                                          COURT OF APPEALS OF VIRGINIA
PUBLISHED


            Present: Judges Beales, Chafin and O’Brien
            Argued at Norfolk, Virginia


            TRAER RAMON TISDALE
                                                                                OPINION BY
            v.     Record No. 2138-14-1                                  JUDGE MARY GRACE O’BRIEN
                                                                             NOVEMBER 17, 2015
            COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                                          Wilford Taylor, Jr., Judge

                           Charles E. Haden for appellant.

                           Kathleen B. Martin, Senior Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.


                   Traer Tisdale (“appellant”) was charged with first-degree murder by lying in wait, in

            violation of Code § 18.2-32. Prior to trial, the Commonwealth filed a motion to exclude any

            evidence of appellant’s alleged intoxication at the time of the offense. The trial court granted the

            motion, and appellant entered a conditional plea of guilty to the murder charge.1 Appellant

            challenges his first-degree murder conviction and asserts that

                           [t]he trial court erred in sustaining the Commonwealth’s motion in
                           limine precluding Tisdale from presenting evidence of intoxication
                           to support his contention that the charge of first-degree murder
                           should be reduced to second-degree murder, and erred in denying
                           Tisdale’s motion in limine seeking to present intoxication evidence
                           on the issue of Tisdale’s premeditation or lack thereof.

            Finding no error, we affirm the trial court’s ruling.



                   1
                    Appellant also pled guilty to maliciously shooting into an occupied vehicle, in violation
            of Code § 18.2-154, use of a firearm in the commission of murder, in violation of Code
            § 18.2-53.1, and possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2.
            However, this appeal only addresses the murder charge.
                                        I. BACKGROUND

       On November 27, 2012, Lekeia Griffin drove up to her residence in the City of Hampton.

Her four daughters, ages 5, 8, 10, and 12, were with her. When Griffin and her daughters got out

of the car, one of the girls saw appellant, Griffin’s former boyfriend, coming from a wooded area

across the street from her residence. She yelled: “There’s Traer!” Griffin directed the girls to

get back into the car. Appellant approached the driver’s side of the vehicle. He said, “I’m

supposed to be your only [boyfriend]” and began to shoot at Griffin. As appellant opened fire,

Griffin screamed for her children to get out of the car. They ran for safety, and Griffin attempted

to drive away, but traveled only a short distance due to her severe injuries.

          A police lieutenant responded to a call and found Griffin, who had sustained five

gunshot wounds and was covered in blood. Griffin told him that she had been shot, she was

going to die, and appellant was the person who shot her. Griffin later died at a local hospital.

       Appellant eventually turned himself in. Following his arrest, he gave an inculpatory

statement to the police. He admitted that he waited across the street from Griffin’s home and,

once she pulled in the driveway, he approached her and shot her numerous times.

       On February 27, 2014, the Commonwealth filed a motion in limine seeking to bar the

admission of any evidence of appellant’s voluntary intoxication at the time of the offense. The

Commonwealth argued that first-degree murder by lying in wait is a different offense than

first-degree murder by premeditation. The Commonwealth asserted that because premeditation

is not an element of first-degree murder by lying in wait, any evidence of voluntary intoxication

offered to negate premeditation would be irrelevant. The court granted the Commonwealth’s

motion.




                                                -2-
                                           II. ANALYSIS

                                       A. Standard of Review

       A trial court’s decision to admit or exclude evidence is reviewed using an abuse of

discretion standard. “[O]n appeal, ‘[we] will not disturb [the court’s] decision . . . absent a

finding of abuse of that discretion.’” Mason v. Commonwealth, 64 Va. App. 599, 605, 770

S.E.2d 224, 227 (2015) (quoting Dean v. Commonwealth, 61 Va. App. 209, 213, 734 S.E.2d

673, 675 (2012)). However, a trial “‘court by definition abuses its discretion when it makes an

error of law. . . . The abuse-of-discretion standard includes review to determine that the

discretion was not guided by erroneous legal conclusions.’” Dean, 61 Va. App. at 213, 734

S.E.2d at 675 (quoting Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008)).

