Proposed Jury Instruction for Diminished Capacity

NOTICE TO COUNSEL AND JUDGES: As provided in the Court's Order accepting the proposed jury instructions for a period of working review, the Court's provisional approval "is for the purpose of refining and testing the application and accuracy of the pattern instructions and does not ensure error-free trials, and their use does not carry a no-reversal guarantee. It is not intended that this provisional acceptance is a final approval of the content of any instruction and each judge may use or refuse any instruction as he or she sees fit[,]" according to law. (emphasis added).

 
DIMINISHED CAPACITY - INTOXICATION

    The Court instructs the jury that although voluntary intoxication or drunkenness will never provide a legal excuse for the commission of a crime, the fact that a person may have been (grossly) intoxicated at the time of the commission of a crime, may negate the existence of the specific intent of _________________, which is an element of the offense of _________________________. So, the evidence that a Defendant acted (or failed to act) while in a state of gross intoxication is to be considered in determining whether or not the Defendant acted (or failed to act) with the specific intent of __________________.
    If the evidence in this case leaves you with a reasonable doubt that the accused was capable of forming this specific intent to commit the crime charged because of gross intoxication, then you should acquit the Defendant of the offense of __________________________________ and deliberate on the lesser included offense of ________________________________.


COMMENT

DIMINISHED CAPACITY - INTOXICATION

1.     Franklin D. Cleckley, Handbook On West Virginia Criminal Procedure, Volume II, The Michie Company, 1993, page II-204 citing the instruction from U.S. v Davis, 739 F. 2d 172 (4th Cir. 1984). The instruction in Davis however did not deal with the requirement of "gross intoxication" which seems to be the standard in West Virginia to negate specific intent. Accordingly "gross" is added to this instruction to indicate the level of intoxication required under West Virginia case law. State v. Keeton, 166 W.Va. 77, 83, 272 S.E. 2d 817, 820-821 (1980); State v. Brant, 162 W.Va. 762, 765-766, 252 S.E. 2d 901, 903-904 (1979); State v. Phillips, 80 W.Va. 748, 752-753, 93 S.E. 828 (1917); State v. Davis, 52 W.Va. 224, 227-228, 43 S.E. 99 (1902); State v. Robinson, 20 W.Va. 713 (1882).