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 the Public Defender, on briefs), for 

appellant. 

 J. Robert Bryden, II, Assistant 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 commission of a felony. Holmes 

maintains the trial court erred in granting the Commonwealth’s motion in limine to exclude any 

reference by his counsel to the consequences of a finding of not guilty 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, the trial court precluded Holmes’s counsel 

from referring to or explaining the consequences of an acquittal by virtue of insanity during voir 

dire of potential jurors, the presentation 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 opinion is not designated for publication. 
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and could result in his commitment to a mental health facility with a loss of liberty “for an 

indefinite period of time . . . and in some cases permanently[.]” 

 In support of his contention, Holmes 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 should not be required to 

perform this critical and difficult 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 significant 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 prejudicing those distinct determinations with 

extraneous, irrelevant information. In doing so, “the General Assembly created two distinct 

stages of all felony and Class 1 misdemeanor trials - 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 innocence 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 inapplicable here in that the Fishback rationale and 
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holding only apply to the sentencing phase of the trial. Only in that situation is it theoretically 

relevant to explain the consequences of a verdict 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 danger 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 the 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 instructing the jury during the guilt phase as to the consequences upon 

a defendant’s liberty of an acquittal 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 detailed 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 acquitted by reason of insanity. Similarly, in Rollins v. 

Commonwealth, 207 Va. 575, 582-83, 151 S.E.2d 622, 626-27 (1966), the Court upheld the trial 

court’s excluding from a jury instruction language which explained the court’s statutory 

requirement to commit an individual who the court found to be “dangerous to the public peace or 

safety” to “the proper State hospital for the insane” 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 jury instruction that would have told the jury “the consequences 
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of a verdict of not guilty by reason of insanity” and 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 defense counsel to present argument about the 

mandatory minimum sentence during the guilt phase is to encourage the 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 discretion in refusing to allow voir dire, evidence, or argument 

regarding the consequences of an acquittal by reason of insanity because 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 encourage such behavior . . . .” Id.

(citation omitted) (footnote omitted). 

 Thus, “we are constrained by our previous decisions 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 are 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 appellant’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 clearly encompassed whether appellant 

could address an insanity disposition in a jury instruction. The trial 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 guilty by reason of insanity[.]” 

(Emphasis added.) Accordingly, appellant’s arguments have been preserved for appeal. 
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698, 699 (1991). “Because the jury could make no legitimate use of information” about the 

consequences of an insanity finding while deliberating 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.