1. Writing sample #1, legal memo
Kimberly Shumate
PLG-103-1207
Assignment 3
Statement of Facts
Joe is being tried for 1st Degree Murder in the state of Virginia, after killing his former boss, Jerry,
with a knife Joe purchased en route to Jerry's house on the night of the homicide. On this night, Joe
voluntarily consumed 4 pints of beer while planning the murder of Jerry, who had recently fired Joe.
Issue
Joe claims that although the homicide was planned and voluntary, and although his consumption of
alcohol was voluntary, he was too drunk to possess the mens rea to kill, and should therefore not be
subjected to a charge of murder. Our issue at hand is to determine whether, according to Virginia
case law, Joe's intoxication is a valid defense to reduce his 1st Degree Murder charge down to a
charge of Manslaughter.
Rule
In an early case, the Supreme Court of Virginia considered whether a defendant's use of 'voluntary
intoxication' was effective as a valid defense, in Johnson v. Commonwealth, 135 Va. 524 (Va. 1923).
In this case, the defendant fired a gun in public, after voluntarily consuming alcohol, and then
proceeded to shoot a Police Officer during his arrest. The defendant appealed his conviction based on
the trial court's decision to not read his preferred jury instructions, which included language that the
defendant should not be found guilty, due to his intoxication.
The judge instead instructed the jury as follows:
"The court instructs the jury that drunkenness is no excuse for crime... In other words a
person cannot voluntarily make himself so drunk as to become on that account
irresponsible for his conduct during such drunkenness. He may be perfectly unconscious
of what he does and yet be responsible. He may be incapable of express malice; but the
law imputes malice in such a case from the nature of the instrument used, the absence of
provocation and other circumstances under which the act was done." id at 527.
Unlike our case at hand, the victim in this case did not die of his injuries. Johnson's charge was
'shooting with intent to kill', and the court stated that guilt here depends on whether the defendant
would have been guilty of murder if death had resulted; the court stated that the "principles of
law...governing the effect of intoxication upon the defendant's guilt are the same as those which apply
in homicide cases." id at 529.
The Supreme Court of Virginia's final holding on the use of 'voluntary intoxication' as a defense in a
homicide case, established "drunkenness is no excuse for crime" as a rule, with one exception. That
exception included any provocation of such a nature that would make any murder into mansla ughter,
whether the defendant was intoxicated or sober. However, our case at hand, and the two established
cases discussed here, do not include any showing of provocation, and therefore this exception does
not apply.
One caveat to this rule of 'intoxication not serving as an excuse for any crime', is that intoxication may
negate the premeditation element required to charge an offender with 1st Degree Murder. When
deciding which homicide charge to apply, this court held that as "between Murder in the 1st Degree
and Murder in the 2nd Degree, voluntary drunkenness may be a legitimate subject of inquiry, but as
between Murder in the 2nd Degree and Manslaughter it is never material and cannot be considered",
id at 529, and further that "the drunkenness of the offender can form no legitimate matter of inquiry,
the killing being voluntary." id at 530. Therefore, we clearly are given the court's opinion that
although intoxication may not be a factor in reducing 2nd Degree Murder charges to Manslaughter as
it does not negate an offender's ability to possess intent to kill, intoxication may negate an offender's
ability to properly premeditate Murder in the 1st Degree.

2. Writing sample #1, legal memo
In a more recent decision, the Supreme Court of Virginia restated its earlier holdings, as it cited its
own earlier Johnson case. "Generally, voluntary intoxication is not an excuse for any crime. We have
stated that the only exception to this general rule is in cases involving deliberate and premeditated
murder. Even though it has long been the rule in this Commonwealth that a defendant may negate
the specific intent requisite for capital murder or first degree murder by showing that he was so
greatly intoxicated that he was incapable of deliberation or premeditation, "voluntary immediate
drunkenness is not admissible to disprove malice or [to] reduce the offense to manslaughter.""
Swisher v. Commonwealth, 256 Va. 471,488 (Va. 1998).
The defendant in this appeal, Bobby Swisher, was convicted of Capital Murder and sentenced to death.
He appealed with multiple baseless claims of violations against his Miranda rights, and on his objection
that his preferred jury instructions were refused by the judge. Swisher's proposed instructions stated
that the jury could not find him guilty of 1st Degree Murder due to his intoxication. The Supreme
Court held that the judge properly disallowed Swisher's requested instructions, "because these
instructions contained incorrect statements of the law. The proposed instructions would have
permitted the jury to find the defendant guilty of manslaughter because of his purported voluntary
intoxication, which is contrary to the common law of this Commonwealth." id at 488.
Analysis
Examining the case law established in Johnson v. Commonwealth in 1923, and restated in Swisher v.
Commonwealth in 1998, we see the results of using a defense of 'voluntary intoxication' in a homicide
case in Virginia. The Supreme Court of Virginia first affirmed defendant Johnson's conviction of 2nd
Degree Murder, appropriate as his case lacked premeditation or 'heat of passion' provocation. Later,
this Supreme Court also affirmed defendant Swisher's capital murder conviction, finding that although
intoxication may negate the element of premeditation when proving Murder in the 1st Degree, it did
not reduce the charge automatically.
Applying this case law to our case at hand, Joe may be able to negate the required premeditation
element to successfully defend against this 1st Degree Murder charge. His success is not guaranteed
here, however, as 4 pints of beer may not have intoxicated him to such a degree that a jury would
find he was either completely unaware of his actions, or unable to stop himself. He was able to plan
the homicide, complete the necessary shopping for a weapon, and get himself into Jerry's home to
carry out his plan. A jury may find he was not too intoxicated to possess the necessary mens rea to
be found guilty of Murder in the 1st Degree.
Applying another facet of this case law from the Supreme Court of Virginia, if the jury were to find in
Joe's favor, and agree that he was not capable of premeditation, and subsequently were left to decide
between 2nd Degree Murder and Manslaughter, they must find for 2nd Degree Murder. Intoxication
may not be considered as a factor when deciding between these two charges, and does not negate
any of the elements necessary to prove 2nd Degree Murder. Simply put, 2nd Degree Murder may not
be reduced to Manslaughter based on a defense of voluntary intoxication.
Conclusion
The Supreme Court of Virginia's opinion on the use of this defense in a homicide case is made clear
when they state that, "[e]very crime committed by one in a state of intoxication, however great, is
punished just as if he were sober. Drunkenness, therefore, can never be relied on as an excuse for
murder. It matters not how drunk one is, if he purposely slay another..." Johnson at 530. In
summation, they held that the "important principle to keep in mind is that when a man voluntarily
drinks liquor and is thereby led to commit a crime, he cannot be allowed to hide behind his condition
as an excuse. He and not others must take the risk." Johnson at 535.
In conclusion, Joe may attempt to successfully negate the required element of premeditation and
avoid a conviction for 1st Degree Murder. At the minimum, however, Joe should be charged and
convicted of 2nd Degree Murder. Joe will not successfully use his 'voluntary intoxication' defense to
reduce the 2nd Degree charge to a lesser charge of Manslaughter. Joe did possess the mens rea
necessary to prove intent to kill, no matter his drunkenness.