                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia


CLIFTON McNAIR, JR.
                                          MEMORANDUM OPINION * BY
v.   Record No. 0062-00-1                  JUDGE ROBERT P. FRANK
                                             DECEMBER 5, 2000
COMMONWEALTH OF VIRGINIA


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

          Charles E. Haden for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Clifton McNair, Jr., (appellant) was convicted in a bench

trial of first-degree murder in violation of Code § 18.2-32,

stabbing during the commission of a felony in violation of Code

§ 18.2-53, and petit larceny in violation of Code § 18.2-96.    He

appeals only the first-degree murder conviction, contending the

trial court erred in determining that, despite his mental

illness, he had the requisite intent, malice, and premeditation

to be guilty of first-degree murder.   For the reasons stated

herein, we find no error and affirm the conviction.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                           I.   BACKGROUND

     On February 18, 1999, appellant and Lucretia Smith (victim)

both worked as cashiers at the Allright Parking Garage in Hampton.

Appellant worked from 7:00 a.m. to 1:30 p.m., and the victim

worked from 1:30 p.m. to 7:00 p.m.

     At approximately 3:00 p.m., Officer Brian LePage of the

Hampton Police Department heard screams coming from the parking

garage.   He looked in the direction of the garage and saw the

victim and appellant run out of the garage and stop at the end of

the garage's driveway, almost in the lane of traffic.   Appellant,

who was behind the victim, lifted his arms and stopped her.

Appellant's arms were "out reached."

     LePage momentarily looked away and when he turned back, he

noticed the victim had broken free from appellant.   She ran into

the second lane of traffic and collapsed in the middle of the

street.

     Casey Seals had just driven up when she, too, heard the

screams and saw the victim run out of the parking garage with

appellant behind her, his hands restraining her.   Seals watched as

the victim pulled away to free herself and then saw them struggle

for a few seconds.   Then, appellant looked around and let her go.

The victim took four or five steps and then collapsed in the

street.

     LePage ran over to the victim and picked up her head.     He

noticed a little blood on her back around her waistline.   He then

                                - 2 -
noticed some blood dripping from her mouth.   The victim's eyes

rolled back and her head "just collapsed down."   When LePage put

her head on the ground, he noticed "all the blood on her back."      A

big pool of blood was starting "to surround her whole body."

       LePage started back toward the garage and issued a "be on the

lookout" for an individual wearing a red and black jacket, a red

ball cap, and dark colored pants.    When LePage entered the garage,

he noticed an individual who was the same size as the suspect.

The individual fled.   Officer Michael Anderson, shortly

thereafter, radioed LePage indicating he had a suspect in custody

that fit the description.   Officer Anderson encountered the man

who fit the description issued by LePage "walking in a calm

manner" toward Lincoln Street.    Despite appellant's apparently

calm manner, Anderson noticed he was breathing very fast and very

deeply.    Realizing appellant was the suspect, Anderson stopped

him.   Officer LePage then arrived and identified appellant as the

person he saw struggling with the victim.   LePage identified

appellant less than five minutes after appellant fled from the

garage.

       Officer Anderson noticed blood on the palms of appellant's

hands.    After appellant was handcuffed, Officer Christopher Lyon

patted him down for weapons and found a twelve-inch knife tucked

in his left sleeve between his shirt and his jacket.   He, too, saw

blood on appellant's hands.   Appellant was arrested and gave the

police "pertinent information."

                                 - 3 -
     After appellant was arrested and advised of his Miranda

rights, he waived his rights and confessed to Detective George

Burton.    He told Burton he left work at the parking garage at

approximately 1:30 p.m., went to cash his paycheck, and then

returned to the parking garage to pick up his clippers and a

newspaper.    At that point, the victim asked him about his trip to

New Jersey.   He told Burton he felt the victim was "getting

personal into his business" and that she had been teasing him by

shaking her rear end at him.   He told Detective Burton he had been

thinking about hurting her if she continued to tease him.

Appellant told Burton he was tired, had been awake a long time,

and he just snapped and stabbed the victim several times.

     Appellant then provided a written statement.      In his written

statement, appellant said he was trying to get his shaving

materials so he could leave, but the victim was flirting with him.

