because
a “lay witness” can testify only to facts, and cannot express
an opinion as to the existence of a person’s mental disease or
state of mind. See Jones, 202 Va. at 241, 117 S.E.2d at 71.
But see Ford v. Ford, 200 Va. 674, 680, 107 S.E.2d 397, 401
(1959); Davis v. Alderson, 125 Va. 681, 691, 100 S.E. 541, 544
(1919).
Based solely upon Dr. Brock’s evidence, a jury would be
compelled to conclude that White was psychotic at the time he
committed the crimes. In common parlance, White then was
suffering from a severe mental disorder associated with a loss
of contact with reality. Clearly, because no evidence in the
record suggests that White was not psychotic at that time, the
jury could reasonably have accepted White’s psychotic state of
mind as a fact.
Dr. Brock further opined that while White “seems to meet
the threshold criteria for an insanity defense,” his defense
may not be “viable” because of his “efforts not to be
identified or get caught” after committing the crimes and
because his psychotic symptoms “were the result of his
voluntary and excessive use of cocaine.” Undoubtedly, White
was an admitted abuser of cocaine and other narcotic drugs and
18
had previously been admitted to a psychiatric hospital as a
result. The totality of this evidence would indicate that
White, although psychotic, was not legally insane because his
abuse of drugs was voluntary and apparently not of long
standing.
However, White proffered the evidence of numerous lay
witnesses, including his mother, his roommate, a licensed
clinical social worker, and prison personnel, that he
displayed psychotic symptoms both before and after he
committed the crimes when he was not taking drugs. That
evidence coupled with the other evidence of these lay
witnesses that White believed he heard the voice of God
directing his actions created a conflict in the evidence
whether White’s psychotic state of mind resulted from his drug
abuse or some other underlying mental disorder.
In applying the M’Naghten test for insanity we have not
required the accused to establish an expert diagnosis of the
underlying mental disorder manifested by the accused’s
psychotic state of mind in order to satisfy the first portion
of that test. Undoubtedly mental health experts would be the
first to concede that satisfaction of such a requirement would
not always be within the current expertise of those in the
mental health field. Nevertheless, in Price v. Commonwealth,
228 Va. 452, 459-60, 323 S.E.2d 106, 110 (1984), we explained
19
the application of the M’Naghten test for insanity that we
follow in Virginia and that is facially implicated in this
case. There we explained that:
The first portion of M’Naghten relates to an
accused who is psychotic to an extreme
degree . . . . The latter portion of
M’Naghten relates to an accused who knew the
nature and quality of his act. He knew what
he was doing . . . . However, because of
mental disease, he did not know that what he
was doing was wrong. He believed, for
example, that he was carrying out a command
from God.
Id.
If accepted as fact by the jury, the evidence of the lay
witnesses and White’s confirmation of that evidence in his
account to Dr. Brock that he did not know that committing the
crimes in question was wrong because he was carrying out a
command from God provides an independent evidentiary basis to
support White’s insanity defense. That evidence is in sharp
conflict with the evidence that White’s psychotic state of
mind resulted solely from drug abuse as the trial judge, the
majority of the Court of Appeals, and the majority of this
Court seem to have accepted as a fact. They all may be
correct, but such was for the jury to decide because White’s
proffered evidence was sufficient to establish a prima facie
case of his insanity.
20
For these reasons, I would reverse the majority decision
of the Court of Appeals, and remand the case for a new trial
in which the jury is allowed to decide whether or not White
was legally insane at the time he committed the crimes in
question.
21