Herbin v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Annunziata and Overton
Argued at Richmond, Virginia

JERVON LAMANT HERBIN, S/K/A
JERVON LAMONT HERBIN
OPINION BY
v. Record No. 1553-97-4 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 18, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
Paul A. Maslakowski, Assistant Public
Defender, for appellant.

Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

The appellant, Jervon Lamont Herbin, appeals his convictions

for attempted rape (Code § 18.2-67.5), malicious wounding (Code

§ 18.2-51), abduction (Code § 18.2-47), and two counts of

forcible sodomy (Code § 18.2-67.1). Appellant contends the trial

court erred by refusing to give his proffered jury instructions

on insanity. He further asserts the trial court erred in not

admitting into evidence letters from the victim's mother.

Finding no error, we affirm.

Appellant was a temporary houseguest at the Ashburn,

Virginia home of his school acquaintance, Maria Wheeler (Maria).

Due to a gunshot wound suffered eight days prior to the

offenses, appellant was injured and using crutches. On the

morning of January 27, 1996, only appellant and the victim,

Maria's daughter, Valerie Wheeler (Valerie), were present in the
home. Appellant requested Valerie's help putting on his socks

and, after returning to her room to finish a phone call, Valerie

entered appellant's room.

After assisting appellant with his socks, Valerie asked if

she could help him with anything else. Appellant pulled out a

kitchen knife and stated, "Don't make this difficult for me." He

instructed Valerie to remove her shirt. In response to Valerie's

pleas for appellant to stop his attack, appellant stated his

intention to have sexual intercourse with her. He again demanded

that Valerie take off her shirt, and she yielded to his demand.

As appellant turned away from Valerie for a moment, she attempted

to knock him over. Her attempt barely moved him, and appellant

turned around and stabbed Valerie several times. Following this

exchange, Valerie ceased struggling.
At appellant's instruction, Valerie removed her pants and

sat on the side of the bed. Appellant put down the knife and,

ignoring Valerie's protests, forced her to perform oral sex on

him. Soon after, Valerie was instructed to lie down on the bed,

which she did. In response to Valerie's protestations, appellant

stated he had to commit the crime because she always told the

truth and would tell her mother. After appellant unsuccessfully

attempted sexual intercourse with Valerie, he instructed Valerie

to perform oral sex for a second time, which she did. When he

was unable to become erect, appellant pulled up his pants and

paced around the room.

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 While pacing, appellant attempted to convince Valerie to

touch the knife and asked her whether her family owned guns and

whether the car had automatic or manual transmission. Valerie

answered his questions and pleaded for appellant to call the

hospital. In response to Valerie's request, appellant voiced his

fear the police would arrest him if he called the hospital.

Thinking aloud, appellant considered excuses he could present to

the hospital; he stated that he could tell the hospital that

Valerie was hurt in a kitchen accident or that she was injured

while taking the knife from him as he attempted to commit

suicide.
After threatening Valerie's life if she moved, appellant

went into her bedroom to use the phone. Appellant pretended to

call for emergency assistance twice. After pretending to call

for assistance, appellant actually called for emergency services,

and told the emergency operator that Valerie had been injured in

a kitchen accident. When the paramedics arrived, the appellant

told a paramedic that Valerie had slipped on a rug and

accidentally stabbed herself. Appellant told a police officer

that he was trying to commit suicide, and Valerie was

accidentally stabbed trying to take the knife away. After

Valerie informed the paramedic of the incident, police arrested

appellant.

At trial, appellant testified that he felt disturbed and out

of control on the morning of January 27. More specifically, he

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testified that he had the feeling that "nothing is wrong or

right." Appellant further testified that he had no recollection

of the incident or the emergency call, that he did not remember

anything before noticing Valerie sitting in a pool of blood, and

that he regained his awareness sometime between the emergency

call and the arrival of the ambulance.

Appellant's testimony was contradicted by a number of

witnesses who testified as to the voice and demeanor of appellant

the day of the attack. Both Maria and Michael Wheeler (Michael)

said his behavior was normal before they left for work. Valerie

testified that, during the attack, appellant's voice was even and

conversational and that he did not appear nervous. The Emergency

Medical Technician stated that appellant was quiet and

cooperative; one police officer on the scene noted his docile

nature. Another officer testified that appellant was not

despondent and spoke in a normal tone while in custody.

