Jervon Lamont Herbin was having a bad week. First, his girlfriend and mother of his child threw him out This bummed him out so much he went back on crack. He went to live with his mother, but when he tried to enter her house, someone took a shot at him, landing him in the hospital. He was treated and let out on crutches with no place to go.
Then, he decided to move in with another girlfriend. Problem was though, she was living with her husband and daughter who were unaware of their "romance." Sort of an awkward arrangement but he moved in anyway.
The next morning he was alone with the daughter and felt this overpowering urge to rape her. She wasn't real cooperative so he ended up getting a knife and stabbing her. He was arrested and charged with attempted rape and malicious wounding.
Herbin's background was rife with pathology which included physical and sexual abuse. A chronic substance abuser, he also had numerous suicide attempts and psychiatric hospitalizations. He was already considered a sexual offender, too, and had spent a year in a sex offender treatment program.
Despite this well documented history, Herbin was never diagnosed as psychotic or even suffering from any specific mental illness or disease.
Herbin was found guilty after trial. He appealed, contending that the trial court erred by failing to give the jury the option of finding him not guilty due to insanity or because he was in the throes of an irresistible impulse which rendered him incapable of controlling his actions.
Virginia law adheres to the "M'Naghten test" for legal insanity under which an accused must demonstrate that he suffered from a mental disease (usually a psychosis) to the extent that he did not know and could not perceive the nature and quality of his acts. If he was so aware, his disease must make him unable to understand that what he was doing was wrong.
Holding: The Virginia Court of Appeals upheld the lower court's verdict and sentence. It ruled that Herbin was not entitled to insanity or irresistible impulse consideration by the jury as he had failed to produce sufficient evidence (either from experts or lay persons) to support his claim that he truly suffered from a mental disease.
The Court concluded that "instructions to a jury on insanity as with other instructions, must be supported by more than a mere scintilla of evidence."
| Robert Ward, J.D. Professor New England School of Law |
Prof. Ward comments: A small number of states, including Colorado (People v. Giles, 557 P. 2d 408,1976), Georgia (Clark v. State, 266 SE 2d 466), Iowa (State v. Harimann, 285 NW 2d 180, 1979), Kentucky (Mattingly v. Comm, 878 SW 2d 797,1993), Massachusetts (Comm. v. McHoul, 226 N.E. 2d 556, 1967), New Mexico (State v. Hartley, 565 P.2d 658, 1977), and Virginia (Thompson v. Comm., 70 S.E. 2d 284,1952) recognize the defense of irresistible impulse. The irresistible impulse approach is a volitional test (Kadish and Schuler Lofer, Criminal Law and Its Processes. Cases and Materials. 6 ed., 1995, at 93). It asks, could the defendant control her behavior even though she knew that the act was wrong (LaFave and Scott, Criminal Law 2ed, 1986, Ch.4 §4.2 (d) at 320). Many jurisdictions have specifically rejected the irresistible impulse test, believing that true insanity means mental incapacity.
Herbin asserted that the combination of his gunshot wound, abuse of illegal drugs, his prior institutionalization because of physical and sexual abuse, his suicide attempt and the recent break up with his girlfriend legitimately raised the question of irresistible impulse. The defendant also testified that on the day in question he felt out of control. Like most jurisdictions, in Virginia the defendant must offer sufficient proof that he/she in fact did suffer from a disease or defect of the mind and that there was an actual connection between the crime and the illness. Specifically the defendant must present more than a scintilla of evidence of mental illness before an instruction will be given (Gibson v. Commonwealth, 219 S.E. 2d 845, 1975, Va.). Other jurisdictions describe the defendant's burden in terms of preponderance of the evidence, substantial evidence or clear and convincing evidence (LaFave and Scott, Criminal Law 2ed, 1986, Ch. 4 § 4.5 at 354). Regardless of the language, neither the trial court or the Virginia Supreme Court believed that Herbin's evidence satisfied the test. Although examined by two doctors after the attack, Herbin's attorney did not introduce their expert testimony or their reports at trial. These witnesses may have supported the defendant's assertion of loss of control. He did, however, offer the testimony of Hans Selvog, Assistant Clinical Director of the Augustus Institute. From October 1993 until November 1994 Herbin participated in sex offender treatment. This was approximately three months before the attack.
Selvog, however, did not actually testify at trial that Herbin suffered from a disease of the mind.
Typically, irresistible impulse is more than mere passion or overwhelming emotion not growing out of a disease (See State v. Helms, 284 NC 508,201 S.E. 2d 850, 1974). Herbin failed to make his case. Another problem for Herbin was that his behavior was triggered by his drug abuse. Voluntary intoxication, as a matter of public policy, is not an accepted basis for a claim of insanity largely because the individual chooses to become insane via intoxication. Ultimately while there was evidence that Herbin was operating under a number of stressors including the break up with his girlfriend, drug use, a gunshot wound and a suicide attempt, collectively these experiences did not appear to be the causes or symptoms of a mental disease. Herbin essentially had a bad hair day, not an irresistible impulse as defined by the law. So both the trial court and the State Supreme Court appeared to have made the right call.
