COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felt on, Judges Frank and Beales Argued at Chesapeake, Virginia

WILLIAM ALLEN MORGAN OPINION BY v. Record No. 1527-05-1 CHIEF JUDGE WALTER S. FELTON, JR. JULY 10, 2007 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Stephen C. Mahan, Judge Andrew M. Sacks (Sacks & Sa cks, on brief), for appellant. Robert H. Anderson, III, Seni or Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
A jury convicted William Allen Morgan (appellant) of malicious wounding in violation of Code § 18.2-51 and use of a fir earm during the commission of a felony in viol ation of Code § 18.2-53.1. On appeal, he contends the tr ial court erred in grantin g the Commonwealth’s motion in limine , precluding hi m from presenting a “s ettled insanity” defense, and in “granting the Commonwealth’s proposed jury inst ructions and refusing [his] pro posed instructions as to the allocation of the burden of proof with respect to [his alternate] insan ity defense.” Finding no error, we affirm appellant’s convictions.
I. BACKGROUND “Under familiar principles of appellate revi ew, we view the eviden ce and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed belo w.” Banks v. Commonwealth , 41 Va. App. 539, 5 43, 586 S.E.2d 876, 877 (2003). Consistent with this principle, the evid ence shows that on Sept ember 24, 1985, appellant shot his estranged wife eight times, causing perm anent injury. Appellant fled the scene before- 2 - police and medical personnel arrived. His vehi cle was found abandoned two weeks later at the Norfolk Naval Base. 1 Almost seventeen years later, on Ma y 1, 2002, appellant was arrested in Florida, where he had been living under an assumed name. He was eventually returned to Virginia to stand trial for the ma licious wounding of his estranged wife and for use of a firearm during the commission of a felony. 2 Appellant filed a notice with the trial court on July 2, 2003, that he intended to present a “settled insanity” defense, alleging that hi s “actions were the result an d/or product of a mental disease or defect produced by long-term substance abuse, . . . including, but not limited to, alcohol and xanax abuse.” On February 22, 2005, one day before appellant’s scheduled jury trial, the Commonwealth made an oral motion in limineto preclude appellant from presenting expert testimony and other evidence in support of such a defense. The Commonwealth argued that appellant should not be permitted to present a “settl ed insanity” defense to the jury because he had conceded that he did not suffer from a permanent mental defect or disease. Appellant acknowled ged that his “condition [had] abated over a period of time wh en he stopped drinking, stopped using [] dr ugs, [and] had some treatment for hi s liver . . . .” However, he argued that the defense of “settled insanity” in Virginia “does not depend for its legal efficacy upon whether the defendant’s insanity is temporary, inte rmittent, or permanent.” Relying on Herbin v. Commonwealth , 28 Va. App. 173, 503 S.E. 2d 226 (1998), he asserted that the duration of his mental defect or disease is immaterial so long as his long-term substance abuse produced a mental defect or disease that met Virginia’s definition of insanity.

1 The record reflects appellant retired from the Navy in 1982.

2 Prior to returning to Virginia, a Florida c ourt convicted appellant of two felonies in connection with his fa lse identification.- 3 - The trial court rejected appellant ’s argument, ruling that “settled insanity [] is not recognized [in Virginia] as a valid defense un less it’s permanent.” Th us, it held that “because [appellant’s] condition was not permanent, he does not currently m eet the standard to be declared insane. He cannot avail himself of the se ttled insanity defense.” The trial court explained: all the parties agree that [appellant] is no longer suffering from any condition that would meet the legal definition of insanity. He is, thus, asserting a temporary settle d insanity defense or as [the Commonwealth] stated . . . a settle d insanity in remission type of defense. * * * * * * * The [S]upreme [C]ourt has clearly said that to be acceptable [the settled insanity] has to be permanent . . . . * * * * * * * [Appellant’s] condition cannot be permanent as required by case law if it no longer exists . . . [and] [i]f it’s not permanent, then it’s temporary. Appellant’s trial was subsequently continued to allow ap pellant to prepare an alternate defense. At trial, appellant did not deny shooting his estranged wife, but ente red a plea of not guilty by reason of insanity due to invo luntary intoxication. At the close of all the evidence, he proffered jury instructions A thro ugh E, allocating to the Commonwealth the burden of proving his sanity. The trial court refused appellant’s proffered instructions, concludi ng that his inst ructions were contrary to established law. The trial court th en instructed the jury in accordance with the Commonwealth’s proffered instructions, which pl aced on appellant the bu rden of proving his insanity at the time of the offense. The jury rejected appellant’ s alternate defense of insanity by reason of involuntary intoxication, and returned a guilty verdict for both charges. The trial c ourt imposed the jury’s sentence verdict of a tota l of 15 years imprisonment. This appeal followed.- 4 - II. ANALYSIS
