COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Clements
Argued at Alexandria, Virginia
JOSEPH CARL JOHNSON
MEMORANDUM OPINION * BY
v. Record No. 0324-00-4 JUDGE RICHARD S. BRAY
DECEMBER 28, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY
William Shore Robertson, Judge
Cindy Leigh Decker, Assistant Public Defender
(Paul A. Maslakowski, Senior Public Defender,
on brief), for appellant.
John H. McLees, Jr., Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
A jury convicted Joseph Carl Johnson (defendant) of first
degree murder and related use of a firearm, violations of Code
§§ 18.2-32 and -53.1, respectively. On appeal, defendant
complains the trial court erroneously refused to instruct the jury
on voluntary intoxication as a defense to first degree murder.
Finding no error, we affirm the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Defendant requested the court to instruct the jury:
If you find that the defendant was so
greatly intoxicated by the voluntary use of
alcohol that he was incapable of
deliberating or premeditating, then you
cannot find him guilty of murder in the
first degree. Voluntary intoxication is not
a defense to second-degree murder or
voluntary manslaughter.
Concluding that the evidence established "mere drinking of
alcohol" by defendant at the time of the offense, the court
refused the instruction.
"The standard governing our review of a trial judge's
decision to refuse a proffered jury instruction is well-settled.
'If any credible evidence in the record supports a proffered
instruction . . . , failure to give the instruction is reversible
error.'" Hartigan v. Commonwealth, 31 Va. App. 243, 257, 522
S.E.2d 406, 412 (1999) (quoting Boone v. Commonwealth, 14 Va. App.
130, 132, 415 S.E.2d 250, 251 (1992)). "Although the Commonwealth
prevailed at trial, the appropriate standard for review requires
that we view the evidence with respect to the refused instruction
in the light most favorable to the defendant." Graham v.
Commonwealth, 31 Va. App. 662, 680, 525 S.E.2d 567, 575 (2000)
(quoting Boone, 14 Va. App. at 131, 415 S.E.2d at 251).
"[W]hen a person voluntarily becomes so intoxicated that he
is incapable of deliberation or premeditation, he cannot commit
a class of murder that requires proof of a deliberate and
premeditated killing." Wright v. Commonwealth, 234 Va. 627,
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629, 363 S.E.2d 711, 712 (1988). However, "'so long as [an
accused] retains the faculty of willing, deliberating and
premeditating, though drunk, he is capable of committing murder
in the first degree.'" Hatcher v. Commonwealth, 218 Va. 811,
814, 241 S.E.2d 756, 758 (1978) (quoting Johnson v.
Commonwealth, 135 Va. 524, 531, 115 S.E. 673, 675-76 (1923)).
Thus, "[t]o justify an instruction on voluntary drunkenness, the
evidence must show more than the mere drinking of alcohol." Id.
Willful concealment of involvement in an offense "suggest[s a]
command of . . . faculties and . . . deliberation by an accused.
Lilly v. Commonwealth, 255 Va. 558, 579, 499 S.E.2d 522, 536-37
(1998), rev'd on other grounds, 527 U.S. 116, 119 S. Ct. 1887,
144 L.Ed.2d 117 (1999).
The instant record disclosed that defendant frequently
abused alcohol and had been "drinking" for several hours prior
to the offense. At approximately 3:00 p.m., the victim, Willie
Steve Nichols, Jr., arrived at defendant's home, and the two
soon engaged in increasingly "heated" arguments. Immediately
prior to the homicide, defendant retrieved a rifle from his
home, "lean[ing]" the weapon against a nearby tree upon his
return to continue the dispute. As the men stood "face to
face," defendant produced another firearm, a handgun, from
"behind his back" and shot Nichols in the head from a distance
of "less than 12 inches," fatally wounding him. Defendant then
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proceeded into the house, murmuring, "the f'er shouldn't have
been f'ing with me," and hid the murder weapon.
Major C.A. Williams, a Rappahannock County Chief Deputy
Sheriff, arrived at the scene shortly thereafter. He testified
defendant initially resisted arrest but "calmed down" en route
to the sheriff's office. Williams described defendant's speech
and gait as "normal." During an interview with Detective E.P.
Junger, approximately six hours following the shooting,
defendant responded appropriately, in writing, to the several
inquiries appearing on a preprinted "Miranda rights form,"
specifically noting he had consumed "[s]everal beers today," and
properly executed the related waiver. Junger detected
"virtually no odor of alcohol upon [defendant's] breath,"
described his speech as "clear and coherent," "his eyes . . .
clear and unglazed." Upon questioning, defendant denied
involvement in the offense, insisting he had previously "left
the residence in the company of a lady."
Such evidence established defendant had consumed alcohol
prior to the offense, but failed to suggest resulting impairment
sufficient to preclude deliberation or premeditation. To the
contrary, immediately prior to the offense, defendant withdrew
from the dispute, retreated to the safety of his home, armed
himself with a rifle, and returned to the fray, carefully
concealing a handgun. Moments later, he fired upon the victim
at point-blank range, fled to his home and secreted the weapon.
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Arrested and questioned several hours later, defendant lied to
conceal guilt, while appearing coherent, rational and otherwise
unimpaired by alcohol.
Accordingly, the trial court correctly refused the disputed
instruction, and we affirm the conviction.
Affirmed.
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