                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued by Teleconference


GREGORY SCOTT ADDISON
                                      MEMORANDUM OPINION * BY
v.        Record No. 2234-96-3      CHIEF JUDGE NORMAN K. MOON
                                        SEPTEMBER 9, 1997
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF WISE COUNTY
                       Ford C. Quillen, Judge
          Anthony E. Collins (Collins & Collins, on
          brief), for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Gregory Scott Addison appeals his convictions of first

degree murder, stalking, and use of a firearm in the commission

of a murder.   Addison asserts that the trial court erred in: (1)

finding him competent to stand trial; (2) denying his motion for

a competency hearing after he allegedly experienced visual

hallucinations during trial; (3) denying his proposed jury

instruction concerning the law of manslaughter; (4) denying his

motion for a mistrial on the basis that his undisclosed

statements, allegedly elicited during custodial interrogation,

were introduced by the Commonwealth's witnesses; and (5) allowing

introduction of his alleged "jailhouse confession" where

Addison's statements to a fellow inmate were not provided to the

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
defense pursuant to the trial court's discovery order.

     We hold that: (1) it is within the discretion of the finder

of fact to determine the weight to be accorded expert witnesses'

testimony and that the trial court's finding that Addison was

competent to stand trial was supported by credible evidence and

was not plainly wrong; (2) the evidence was sufficient to support

the trial court's finding that probable cause did not exist to

order an additional competency evaluation; (3) the trial court

did not err in refusing Addison's proposed instructions

concerning involuntary manslaughter because the proposed

instruction was not supported by the evidence; (4) the trial

court did not err in denying Addison's motion for a mistrial on

the basis that his statements to the police were erroneously

admitted because there was no manifest probability that the

denial was prejudicial; and (5) because Addison's statements in

jail were not written nor made to a law enforcement officer, they

were not contemplated by the court's discovery order and

therefore did not have to be disclosed.   Accordingly, we affirm.

     On August 15, 1995, Addison approached his wife, Janet

Addison, in the middle of the street in front of the City of

Norton Post Office and shot her twice with a .38 caliber handgun,

killing her.
     On January 5, 1996, a discovery order was entered requiring

the Commonwealth to make available to Addison, for inspection or

copying, "[a]ny written or recorded statements or confessions

made by [Addison] or the substance of any oral statements or

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confessions made by [Addison] to any law enforcement officer, the

existence of which is known to the Attorney for the

Commonwealth."   On February 16, 1996, the trial court granted

Addison's motions that the court suppress any statements made by

Addison to any police officer after he was taken into custody,

that the court order an evaluation of Addison's competency to

stand trial, and that the court compel the Commonwealth to

provide witness statements.
     On February 17, 1996, a competency hearing was conducted

during which Drs. Pierce Nelson and Robert Granacher, Jr.

testified for Addison.   Nelson, a psychiatrist who treated

Addison from November 1980 to June 1995, testified that Addison's

behavior indicated a serious psychotic episode.   Nelson

recommended Addison be admitted to a psychiatric hospital for

treatment and observation of Addison's alleged psychotic

delusions.   Granacher, a psychiatrist certified in general

psychiatry, geriatric psychiatry, and forensic psychiatry, tested

Addison prior to trial and reviewed his current medical and

psychiatric records, school records, blood and urine samples,

work product, medication, and videos of the crime scene, the

police interrogation, and Addison in jail and at the hospital.

Granacher also reviewed the competency report prepared by the

Commonwealth's expert, Dr. Thomas Schact, and concluded that

Schact's report lacked a sufficient database upon which to draw

any conclusion regarding Addison's competency.

     Granacher then testified that Addison is "psychotic . . .

                               - 3 -
severely mentally ill . . . suffers a delusional disorder . . .

[and] is dangerous."    Granacher also opined that Addison would be

unable to assist his counsel in pursuing a defense because "[a]ny

factual information an attorney attempts to get from Mr. Addison

in an effort to defend him is a product of a sick mind, product

of a delusion.    It's erroneous information."