Therefore, “to the extent admissibility rests upon the interpretation of a statute, that interpretation

is a question of law subject to de novo review.” Id.; see also Dillsworth v. Commonwealth, 62

Va. App. 93, 96, 741 S.E.2d 818, 819 (2013).

                             B. Admissibility of Intoxication Evidence

       Appellant was charged with first-degree murder in violation of Code § 18.2-32. He was

indicted for the specific offense of first-degree murder by “lying in wait,” one of the six

enumerated categories of first-degree murder. Appellant contends that the trial court erred by

granting the Commonwealth’s motion to exclude any evidence of his alleged intoxication at the

time of the offense.

       At the outset, we note that evidence is admissible at trial if it is both relevant and

material. Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 441 (1987).

“‘[E]vidence is relevant if it tends to establish the proposition for which it is offered.’ Evidence

is material if it relates to a matter properly at issue.” Id. (quoting Charles E. Friend, The Law of

Evidence in Virginia § 134 (2d ed. 1983)). Thus, appellant argues that evidence of his

                                                 -3-
intoxication was relevant to negate the element of premeditation. According to appellant, if the

jury found that he was voluntarily intoxicated at the time of the crime, he could only be

convicted of second-degree murder, not first-degree murder. We disagree.

        “Generally, voluntary intoxication is not an excuse for any crime.” Wright v.

Commonwealth, 234 Va. 627, 629, 363 S.E.2d 711, 712 (1988) (citing Boswell v.

Commonwealth, 61 Va. (20 Gratt.) 860, 870 (1871)). To date, Virginia courts have held that

“Virginia recognizes only one exception to this rule: voluntary intoxication can negate the

deliberation and premeditation required for first degree murder.” Id. Appellant urges us to adopt

a second, heretofore unrecognized exception, for murder by lying in wait. Voluntary

intoxication is only relevant to the issue of premeditation if the defendant is charged with

first-degree murder based on a premeditated, malicious killing. Herbin v. Commonwealth, 28

Va. App. 173, 183-84, 503 S.E.2d 226, 231 (1998). Thus, “[t]he defendant may [only] negate

the specific intent requisite for capital or first-degree murder by showing that he was so greatly

intoxicated as to be incapable of deliberation or premeditation,” and thereby reduce the

conviction from first-degree murder to second-degree murder. Essex v. Commonwealth, 228 Va.

273, 281, 322 S.E.2d 216, 220 (1984).

       While all murders, both first and second degree, require proof of malice, not all

first-degree murders require proof of premeditation. Code § 18.2-32 provides that

               [m]urder, other than capital murder, by poison, lying in wait,
               imprisonment, starving, or by any willful, deliberate, and
               premeditated killing, or in the commission of, or attempt to
               commit, arson, rape, forcible sodomy, inanimate or animate object
               sexual penetration, robbery, burglary or abduction, except as
               provided in § 18.2-31, is murder of the first degree, punishable as a
               Class 2 felony.

(Emphasis added). This disjunctive list sets out three types of first-degree murder: “those

usually called ‘enumerated’ crimes (murder by poison, by lying in wait, imprisonment or

                                                -4-
starvation); those committed as a result of willful, deliberate premeditation; and those murders

committed in the commission of or attempt to commit specified felonies of violence.” John L.

Costello, Virginia Criminal Law & Procedure § 3.4, at 46 (3d ed. 2002).

       The three separate classes of first-degree murders were described by the Supreme Court

in Commonwealth v. Jones, 28 Va. (1 Leigh) 598, 611 (1829). In that case, the Court noted that,

not only does murder by lying in wait not require premeditation, the crime may occur even

without an intent to kill, such as when a defendant lies in wait with intent to inflict serious injury.