Additionally, the officer testified that appellant stated that he

faced thirty years in prison for the offense and would probably

serve twenty to twenty-six years of his sentence.
Appellant presented evidence of his distress during the

period leading up to the attack. He broke up with his

girlfriend, the mother of his child, which, he claimed, led to

renewed drug abuse. Eight days before the incident, he was shot

in the hip trying to re-enter his mother's home after using crack

cocaine. He was taken to the hospital and treated. Upon leaving

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the hospital, he temporarily moved in with the Wheelers. Shortly

thereafter, appellant unsuccessfully attempted suicide by taking

all of his Percocet painkillers. Appellant testified that he had

a sexual relationship with Maria and cited immense distress

derived from constant contact with Michael, who knew nothing of

the relationship appellant claimed to have had with Maria.

Appellant introduced extensive evidence of his background of

physical and sexual abuse, drug use, and suicide attempts.

Appellant was institutionalized for most of the period from July

1976 to March 1978. From October 1993 until November 1994,

appellant attended a sex offender treatment program at the

Augustus Institute. Approximately three months before the

attack, Hans Selvog, Assistant Clinical Director of the Augustus

Institute, met with appellant and found him anxious, disjointed

and exacerbated. A mental health evaluation, dated March 5,

1993, stated that appellant needed continued supervision and

treatment and expressed concern for the appellant's short-term

memory lapses. Selvog stated in a letter to appellant's attorney

that appellant needed continued structure and supervision to

treat his substance abuse and sexual disorders.
Maria testified that her relationship with appellant

continued after the attack. She visited him, wrote letters to

him, and sent him money. When asked about the extent of her

relationship with appellant, she denied that any "physical

relationship" occurred. Appellant attempted to introduce into

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evidence letters Maria wrote to him while appellant was

incarcerated. Appellant argued that Maria's letters were

necessary to impeach Maria's denial of an affair and to

corroborate his testimony. After reviewing the letters, the

trial court ruled the letters inadmissible on the basis that they

constituted impeachment of Maria on a collateral matter.

At the conclusion of the evidence, appellant proffered four

jury instructions related to his insanity defense. Instruction A

described the possible verdicts of the case as not guilty, not

guilty by reason of insanity, and guilty. Instruction B would

have instructed the jury to find appellant not guilty by reason

of insanity if it found him insane and defined "insane" as "not

understand[ing] the nature, character, and consequences of his

act," or "unable to distinguish between right and wrong."

Instruction C stated that if the jury found appellant able to

understand the nature of his act and to perceive that it was

wrong, it should nonetheless find him not guilty if the jury

found that appellant was motivated by an irresistible impulse

stemming from a mental disease. Instruction D explained that, if

the jury found appellant insane, he would be confined in a state

hospital until the court ordered him released. At the

instruction conference, the Commonwealth argued that the court

should not give any instructions on insanity because there was no

evidence that appellant had a diseased mind. The trial court

agreed and refused the instructions on the ground that the

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evidence did not support the insanity defense.

I. Jury Instructions

Appellant first contends the trial court erred in refusing

his proffered instructions on insanity. "If there is evidence in

the record to support the defendant's theory of defense, the

trial judge may not refuse to grant a proper, proffered

instruction." Delacruz v. Commonwealth, 11 Va. App. 335, 338,

398 S.E.2d 103, 105 (1990) (citing Painter v. Commonwealth, 210

Va. 360, 365, 171 S.E.2d 166, 168 (1969)). "If a proffered

instruction finds any support in the credible evidence, its

refusal is reversible error." McClung v. Commonwealth, 215 Va.

654, 657, 212 S.E.2d 290, 293 (1975) (citing Taylor v.

Commonwealth, 186 Va. 587, 591, 43 S.E.2d 906, 908 (1947)).

"Instructions on insanity, as other instructions, must be

supported by more than a mere scintilla of evidence." Gibson v.

Commonwealth, 216 Va. 412, 417, 219 S.E.2d 845, 849 (1975). In

determining whether evidence amounts to more than a scintilla,

"we must look at the evidence in the light most favorable to

[appellant]." Foster v. Commonwealth, 13 Va. App. 380, 383, 412

S.E.2d 198, 200 (1991).

"[T]he actual M'Naghten test for insanity, stated in the

disjunctive, is the rule in Virginia." Price v. Commonwealth,

228 Va. 452, 459, 323 S.E.2d 106, 110 (1984). 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 [sic] under such a

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 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, 228 Va. at 457-58, 323 S.E.2d at 109 (quoting M'Naghten's

Case, 10 Cl. & F. 200, 8 Eng. Rep. 718, 722-23 (1843)) (emphasis

added); see also Thompson v. Commonwealth, 193 Va. 704, 716, 70

S.E.2d 284, 291 (1952). The two facets of the M'Naghten test are

the "nature-of-the-act test and right-wrong test," and both

facets require a showing of a disease of the mind. Johnson v.
Insurance Co. of North America, 232 Va. 340, 347, 350 S.E.2d 616,

620 (1986). In Price, the Supreme Court of Virginia explained

the application of both facets of the test:
"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."

