COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Bumgardner
Argued at Alexandria, Virginia
NATHANIEL LEE DOWNING
OPINION BY
v. Record No. 2215-96-4 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 24, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Richard B. Potter, Judge
Jerrold J. Negin for appellant.
Eugene Murphy, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Nathaniel Lee Downing (appellant) appeals his conviction for
murder contending that the trial court erroneously denied his
motion to appoint a neurologist to assist in his defense and
erroneously struck the evidence of his pathological intoxication
in support of his defense of not guilty by reason of insanity.
We find no error and affirm the trial court's decision.
We limit our discussion of the facts and arguments made to
those relevant to this opinion. While visiting with a friend,
David Heider, at the Quantico Marine Base in the early evening of
October 2, 1995, appellant drank several beers and took the
remainder of the twelve-pack with him when he left to return to
his apartment in Dumfries, Virginia, between 8:00 p.m. and 8:45
p.m.
Upon his return, appellant and Kristina King, appellant's
sister-in-law, embarked on a drinking game during which appellant
drank "six beers or so." Between 11:00 p.m. and 12:00 p.m. that
night, two of appellant's neighbors heard a woman in appellant's
apartment scream, "Stop, Nathan, what's the matter with you? Why
are you doing this?" and, "Please don't kill me; please don't
kill me." One of appellant's neighbors called the police, who
arrived at 11:50 p.m.
The police knocked on appellant's door several times, but
appellant did not respond. After the police left the apartment
complex, appellant drove to his hometown in Ohio, where he was
arrested. The next morning, King was found stabbed to death in
appellant's apartment. King had a total of forty-seven wounds,
inflicted with a 12-inch knife appellant had stolen from his
place of work. A grand jury indicted appellant for murder on
December 4, 1995.
Appellant moved the court to appoint at the Commonwealth's
expense a psychologist, Dr. William Stejskal, and a neurologist
to evaluate him for pathological intoxication. At the hearing on
appellant's motions, Dr. Stejskal offered his opinion that
appellant was suffering from pathological intoxication at the
time of the offense. He explained that pathological intoxication
is a phenomena in which a person experiences an altered mental
state and a violent and uncharacteristic reaction in response to
alcohol. Dr. Stejskal testified that, because pathological
intoxication is often the result of a neurological abnormality,
he recommended that appellant undergo a neurological examination,
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including an E.E.G. and an M.R.I. Dr. Stejskal stated that the
neurological examination would be helpful to him in determining
the cause of appellant's pathological intoxication. Dr. Stejskal
acknowledged, however, that the neurological examination was not
a necessary component of his diagnosis and that his opinion that
appellant was legally insane at the time of the killing would
remain unchanged whether or not a biological component of the
pathological intoxication became manifest. The court granted
appellant's motion to appoint Dr. Stejskal to assist him in
preparing his defense but denied appellant's motion for the
appointment of a neurologist, reasoning that, although the
neurological examination might be helpful, it was not necessary
to Dr. Stejskal's diagnosis and, thus, not necessary to
appellant's defense.
At trial, appellant presented Dr. Stejskal's testimony and
had his preliminary and final reports admitted into evidence.
Dr. Stejskal testified that appellant's attack on Ms. King was
the product of a "grossly altered mental state" known as
pathological intoxication and, as a result, appellant was "unable
to understand the wrongfulness of his actions at the time of the
assault." Dr. Stejskal testified that during an episode of
pathological intoxication, a person is uncharacteristically
aggressive and later has amnesia for the episode. The
Commonwealth presented the rebuttal testimony of Dr. Evan Nelson,
who testified that there was a "general consensus that
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[pathological intoxication] is not an identifiable diagnosis by
today's standards."
At the close of the evidence, the court ruled that "evidence
of pathological intoxication by voluntary intoxication [cannot]
be admitted into this Court as a matter of law on the issue of
insanity." The court also found that appellant was not so
intoxicated that he could not deliberate and premeditate. The
court found appellant guilty of first degree murder and sentenced
him to forty years incarceration, with seven years suspended.
In response to appellant's appeal of the court's refusal to
admit evidence on pathological intoxication and its denial of his
motion for the appointment of a neurologist, the Commonwealth
argues that the pathological intoxication defense is unavailable
in Virginia and that the unavailability of the defense bars any
finding of prejudice from the trial court's denial of appellant's
motion for the appointment of a neurologist. We agree and affirm
the decision of the trial court.
I. Pathological Intoxication Defense
"Generally, voluntary intoxication is not an excuse for any
crime." Wright v. Commonwealth, 234 Va. 627, 629, 363 S.E.2d
711, 712 (1988) (citing Boswell v. Commonwealth, 61 Va. (20
Gratt.) 860, 870 (1871)). Virginia recognizes only one exception
to this rule: voluntary intoxication can negate the deliberation
and premeditation required for first degree murder. Id. (citing,
inter alia, Fitzgerald v. Commonwealth, 223 Va. 615, 631, 292
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S.E.2d 798, 807 (1982)).