Id.; see also Howell v. Commonwealth, 67 Va. (26 Gratt.) 995, 997 (1875) (explaining that

murder committed by any of the specific means enumerated in the statute is murder in the first

degree, regardless of whether there was an actual intent to kill).2

       Code § 18.2-32, which defines first-degree murder, is written in the disjunctive. The

various, distinct classes of first-degree murder are separated by the word “or.” When analyzing a

statute, courts apply its plain meaning “‘unless the terms are ambiguous or applying the plain

language would lead to an absurd result.’” Baker v. Commonwealth, 284 Va. 572, 576, 733



       2
         The first-degree murder statute in effect at the time of these cases is nearly identical to
the current statute. The 1829 statute read:

               All murder which, shall be perpetuated by means of poison, or by
               lying in wait, or by duress of imprisonment or confinement, or by
               starving, or by willful, malicious and excessive whipping, beating
               or other cruel treatment or torture, or by any other kind of willful,
               deliberate or premeditated killing, or which shall be committed in
               the perpetration or attempt to perpetrate, any arson, rape, robbery
               or burglary, shall henceforth be deemed murder in the first degree.
               And all other kinds of murder shall be deemed murder of the
               second degree.

1829 Va. Acts ch. 171, § 1.
        The statute in effect in 1875 read: “Murder by poison, lying in wait, imprisonment,
starving, or any willful, deliberate and premeditated killing, or in the commission of, or attempt
to commit arson, rape, robbery, or burglary, is murder of the first degree. All other murder is
murder in the second degree.” 1875 Va. Acts ch. 187, § 1.
                                                -5-
S.E.2d 642, 644 (2012) (quoting Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 926

(2006)). More fundamentally, we are not at liberty to rewrite the statute.

                 When the language of a statute is plain and unambiguous, we are
                 bound by the plain meaning of that statutory language. Thus,
                 when the General Assembly has used words that have a plain
                 meaning, courts cannot give those words a construction that
                 amounts to holding that the General Assembly meant something
                 other than that which it actually expressed.

Lee Cty. v. Town of St. Charles, 264 Va. 344, 348, 568 S.E.2d 680, 682 (2002) (citations

omitted). The language of Code § 18.2-32 is plain and unambiguous.

       First-degree murder by lying in wait is an enumerated type of murder, listed disjunctively

from those killings that are willful, deliberate, and premeditated. Murder by lying in wait does

not require proof of premeditation. Premeditated murder is a separate class of first-degree

murder. Therefore, evidence of voluntary intoxication as a defense to premeditation is irrelevant

to a charge of murder by lying in wait because the Commonwealth was not required to prove

premeditation.

       Because the intoxication evidence was irrelevant to the elements of the charge, the trial

court did not abuse its discretion in ruling that such evidence should be excluded. See Claytor v.

Commonwealth, 62 Va. App. 644, 655-56, 751 S.E.2d 686, 691 (2013) (holding that trial court

did not abuse its discretion in not allowing defendant to present evidence of his subjective belief

regarding his status as habitual offender because his belief was irrelevant to offense of driving as

habitual offender); Morgan v. Commonwealth, 50 Va. App. 120, 131, 646 S.E.2d 899, 905

(2007) (affirming trial court’s ruling not to allow defendant to present evidence to support

“settled insanity” defense because defendant conceded his insanity was not permanent).

       The elements of the offense charged in the indictment against appellant are that he

“unlawfully and feloniously did kill and murder Lekeia Griffin by lying in wait in violation of

Code § 18.2-32.” Premeditation was not an element of this first-degree murder charge.
                                                -6-
Accordingly, we find that the trial court did not abuse its discretion in excluding evidence of

voluntary intoxication offered to rebut premeditation.

                                       III. CONCLUSION

       For the foregoing reasons, the conviction is affirmed.

                                                                                         Affirmed.




                                               -7-
