COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Frank 

Argued at Chesapeake, 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 Shaffer, Assistant 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, 1999, appellant and Lucretia Smith (victim) 

both worked as cashiers at the Allright Parking Garage in Hampton. 

Appellant worked 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 Brian LePage of the 

Hampton Police Department heard screams coming from the parking 

garage. He looked in the direction of the garage and saw the 

victim and appellant run out of the garage and stop at the end of 

the garage's driveway, almost in the lane of traffic. Appellant, 

who was behind the victim, lifted his arms and stopped her. 

Appellant's arms were "out reached." 

 LePage momentarily looked away and when he turned back, he 

noticed the victim had broken free from appellant. She ran into 

the second lane of traffic and collapsed in the middle of the 

street. 

 Casey Seals had just driven up when she, too, heard the 

screams and saw the victim run out of the parking garage with 

appellant behind her, his hands restraining her. Seals watched as 

the victim pulled away to free herself and then saw them struggle 

for a few seconds. Then, appellant 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 waistline. He then 

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noticed some blood dripping from her mouth. The victim's eyes 

rolled back and her head "just collapsed down." When LePage put 

her head on the ground, he noticed "all the blood on her back." A 

big pool of blood was starting "to surround her whole body." 

 LePage started back toward the garage and issued a "be on the 

lookout" for an individual wearing a red and black jacket, a red 

ball cap, and dark colored pants. When LePage entered the garage, 

he noticed an individual who was the same size as the suspect. 

The individual fled. Officer Michael Anderson, shortly 

thereafter, radioed LePage indicating he had a suspect in custody 

that fit the description. Officer Anderson encountered the man 

who fit the description issued by LePage "walking in a calm 

manner" toward Lincoln Street. Despite appellant's apparently 

calm manner, Anderson noticed he was breathing very fast and very 

deeply. Realizing appellant was the suspect, Anderson stopped 

him. Officer LePage then arrived and identified appellant as the 

person he saw struggling with the victim. LePage identified 

appellant less than five minutes after appellant fled from the 

garage. 

 Officer Anderson noticed blood on the palms of appellant's 

hands. After appellant was handcuffed, Officer Christopher Lyon 

patted him down for weapons and found a twelve-inch knife tucked 

in his left sleeve between his shirt and his jacket. He, too, saw 

blood on appellant's hands. Appellant was arrested and gave the 

police "pertinent information." 

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 After appellant was arrested and advised of his Miranda

rights, he waived his rights and confessed to Detective George 

Burton. He told Burton he left work at the parking garage at 

approximately 1:30 p.m., went to cash his paycheck, and then 

returned to the parking garage to pick up his clippers and a 

newspaper. At that point, the victim asked him about his trip to 

New Jersey. He told Burton he felt the victim was "getting 

personal into his business" and that she had been teasing him by 

shaking her rear end at him. He told Detective Burton he had been 

thinking about hurting her if she continued to tease him. 

Appellant told Burton he was tired, had been awake a long time, 

and he just snapped and stabbed the victim several times. 

 Appellant then provided a written statement. In his written 

statement, appellant said he was trying to get his shaving 

materials so he could leave, but the victim was flirting with him. 

Appellant said he got tired of the flirting and "went off." Then, 

in a more detailed question and answer statement, appellant said 

he had been carrying the knife on him because "he had been jumped 

before." He kept the knife in his left sleeve. He stated that 

the victim got into his business and he just "snapped" and stabbed 

her twice. Appellant explained, "I was tired. And I wanted to 

leave. But she kept talking to me and would not let me leave. 

She asked me about my trip. 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 approached her, "she stood up and 

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turned away from me." He wrote that upon being stabbed, the 

victim ran to the street. Appellant took $50 out of the garage's 

cash tray and fled. 

 Appellant denied he planned to stab the victim when he 

returned to the parking deck or that he had thought and planned to 

hurt her before that date. He also wrote that the last time he 

had slept was four days earlier, that his feet and hands hurt and 

that his blood sugar was elevated. Appellant expressed remorse 

for his acts and cooperated with the police. 

 During the majority of the time that Detective Burton 

interviewed appellant, he was "quiet, coherent, calm." Only once 

did he briefly cry. This occurred when he learned the victim had 

died. At all other times during the interview appellant was quiet 

but responsive to the questions. 

 Prior to trial on March 1, 1999, an order was entered 

directing that appellant undergo a psychological evaluation to be 

performed by Dr. Richard B. Griffin. On May 18, 1999, a second 

psychological evaluation was ordered and was performed by Evan S. 