A. “Settled Insanity” Defense On appeal, appellant first contends that the trial court erred, as a matter of law, when it granted the Commonwealth’s motion in limine precluding his proffere d evidence of “settled insanity” from being presented to the jury. “In Virginia . . . insanity is an affirmative defense that the defendant must establish to the satisfaction of the fact finde r.” Shifflett v. Commonwealth , 221 Va. 760, 769, 274 S. E.2d 305, 310 (1981). To present evidence of insanity to the fact finder, an accused must first make a prima facie showing that his evidence meets the require ments of the affirmative defense. See White v. Commonwealth , 272 Va. 619, 629, 636 S.E. 2d 353, 358 (2006) (no er ror in refusing to allow evidence of “settled insa nity” defense to be admitted for ju ry’s consideration because accused’s proffered evidence insufficient to establish prima facie defense of in sanity). “Prima facie evidence is ‘[e]vidence that will establish a fact or su stain a judgment unless cont radictory evidence is produced.’” Id. at 626, 636 S.E.2d at 357 (quoting Black’s Law Dictionary 598 (8th ed. 2004)). “‘Virginia law recognizes two tests by which an accused can establish criminal insanity, the M’Naghten Rule and the irresistible impuls e doctrine.’” Be nnett v. Commonwealth , 29 Va. App. 261, 277, 511 S.E. 2d 439, 446 (1999) (quo ting Godley v. Commonwealth , 2 Va. App. 249, 251, 343 S.E.2d 368, 370 (1986 )). Under the M’Naghten Rule, “it must be clearly proven that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” Price v. Commonwealth , 228 Va. 452, 457- 58, 323 S.E.2d 106, 109 (1 984) (quoting M’Naghten’s
Case , 10 C. & F. 200, 8 Eng. Rep. 718, 722-23 (1843)). The irresistible impulse defense is available “where the accused’s mind has become ‘so impaired by dise ase that he is totally deprived- 5 - of the mental power to control or restrain his act.’” Godley , 2 Va. App. at 251, 343 S.E.2d at 370 (quoting Thompson v. Commonwealth , 193 Va. 704, 716, 70 S. E.2d 284, 292 (1952)). “It is well settled in Virginia that, ‘except in cases of fi rst degree and capital murder, where proof of voluntary intoxication may negate deliberation and premeditation, such intoxication, whether from drugs or alcohol, is no defense to a criminal charge.” Herbin , 28 Va. App. at 183-84, 503 S.E.2d at 231. Ho wever, common law has long recognized that the long-term, chronic, and habitual abuse of alcohol or drug s will support a defense of insa nity where such abuse creates a mental defect or disease that meets the requirements of either of Virginia’s insanity tests. See White , 272 Va. at 626, 636 S.E.2d at 357; Little v. Commonwealth , 163 Va. 1020, 1024, 175 S.E. 767, 769 (1934). See also Gills v. Commonwealth , 141 Va. 445, 450-51, 1 26 S.E. 51, 53 (1925); Boswell v. Commonwealth , 61 Va. (20 Gratt.) 86 0, 872 (1871); Herbin , 28 Va. App. at 184, 503 S.E.2d at 231. This common law exception to the general prohibition of voluntary intoxi cation as a defense to a criminal charge is known as th e doctrine of “settled insanity.” Herbin , 28 Va. App. at 184, 503 S.E.2d at 231 (citing Arey v. Peyton , 209 Va. 370, 375, 164 S.E. 2d 691, 695 (1968)). See also Bieber v. People , 856 P.2d 811, 8 15 (Colo. 1993) ( en banc ) (“The doctrine of ‘settled insanity’ draws a distinction between volunt ary intoxication, universally r ecognized as not constituting a defense, and ‘insanity’ arising from long-term us e of intoxicants but separate from immediate intoxication.”). Appellant argues the trial co urt erroneously ruled that th e applicability of the “settled insanity” defense is limited to mental defects or di seases that are permanent in duration. He asserts that our decisions in Herbin and Vann v. Commonwealth , 35 Va. App. 304, 31 3 n.3, 544 S.E.2d 879, 883 n.3 (2001), “i mpl[y] that it is not the length or dura tion of the actual mental disease or defect induced by long-term alcohol/substance ab use, but the nature an d quality of its effect upon- 6 - the defendant’s mental processes . . . ” that is dispositive to determining whet her an accused may present a “settled insanity” defens e to the fact finder. (Emphasi s in original). We disagree. “From its inception to the present, the settle d insanity doctrine ha s been consistently characterized as a state of mind resulting from ‘long-continued,’ ‘habitual,’ ‘prolonged,’ or ‘chronic’ alcohol or drug abuse leading to a more or less permanent or ‘fixed’ state of insanity.”