Appellant's argument that this Court should recognize a
second exception for pathological intoxication is foreclosed by
the decisions of the Supreme Court of Virginia. According to Dr.
Stejskal, pathological intoxication is an episodic phenomenon in
which a person temporarily becomes violently aggressive after
exposure to alcohol. In Jordan v. Commonwealth, 181 Va. 490,
494, 25 S.E.2d 249, 250 (1943) (citing Johnson v. Commonwealth,
135 Va. 524, 115 S.E. 673 (1923)), the Supreme Court held that
"drunkenness may have even produced temporary insanity during the
existence of which the criminal act was committed and yet it
would afford no excuse." Similarly, it has repeatedly held that
voluntary intoxication is not a defense unless it produces a
permanent insanity in the defendant. See Little v. Commonwealth,
163 Va. 1020, 1024, 175 S.E. 767, 768 (1934) (quoting Gills v.
Commonwealth, 141 Va. 445, 450, 126 S.E. 51, 53 (1925))
("'Voluntary drunkenness, where it has not produced permanent
insanity, is never an excuse for crime . . . .'"); Gills, 141 Va.
at 450, 126 S.E. at 53 (same); Johnson, 135 Va. at 529, 115 S.E.
at 675 ("Voluntary drunkenness (as distinguished from settled
insanity produced by drink) affords no excuse for
crime . . . ."). Appellant does not contend that his exposure to
alcohol has produced a permanent insanity but only that his
pathological reaction to drinking produced an episode of
temporary insanity.
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"The fact that the result of the ingestion of alcohol may be
more severe in one person than in another because of an
idiosyncratic pathology does not make the ingestion involuntary."
People v. Matthews, 717 P.2d 970, 971 (Colo. Ct. App. 1985).
Therefore, "if the pre-existing condition of mind of the accused
is not such as would render him legally insane in and of itself,
then the recent use of intoxicants causing stimulation or
aggravation of the pre-existing condition to the point of
insanity cannot be relied upon as a defense to the commission of
the crime itself." Evilsizer v. State, 487 S.W.2d 113, 116 (Tex.
Ct. Crim. App. 1972).
We find that the defense of pathological insanity, which
appellant urges this Court to accept, is merely a form of
temporary insanity triggered by voluntary intoxication and that
it is, therefore, prohibited under Virginia law. Accordingly,
the trial court did not err in holding as a matter of law that
appellant would not be permitted to present evidence of
pathological intoxication on the issue of insanity.
II. Appointment of Neurologist
The Constitution guarantees a criminal defendant "'the basic
tools of an adequate defense or appeal.'" Ake v. Oklahoma, 470
U.S. 68, 77 (1985) (quoting Britt v. North Carolina, 404 U.S.
226, 227 (1971)). The Supreme Court of Virginia has held that
this constitutional principle requires, in some circumstances,
that a court appoint a non-psychiatric expert to assist the
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defendant with his or her defense. Husske v. Commonwealth, 252
Va. 203, 211, 476 S.E.2d 920, 925 (1996), cert. denied, 117
S. Ct. 1092 (1997).
[A]n indigent defendant who seeks the
appointment of an expert witness, at the
Commonwealth's expense, must demonstrate that
the subject which necessitates the assistance
of the expert is "likely to be a significant
factor in his defense," and that he will be
prejudiced by the lack of expert assistance.
An indigent defendant may satisfy this
burden by demonstrating that the services of
an expert would materially assist him in the
preparation of his defense and that denial of
such services would result in a fundamentally
unfair trial.
Id. at 211-12, 476 S.E.2d at 925.
The defendant bears the burden of showing a "particularized
need" for expert assistance based on the circumstances of the
case, and the question of whether a defendant has made that
showing rests within the discretion of the trial court. Barnabei
v. Commonwealth, 252 Va. 161, 171, 477 S.E.2d 270, 276 (1996)
(citing Husske, 252 Va. at 211-12, 476 S.E.2d at 925-26), cert.
denied, 117 S. Ct. 1724 (1997). Therefore, we will not disturb
the decision of the trial court unless it is plainly wrong or
without evidence to support it. Naulty v. Commonwealth, 2 Va.
App. 523, 527, 346 S.E.2d 540, 542 (1986).
Because the pathological intoxication defense is not a
viable defense under Virginia law, appellant was not "prejudiced
by the lack of expert assistance" in preparing and presenting
such a defense. Husske, 252 Va. at 212, 476 S.E.2d at 925. It
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follows that, in the absence of a valid insanity defense, the
appellant's motion for the appointment of a neurologist to assist
him in the defense was properly denied.
For the reasons stated in this opinion, we affirm the
conviction.
Affirmed.
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