COURT OF APPEALS OF VIRGINIA

Present: Judg es Benton, El der and Frank Argued at Ches apeake, Virginia

CLIFTON McNAIR, JR. MEMORANDUM OPINION * BY v. Record No. 0062-00-1 JUDGE ROBERT P. FRANK DECEMBER 5, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor , Jr., Judge Charles E. Haden for appellant. H. Elizabeth Shaffe r, Assistan t Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Clifton McNair, Jr., (appellant) was convicted in a bench trial of first-degree murder in violation of Code § 18.2-32, stabbing during the commission of a felony in violation of Code § 18.2-53, and petit larceny in violation of Code § 18.2-96. He appeals only the first-degree murder conviction, contending the trial court erred in determining that, despite his mental illness, he had the requisite intent, malice, and premeditation to be guilty of first-degree murder. For the reasons stated herein, we find no error and affirm the conviction.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.I. BACKGROUND On February 18, 19 99, appellant an d Lucretia Smith (victim) both worked as cashiers at the Allright Parkin g Garage in Hampton. Appellant work ed from 7:00 a.m. to 1: 30 p.m., and the victim worked from 1:30 p.m. to 7:00 p.m. At approximately 3: 00 p.m., Officer Br ian LePage of the Hampton Police Departme nt heard screams comi ng from the parking garage. He looked in the direct ion of the gara ge and saw the victim and appellant ru n out of the garage an d stop at the end of the garage's driveway, al most in the lane of traffic. Appellant, who was behind the vi ctim, lifted his arms and stoppe d her. Appellant's arms were "out re ached." LePage momentarily lo oked away and when he turned back, he noticed the victim had broken free from appellant. She ran into the second lane of tr affic and collap sed in the middle of the

street. Casey Seals ha d just driven up whenshe, too, heard the screams and saw th e victim run out of th e parking ga rage with appellant behind her, his hands re straining her. Seals watched as the victim pulled away to free herself and th en saw them struggle for a few seconds. Then, appellan t looked around and let her go. The victim took four or five steps and then collapsed in the