         Testifying on behalf of the Commonwealth, Schact stated

that Addison's responses suggested the possibility of some

significant impairment to Addison's competency.    Schact also

agreed with Granacher that Addison suffered from delusions

regarding his wife and her fidelity, but concluded that Addison

was intentionally fabricating responses to some of the tests

administered by Schact.    Schact testified that Addison understood

the charges against him, the behavior expected of him in the

courtroom, who his attorney was, and his attorney's role in the

proceedings.    Schact also stated, however, that Addison had

refused to discuss either the nature of the proceedings against

him or whether he appreciated his legal options and their

consequences.
     Based on this evidence, the trial court ruled that in

accordance with Code § 19.2-169.1(E), Addison had proved by a

preponderance of the evidence that he was incompetent to stand

trial.    Accordingly, the court ordered that Addison be admitted

to a state psychiatric hospital for treatment and observation.

Addison was subsequently confined to Central State Hospital.

     On March 30, 1996, a second competency hearing was conducted

                                 - 4 -
at which Dr. Miller Ryans, a psychiatrist at Central State

Hospital, was the only expert to testify.   Miller testified that

Addison was kept under twenty-four hour observation and was

subjected to a variety of tests during the twenty-six day period.

Based on the tests and observations, Ryans concluded that

Addison suffered "from major recurrent severe depression" and

"from residuals of delusional disorder-jealousy type."   Ryans

further opined, however, that despite these dysfunctions, it was

his opinion that Addison had the "present capacity to plead and

assist his attorney in his defense."   Ryans testified that none

of his   testing or observation had confirmed the audible and

visual hallucinations alleged by Addison.   Ryans opined that the

alleged hallucinations were the result of "malingering" and that

the hallucinations in fact served other purposes of Addison.
     On cross-examination, Ryans conceded that he was uncertain

whether Addison could assist counsel if Addison became delusional

during the trial when his wife's fidelity was addressed.   Ryans

also noted that Addison had "handicaps" in going to trial.     Ryans

stated that although Central State had the capacity to do testing

of the type performed by Drs. Schact and Granacher, such testing

had not been conducted.   Ryans agreed that those tests might

reveal attributes of Addison affecting competency that mere

consultation with Addison would not reveal.   Further, Ryans

testified that Addison had trouble concentrating and remembering

and conceded that Addison might suffer from conversion amnesia or

shock which could have caused Addison to forget the killing.

                               - 5 -
     Ryans explained that Addison's delusions were "triggered" by

addressing the subject of his wife's fidelity.    Ryans opined that

although Addison understood the operation of the court, he could

have difficulty when his wife's fidelity was addressed.   He

explained, "I believe as attorneys you all have to try to

transpose, he's aware of, he knows how the Courts work.   And the,

[sic] and it'll be up to you all with some, some great deal of

effort to try to get him to apply to his own case."   Ryans also

admitted that the charge and the indictment intricately involved

the subject which triggered the delusions and that should

Addison's delusions be triggered, he could become incapable of

assisting in his defense.
     At the conclusion of the hearing, the trial court found

Addison competent to stand trial.   On April 1, 1996, the trial

began, at which time Addison's counsel motioned that the trial

not go forward because Addison was incompetent.   Addison's

counsel argued that an unconstitutional burden was being placed

upon his zealous representation of Addison because he was being

required to assume the role of a psychologist or psychiatrist in

order to "transpose" the case for Addison as suggested by Dr.

Ryans.   Counsel's motion was denied, and the trial proceeded.

     On April 2, during the testimony of Addison's

sixteen-year-old son, Addison reported to his counsel that he saw

his son winking and gesturing to members of the audience.

Addison also said he saw the Commonwealth's Attorney doing the

same and that he believed the judge was winking at the

                               - 6 -
Commonwealth's Attorney.   The Commonwealth's Attorney advised the

court that he noticed Addison staring at him and making movements

toward him.   Upon the conclusion of Addison's son's testimony,

Addison's counsel motioned for reevaluation of his competence.

The court refused to suspend the proceedings at that time but, at

counsel's request, ordered that Dr. Ryans reexamine Addison at

the close of the day's testimony.

     On April 3, Ryans testified regarding his examination of

Addison the previous evening.   Addressing Addison's alleged

hallucinations, Ryans stated that his opinion regarding Addison's

ability to assist in his defense remained unchanged.   Ryans also

testified that "it's my opinion that the key word here is

volitional.   If [Addison] chooses I believe that he can restrain

his hostility here in order to get through the legal process."

