Michael Ray Wilkerson v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
MICHAEL RAY WILKERSON
MEMORANDUM OPINION * BY
v. Record No. 0085-00-2 JUDGE SAM W. COLEMAN III
FEBRUARY 13, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
Linwood T. Wells, III, for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Michael Ray Wilkerson was convicted in a bench trial of
malicious wounding, maliciously shooting into an occupied vehicle,
discharging a firearm from a vehicle, and use of a firearm during
the commission of a felony. On appeal, Wilkerson, who was
indigent, argues that the trial court erred by refusing to appoint
a mental health expert at the Commonwealth's expense to evaluate
him and to testify about his mental state at the time he committed
the offense. He contends that he was entitled to develop that
evidence in order to prove that he acted in the heat of passion,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
thereby negating that he acted with malice. Finding no error, we
affirm the trial court's decision.
BACKGROUND
The shooting that led to the charges against Wilkerson arose
out of a romantic relationship between Wilkerson and Christa
Minnicino and Minnicino's involvement with the victim, Jeremy
Wallen. For approximately ten months prior to the shooting,
Wilkerson and Minnicino had been involved in an "on again-off
again" relationship. According to Wilkerson, when he was released
from jail four days before the shooting, he learned that Minnicino
was intimately involved with Wallen.
On the day of the shooting, Minnicino picked up Wallen and
another friend, Reno, at the local YMCA. Minnicino was driving,
Reno was in the front passenger seat, and Wallen was seated behind
Minnicino. While they were traveling down the road, Wilkerson
came upon Minnicino and drove up beside her car. Wilkerson was
driving his friend Jason Jackson's car, and Jackson was seated in
the passenger's seat. Wilkerson told Minnicino to pull over
because Wilkerson wanted to "kick Jeremy's butt." A car chase
ensued during which Minnicino ran a red light trying to evade
Wilkerson. Wilkerson drove Jackson's car in front of Minnicino's
car and slammed on the brakes, causing Minnicino's vehicle to hit
Jackson's vehicle. Nevertheless, Minnicino was able to continue
driving. Wilkerson then pulled Jackson's car up beside
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Minnicino's car and fired a shot into her car, striking Wallen.
Wilkerson then held the gun to his own head and screamed to
Minnicino, "If you don't pull over, I'm going to kill myself."
Minnicino drove to the police station and reported the incident.
Jackson testified that when Wilkerson saw Minnicino and
Wallen in the vehicle, Wilkerson "just went crazy." During the
entire chase, Wilkerson was driving erratically, trying to get
Minnicino to pull over. After the shooting, Wilkerson told
Jackson that he was not trying to hurt Minnicino, but he wanted
"to get Jeremy." Jackson testified that he never saw Wilkerson
point the gun at his own head and that he did not give Wilkerson
the gun.
Wilkerson was apprehended at a local motel a short time after
the shooting. When arrested, he asked the arresting officer,
"Have you ever loved somebody so much that you would do anything
for them?" Wilkerson then recounted the details of the offense
for the officer. He related to the officer that he had
encountered Minnicino and Wallen while driving down the street and
he told them to pull over so that he could "beat the guy's ass."
When Minnicino would not stop, "a shot was fired." Wilkerson told
the officer that he did not realize that he was shooting Wallen
until after the shot had been fired. Wilkerson told the officer
that he was "blinded with madness."
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Wilkerson testified that he had previously attempted to
commit suicide on three occasions because of problems in his
relationship with Minnicino. He stated that he had not obtained
the gun in anticipation of an encounter with Minnicino and Wallen
and that Jackson had provided him the gun just before the
shooting. Wilkerson testified that he did not remember the
shooting because he "blacked out." He admitted that he threatened
to "beat up" Wallen, but stated that at the time of the threat, he
did not possess the gun.
Prior to trial, clinical psychologist Leigh Hagan, Ph.D., was
appointed to examine Wilkerson and to provide evidence as to
whether Wilkerson was competent to stand trial and whether he was
sane at the time he committed the offenses. Hagan opined that
Wilkerson was sane at the time he committed the offenses, stating
that, although Wilkerson suffered "substantial mental disorders
including cocaine addiction, acute cocaine intoxication and
intermittent explosive disorder," those disorders "did not likely
cause him to fail to appreciate the nature, character and
consequence of his actions." Wilkerson's "emotional and drug
problems did not deprive him of the power to conform his behavior
to the requirements of the law." Hagan further opined that
Wilkerson was competent to stand trial, stating that Wilkerson
"does not exhibit any signs of loss of touch with reality. There
is no report of, nor demonstration of, hallucinations or
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delusions. There is indication of jealousy which probably
compromises his judgment, but this does not rise to the level of
psychotic thought disorder." The trial court ruled that Wilkerson
was competent to stand trial and that the evidence did not support
an insanity defense. Wilkerson does not challenge those rulings.
However, based on the "Additional Considerations" set forth
in Hagan's report, Wilkerson filed a motion requesting the trial
court to appoint Hagan to further evaluate Wilkerson's mental
state at the time of the offense, as it had a bearing upon his
mental capacity to act with malice. In his report, Hagan stated,
inter alia, that:
[Wilkerson] was overwrought with jealousy
upon hearing that Krista was seeing someone
else during the time that [he] was locked up
prior to this alleged offense. . . . He
likely flew into a rage upon seeing Jeremy
together with Krista. . . . [Wilkerson's]
behavior in this episode with Krista is
consistent with his pattern of rage followed
by endangerment to himself and others. His
conduct in the shooting was not the product
of a cool, calculated plan.