street. LePage ran over to the victim and picked up her head. He noticed a little blood on her back around her waistl ine. He then - 2 -noticed some blood drip ping from her mouth. The vi ctim's eyes rolled back and her he ad "just collap sed down." Wh en LePage put her head on the gr ound, he noticed "all the blood on her back." A big pool of bl ood was starting "to surround her whole body." LePage started back toward the garage and issued a "be on the lookout" for an indivi dual wearing a red an d black jack et, a red ball cap, and dark colo red pants. Wh en LePage ente red the garage, he noticed an individu al who was the same si ze as the suspect. The individual fled . Officer Michael Anderson, shortly thereafter, ra dioed LePage indicating he had a suspect in custody that fit the descriptio n. Officer An derson encoun tered the man who fit the descri ption issued by LePage "walki ng in a calm manner" toward Lincol n Street. Despite ap pellant's ap parently calm manner, Anderson noticed he was breathin g very fast and very deeply. Realizing ap pellant was the suspect, Ande rson stopped him. Officer Le Page then arrive d and identified appellant as the person he saw st ruggling with th e victim. LePa ge identified appellant less th an five minutes after appellant fled from the garage. Officer Anderson no ticed blood on the pa lms of appellant's hands. After ap pellant was handcu ffed, Officer Ch ristopher Lyon patted him down for we apons and found a twelve-inch knife tucked in his left sleeve be tween his shirt and his jacket. He, too, saw blood on appellant's ha nds. Appellan t was arrested and gave the police "pertinent information." - 3 -After appellant was arrested and advised of his Miranda rights, he waived his rights and confessed to Detective George Burton. He told Burt on he left work at the parking garage at approximately 1:30 p.m., went to cashhis paycheck , and then returned to the parking garage to pick up his clippers and a newspaper. At th at point, the victim aske d him about hi s trip to New Jersey. He told Burton he felt th e victim was "getting personal into hi s business" and th at she had been teasing him by shaking her rear end at him. He told De tective Burton he had been thinking about hurtin g her if she continue d to tease him. Appellant told Burton he was tired, had been awake a long time, and he just snapped and stabbed th e victim several times. Appellant then provid ed a written statemen t. In his written statement, appellant said he was trying to get his shaving materials so he co uld leave, but the victim was flirting with him. Appellant said he got tired of the flirting and "went off." Then, in a more detailed qu estion and answer stat ement, appellant said he had been carrying the knife on him becaus e "he had been jumped before." He kept the knife in his left sl eeve. He stated that the victim got into his business and he just "snapped" and stabbed her twice. Appe llant explaine d, "I was tired. And I wanted to leave. But she kept talking to me and wo uld not let me leave. She asked me about my tr ip. She asked me did I have a good time. I told her yes." The victim was standing in the booth of the parking garage. When appellant ap proached her, "s he stood up and - 4 -turned away from me." He wrote that uponbeing stabbed, the victim ran to the street. Appellant took $5 0 out of the garage's cash tray and fled. Appellant denied he planned to stab th e victim when he returned to the parking deck or that he had though t and planned to hurt her before that da te. He also wrote th at the last time he had slept was four days earlier, that his feet and hands hurt and that his blood sugar was elevated. Appell ant expresse d remorse for his acts and cooper ated with the police. During the majority of the time that Detective Burton interviewed appe llant, he was "qui et, coherent, calm ." Only once did he briefly cry. Th is occurred when he learned the victim had died. At all ot her times during the interview appe llant was quiet but responsive to the questions. Prior to trial onMarch 1, 1999, anorder was entered directing that appellan t undergo a psyc hological evalua tion to be performed by Dr. Richar d B. Griffin. On Ma y 18, 1999, a second psychological evaluation was ordered and was performed by Evan S. Nelson, Ph.D. On September 9, 1999, appe llant filed a notice of intention to assert at his trial that he lacked ment al competency at the time of the offense. In his written report dated June 1, 1999 , made part of the trial record without objectio n, Dr. Nelson , a forensic psychologist, opined that appe llant was competen t to stand trial and concluded: - 5 -In the final analysis , it is the opinion of the undersigne d from the data available at this time that Mr. McNa ir had some symptoms of mental illness at th e time of th e offense, but they did not preven t him from rationally understanding wh at he was doin g nor did they destroy his ab ility to cont rol himself. Dr. Nelson listed four issues that "c ombine[d] to explain [appellant's] mental state:" 1) depres sion, 2) substance abuse, 3) post-traumatic stre ss disorder (TSD) fo llowing a ro bbery the day before the murder, and 4) diabetes – "i f his blood sugar was low, it could ha ve led to greater ment al confusion . . . ." Dr. Griffin, a Lice nsed Clinical Psyc hologist, examined appellant prio r to trial an d concluded: It is the op inion of this writer that the defendant, Clif ton McNair , was not suffering from a mental disease or defect at the time of the al leged offense which significantly impaired his capacity to understand the natu re, character, and consequences of his actions. It is very likely that hi s judgement and his capacity for adequate impulse co ntrol were seriously compromised by sleep de privation (d ue to his use of crack cocaine) at the time of the alleged offense. However, the voluntary ingestion of a mind-alt ering substa nce does not constitute a mental illness. There does not appear to be compel ling evidence that his capacity to di stinguish betw een right and wrong was signif icantly impaired by a mental illness at the time of the alleged offense. Thus, the requir ements for a le gal insanity defense do not appear to be fulfilled. In his report, Dr . Nelson stated that appellant's Intelligence Quotient is "probably high er than the es timate of 60 reported . . . ." He also wrot e that appellant' s "capacity for

- 6 -independent fu nctioning was cons istent with at least Borderline Intelligence, and clearly better than that typi cally associated with mental retardat ion." Nelson indica ted that appellant reported he was either intoxicated on co caine or ju st "coming down" at the time of the offense. Appellant, at trial, did not take the po sition that he was insane at the time of the offens e. Rather, in his motion to strike, he argued that because of his mental illness he lacked the requisite inte nt, malice, an d premeditatio n to be foun d guilty of first-degree murder. II. ANALYSIS In contending he did not have the requ isite intent , malice, or premeditation to be guilty of first-degree mu rder due to his "mental illness," appellant maintains he was moti vated by "heat of passion" and provocatio n, not malice. He ar gues that because he "snapped" and ac ted impulsively, he did not pr emeditate the stabbing. He also contends that, by virtue of his mental illness, he lacked the requis ite intent to comm it murder, arguing "irresistibl e impulse." 1 Essentially, appellant cont ends his mental illness, depression, po st-traumatic stre ss syndrome, drug addition, and diabetes created a defe ct of reason such that he lacked the