Based on Dr. Ryans' testimony and the court's own observations

that "[Addison] was alert, cognizant of the testimony and was

participating in with his counsel in his defense," the court

denied counsel's motion for a new competency evaluation.
     Trial proceeded and Trooper C.D. Willis, who was present

during Addison's arrest, testified that while being taken into

custody, Addison made an unsolicited statement that he caught his

wife "screwing around" and that he had shot her.   Willis also

testified that Addison said, "I'm crazy."   Willis, however, did

not include a reference to the "crazy" statement in his written

report of the incident, which was provided to Addison's counsel.

During cross-examination, Willis stated that prior to Addison's

                                - 7 -
comment, an officer asked Addison why he shot his wife.   Willis

testified that Addison's statement was made after he had been

handcuffed and while he was lying on the ground amidst several

police officers.

       Addison's counsel then motioned for a mistrial, arguing that

he had been led to believe that the statement made by Addison had

been spontaneous, when in fact it was the product of an unlawful

custodial interrogation.   The Commonwealth's Attorney confirmed

that he too had been led to believe that Addison's statement was

unsolicited.   The court ordered the jury to disregard Willis'

testimony and denied Addison's counsel's motion for a mistrial.
       Trooper Jackie Baldridge also testified that when arrested,

Addison said, "I'm fucking crazy, and I got the papers to prove

it."   Baldridge testified that Addison's statement was made in

response to an unidentified person's inquiry of "why."    Addison's

counsel also objected to this testimony.   The court allowed it,

finding that it was a spontaneous statement.

       The next day, James Childs, who had shared a cell in the

Wise County jail with Addison, testified that Addison explained

that he shot his wife because she had been cheating on him and

that he had attempted suicide three times before deciding to kill

his wife.   Childs also testified that Addison said that he was

going to try to plead insanity and that he thought he had a "good

case" because of his medication and suicide attempts.    Addison

also told Childs that he "blacked out" and could not remember

most of the shooting.

                                - 8 -
     Addison's counsel objected to this testimony and motioned

for a mistrial, arguing that the Commonwealth violated the

court's discovery order because it failed to disclose exculpatory

evidence.   The Commonwealth's Attorney learned of the jailhouse

conversation several months earlier through a letter from Childs'

attorney.   Addison's counsel argued that because the Commonwealth

had been given a written statement of Childs' account of his

conversation with Addison and the statement had not been provided

to Addison's counsel, the content of the conversation should be

inadmissible.   Counsel's motion was denied.
     At the close of trial, Addison proposed several jury

instructions, including one concerning manslaughter:    "The

difference between murder and manslaughter is malice.    When

malice is present, the killing is murder.    When it is absent the

killing can be no more than manslaughter."     This jury instruction

was rejected by the court and was subsequently proffered by

counsel.

                            Competency

     Contrary to Addison's assertion on brief, at a hearing to

determine competency to stand trial "the party alleging that the

defendant is incompetent shall bear the burden of proving by a

preponderance of the evidence the defendant's incompetency."

Code § 19.2-169.1(E).   "[T]he standard for competence to stand

trial is whether the defendant has `sufficient present ability to

consult with his lawyer with a reasonable degree of rational

understanding' and has `a rational as well as factual

                               - 9 -
understanding of the proceedings against him.'"     Godinez v.

Moran, 509 U.S. 389, 396 (1993) (quoting Dusky v. United States,

362 U.S. 402, 402 (1960)).   Further, "[a] trial court's

determination of a defendant's competency to stand trial is a

question of fact."    Delp v. Commonwealth, 172 Va. 564, 570-71,

200 S.E. 594, 596 (1939).    "A factual finding made by the trial

court is binding on appeal unless plainly wrong."     Naulty v.

Commonwealth, 2 Va. App. 523, 527, 346 S.E.2d 540, 542 (1986).
     At the March 30, 1996 hearing, Dr. Ryans testified regarding

his testing and treatment of Addison during his twenty-six day

commitment at Central State Hospital.    Ryans opined that Addison

was suffering from a major recurrent severe depression and a

residual delusional disorder but that he had the present capacity

to assist in his defense.    No evidence was found of a physical

defect interfering with Addison's ability to understand the trial

process.   Regarding Addison's alleged hallucinations, Ryans

concluded that he was "malingering" and his alleged

hallucinations in fact served some other purpose of Addison's.

     It was within the trial court's discretion to accept or

reject any of Ryans' testimony and to determine what weight it

should be accorded.    Street v. Street, 25 Va. App. ____, ____,

____ S.E.2d ____, _____ (1997) (en banc); Bridgeman v.

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).

