Vann v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Humphreys and Senior Judge Coleman
Argued at Richmond, Virginia

JOHN LLOYD VANN, JR.
OPINION BY
v. Record No. 2918-99-2 JUDGE ROBERT J. HUMPHREYS
APRIL 17, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D'Alton, Jr., Judge

Joseph A. Sadighian, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.

Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

John L. Vann, Jr., appeals his conviction, after a bench

trial, of one count of possession of cocaine, one count of

possession of cocaine with intent to distribute as an

accommodation, and one count of possession of cocaine with intent

to distribute as an accommodation, within 1000 feet of a

recreation center. Vann contends the trial court erred in ruling

that his evidence failed as a matter of law to establish that he

was legally insane at the time of the offense. Finding no error,

we affirm.

I. Background

The evidence presented at trial established that Sergeant

E.S. Jones, of the Petersburg Police Department, saw Vann
walking near the street at approximately 1:00 a.m. on June 30,

1998. Jones recognized Vann as a known drug offender and

observed Vann reach into his pocket with his right hand, make a

"throwing drop-type motion," and begin to "walk." Jones, who

was in his squad car at the time, got out of his car and placed

Vann in handcuffs. Jones told the other officer who was present

with him to watch Vann while he searched for the item Vann

dropped. Jones found a metal smoking device of the type he knew

to be used for smoking crack cocaine where Vann had been

standing when he dropped/threw the item. Jones showed the item

to Vann and Vann became angry, started twisting and jumping

around, and began screaming "at the top of his lungs." He

yelled: "I can't go back. I am not going back to jail. Why

are y'all always coming at me? I am not the only one out here

doing something wrong. Can't y'all find somebody else to

arrest." Jones placed Vann under arrest and placed him in the

squad car. After being read his rights, Vann accused local

judges of supplying the City of Petersburg with crack cocaine

and accused Jones of selling crack cocaine for the judges. He

then started kicking the back of Jones' seat, stating: "I'll

kill you. I'll get you. I know you. You know me. I'm tired

of you arresting me."

Vann was calm by the time he reached the jail. Once there,

Jones interviewed him and Vann stated "he didn't know how many

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times he had used [the pipe]." Vann was ultimately charged with

possession of cocaine.

Subsequently, while out of jail on bond on October 15,

1998, at approximately 5:15 p.m., Vann was walking alone near

Harding Recreation Center, "yelling and screaming," "like

talking loud to himself or to someone." At the same time,

Detective E.F. Carpenter and a female were leaving the

recreation center after having attended a neighborhood watch

meeting. Carpenter was dressed in plain clothes. The female

recognized Vann and said, "John, what are you making all of that

noise for?" Vann yelled, "Hey baby. Hey baby, do you want some

of this?" As Vann walked to where the female and Carpenter were

standing, the female said, "Unless you have a cigarette, you

know, I don't want anything." Carpenter noticed that Vann had

something cupped in his hand. It was a "plastic bag with white

rock-like material and a metal smoking device." Vann was

shoving the smoking device into the plastic bag, putting the

white substance into it.

Carpenter motioned to another officer who had just come out

of the building from the meeting, and advised Vann that he was

placing him under arrest. Vann clenched both hands together,

with the smoking device in one hand and the plastic bag in the

other, and raised his arms up yelling, "You're not getting

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this." Carpenter had to take Vann "down to the ground" to place

him in custody.

Carpenter then took Vann to the jail and advised him of his

rights. Vann told Carpenter that he thought Carpenter was

trying to steal his drugs. Carpenter testified that Vann seemed

to be intoxicated at the time. When he was before the

magistrate, Vann would not sit and walked behind Carpenter and

tried to kick him.

Vann was charged with possession of cocaine, possession of

cocaine with the intent to distribute as an accommodation, and

possession of cocaine with intent to distribute as an

accommodation, within 1000 feet of a recreation center.

Prior to trial, Vann submitted a Notice of Insanity

Defense. At trial, Vann presented the testimony of his expert

psychiatrist, Dr. N.A. Emiliani. Dr. Emiliani testified that he

had examined Vann on April 29, 1999, and diagnosed him as

suffering from "schizo effective disorder bipolar type," "varied

personality," and "skin discoloration." In his report, Dr.