State v. Sexton , 904 A.2d 1092, 1102 (Vt. 2006) (citations omitted). See, e.g. , A. Levine, Note, Denying the Se ttled Insanity Defense: Another Necessary Step in Dealing w ith Drug and Alcohol Abuse , 78 B.U. L. Rev. 75, 78 (19 98) (“The long-term, consistent abuse of drugs or alcohol may result in permanent mental disorders that are symptomatically and organica lly similar to mental disorders caused by brain disease. Courts have labe led this condition as ‘fixed’ or ‘settled’ insanity, because the disorder remains ev en though the defendant is not under the influence of the intoxicants.”); J. Dressler, Understanding Criminal Law§ 24.05[B], at 329 (3d ed. 2001) (“Habitual use of intoxicants can result in permanent brain damage, resulting in a substance-induced mental disorder that persists, i.e., the disorder remains even when the actor is not under the influence of intoxicants.”). The underlying rationale for the “s ettled insanity” doctrine is generally explained as an acknow ledgement of “the futility of punishment, since the defective me ntal state is permanent,” or, more commonly, as a compassionate concession that at some point a person’s earlier voluntary decisi ons become so temporally and “morally remote” that the cause of the offense can reasonably be ascribed to the resulting insanity rather than the use of intoxicants. Sexton , 904 A.2d at 1102 (int ernal citations omitted). Consistent with this characte rization of the doctrine of “se ttled insanity,” our Supreme Court “has repeatedly held that voluntary intoxication is not a defense unless it produces a permanent insanity in the defendant.” Downing v. Commonwealth , 26 Va. App. 717, 722, 496 S.E.2d 164, 166 (1998). See, e.g. White , 272 Va. at 626, 636 S.E.2d at 357 (“We adopted the common law- 7 - distinction between temporary intoxication an d permanent insanity long ago.”); Little , 163 Va. at 1024, 175 S.E. at 769 (“Voluntary drunkenness, where it has not produced permanent insanity, is never an excuse for crime . . . .”); Gills , 141 Va. at 450-51, 126 S. E. at 53 (same); Boswell , 61 Va. (20 Gratt.) at 872 (“If permanent in sanity be produced by habitual drunkenness, then, like any other insanity, it excuses an act which would be otherwis e criminal.”). Thus, it is well settled that, in order to present a “settled in sanity” defense in Virginia , an accused must make a prima facie showing that at the time of the o ffense he (1) suffered from a mental defect or disease of the mind, (2) that is traceable to long-term, chronic, and habitual al cohol or drug abuse, wh ich (3) resulted in a permanent insanity as defined by Virginia law. White , 272 Va. at 626, 636 S.E.2d at 357. Our decisions in Herbin and Vann do not deviate from this binding precedent. In Herbin , we affirmed the trial c ourt’s refusal to give the appellant’s proffered jury instructions on insanity because, “[a]lthough [the] appellant produc ed evidence of long-term and severe drug abuse, he did not pres ent any evidence that he was suffering from any mental disease as a result of this drug abuse.” 28 Va. App. at 184, 503 S.E.2d at 231. Abse nt evidence that the appellant “was laboring u nder a diseased mind,” id. at 183, 503 S.E.2d at 231, it was unnecessary for us to address the issu e of whether the alleged mental defect or disease was permanent in nature. Similarly in Vann , we concluded that the trial court did not err in rejecting appellant’s irresistible impulse defense because he did not pr esent any expert testimony regarding his mental state at the time the offenses were committed. The appellant’s failure to meet his burden of proving that his “mental state me t the appropriate legal de finition of insanity at the time the offense was committed,” 35 Va. App. at 313 n.3, 544 S.E.2d at 883 n.3 (citing Gibson v. Commonwealth , 216 Va. 412, 417, 219 S. E.2d 845, 849 (1975) (emphasis in original omitted)), re ndered any discussion of the duration of his alleged mental defect or dise ase immaterial to our deci sion to affirm the trial