Ryans' testimony provided the trial court with credible evidence

which supported its determination that on March 30, 1996, Addison

was competent to stand trial.    Holding that the trial court's
                                - 10 -
decision was not plainly wrong and was supported by credible

evidence, we will not disturb its decision on appeal.

     Addison's additional contention that the trial court erred

in denying him a new competency evaluation after his alleged

hallucinations is without merit. Code § 19.2-169.1(A) provides:
          If, at any time after the attorney for the
          defendant has been retained or appointed and
          before the end of trial, the court finds,
          upon hearing evidence or representations of
          counsel for the defendant or the attorney for
          the Commonwealth, that there is probable
          cause to believe that the defendant lacks
          substantial capacity to understand the
          proceedings against him or to assist his
          attorney in his own defense the court shall
          order that a competency evaluation be
          performed . . . .

(Emphasis added).   Here, the record supports the trial court's

finding that there was no probable cause warranting an additional

competency evaluation.   After counsel proffered that Addison was

experiencing visual hallucinations, the trial court ordered that

Dr. Ryans examine Addison.   After questioning Addison, Dr. Ryans

testified that his opinion about Addison's ability to assist in

his defense had not changed.   In addition, the trial court

observed that Addison appeared alert during trial and cognizant

of the proceedings and remained an active participant in his

defense by conferring with his attorney.   On the basis of these

observations and Dr. Ryans' testimony, the court denied counsel's

motion for a new competency evaluation.    This evidence was

sufficient to preclude a finding that probable cause existed to

believe that Addison was incompetent or had become incompetent

                               - 11 -
since his original competency hearing.

     We also note that Addison's claims that he could not

remember the shooting and that he blacked out are insufficient

evidence to establish as a matter of law that Addison was

incompetent to stand trial.   To the contrary, Code

§ 19.2-169.1(E) specifically provides that "[t]he fact that the

defendant claims to be unable to remember the time period

surrounding the alleged offense shall not, by itself, bar a

finding of competency if the defendant otherwise understands the

charges against him and can assist in his defense."

                         Jury Instructions

     Addison argues that the trial court erred in refusing to

give his proposed instruction regarding voluntary manslaughter.

"A reviewing court's responsibility in reviewing jury

instructions is `to see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly

raises.'"   Darnell v. Commonwealth, 6 Va. App. 485, 488, 370

S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499,
503, 290 S.E.2d 856, 858 (1982)).   "`[T]he appropriate standard

of review requires that we view the evidence with respect to the

refused instruction in the light most favorable to'" Addison.

Brandau v. Commonwealth, 16 Va. App. 408, 411, 430 S.E.2d 563,

564-65 (1993) (quoting Boone v. Commonwealth, 14 Va. App. 130,

131, 415 S.E.2d 250, 251 (1992)).

     So viewed, the Commonwealth's evidence proved that on the

afternoon of August 15, 1995, Addison shot his wife twice,
                              - 12 -
killing her.   Before the killing, Addison told several people

that he believed his wife was having affairs with three or four

of her male co-workers.    While incarcerated awaiting trial,

Addison told Childs that he had decided to kill his wife as an

alternative to killing himself.   Addison also told Childs that he

had followed his wife all day on August 15 and that he had

planned to kill her elsewhere, but that when he saw her on the

street he "lost his head and went ahead and killed her."    Addison

himself testified that he believed his wife had been having

affairs since January 1995.
     "To reduce homicide from murder to voluntary manslaughter,

the killing must have been done in the heat of passion and upon

reasonable provocation."    Barrett v. Commonwealth, 231 Va. 102,

105-06, 341 S.E.2d 190, 192 (1986).     There was no evidence that

Addison killed his wife in the heat of passion and upon

reasonable provocation.    In fact, the evidence demonstrated that

Addison planned to kill his wife for what he believed were her

long standing infidelities.   Addison's own testimony that he

"lost his head" when he killed his wife in front of the post

office instead of in another location does not in any way

ameliorate the fact that Addison planned to murder his wife on

the day in question.    Because Addison's proposed manslaughter

instruction was unsupported by the evidence, it was properly

refused.   Bennett v. Commonwealth, 8 Va. App. 228, 234, 380

S.E.2d 17, 21 (1989).   Accordingly, the trial court did not err

in refusing to instruct the jury on voluntary manslaughter.
                               - 13 -
                      Appellant's Statements

     Addison argues that the trial court erred in failing to

grant his motion for a mistrial on the basis that his undisclosed

statements to Trooper Willis, which Addison alleges were the

product of custodial interrogation, were erroneously admitted.