Appellant said he got tired of the flirting and "went off."     Then,

in a more detailed question and answer statement, appellant said

he had been carrying the knife on him because "he had been jumped

before."    He kept the knife in his left sleeve.   He stated that

the victim got into his business and he just "snapped" and stabbed

her twice.    Appellant explained, "I was tired.    And I wanted to

leave.    But she kept talking to me and would not let me leave.

She asked me about my trip.    She asked me did I have a good time.

I told her yes."   The victim was standing in the booth of the

parking garage.    When appellant approached her, "she stood up and

                                - 4 -
turned away from me."    He wrote that upon being stabbed, the

victim ran to the street.    Appellant took $50 out of the garage's

cash tray and fled.

        Appellant denied he planned to stab the victim when he

returned to the parking deck or that he had thought and planned to

hurt her before that date.    He also wrote that the last time he

had slept was four days earlier, that his feet and hands hurt and

that his blood sugar was elevated.       Appellant expressed remorse

for his acts and cooperated with the police.

        During the majority of the time that Detective Burton

interviewed appellant, he was "quiet, coherent, calm."      Only once

did he briefly cry.    This occurred when he learned the victim had

died.    At all other times during the interview appellant was quiet

but responsive to the questions.

        Prior to trial on March 1, 1999, an order was entered

directing that appellant undergo a psychological evaluation to be

performed by Dr. Richard B. Griffin.       On May 18, 1999, a second

psychological evaluation was ordered and was performed by Evan S.

Nelson, Ph.D.    On September 9, 1999, appellant filed a notice of

intention to assert at his trial that he lacked mental competency

at the time of the offense.

        In his written report dated June 1, 1999, made part of the

trial record without objection, Dr. Nelson, a forensic

psychologist, opined that appellant was competent to stand trial

and concluded:

                                 - 5 -
               In the final analysis, it is the opinion
          of the undersigned from the data available at
          this time that Mr. McNair had some symptoms
          of mental illness at the time of the offense,
          but they did not prevent him from rationally
          understanding what he was doing nor did they
          destroy his ability to control himself.

     Dr. Nelson listed four issues that "combine[d] to explain

[appellant's] mental state:"   1) depression, 2) substance abuse,

3) post-traumatic stress disorder (TSD) following a robbery the

day before the murder, and 4) diabetes – "if his blood sugar was

low, it could have led to greater mental confusion . . . ."

     Dr. Griffin, a Licensed Clinical Psychologist, examined

appellant prior to trial and concluded:

               It is the opinion of this writer that
          the defendant, Clifton McNair, was not
          suffering from a mental disease or defect at
          the time of the alleged offense which
          significantly impaired his capacity to
          understand the nature, character, and
          consequences of his actions. It is very
          likely that his judgement and his capacity
          for adequate impulse control were seriously
          compromised by sleep deprivation (due to his
          use of crack cocaine) at the time of the
          alleged offense. However, the voluntary
          ingestion of a mind-altering substance does
          not constitute a mental illness. There does
          not appear to be compelling evidence that his
          capacity to distinguish between right and
          wrong was significantly impaired by a mental
          illness at the time of the alleged offense.
          Thus, the requirements for a legal insanity
          defense do not appear to be fulfilled.

     In his report, Dr. Nelson stated that appellant's

Intelligence Quotient is "probably higher than the estimate of 60

reported . . . ."   He also wrote that appellant's "capacity for


                               - 6 -
independent functioning was consistent with at least Borderline

Intelligence, and clearly better than that typically associated

with mental retardation."     Nelson indicated that appellant

reported he was either intoxicated on cocaine or just "coming

down" at the time of the offense.

     Appellant, at trial, did not take the position that he was

insane at the time of the offense.         Rather, in his motion to

strike, he argued that because of his mental illness he lacked the

requisite intent, malice, and premeditation to be found guilty of

first-degree murder.