court.- 8 - “‘Faithful adherence to the doctrine of ju dicial restraint provides a fully adequate justification for deciding [] case[s] on the best an d narrowest ground[s] available.’” Anzualda v. Commonwealth , 44 Va. App. 764, 789-90, 607 S.E.2d 749, 762 (2005) ( en banc ) (quoting Air Courier Conference v. Am. Postal Workers’ Union , 498 U.S. 517, 531 (1991) (Stevens, J. concurring)). Discussion of whet her Herbin’s or Vann’s alleged mental defects or diseases were permanent in nature was unnecessary to the holding in each case, and as such would have been dicta. See Lofton Ridge, LLC v. Norfolk S. Ry. , 268 Va. 377, 383, 601 S. E.2d 648, 651 (2004). The absence of such discussion, th erefore, does not imply that we no longer adhere to the binding precedent established by th e Supreme Court in Boswell , Gills , Little , and reaffirmed in White . See
Newman v. Newman , 42 Va. App. 557, 566, 593 S.E.2d 533, 538 (2004) ( en banc ) (“Dicta cannot ‘serve as a source of binding authority in American jurisprudence. ’” (citation omitted)). Accordingly, we reject appellant’s assertion that our holdings in Herbin and Vann changed the legal requirements of the “settled insanity” defense in Virginia. Appellant argues in the alternative that even if we affirm our ruling in Downing , that voluntary intoxication does not cons titute an affirmative defense un less it produces a permanent insanity, the Supreme Cour t recently interpreted th e “permanent” re quirement of “settled insanity” broadly to include intermittent epis odes of insanity induce d by chronic intoxicati on occurring over a significant period of time. Specifically, he contends the Supreme Co urt’s decision in Whitedefined “permanent” as requiring the accused to “‘show that his long term and continued use of intoxicants produced a fixed and settled frenzy or insanity ei ther permanent or intermittent .’” 272 Va. at 627, 636 S.E.2d at 357 (emphasis ad ded) (quoting Kiley v. State , 860 So.2d 509, 511 n.3 (Fla. Dist. Ct. App. 2003)). Our reading of White , however, shows that appellant’s argument is without merit. The permanency of the appellan t’s alleged insanity was no t before the Court in White . Rather, the Court- 9 - considered whether the appellant ’s proffered evidence of his cocaine abuse was sufficient to establish a prima faciedefense of insanity. In concluding th at the appellant’s daily use of cocaine for at least three months prior to his arrest did not “demonstrate long-term, chronic, and habitual abuse,” 272 Va. at 62 9, 636 S.E.2d at 358, the Court held that “settled in sanity” must “be produced over a significant period of time [to cause a mental disease],” id. at 627, 636 S.E. 2d at 357. To illustrate the principle that long- term, chronic, and ha bitual abuse was need ed to cause mental disease, the Court cited multiple cases from other jurisdictions. The language in these citations, upon which appellant relies in support of his positi on that “settled insanity” may be “intermittent,” constitutes nothing more than dicta, and, therefore, th ese citations “ha[ve] no binding stare decisis effect.” Uninsured Em ployer’s Fund v. Wilson , 46 Va. App. 500, 507, 61 9 S.E.2d 476, 479 (2005) (citing Newman , 42 Va. App. at 566, 593 S.E.2d at 538). Consequently, we find nothing in White that indicates the Supreme Court intended to broaden the scope of th e “settled insanity” defense to include “intermittent” mental disease, which it clearly rejected in the past. We therefore conclude that the trial court did no t err, as a matter of law, in ruling that the defense of “settled insanity” is not available to an accu sed unless he can make a prima facie showing that he suffers from a mental defect or disease, traceable to long-ter m, chronic, and habitual alcohol or drug abuse, that is permanent in duration. As appellan t conceded his insanity was not permanent, the trial court did not abuse it s discretion by precluding him from presenting evidence to the jury in support of a “settled insa nity” defense.