Price, 228 Va. at 459-60, 323 S.E.2d at 110 (quoting C. Torcia,

Wharton's Criminal Law § 100, at 9 (14th ed. 1979)). In Breard

v. Commonwealth, 248 Va. 68, 84, 445 S.E.2d 670, 679 (1994), the

Supreme Court of Virginia held that the phrase "because of mental

disease" is properly included in an insanity jury instruction.

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 In Virginia, 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 v. Commonwealth, 2 Va. App. 249, 251, 343

S.E.2d 368, 370 (1986) (quoting Thompson, 193 Va. at 716, 70

S.E.2d at 292). Irresistible impulse "'is to be distinguishable

from mere passion or overwhelming emotion not growing out of, and

connected with, a disease of the mind.'" Thompson, 193 Va. at

717, 70 S.E.2d at 291-92 (quoting 14 Am. Jur. Criminal Law § 35,

at 793); see also Breard, 248 Va. at 83, 445 S.E.2d at 679
(citing Thompson, 193 Va. at 717, 70 S.E.2d at 291-92) (holding

that the diseased mind requirement is properly included in an

"irresistible impulse" jury instruction). In order to prove

irresistible impulse, a defendant must show that although

understanding his or her actions, the defendant was unable, due

to a disease of the mind, to control or restrain these actions.

See Thompson, 193 Va. at 718, 70 S.E.2d at 292.

Because both the irresistible impulse test and the M'Naghten
test require a showing of a disease of the mind, a defendant must

present more than a scintilla of evidence of a mental disease in

order to receive a jury instruction. See Gibson, 216 Va. at 417,

219 S.E.2d at 849. Although lay testimony may support a plea of

insanity, "it is generally recognized that it is advisable to

adduce expert testimony to better resolve such a complex

problem." Shifflett v. Commonwealth, 221 Va. 760, 769, 274

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S.E.2d 305, 311 (1981) (citing Alexander v. United States, 380

F.2d 33, 39 (8th Cir. 1967)). Two doctors examined appellant

after the attack was committed, but appellant did not introduce

testimony or reports from the doctors. Appellant presented the

testimony of Selvog, but Selvog did not testify that appellant

suffered from a disease of the mind. Selvog acknowledged

treating appellant, but only testified that he found appellant

"disjointed" and that appellant raced from one topic to another

during their conversation. The record contains no expert

testimony from which the jury could infer that appellant suffered

from a mental disease.
While lay witnesses may testify to the attitude and demeanor

of the defendant, "[l]ay witnesses cannot express an opinion as

to the existence of a particular mental disease or condition."

Mullis v. Commonwealth, 3 Va. App. 564, 573, 351 S.E.2d 919, 925

(1987) (citing Phillips v. Stewart, 207 Va. 214, 220, 148 S.E.2d

784, 789 (1966)). The testimony pertaining to the attitude and

demeanor of appellant on the day of the attack contains no

evidence appellant was laboring under a diseased mind. Appellant

testified that he felt "out-of-control" and as if "nothing is

wrong or right" on the morning of the attack, but he did not

attribute those feelings to a mental disease.

Appellant abused illegal drugs as recently as eight days

before the attack. Additionally, one day before the attack,

Maria provided him with her prescription drug, Halcion. It is

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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."

Griggs v. Commonwealth, 220 Va. 46, 52, 255 S.E.2d 475, 479

(1979) (citation omitted) (citing, inter alia, Chittum v.

Commonwealth, 211 Va. 12, 18, 174 S.E.2d 779, 782-83 (1970)).

Virginia, however, follows the common-law rule that "settled

insanity" produced by intoxication does provide a defense to

crime. See, e.g., Arey v. Peyton, 209 Va. 370, 375, 164 S.E.2d

691, 695 (1968) (citing cases); Johnson v. Commonwealth, 135 Va.

