                   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,




                              - 6 -
          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)

                             - 7 -
(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


                               - 8 -
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


                             - 9 -
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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