Nelson, Ph.D. On September 9, 1999, appellant filed a notice of 

intention to assert at his trial that he lacked mental competency 

at the time of the offense. 

 In his written report dated June 1, 1999, made part of the 

trial record without objection, Dr. Nelson, a forensic 

psychologist, opined that appellant was competent to stand trial 

and concluded: 

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 In the final analysis, it is the opinion 

of the undersigned from the data available at 

this time that Mr. McNair had some symptoms 

of mental illness at the time of the offense, 

but they did not prevent him from rationally 

understanding what he was doing nor did they 

destroy his ability to control himself. 

 Dr. Nelson listed four issues that "combine[d] to explain 

[appellant's] mental state:" 1) depression, 2) substance abuse, 

3) post-traumatic stress disorder (TSD) following a robbery the 

day before the murder, and 4) diabetes – "if his blood sugar was 

low, it could have led to greater mental confusion . . . ." 

 Dr. Griffin, a Licensed Clinical Psychologist, examined 

appellant prior to trial and concluded: 

 It is the opinion of this writer that 

the defendant, Clifton McNair, was not 

suffering from a mental disease or defect at 

the time of the alleged offense which 

significantly impaired his capacity to 

understand the nature, character, and 

consequences of his actions. It is very 

likely that his judgement and his capacity 

for adequate impulse control were seriously 

compromised by sleep deprivation (due to his 

use of crack cocaine) at the time of the 

alleged offense. However, the voluntary 

ingestion of a mind-altering substance does 

not constitute a mental illness. There does 

not appear to be compelling evidence that his 

capacity to distinguish between right and 

wrong was significantly impaired by a mental 

illness at the time of the alleged offense. 

Thus, the requirements for a legal insanity 

defense do not appear to be fulfilled. 

 In his report, Dr. Nelson stated that appellant's 

Intelligence Quotient is "probably higher than the estimate of 60 

reported . . . ." He also wrote that appellant's "capacity for 

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independent functioning was consistent with at least Borderline 

Intelligence, and clearly better than that typically associated 

with mental retardation." Nelson indicated that appellant 

reported he was either intoxicated on cocaine or just "coming 

down" at the time of the offense. 

 Appellant, at trial, did not take the position that he was 

insane at the time of the offense. Rather, in his motion to 

strike, he argued that because of his mental illness he lacked the 

requisite intent, malice, and premeditation to be found guilty of 

first-degree murder. 

II. ANALYSIS 

 In contending he did not have the requisite intent, malice, 

or premeditation to be guilty of first-degree murder due to his 

"mental illness," appellant maintains he was motivated by "heat of 

passion" and provocation, not malice. He argues that because he 

"snapped" and acted impulsively, he did not premeditate the 

stabbing. He also contends that, by virtue of his mental illness, 

he lacked the requisite intent to commit murder, arguing 

"irresistible impulse."1

 Essentially, appellant contends his mental illness, 

depression, post-traumatic stress syndrome, drug addition, and 

diabetes created a defect of reason such that he lacked the 

 1

 Because appellant raises "irresistible impulse" for the 

first time on appeal, we will not consider the argument on that 

issue. Rule 5A:18. The record does not establish a reason to 

invoke the good cause or ends of justice exceptions to Rule 5A:18. 

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requisite intent, malice aforethought, and premeditation necessary 

for first degree murder. 

 The Supreme Court of Virginia and this Court have addressed 

this issue on a number of occasions. In Stamper v. Commonwealth, 

228 Va. 707, 715-16, 324 S.E.2d 682, 687 (1985), Stamper did not 

present evidence that he was insane, but attempted to introduce 

psychiatric testimony that he was manic-depressive and in a 

depressive state on the date of the offense and, therefore, 

incapable of forming the requisite intent to distribute. The 

trial court refused to consider such evidence. Id. at 716, 324 

S.E.2d at 687. The Supreme Court wrote: 

 For the purposes of determining criminal 

responsibility a perpetrator is either 

legally insane or sane; there is no sliding 

scale of insanity. The shifting and subtle 

gradations of mental illness known to 

psychiatry are useful only in determining 

whether the borderline of insanity has been 

crossed. Unless an accused contends that he 

was beyond that borderline when he acted, his 

mental state is immaterial to the issue of 

specific intent. Accordingly, we hold that 

evidence of a criminal defendant's mental 

state at the time of the offense is, in the 

absence of an insanity 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, 259-60, 389 S.E.2d 

871, 879-80 (1990), the Supreme Court applied Stamper in upholding 

the rejection of mental state evidence intended to show lack of 

premeditation where no insanity defense was raised. See also

Bowling v. Commonwealth, 12 Va. App. 166, 173, 403 S.E.2d 375, 379 

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(1991) (absent an insanity defense, Stamper precludes the 

admission of testimony regarding defendant's mental state on issue 

of premeditation). 