1 Because appellant raises "irresistibl e impulse" for the first time on appeal, we will no t consider the ar gument on that issue. Rule 5A:18. The record does not establish a reason to invoke the good cause or ends of just ice exceptions to Rule 5A:18. - 7 -requisite inte nt, malice aforethought, an d premeditatio n necessary for first degree murder. The Supreme Cour t of Virginia and this Court have addressed this issue on a number of occasions. In Stamper v. Commonwealth , 228 Va. 707, 715-16, 32 4 S.E.2d 682, 687 (1 985), Stampe r did not present eviden ce that he was insane, but attemp ted to introduce psychiatric test imony that he was manic-depres sive and in a depressive state on the date of th e offense and, therefore, incapable of forming the requisite in tent to dist ribute. The trial court refuse d to consider su ch evidence. Id. at 716, 324 S.E.2d at 687. The Supreme Court wrote: For the purpos es of determin ing criminal responsibility a perp etrator is either legally insane or sane; there is no sliding scale of insanity. Th e shifting and subtle gradations of mental illn ess known to psychiatry are useful only in de termining whether the bord erline of insa nity has been crossed. Unless an accused cont ends that he was beyond that borderline when he acted, his mental state is immate rial to th e issue of specific intent. Accord ingly, we hold that evidence of a criminal defend ant's mental state at the time of the offense is, in the absence of an in sanity defense, irrelevant to the issue of guilt. Id. at 717, 324 S.E.2d at 688 (citations omitted).

