2.2 WILLFUL, DELIBERATE, AND PREMEDITATED
2.201 Premeditation. Willful, deliberate, and premeditated killing is a necessary component of all forms of capital murder under section 18.2-31. The terms "willful," "deliberate," and "premeditated" are used in both section 18.2-31 and 18.2-32 (first-degree, noncapital murder); thus, the court uses definitional interpretations of section 18.2-32 in section 18.2-31 cases. 4 A premeditated first-degree murder is elevated to capital murder only if it has the added features that place it within one of the subsections of section 18.2-31. 5
2.202 Elements of Offense. Virginia courts have never indicated that the phrase "willful, deliberate, and premeditated" contains three individual elements. For example, in Clozza v. Commonwealth, 6 the court referred to the "question [of] whether a defendant is guilty of a willful, deliberate, and premeditated killing" and then referred to the evidence as "manifestly . . . sufficient to prove premeditation." 7 Conversely, in Barnes v. Commonwealth, 8 the court referred to the "question of premeditation" and stated that "the evidence fully supports the . . . finding that the killings were willful, deliberate, and premeditated." In LeVasseur v. Commonwealth, 9 the court said that "the defendant's mental condition is only relevant insofar as it might be probative of a fact in issue: i.e., premeditation at the time of the
[Page 15]
killing." These cases make clear that "willful, deliberate, and premeditated" constitute a single element—premeditation. 10
Premeditated killing consists of two elements: (i) the defendant must intend to kill, and (ii) the intent must be premeditated. 11 Intent to kill requires a subjective awareness or knowledge of the act of killing as distinguished from objective standards applicable to a reckless or wanton killing. 12 Premeditation requires the additional element that the intent to kill was formed after the defendant "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 [did] the act." 13 The concept of premeditation is also captured in statements that intent to kill must be the "product" of reflection 14 and that the defendant must "deliberate and meditate . . . upon his design and purpose to kill." 15
2.203 Time Between Formation of Intent and Act of Killing. Although not using the term "instantaneous premeditation," the Virginia Supreme Court has stated that the "design to kill may be formed only a moment before the fatal act is committed provided the accused had time to
[Page 16]
think and did intend to kill." 16 It is clear that no specific time span between the formation of intent to kill and the act of killing needs to be proven. 17 If there is some momentary passage of time between the existence of an intent to kill and the act of killing, the jury is permitted to infer that the defendant did meditate upon that intent and chose to kill.
2.204 Other Evidence of Premeditation. In addition to the elapsed time between forming an intent to kill and acting on that intent, other evidence permits an inference that the killing was premeditated. Evidence of motive is admissible, as in Smith v. Commonwealth, 18 where the rape victim was slain so that she could not later identify the defendant. Evidence that a deadly attack was sustained for an appreciable length of time permits an inference of premeditation. 19 Extraordinary savagery in carrying out the killing likewise permits the inference. 20 The Virginia Supreme Court also has referred to disparity in size between defendant and victim, concealment of the victim, and efforts by the defendant to avoid detection as evidence tending to prove premeditation. 21 Orbe v. Commonwealth 22 recognized that "evidence showing a murder 'to have been deliberate, premeditated and wilful could be so clear and uncontroverted that a trial court could properly refuse to instruct on the lesser included offenses.'"
[Page 17]
Later cases reflect no substantial change in the court's traditional approach to premeditation. The court continues to emphasize that no specific time is required for premeditation and that premeditation may be inferred from the surrounding circumstances. 23
2.205 Difference Between Premeditated Aggression and Act of Impulsivity. In Juniper v. Commonwealth, 24 a defense expert testified at the penalty phase that "there was a difference between 'premeditated aggression' and an 'act of impulsivity.'" However, the court found that the testimony was properly excluded because "any contrast between Juniper's alleged mental state at the time of the crime and the required element of premeditation is applicable only as it relates to Juniper's culpability, not his sentence. [Such testimony] would have been properly admissible only if Juniper were advancing a defense based upon mental disease or disorder in the guilt phase. . . ."
2.206 Jury Instructions. In Jordan v. Commonwealth, 25 the Virginia Court of Appeals stated:
For a charge of attempted capital murder, the words "specific intent to kill" do not need to appear in the finding instruction. . . . It is sufficient that the finding instruction requires the jury to determine whether the act was willful, deliberate and premeditated and that the jury is further instructed that by definition "willful, deliberate and premeditated means a specific intent to kill."
2.207 Heat of Passion. Premeditation and heat of passion are mutually exclusive. When voluntary manslaughter is raised as a lesser included offense of capital murder, the court may be required to give "an instruction defining heat of passion." 26 "The law requires the simultaneous
[Page 18]
occurrence of both reasonable provocation and passion. Moreover, where it is not the victim of the crime who provoked the defendant's heat of passion, the evidence will not support a finding of heat of passion." 27
2.208 Effect of Voluntary Intoxication. Although voluntary intoxication is not a defense to all specific intent crimes, 28 it is a recognized defense in cases involving premeditated first-degree or capital murder charges. 29 Voluntary intoxication negates premeditation 30 if the defendant was "so greatly intoxicated by the voluntary use of alcohol and/or drugs that he was incapable of deliberating or premeditating." 31
Evidence of intoxication must be strong to warrant an instruction on this defense. Fitzgerald v. Commonwealth 32 is the rare capital murder case in which an instruction on voluntary intoxication has been given. 33 In that case, there was evidence that the defendant had been under the influence of Tranxene (a tranquilizer), LSD, and alcohol when he killed the victim. There was also defense testimony that the defendant's capacity to plan under the combined influence of the drugs would have been poor. Although the trial court gave the voluntary intoxication instruction, the jury found the defendant guilty of capital murder. On appeal, the Virginia Supreme Court refused to rule, as a matter of law, that the defendant was incapable of premeditating.
[Page 19]
In assessing the sufficiency of the evidence for a voluntary intoxication defense, the Virginia Supreme Court, in Giarratano v. Commonwealth, 34 stated that "mere intoxication from drugs or alcohol will not suffice to negate premeditation." 35 In Giarratano, like Fitzgerald, there was evidence that the defendant had ingested both drugs and alcohol at the time of the offense. The court ruled, however, that there was ample evidence from which the factfinder could conclude that the defendant had been capable of premeditation. Evidence of clear or rational thought, such as the defendant's conduct immediately before or after the offense, serves to negate an inference of incapacity due to voluntary intoxication. In Herbin v. Commonwealth, 36 the Virginia Court of Appeals stated that "the weight of authority in this country recognizes an insanity defense that is based on a mental disease or defect produced by long-term substance abuse." At the same time, "evidence of mere narcotics addiction, standing alone and without other physiological or psychological involvement, raises no issue of such a mental defect or disease as can serve as a basis for the insanity defense."
The Virginia Supreme Court, in White v. Commonwealth, 37 explained that
[c]ertainly, we have permitted the use of the insanity defense when prolonged, habitual, and chronic alcohol or drug abuse has created a mental disease or defect. We adopted the common law distinction between temporary intoxication and permanent insanity long ago.
"Drunkenness is no excuse for a crime." However, a mental disease or defect caused by chronic abuse of alcohol or drugs will support the defense of insanity. We have also commonly referred to this permanent condition as "settled insanity."
In reviewing a Virginia death penalty case, the Fourth Circuit noted that "voluntary intoxication...