Wilkerson argued that Hagan's report supported his contention that
he did not act with malice, but instead acted under heat of
passion when he shot Wallen. He contended that a second
evaluation was warranted in order for Hagan to "finish what he's
already started and come to the court to testify that on the day
in question that because of [Wilkerson's] unique background
. . . [the circumstances of his background] would have affected
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his mood and affected the circumstances and that he acted under
the heat of passion." The trial court denied the motion.
On appeal, Wilkerson asserts that the trial court abused
its discretion by failing to appoint Hagan to conduct a second
evaluation and to testify at the guilt phase of the trial about
that evaluation. He contends that the court should have
appointed Hagan to further evaluate him to determine whether he
had formed or could have formed a malicious intent when he shot
Wallen, or whether he had acted in the heat of passion. He argues
that the expert testimony would address his perception of the
events at the time he committed the offense, "formulate and
bolster" his heat of passion defense, and give credibility to
his testimony and theory of the case.
ANALYSIS
The Due Process Clause of the Constitution guarantees an
indigent criminal defendant "'the basic tools of an adequate
defense or appeal.'" Downing v. Commonwealth, 26 Va. App. 717,
723-24, 496 S.E.2d 164, 167 (1998) (quoting Ake v. Oklahoma, 470
U.S. 68, 77 (1985) (other citation omitted)).
[W]hen a defendant demonstrates to the trial
judge that his sanity at the time of the
offense is to be a significant factor at
trial, the State must, at a minimum, assure
the defendant access to a competent
psychiatrist who will conduct an appropriate
examination and assist in evaluation,
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preparation, and presentation of the
defense.
Ake, 470 U.S. at 83. However,
an indigent defendant's constitutional right
to the appointment of an expert, at the
Commonwealth's expense, is not
absolute. . . . [A]n indigent defendant who
seeks the appointment of an expert witness,
at the Commonwealth's expense, must
demonstrate that the subject which
necessitates the assistance of the expert is
"likely to be a significant factor in his
defense[]" and that he will be prejudiced by
the lack of expert assistance. An indigent
defendant may satisfy this burden by
demonstrating that the services of an expert
would materially assist him in the
preparation of his defense and that the
denial of such services would result in a
fundamentally unfair trial.
Husske v. Commonwealth, 252 Va. 203, 211-12, 476 S.E.2d 920, 925
(1996) (quoting Ake, 470 U.S. at 82-83). Furthermore, the
admissibility of expert testimony lies within the sound
discretion of the trial court and will not be disturbed unless
plainly wrong or without evidence to support it. See Downing,
26 Va. App. at 723, 496 S.E.2d at 167.
The fact that an accused may be considered by mental health
standards to be below normal intelligence or to have behavioral
or emotional problems or to be of diminished mental capacity is
not a defense in Virginia to criminal conduct, and evidence as
to a defendant's mental state, other than insanity, is
immaterial to negate or disprove specific intent. See Stamper
v. Commonwealth, 228 Va. 707, 716-17, 324 S.E.2d 682, 688 (1985)
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(stating that "there is no sliding scale of insanity" as a
defense in Virginia); see also Smith v. Commonwealth, 239 Va.
243, 258-60, 389 S.E.2d 871, 879-80 (1990) (holding that
psychiatric evidence, in a capital murder case, that defendant
had the ability to form intentions and to premeditate, but that
he did not have the capacity to follow through with his
intentions was inadmissible). "Unless an accused contends that
he was beyond the [borderline of insanity] when he acted, his
mental state is immaterial to the issue of specific intent."
Stamper, 228 Va. at 717, 324 S.E.2d at 688. "Without evidence
to establish a defense, expert opinion in aid of it [is]
properly excluded." Peeples v. Commonwealth, 30 Va. App. 626,
635, 519 S.E.2d 382, 386 (1999) (en banc) (finding that the
trial court properly refused to admit expert evidence that
defendant suffered a mental disability that rendered him
vulnerable to misunderstanding a social situation under the
facts of that case because the evidence, in the light most
favorable to the defendant, did not establish a defense for
which he offered it).
The facts of this case do not support a finding that
Wilkerson acted without malice because he acted in the heat of
passion. The fact that Wilkerson may have become angry or
enraged when he saw his former girlfriend driving a car occupied
by her current boyfriend is legally insufficient to establish
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heat of passion and mitigate proof of malice. See, e.g., Belton
v. Commonwealth, 200 Va. 5, 104 S.E.2d 1 (1958) (noting that
defendant's knowledge of spouse's infidelity may constitute
adequate provocation to negate finding of malice). But cf.
Robertson v. Commonwealth, 31 Va. App. 814, 823-24, 525 S.E.2d
640, 645 (2000). In Robertson, we affirmed the conviction for
malicious wounding where the defendant, after unlawfully
entering his ex-girlfriend's house in the early morning hours,
dragged her paramour out of bed and repeatedly beat him with an
object. We stated, "We are aware of no case allowing an
aggressor to assert a claim of heat of passion for assaulting
someone engaged in a sexual encounter with a former girlfriend
or someone other than a spouse." Id. The circumstances in the
present case are less compelling than those in Robertson. An
aggressor cannot assert a claim of heat of passion for shooting
his former girlfriend's new paramour merely because he observes
the two riding together in an automobile. The facts are legally
insufficient to establish that Wilkerson was reasonably
provoked. See Caudill v. Commonwealth, 27 Va. App. 81, 85, 497
S.E.2d 513, 515 (1998) (finding that in order to maintain a
heat-of-passion defense, the defendant must prove that he
committed the crime with "passion" and upon "reasonable
provocation"). Wilkerson, therefore, is unable to show that the
evidence likely would have been "a significant factor in his
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defense" or that he was prejudiced by the trial court's refusal
to appoint Hagan to conduct a further evaluation or to appoint
him to testify at trial regarding Wilkerson's mental state at
the time of the offense.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
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