In Smith v. Commonwealth , 239 Va. 243, 25 9-60, 389 S.E.2d 871, 879-80 (1990), th e Supreme Co urt applied Stamper in upholding the rejection of mental state evidence intend ed to show lack of premeditation where no insanity de fense was raised. See also Bowling v. Commonwealth , 12 Va. App. 166, 173, 403 S.E.2d 375, 379 - 8 -(1991) (absent an insanity defense, Stamper precludes the admission of testimony regarding defend ant's mental st ate on issue of premeditation). Therefore, all that remains of appellan t's contenti on is a simple challenge to th e sufficiency of the Commonweal th's evidence to prove malice, premeditation, and a specif ic intent to kill the victim. "Murder . . . by willful, deliberate, and premeditated killing . . . is murder of the first degree." Code § 18.2-32. "'To premeditate means to adopt a specific intent to kill, and that is what distingu ishes first and second degree murder.'" Rhodes v. Commonwealth , 238 Va. 480, 48 5, 384 S.E.2d 95, 98 (1989) (quoting Smith v. Commonwealth , 220 Va. 696, 700, 261 S.E.2d 550, 553 (1980)). "T o prove premeditat ed murder, the Co mmonwealth must establish: '(1) a ki lling; (2) a reasoning process ante cedent to the act of killing, resulting in the form ation of a specific intent to kill; and (3) the perfor mance of that ac t with malicious intent.'" Archie v. Commonwealth , 14 Va. App. 684, 689, 420 S.E.2d 718, 721 (1992) (quoting Rhodes , 238 Va. at 48 6, 384 S.E.2d at 98). "'To establish premed itation, the intent to kill need only exist for a moment.'" Bowling , 12 Va. App. at 17 3, 403 S.E.2d at 379 (quoting Peterson v. Commonwealth , 225 Va. 289, 295, 302 S.E.2d 520, 524 (1983)). The qu estion of prem editation is a question to be determinedby the fact finder. Peterson , 225 Va. - 9 -at 295, 302 S.E.2d at 524. Moreover , "evidence of a mortal wound inflicted by a deadly we apon with little or no provocat ion creates an inference from whic h the trier of fact ma y conclude that the killer acted with premeditation." Morris v. Commonwealth , 17 Va. App. 575, 578, 43 9 S.E.2d 867, 869- 70 (1994) (citing Hodge v. Commonwealth , 217 Va. 338, 343, 228 S.E.2d 692, 696 (1976)). "'Malice inheres in the doing of a wrongful act intentionally, or without just caus e or excuse, or as a result of ill will. It may be directly evidenced by words, or in ferred from acts and conduct which necessaril y result in injury.'" Hernandez v. Commonwealth , 15 Va. App. 626, 631, 426 S.E.2d 137, 140 (1993) (quoting Dawkins v. Commonwealth , 186 Va. 55, 61, 41 S.E.2d 500, 503 (1947)). "M alice is evidenced either when the ac cused acted with a sedate, delibera te mind, and formed design, or committed any purposeful and cruel act without any or without great provocation." Branch v. Commonwealth , 14 Va. App. 836, 841, 419 S.E.2d 422, 426 (1992) (citatio n omitted). The evidence establ ished that appellant acquired the murder weapon at least a week before the stab bing. While appellant maintained that he ar med himself beca use he "had been jumped before," the robbery he complained of occurred the night before the victim was stabbed. Appellant to ld Burton he had thought about hurting the victim if she co ntinued to tease him. When the victim made an inqu iry about appell ant's trip to New Jersey, appellant stabbe d her in anger afte r she turned her ba ck to him. - 10 -After the stabbi ng, the victim fl ed to the stre et, pursued by appellant. Appe llant then grabbed her and she had to struggle to break free from him. Appellant then fled from the scene. The evidence clearly proved ap pellant's specif ic intent to kill. "Intent is the pu rpose formed ina person's mi nd which may, and often must, be inferred from the facts and circ umstances in a particular case." Ridley v. Commonwealth , 219 Va. 834, 836, 252 S.E.2d 313, 314 (197 9). Intent to ki ll requires that: "'the killing sh ould have been done on purpose, and not by accident, or without design; that the accuse d must have reflected with a view to determ ine whether he would kill or not, and that he must have determined to kill as the result of that reflection, before he does the act . . . .'" Pannill v. Commonwealth , 185 Va. 244, 255, 38 S.E.2d 457, 463 (1946) (citations omit ted). "It is the will and purpose to kill, not necessarily th e interval of ti me, which determin e the grade of the offense." Akers v. Commonwealth , 216 Va. 40, 48 , 216 S.E.2d 28, 33 (1975) (citing Fuller v. Commonwealth , 201 Va. 724, 730, 113 S.E.2d 667, 672 (1960)). Appellant conten ds provocation by the victim caused him to "snap" and stab her at least two times. The victim's question to appellant was not reasonable provocation. "To reduce a homicide from murder to volunt ary manslaughter , the killing mu st have been done in the heat of passion and upon reason able provocation." Barrett v. Commonwealth , 231 Va. 102, 105-06, 341 S.E.2d 190, 192 (1986) (citing Martin v. Commonwealth , 184 Va. 1009, 1016-17, 37 - 11 -S.E.2d 43, 46 (194 6)). "Virginia has long recogniz ed that malice and heat of pass ion [are mutually exclusive]." Hodge , 217 Va. at 345, 228 S.E.2d at 697. Heat of pass ion refers to "the furor brevis , which renders a man deaf to the voice of reason

### . . . ." Hannah v. Commonwealth , 153 Va. 863, 870, 149 S.E. 419, 421 (1929). "Heat of pass ion is determined by the nature and degree of the provocation an d may be founded upon rage, fear, or a combination of both." Barrett , 231 Va. at 106, 341 S.E.2d at 192 (citations omitted). "'A reasonable provocation is always necessary to reduce a [murder] . . . to . . . manslaughter ; and especial ly where the offense is committed witha deadly weapon.'" Martin , 184 Va. at 1017, 37 S.E.2d at 46 (citation omit ted). In Virginia, it is a long-standing principle that "w ords alone are never a sufficient provocation" for one to kill another and clai m that the act arose from the heat of passion. Id. at 1018, 37 S. E.2d at 47. "[W]hether a killing was done in the heat of passion upon reasonable provocation is a question of fact." Canipe v. Commonwealth , 25 Va. App. 629, 643, 491 S.E.2d 747, 754 (1997) (citation om itted). The trial court could reasonab ly infer from th e evidence that appellant armed himself with a deadly weapon and harbored resentment toward the victim. The evidence was sufficient to prove beyond a reason able doubt that ap pellant wi llfully,

- 12 -deliberately, and with premeditation st abbed the vict im without reasonable provocation. For these reason s, we affirm appellant' s convictionof first degree murder.

Affirmed

.

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