 Therefore, all that remains of appellant's contention is a 

simple challenge to the sufficiency of the Commonwealth's evidence 

to prove malice, premeditation, and a specific 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 distinguishes first and second degree murder.'" 

Rhodes v. Commonwealth, 238 Va. 480, 485, 384 S.E.2d 95, 98 (1989) 

(quoting Smith v. Commonwealth, 220 Va. 696, 700, 261 S.E.2d 550, 

553 (1980)). "To prove premeditated murder, the Commonwealth must 

establish: '(1) a killing; (2) a reasoning process antecedent to 

the act of killing, resulting in the formation of a specific 

intent to kill; and (3) the performance of that act with malicious 

intent.'" Archie v. Commonwealth, 14 Va. App. 684, 689, 420 

S.E.2d 718, 721 (1992) (quoting Rhodes, 238 Va. at 486, 384 S.E.2d 

at 98). 

 "'To establish premeditation, the intent to kill need only 

exist for a moment.'" Bowling, 12 Va. App. at 173, 403 S.E.2d at 

379 (quoting Peterson v. Commonwealth, 225 Va. 289, 295, 302 

S.E.2d 520, 524 (1983)). The question of premeditation is a 

question to be determined by the fact finder. Peterson, 225 Va. 

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at 295, 302 S.E.2d at 524. Moreover, "evidence of a mortal wound 

inflicted by a deadly weapon with little or no provocation creates 

an inference from which the trier of fact may conclude that the 

killer acted with premeditation." Morris v. Commonwealth, 17 Va. 

App. 575, 578, 439 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 cause or excuse, or as a result of 

ill will. It may be directly evidenced by words, or inferred from 

acts and conduct which necessarily 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)). "Malice is evidenced either when the accused acted 

with a sedate, deliberate 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) (citation omitted). 

 The evidence established that appellant acquired the murder 

weapon at least a week before the stabbing. While appellant 

maintained that he armed himself because he "had been jumped 

before," the robbery he complained of occurred the night before 

the victim was stabbed. Appellant told Burton he had thought 

about hurting the victim if she continued to tease him. When the 

victim made an inquiry about appellant's trip to New Jersey, 

appellant stabbed her in anger after she turned her back to him. 

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 After the stabbing, the victim fled to the street, pursued by 

appellant. Appellant then grabbed her and she had to struggle to 

break free from him. Appellant then fled from the scene. 

 The evidence clearly proved appellant's specific intent to 

kill. "Intent is the purpose formed in a person's mind which may, 

and often must, be inferred from the facts and circumstances in a 

particular case." Ridley v. Commonwealth, 219 Va. 834, 836, 252 

S.E.2d 313, 314 (1979). Intent to kill requires that: 

"'the killing should have been done on 

purpose, and not by accident, or without 

design; that the accused must have reflected 

with a view to determine 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 omitted). "It is the will and purpose to kill, 

not necessarily the interval of time, which determine 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 contends 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 voluntary manslaughter, the killing must have been 

done in the heat of passion and upon reasonable 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 

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S.E.2d 43, 46 (1946)). "Virginia has long recognized that malice 

and heat of passion [are mutually exclusive]." Hodge, 217 Va. at 

345, 228 S.E.2d at 697. Heat of passion 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 passion is determined by the nature and degree 

of the provocation and 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 especially where the 

offense is committed with a deadly weapon.'" Martin, 184 Va. at 

1017, 37 S.E.2d at 46 (citation omitted). In Virginia, it is a 

long-standing principle that "words alone are never a sufficient 

provocation" for one to kill another and claim 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 omitted). 

 The trial court could reasonably infer from the evidence that 

appellant armed himself with a deadly weapon and harbored 

resentment toward the victim. The evidence was sufficient to 

prove beyond a reasonable doubt that appellant willfully, 

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deliberately, and with premeditation stabbed the victim without 

reasonable provocation. 

 For these reasons, we affirm appellant's conviction of first 

degree murder. 

Affirmed.

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