COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge McClanahan and Senior Judge Coleman Argued at Salem, Virginia

MICHAEL EDWARD JONES HOLMES MEMORANDUM OPINION * BY v. Record No. 0905-07-3 JUDGE SAM W. COLEMAN III NOVEMBER 25, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE William D. Broadhurst, Judge Anna M. Bagwell (Office of th e Public Defender, on briefs), for appellant. J. Robert Bryden, II, Assist ant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Michael Edward Jones Holmes was convicted in a jury trial of first-degree murder, aggravated malicious wounding, statutory burglary, malicious discharge of a firearm into an occupied building, and two counts of use of a firearm in the co mmission of a fe lony. Holmes maintains the trial court erred in granting the Commonw ealth’s motion in limine to exclude any reference by his counsel to the co nsequences of a finding of not gu ilty by reason of insanity during the guilt phase of the trial. We disagree and affirm the judgment of the trial court. By granting the Commonwealth’s motion, th e trial court precluded Holmes’s counsel from referring to or explaining th e consequences of an acquittal by virtue of insanity during voir dire of potential jurors, the pres entation of evidence, and the argument of counsel. Holmes maintains his due process rights under the United States and Virginia Constitutions entitled him to inform the jury that an acquittal by reason of insanity would not entitle him to being released