B. Jury Instructions Appellant next contends the trial court e rroneously adopted the Commonwealth’s proposed jury instructions, refusing his proffered instructions, 3 regarding the allocation of the burden of proof

3 Appellant’s proffered instructions A thr ough E placed the burden of persuasion on the Commonwealth to prove his sanity. For example, proffered Instruction No. B provided:- 10 - for his alternate insanity defense of involuntary int oxication. Specifically, he argues that Instruction No. 16, and by association Instruction Nos. 17, 19, and 20, unc onstitutionally shifted the burden of proof to him regarding his lack of mens rea . We disagree. “The purpose of any jury in struction is to inform the jury of the law guiding their deliberations and verdict. ” Keen v. Commonwealth , 24 Va. App. 795, 807, 485 S.E.2d 659, 665 (1997) (citing Cooper v. Commonwealth , 2 Va. App. 497, 34 5 S.E.2d 775 (1986)). “The trial judge has broad discretion in giving or denying inst ructions requested.” Gaines v. Commonwealth , 39 Va. App. 562, 568, 574 S. E.2d 775, 778 (2003) ( en banc ). “A reviewing cour t’s responsibility in reviewing jury instructions is ‘to see that the law has been clearly stated an d that the instructions cover all issues which the evidence fa irly raises.’” Da rnell v. Commonwealth , 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting Swishe r v. Swisher , 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). An instruction that prov ides “a correct statement of the la w is one of the ‘essentials of a fair trial.’” Hu cks v. Commonwealth , 33 Va. App. 168, 174, 531 S.E.2d 658, 661 (2000) (quoting Dowdy v. Commonwealth , 220 Va. 114, 116, 255 S.E.2d 506, 508 (1979)). “No instruction should be given that ‘incorrectly states the applicable law or which would be confusing or mi sleading to the jury.’” Mouberry v. Commonwealth , 39 Va. App. 576, 582, 575 S.E.2d 567, 569 (2003) (quoting Bruce v. Commonwealth , 9 Va. App. 298, 300, 387 S.E.2d 279, 280 (1990)). Instruction No. 16, given by the trial court, stated: The defendant is presumed to be sane at the time of the crime. In order to be found not guilty on the ground of insanity due to involuntary intoxication, th e defendant must prove by the greater weight of the evidence that he was insane due to

All persons are presumed sane. However, if the evidence causes you to have a reasonable doubt c oncerning the defendant’s sanity at the time of the offenses, then th e presumption of sanity vanishes and the State must prove beyond a reasonable doubt that the defendant was sane at the time of the offense.- 11 - involuntary intoxication as defined in Instruction No. 19 when the crimes were committed. “In Virginia, every man is pres umed to be sane until the cont rary is made to appear and when insanity is relied upon as a defense in a criminal prosecution, it must be proved by the defendant to the satisfaction of th e jury.” Taylor v. Commonwealth , 208 Va. 316, 32 2, 157 S.E.2d 185, 189-90 (19 67). See also Vann , 35 Va. App. at 312, 544 S.E.2d at 882 (“The burden of proving insanity rests on the individual asserting it as a defense.”). The United States Supreme Court recently approved this allocation of the burden of persuasi on with respect to th e defense of insanity in Clark v. Arizona , 126 S. Ct. 2709 (2006). In Clark , the Court held that a state “may [choose to] place the burden of persuasion on a defendant to prove in sanity as the applic able law defines it, whether by a preponderance of th e evidence or to some more convincing degree .” 126 S. Ct. at 2731. As Justice Rehnquist explained in his concurrence in Mullaney v. Wilbur , 421 U.S. 684 (1975), “the existence or nonexistence of legal insanity bears no necessary relationship to the existence or nonexistence of the required mental elements of [a] crime.” Id. at 706. Therefore, allocating the burden of proof to an accused with resp ect to his insanity defense does “not effect an unconstitutional shift in the [] tr aditional burden of proof beyond a r easonable doubt of all necessary elements of the offense.” Id. Thus, Virginia’s a llocation of both the burde n of production and the burden of persuasion with respect to the affirm ative defense of insan ity is constitutionally permissible, and we reject appe llant’s claim to the contrary. 4
As Instruction No. 16 is an accurate statem ent of law, we conclude the trial court did not err in refusing appellant’s proffered instructions. See Gaines , 39 Va. App. at 568 , 574 S.E.2d at 778 (“‘When granted instructions fully and fairly cover a principle of law, a trial court does not abuse its

4 Appellant conceded at oral argument that th e United States Supreme Court’s decision in Clark governed our resolution of this issue.- 12 - discretion in refusing another instruction relating to the same legal principle. ’” (quoting Stockton v. Commonwealth , 227 Va. 124, 145, 314 S. E.2d 371, 384 (1984))). For the foregoing reasons, we affirm appellant’s convictions. Affirmed.