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
5
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
9
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
10
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
11
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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