Emiliani noted that Vann had been hospitalized at Central State

Hospital in 1977, 1990, and 1996. He further stated:

I feel that he is competent to stand trial
and he can assist and help his lawyer with
factual information that would benefit his
defense. He does understand right from
wrong, however, from time to time he does
experience irresistable [sic] impulse where
he becomes extremely suicidal. He is
currently psychotic and can be tried as not

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 guilty by reason of insanity at this point
in time. His mental condition at the time
of the offense is very difficult to
determine since I had not examined him
previously but it appears that he has
suffered since 1986 with a residual type of
schizophrenia. 1

However, when asked to give an opinion as to whether Vann was

sane at the time of the offense, Dr. Emiliani testified as

follows:

Well, that's one of the difficulties because
I have never examined him prior [sic] or
shortly after the offense. But it appears
that he's suffering at least at the time of
the offense from residual schizophrenia
according to the records and according to
the multiplicity of admissions and to the
symptoms, where I cannot completely assert
that since I didn't examine him.

* * * * * * *

In terms of psychosis, it's more difficult.
In terms of addiction, we know that addicts
are impulse driven people. Whenever they
get the craving, they're going to go and use
drugs.

Upon further questioning by the court, Dr. Emiliani testified

that, in his opinion, Vann has an irresistible impulse to "use

cocaine." But when asked, "So his addiction to cocaine makes

him insane when he attempts to possess cocaine; is that your

opinion?" Dr. Emiliani replied:

1
The Commonwealth also had Vann examined by an expert. In
that interview, when describing the offense of October 15, 1999,
Vann stated that "the bag didn't look like enough for
distribution, it looked like possession to me."

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 No. That he's going to be impulsive in the
using of cocaine, and he most likely was
suffering from a residual type of
schizophrenia, residual symptoms at the time
of the offense. But since no one can tell
us what happened at the time of the offense
unless one examined the defendant shortly
before or after --

Dr. Emiliani then responded as follows upon redirect

questioning:

[MR. SADIGHIAN]: I guess the Court has kind
of narrowed down the issue. You would not
consider this voluntary intoxication because
of the residual schizophrenia? In your
opinion, has this affected his impulse
control to the point where he may be more
driven than another cocaine addict? Is that
--

[DR. EMILIANI]: Exactly, because you have
two impulses -- impulse control, impulse
driven disorder -- one on top of the other.
So you have two illnesses sort of speak
[sic] working together.

At the conclusion of Dr. Emiliani's testimony, the

Commonwealth asked the court to find, as a matter of law, that

Vann had failed to meet his burden of establishing that he was

legally insane at the time of the offense. The Commonwealth

argued that the expert conceded he could not offer an opinion

that Vann was insane at the time of the offense. In response,

Vann reiterated Dr. Emiliani's testimony concerning Vann's

history of schizophrenia, his uncontrollable impulse to use

cocaine as a result of the addiction, and the residual

schizophrenia. Vann contended that this evidence, in

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combination with Jones' and Carpenter's testimony as to Vann's

"bizarre" behavior at the time of the offenses, was sufficient

to meet "the burden in showing that his inability to resist

impulse is not just a factor or condition of voluntary

intoxication, but is a factor of his mental state itself, schizo

effective disorder or residual schizophrenia psychosis."

The court ruled as follows:

All right. Well, I think from listening to
the evidence surrounding these offenses he
was very much aware of the difference
between possession of cocaine and possession
with intent and attempted to rationalize
that this --

He has been convicted several times for
possession and is clearly attempting to
avoid the more serious consequences of the
distribution charge and could make that
distinction very readily. His actions to
try to -- not knowing that this was an
officer -- Once he realized he was going to
take it away from him, he was very
possessive of it.

Your expert -- and I read from his report
-- does not give an opinion of his mental
state at the time of the offense. He draws
a conclusion without foundation.

* * * * * * *

Then he goes on to say and uses the term
likelihood, and he gave no opinion within a
reasonable degree of medical certainty that
the Court can accept.

The court "sustain[ed] the motion to strike the [in]sanity

defense based on the lack of the expert's ability to form an

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opinion" as to Vann's sanity at the time of the offense. 2 Vann

was ultimately found guilty of all three charges and sentenced

to an active jail term of two years.

II. Analysis

"Every man is presumed to be sane and to possess a

sufficient degree of reason to be responsible for his crimes

until the contrary is proved to the satisfaction of the [trier

of fact]." Jones v. Commonwealth, 202 Va. 236, 239-40, 117

S.E.2d 67, 70 (1960). The burden of proving insanity rests on

the individual asserting it as a defense. See Fines v.