                             II.    ANALYSIS

     In contending he did not have the requisite intent, malice,

or premeditation to be guilty of first-degree murder due to his

"mental illness," appellant maintains he was motivated by "heat of

passion" and provocation, not malice.        He argues that because he

"snapped" and acted impulsively, he did not premeditate the

stabbing.   He also contends that, by virtue of his mental illness,

he lacked the requisite intent to commit murder, arguing

"irresistible impulse." 1

     Essentially, appellant contends his mental illness,

depression, post-traumatic stress syndrome, drug addition, and

diabetes created a defect of reason such that he lacked the


     1
       Because appellant    raises "irresistible impulse" for the
first time on appeal, we    will not consider the argument on that
issue. Rule 5A:18. The      record does not establish a reason to
invoke the good cause or    ends of justice exceptions to Rule 5A:18.

                                   - 7 -
requisite intent, malice aforethought, and premeditation necessary

for first degree murder.

     The Supreme Court of Virginia and this Court have addressed

this issue on a number of occasions.   In Stamper v. Commonwealth,

228 Va. 707, 715-16, 324 S.E.2d 682, 687 (1985), Stamper did not

present evidence that he was insane, but attempted to introduce

psychiatric testimony that he was manic-depressive and in a

depressive state on the date of the offense and, therefore,

incapable of forming the requisite intent to distribute.   The

trial court refused to consider such evidence.   Id. at 716, 324

S.E.2d at 687.   The Supreme Court wrote:

               For the purposes of determining criminal
          responsibility a perpetrator is either
          legally insane or sane; there is no sliding
          scale of insanity. The shifting and subtle
          gradations of mental illness known to
          psychiatry are useful only in determining
          whether the borderline of insanity has been
          crossed. Unless an accused contends that he
          was beyond that borderline when he acted, his
          mental state is immaterial to the issue of
          specific intent. Accordingly, we hold that
          evidence of a criminal defendant's mental
          state at the time of the offense is, in the
          absence of an insanity defense, irrelevant to
          the issue of guilt.

Id. at 717, 324 S.E.2d at 688 (citations omitted).

     In Smith v. Commonwealth, 239 Va. 243, 259-60, 389 S.E.2d

871, 879-80 (1990), the Supreme Court applied Stamper in upholding

the rejection of mental state evidence intended to show lack of

premeditation where no insanity defense was raised.   See also

Bowling v. Commonwealth, 12 Va. App. 166, 173, 403 S.E.2d 375, 379

                               - 8 -
(1991) (absent an insanity defense, Stamper precludes the

admission of testimony regarding defendant's mental state on issue

of premeditation).

     Therefore, all that remains of appellant's contention is a

simple challenge to the sufficiency of the Commonwealth's evidence

to prove malice, premeditation, and a specific intent to kill the

victim.

     "Murder . . . by willful, deliberate, and premeditated

killing . . . is murder of the first degree."   Code § 18.2-32.

"'To premeditate means to adopt a specific intent to kill, and

that is what distinguishes first and second degree murder.'"

Rhodes v. Commonwealth, 238 Va. 480, 485, 384 S.E.2d 95, 98 (1989)

(quoting Smith v. Commonwealth, 220 Va. 696, 700, 261 S.E.2d 550,

553 (1980)).   "To prove premeditated murder, the Commonwealth must

establish:    '(1) a killing; (2) a reasoning process antecedent to

the act of killing, resulting in the formation of a specific

intent to kill; and (3) the performance of that act with malicious

intent.'"    Archie v. Commonwealth, 14 Va. App. 684, 689, 420

S.E.2d 718, 721 (1992) (quoting Rhodes, 238 Va. at 486, 384 S.E.2d

at 98).

     "'To establish premeditation, the intent to kill need only

exist for a moment.'"   Bowling, 12 Va. App. at 173, 403 S.E.2d at

379 (quoting Peterson v. Commonwealth, 225 Va. 289, 295, 302

S.E.2d 520, 524 (1983)).   The question of premeditation is a

question to be determined by the fact finder.   Peterson, 225 Va.

                                - 9 -
at 295, 302 S.E.2d at 524.   Moreover, "evidence of a mortal wound

inflicted by a deadly weapon with little or no provocation creates

an inference from which the trier of fact may conclude that the

killer acted with premeditation."   Morris v. Commonwealth, 17 Va.

App. 575, 578, 439 S.E.2d 867, 869-70 (1994) (citing Hodge v.

Commonwealth, 217 Va. 338, 343, 228 S.E.2d 692, 696 (1976)).