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - and could result in his commitment to a mental h ealth facility with a loss of liberty “for an indefinite period of time . . . and in some cases permanently[.]” In support of his contention, Holm es relies upon the rationale in Fishback v. Commonwealth , 260 Va. 104, 532 S.E.2d 629 (2000), in which our Supreme Court held that in non-capital felony cases the jury should be told in the sentencing phase of the trial about a defendant’s parole eligibility. The Fishback Court held, “A jury s hould not be required to perform this critical and diffi cult responsibility [of sentencing ] without the benefit of all significant and appropriate information that would avoid the necessity that it speculate or act upon misconceptions concerning the effect of its decision.” Id. at 113, 532 S.E.2d at 633. Holmes argues that those same concerns are in play here, and his attorney was entitled to explain, and a jury was entitled to know, “all sign ificant and appropriate information” about the consequences and effects of a verdict of not guilty by reason of insanity. In 1994 the General Assembly passed Code § 19.2-295.1 providing for bifurcated guilt and sentencing phases in order to avoid prejudi cing those distinct determinations with extraneous, irrelevant information. In doing s o, “the General Assembly created two distinct stages of all felony and Class 1 misdemeanor tria ls - the guilt phase and the punishment phase.” Ford v. Commonwealth , 48 Va. App. 262, 268, 630 S.E.2d 332, 336 (2006). “This bifurcated procedure promotes ‘a punishment appropriate to the circumstances without corrupting the initial determination of guilt or i nnocence with prejudice.’” Id. at 269, 630 S.E.2d at 336 (quoting Daye v. Commonwealth , 21 Va. App. 688, 691, 467 S.E.2d 287, 288 (1996)). Here, Holmes asks us to extend the Fishback rationale to allow his attorney to explain during various stages of the guilt phase, including jury voir dire , evidentiary proof, and opening and closing arguments, the consequences of a not guilty verdict by reason of insanity. We find the Fishback holding distinguishable and ina pplicable here in that the Fishback rationale and- 3 - holding only apply to the se ntencing phase of the trial. Only in that situation is it theoretically relevant to explain the consequences of a verdic t of not guilty by reason of insanity. But, of course, under Code § 19.2-182.2 the trial judge, not the jury, determines whether a defendant found not guilty by reason of insanity is a da nger to society and should be committed to the Department of Mental Health and Retardation. Thus, a jury in this situation has no reason to know or be told during the guilt phase what th e trial judge may do following a verdict of not guilty by reason of insanity. For this reason, we find Holmes’s reliance upon Fishback is misplaced. Additionally, the Fishback decision did not alter or overrule long-standing precedent that has consistently precluded in structing the ju ry during the guilt phase as to the consequences upon a defendant’s liberty of an acqui ttal by reason of insanity. In Spruill v. Commonwealth , 221 Va. 475, 486, 271 S.E.2d 419, 426 (1980), the Court upheld a trial court’s refusal to give a jury instruction that would have deta iled the administrative procedures to be followed by the court and the Commissioner of Mental Health and Mental Retardation under Code § 19.2-181 (now Code § 19.2-182.2) when a defendant is acquitt ed by reason of insanity. Similarly, in Rollins v. Commonwealth , 207 Va. 575, 582-83, 151 S.E.2d 622, 626-27 ( 1966), the Court uph eld the trial court’s excluding from a jury instruction language which expl ained the court’s statutory requirement to commit an individual who the cour t found to be “dangerous to the public peace or safety” to “the proper State hospital for the insa ne” should the jury find the accused not guilty by reason of insanity. In Miller v. Commonwealth , 15 Va. App. 301, 307-08, 422 S.E.2d 795, 799 (1992), we held, relying upon and being bound by the holdings in Spruill and Rollins , that the trial court properly refused a ju ry instruction that would have to ld the jury “the consequences- 4 - of a verdict of not guilty by reason of insanity” a nd that the defendant “would not be set free but instead would be committed to the custody of state mental health authorities.” 1 “[T]he only purpose served by allowing defe nse counsel to present argument about the mandatory minimum sentence during the guilt phase is to encourage th e jury to acquit the defendant even though the evidence might prove him guilty.” Walls v. Commonwealth , 38 Va. App. 273, 282, 563 S.E.2d 384, 388 (2002) (emphasis in original). For the same reason, the trial court did not abuse its di scretion in refusing to allow voir dire , evidence, or argument regarding the consequences of an acquittal by reason of insanity be cause to do so is to encourage a jury to find the accused not guilty by reason of insanity based upon whether or not the defendant will be committed or released rather than whether he is legally insane. “Evidence regarding punishment is irrelevant to a determination of guilt or innocence.” Ford , 48 Va. App. at 270, 630 S.E.2d at 337. Allowing Holmes to refer to the effect of such a disposition would “encourage[] an acquittal irrespective of the evidence.” Walls , 38 Va. App. at 282, 563 S.E.2d at 388. “[T]he right to due process does not entitle a party to encour age such behavior . . . .” Id. (citation omitted) (footnote omitted). Thus, “we are constrained by our previous de cisions and those of the Supreme Court.” Bostic v. Commonwealth , 31 Va. App. 632, 636, 525 S.E.2d 67, 68 (2000). To the extent Holmes asks us to overturn Spruill , Rollins and their progeny, “we ar e without authority to overrule the Supreme Court of Virginia.” Roane v. Roane , 12 Va. App. 989, 991, 407 S.E.2d

1 As in Walls v. Commonwealth , 38 Va. App. 273, 283, 563 S.E.2d 384, 389 (2002), we reject the Commonwealth’s assertion that appe llant’s argument is barred under Rule 5A:18. See Walls , 38 Va. App. at 279 n.1, 563 S.E.2d at 387 n.1. The Commonwealth’s motion in limine sought to exclude references to the consequences of an insanity finding “in any stage of the trial,” including voir dire , and the trial court’s ruling clea rly encompassed whether appellant could address an insanity disposi tion in a jury instruction. The tr ial court expressly ruled that its “understanding of the law in Virginia [wa]s that the jury is not to be instructed as to what would happen procedurally or otherwise to a defendant who is found not gui lty by reason of insanity[.]” (Emphasis added.) Accordingly, appellant’s arguments have been preserved for appeal.- 5 - 698, 699 (1991). “Because the jury could make no legitimate use of information” about the consequences of an insanity finding while deli berating on Holmes’s guilt or innocence, the trial court did not abuse its discretion in granting the Commonwealth’s motion in limine

. Walls , 38 Va. App. at 282, 563 S.E.2d at 388. The trial court’s judgment is affirmed. Affirmed.