Kendrick, 219 Va. 1084, 254 S.E.2d 108 (1979). "When the

[c]orpus delicti has been established and proof adduced that the

accused committed the act, it is not sufficient for the accused

to raise a reasonable doubt as to his sanity; he must go one

step further and prove to the satisfaction of the [trier of

fact] that he was insane at the time of the commission of the

act." Taylor v. Commonwealth, 208 Va. 316, 322, 157 S.E.2d 185,

190 (1967) (citation omitted).

2
The trial court incorrectly characterizes the
Commonwealth's motion, which was to find as a matter of law that
the defense had not met its burden to establish that the
appellant was insane at the time of the offense. In reviewing
whether the trial court was correct in granting this motion, we
do so in the context of the motion actually made and the reasons
articulated by the court in granting it.

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 In Wessels v. Commonwealth, 164 Va. 664, 180 S.E. 419

(1935), the Supreme Court of Virginia elaborated on this

standard stating:

[T]he Commonwealth, having established the
corpus delicti, and that the act was done by
the accused, has made out her case. If [the
accused] relies on the defense of insanity,
he must prove it to the satisfaction of the
jury. If, upon the whole evidence, they
believe he was insane when he committed the
act, they will acquit him on that ground;
but not upon any fanciful idea that they
believe he was then sane, yet, as there may
be a rational doubt of such sanity, he is
therefore entitled to an acquittal.
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, 164 Va. at 674, 180 S.E. at 423 (citation omitted).

"Virginia law recognizes two tests by which an accused can

establish criminal insanity, the M'Naghten Rule and the

irresistible impulse doctrine. The irresistible impulse defense

is available when 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." Bennett v. Commonwealth, 29 Va.

App. 261, 277, 511 S.E.2d 439, 447 (1999) (citations omitted).

However, the accused must prove that his or her mental state met

the appropriate legal definition of insanity "at the time the

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offense was committed." Gibson v. Commonwealth, 216 Va. 412,

417, 219 S.E.2d 845, 849 (1975) (emphasis in original). 3

Here, although there was ample testimony pertaining to

Vann's schizo effective disorder, his past hospitalizations, and

his apparent inability to resist the impulse to use cocaine at

the time of Dr. Emiliani's evaluation, there was no testimony

establishing that Vann was "totally deprived of the mental power

to control or restrain" himself from acting at the time of the

offenses. In fact, Dr. Emiliani very carefully avoided any

opportunity to opine as to Vann's mental state at the time of

the offenses, explaining that he had been unable to examine Vann

either before the offenses or relatively close in time

thereafter.

Furthermore, "[t]he word 'impulse' implies that which is

sudden, spontaneous, unpremeditated." Rollins v. Commonwealth,

207 Va. 575, 580, 151 S.E.2d 622, 625 (1966). Acting on an

3
Generally, voluntary intoxication, whether from drugs or
alcohol, is no defense to a criminal charge. See Griggs v.
Commonwealth, 220 Va. 46, 52, 255 S.E.2d 475, 479 (1979). It is
true, however, that "Virginia . . . [does follow] the common-law
rule that 'settled insanity' produced by [voluntary]
intoxication does provide a defense to crime." Herbin v.
Commonwealth, 28 Va. App. 173, 184, 503 S.E.2d 226, 231 (1998).
Yet, such evidence of a longstanding narcotics addiction must be
established in conjunction with some other physiological or
psychological involvement in order to raise an issue of a mental
defect or disease sufficient to serve as a basis for the
insanity defense. Id. Moreover, an accused must still prove
that his or her mental state met the appropriate legal
definition of insanity at the time the offense was committed.
Gibson, 216 Va. at 417, 219 S.E.2d at 849.

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impulse involves no planning; it could occur at any place in the

presence of anyone, and further, the lack of restraint inherent

in an impulsive act is inconsistent with a contemporaneous

concealment of the impulsive act. See id.; see also Penn v.

Commonwealth, 210 Va. 213, 221, 169 S.E.2d 409, 414 (1969).

Vann methodically tried to conceal the contraband on both

occasions immediately after he realized he was being observed by

a police officer. Such actions are inconsistent with the notion

of an individual having no mental power or control over his or

her own conduct.

Accordingly, we find that the trial court was not plainly

wrong in determining that Vann failed to meet his burden and,

thereby, finding as a matter of law that the affirmative defense

of insanity by reason of an irresistible impulse had not been

established.

Affirmed.

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