     "'Malice inheres in the doing of a wrongful act

intentionally, or without just cause or excuse, or as a result of

ill will.   It may be directly evidenced by words, or inferred from

acts and conduct which necessarily result in injury.'"    Hernandez

v. Commonwealth, 15 Va. App. 626, 631, 426 S.E.2d 137, 140 (1993)

(quoting Dawkins v. Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500,

503 (1947)).    "Malice is evidenced either when the accused acted

with a sedate, deliberate mind, and formed design, or committed

any purposeful and cruel act without any or without great

provocation."    Branch v. Commonwealth, 14 Va. App. 836, 841, 419

S.E.2d 422, 426 (1992) (citation omitted).

     The evidence established that appellant acquired the murder

weapon at least a week before the stabbing.   While appellant

maintained that he armed himself because he "had been jumped

before," the robbery he complained of occurred the night before

the victim was stabbed.   Appellant told Burton he had thought

about hurting the victim if she continued to tease him.   When the

victim made an inquiry about appellant's trip to New Jersey,

appellant stabbed her in anger after she turned her back to him.

                                - 10 -
        After the stabbing, the victim fled to the street, pursued by

appellant.    Appellant then grabbed her and she had to struggle to

break free from him.    Appellant then fled from the scene.

        The evidence clearly proved appellant's specific intent to

kill.    "Intent is the purpose formed in a person's mind which may,

and often must, be inferred from the facts and circumstances in a

particular case."    Ridley v. Commonwealth, 219 Va. 834, 836, 252

S.E.2d 313, 314 (1979).    Intent to kill requires that:

             "'the killing should have been done on
             purpose, and not by accident, or without
             design; that the accused must have reflected
             with a view to determine whether he would
             kill or not, and that he must have determined
             to kill as the result of that reflection,
             before he does the act . . . .'"

Pannill v. Commonwealth, 185 Va. 244, 255, 38 S.E.2d 457, 463

(1946) (citations omitted).    "It is the will and purpose to kill,

not necessarily the interval of time, which determine the grade of

the offense."    Akers v. Commonwealth, 216 Va. 40, 48, 216 S.E.2d

28, 33 (1975) (citing Fuller v. Commonwealth, 201 Va. 724, 730,

113 S.E.2d 667, 672 (1960)).

        Appellant contends provocation by the victim caused him to

"snap" and stab her at least two times.    The victim's question to

appellant was not reasonable provocation.    "To reduce a 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) (citing Martin v. Commonwealth, 184 Va. 1009, 1016-17, 37

                                 - 11 -
S.E.2d 43, 46 (1946)).    "Virginia has long recognized that malice

and heat of passion [are mutually exclusive]."   Hodge, 217 Va. at

345, 228 S.E.2d at 697.    Heat of passion refers to "the furor

brevis, which renders a man deaf to the voice of reason . . . ."

Hannah v. Commonwealth, 153 Va. 863, 870, 149 S.E. 419, 421

(1929).   "Heat of passion is determined by the nature and degree

of the provocation and may be founded upon rage, fear, or a

combination of both."    Barrett, 231 Va. at 106, 341 S.E.2d at 192

(citations omitted).

     "'A reasonable provocation is always necessary to reduce a

[murder] . . . to . . . manslaughter; and especially where the

offense is committed with a deadly weapon.'"   Martin, 184 Va. at

1017, 37 S.E.2d at 46 (citation omitted).   In Virginia, it is a

long-standing principle that "words alone are never a sufficient

provocation" for one to kill another and claim that the act arose

from the heat of passion.   Id. at 1018, 37 S.E.2d at 47.

"[W]hether a killing was done in the heat of passion upon

reasonable provocation is a question of fact."   Canipe v.

Commonwealth, 25 Va. App. 629, 643, 491 S.E.2d 747, 754 (1997)

(citation omitted).

     The trial court could reasonably infer from the evidence that

appellant armed himself with a deadly weapon and harbored

resentment toward the victim.   The evidence was sufficient to

prove beyond a reasonable doubt that appellant willfully,



                                - 12 -
deliberately, and with premeditation stabbed the victim without

reasonable provocation.

     For these reasons, we affirm appellant's conviction of first

degree murder.



                                                         Affirmed.




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