"On appeal the denial of a motion for a mistrial will not be

overruled unless there exists a manifest probability that the

denial of a mistrial was prejudicial."   Harward v. Commonwealth,

5 Va. App. 468, 478, 364 S.E.2d 511, 516 (1988).
     Here, the trial court struck Willis' testimony concerning

Addison's statements at the scene of the killing and ordered the

jury to disregard that testimony.   In the absence of evidence to

the contrary, we presume that the jury followed the judge's

instruction to disregard the allegedly objectionable testimony.

Howard v. Commonwealth, 6 Va. App. 132, 144, 367 S.E.2d 527, 534

(1988).   The record contains no evidence that the jury did not

abide by the judge's instruction.   We find no error in the trial

court's failure to grant a mistrial on this basis.

     Addison further contends that the discovery provided by the

Commonwealth erroneously described Addison's comment to Willis as

a spontaneous statement when in fact it was the product of

custodial interrogation.   The discovery order governing the case

required the Commonwealth to disclose Addison's oral statements

to police officers, but did not require the Commonwealth to

describe the particular circumstances surrounding the statements.

Thus, assuming arguendo that the Commonwealth did
                              - 14 -
mischaracterize the statement to Willis as a spontaneous

statement, no violation of the discovery order occurred.    Again,

we find no error in the trial court's failure to grant a mistrial

on this basis.

     Addison also objected to Trooper Baldridge's testimony that,

immediately after the killing, Addison said, "I'm fucking crazy

and I've got the papers to prove it."    Baldridge testified that

Addison made this statement spontaneously while he was lying on

the sidewalk surrounded by police officers.    The comment was not

connected to the questions previously posed by the officers.
     "'Miranda [v. Arizona, 384 U.S. 436 (1966),] safeguards come

into play whenever a person in custody is subjected to either

express questioning or its functional equivalent.'"     Jenkins v.

Commonwealth, 244 Va. 445, 453, 423 S.E.2d 360, 365 (1992)

(quoting Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)),

cert. denied, 507 U.S. 1036 (1993).     Where a suspect in custody

makes spontaneous admissions which are not a product of police

interrogation, the statements are not inadmissible as violative

of the suspect's Miranda rights.   See Bradshaw v. Commonwealth,

228 Va. 484, 490, 323 S.E.2d 567, 570-71 (1984).    Therefore, the

trial court did not err in refusing to suppress Baldridge's

testimony about Addison's comment at the scene or in failing to

grant a mistrial on this basis.

                      Jailhouse Statements
     Addison objected to Childs' testimony because the

Commonwealth's Attorney did not disclose before trial either

                             - 15 -
Childs' letter to his attorney concerning his jail cell encounter

with Addison or Childs' attorney's letter to the Commonwealth's

Attorney concerning the matter.

     The discovery order required the Commonwealth to make

available to Addison "[a]ny written or recorded statements or

confessions made by the Defendant or the substance of any oral

statements or confessions made by the Defendant to any law

enforcement officer, the existence to [sic] which is known to"

the Commonwealth's Attorney.   Neither letter constituted a

written or recorded statement of Addison.   "To be discoverable

the statement must be given by the accused rather than by a

witness who heard the accused speak."   Hackman v. Commonwealth,

220 Va. 710, 714, 261 S.E.2d 555, 558 (1980) (decided under

former Rule 3A:14).   Nor were the letters oral statements made by

Addison to a law enforcement officer.   Consequently, the

Commonwealth's Attorney's failure to disclose the two letters did

not violate the discovery order, and therefore we hold that the

trial court did not err in admitting evidence of Addison's

conversation with Childs.

     Holding that the trial court's finding that Addison was

competent to stand trial was supported by credible evidence and

was not plainly wrong; that the evidence was sufficient to

support the trial court's finding that probable cause did not

exist to order an additional competency evaluation; that

Addison's proposed instruction concerning involuntary

manslaughter was unsupported by the evidence; that the trial
                               - 16 -
court did not err in denying Addison's motion for a mistrial on

the basis that his statements to the police were erroneously

admitted; and that Addison's jailhouse statements were not

contemplated by the trial court's discovery order, we affirm.

                                                  Affirmed.




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