Smith v. Commonwealth , 220 Va. 696 ( 1980 )

POFF, J.,

dissenting.

To affirm defendant’s conviction of first degree murder, we must be able to conclude, and I cannot, that the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to prove the element of premeditation beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 (1979). At most, the evidence shows that a criminal homicide was committed, that defendant was the criminal agent, and that he acted with malice. But where is the evidence that he premeditated the act?

The majority say that “to premeditate means to adopt a specific intent to kill” and that such intent “need not exist for any particular length of time.” Such a definition equates premeditation with adoption of intent. But the two concepts are not synonymous. Each is a distinct element of first degree murder, and the adoption of intent is not necessarily the product of premeditation. Baker v. Commonwealth, 218 Va. 193, 195, 237 S.E.2d 88, 89 (1977).

Carried to fruition, an intent to kill, though adopted contemporaneously with the act of killing, is criminally culpable. Meditation preceding and resulting in the adoption and execution of intent to commit a lethal act raises the level of culpability. This is so because such a process of contemplation, reflection, and optional decision evinces willful persistence in a continuing criminal design as distinguished from a sudden onset of a criminal impulse. Manifestly, this difference in levels of culpability is the reason underlying the legislature’s distinction between murder of the first and second degrees. And it is clear that this Court recognizes the distinction between premeditation and adoption of an intent to kill, for voluntary intoxication may negate the former but not the latter. Griggs v. Commonwealth, 220 Va. 46, 255 S.E.2d 475, 479 (1979); Chittum v. Commonwealth, 211 Va. 12, 18, 174 S.E.2d 779, 783 (1970).

In my view, the majority’s conclusion that the homicide in this case was murder of the first degree rests upon inferences drawn from random facts which, considered separately and collectively, are insufficient to support a finding of premeditation beyond a reasonable doubt. I would reverse the judgment and remand the case with instructions that defendant be tried for no offense greater than second degree murder. See Greene v. Massey, 437 U.S. 19, 25 n. 7 (1978); Burks v. United States, 437 U.S. 1 (1978).

COMPTON, J., dissents.