524, 529, 115 S.E. 673, 675 (1923); Downing v. Commonwealth, 26

Va. App. 717, 722, 496 S.E.2d 164, 166 (1998). "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." Bieber v. People, 856

P.2d 811, 815 (Colo. 1993) (en banc).
"The weight of authority in this country recognizes an

insanity defense that is based on a mental disease or defect

produced by long-term substance abuse." Commonwealth v. Herd,

604 N.E.2d 1294, 1299 (Mass. 1992). At the same time, "evidence

of mere narcotics addiction, standing alone and without other

physiological or psychological involvement, raises no issue of

such a mental defect or disease as can serve as a basis for the

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insanity defense." United States v. Lyons, 731 F.2d 243, 245

(5th Cir. 1984) (citing cases). Although appellant produced

evidence of long-term and severe drug abuse, he did not present

any evidence that he was suffering from any mental disease as a

result of this drug abuse. See Hooks v. State, 534 So. 2d 329,

353 (Ala. Crim. App. 1987), aff'd sub nom. Ex parte Hooks, 534

So. 2d 371 (Ala. 1988).

Finally, appellant introduced evidence that he was

institutionalized on two occasions and treated for drug and

sexual issues. Appellant presented evidence of specific

stressors he experienced during the time leading up to the

offense, including drug use, a gunshot wound, and a suicide

attempt. Appellant did not present evidence, however,

identifying these events and experiences as either causes or

symptoms of a mental disease.
In short, appellant did not present direct evidence of

mental disease, and the jury could not reasonably infer the

existence of a mental disease from appellant's drug abuse,

institutionalization, or stressful experiences. The record does

not contain evidence of disease of the mind; accordingly, the

court properly refused appellant's proffered jury instructions on
1
insanity.
1
Even if appellant had been entitled to jury instructions on
insanity, instruction D should have been denied. Instruction D
described the consequences of finding appellant not guilty by
reason of insanity verdict. In Spruill v. Commonwealth, 221 Va.
475, 486, 271 S.E.2d 419, 426 (1980), the Supreme Court of
Virginia held that the trial court should not provide a jury

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 II. Admissibility of Letters

Appellant also contends that the trial court erred in not

admitting letters written by Maria to him into evidence. It is

well-recognized that "[t]he admissibility of evidence is within

the broad discretion of the trial court, and a ruling will not be

disturbed on appeal in the absence of an abuse of discretion."

Blain v. Commonwealth, 7 Va. App. 10, 16-17, 371 S.E.2d 838, 842

(1988) (citing Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d

820, 823 (1986)).
"Evidence is admissible if it tends to prove a matter that

is properly at issue in the case and if its probative value

outweighs policy considerations." Blain, 7 Va. App. at 17, 371

S.E.2d at 842 (citing Levine v. City of Lynchburg, 156 Va. 1007,

1014, 159 S.E. 95, 97-98 (1931)); see also Cash v. Commonwealth,

5 Va. App. 506, 510, 364 S.E.2d 769, 771 (1988). "Evidence which

'tends to cast any light upon the subject of the inquiry' is

relevant." Cash, 5 Va. App. at 510, 364 S.E.2d at 771 (quoting
McNeir v. Green-Hale Chinchilla Ranch, 194 Va. 623, 629, 74

S.E.2d 165, 169 (1953)).

Appellant and Maria presented conflicting testimony

concerning the nature of their relationship. Appellant argues

that the letters sent to him in prison from Maria corroborated

his testimony regarding the stress he was under and, therefore,

instruction addressing the consequences of the not guilty by
reason of insanity verdict.

13
supported his affirmative defense of insanity. 2

Assuming without deciding that the letters were relevant,

their exclusion was harmless error. A criminal conviction must

be reversed for non-constitutional error unless "'it plainly

appears from the record and the evidence given at the trial

that'" the error did not affect the verdict. Lavinder v.

Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)

(en banc) (quoting Code § 8.01-678). Alternately,

non-constitutional error is harmless "'if a reviewing court can

conclude, without usurping the jury's fact finding function,

that, had the error not occurred, the verdict would have been the

same.'" Turner v. Commonwealth, 23 Va. App. 270, 275, 476 S.E.2d

504, 507 (1996) (quoting Davies v. Commonwealth, 15 Va. App. 350,

353, 423 S.E.2d 839, 840 (1992)), aff'd, 492 S.E.2d 447 (Va.

1997) (affirming order unpublished in Virginia Reports), cert.

denied, 118 S. Ct. 1852 (1998).

If admissible, the letters had no bearing on the outcome of

the trial. While they speak to a relationship between appellant

and Maria, the letters do not constitute evidence of a mental

disease, and admission of the letters would not affect the trial

court's decision to refuse appellant's proffered instruction on

insanity. Even assuming that the letters were relevant to

appellant's insanity defense at the time appellant offered them,

2
Appellant does not argue on appeal that the letters were
admissible to impeach Maria's testimony.

14
they would not have had a bearing on the verdict because the

insanity defense was not properly before the jury.

For the reasons stated in this opinion, appellant's

convictions are affirmed.

Affirmed.

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