State v. Austin: Voluntary Intoxication and Diminished Capacity Limits, Narrow “Opening the Door,” and What Counts as an Overt Act for Attempted First-Degree Murder

Introduction

In State of West Virginia v. Richard Austin (No. 23-490), the Supreme Court of Appeals of West Virginia affirmed Richard Austin’s jury convictions for first-degree murder of his stepfather, John Henderson, and attempted first-degree murder of his mother, Dawn Austin. The case arises from a 2019 shooting inside the family home, followed by Austin’s arrest in Virginia during which he made unsolicited incriminating statements captured on a dash cam video. The appeal presented two principal issues: (1) whether the State’s evidence was sufficient to support convictions for first-degree murder and attempted first-degree murder; and (2) whether the circuit court erred in allegedly precluding Austin from presenting evidence of voluntary intoxication, and whether the State “opened the door” to such evidence by playing the dash cam video at trial.

Decided as a memorandum decision under Rule 21(c), the Court concluded there was no substantial question of law and no prejudicial error, affirming the circuit court’s judgment. Although not issued with new syllabus points, the decision meaningfully clarifies existing law’s application in three recurring areas: (i) the evidentiary threshold for attempt liability in homicide prosecutions; (ii) the practical and doctrinal limits on using voluntary intoxication and diminished capacity to negate the mental state for first-degree murder; and (iii) the narrow scope of the curative admissibility (or “opening the door”) doctrine when a defendant seeks to rebut evidence admitted without objection.

Summary of the Opinion

The Court held that a rational juror could find beyond a reasonable doubt that Austin committed first-degree murder and attempted first-degree murder. Among other evidence, the State proved:

Multiple gunshot wounds caused Mr. Henderson’s death; a bullet was recovered from his arm.
A black Smith & Wesson M&P 9mm pistol found in the car Austin was driving was ballistically linked to cartridges and a bullet submitted from the crime scene.
Austin’s DNA was on the pistol grip and slide serrations; gunshot residue was on his hands; the victim’s blood was on Austin’s left shoe.
Austin made unsolicited statements during a Virginia traffic stop, including “I killed him” and “I picked the right guy to f***ing kill.”
Hours before the shooting, Austin had expressed a desire to “kill the M-effers”; he had retrieved a pistol previously buried in the backyard; and he fired through a living room wall into the kitchen after declaring, “This is a threat, bitch,” as Ms. Austin fled.

On attempted murder, the Court found that firing a shot in the direction of Ms. Austin while uttering a contemporaneous threat constituted a direct, overt, and substantial act evidencing a specific intent to kill, satisfying the elements of attempt.

On evidentiary issues, the Court rejected the claim that the circuit court precluded intoxication evidence. Defense cross-examination elicited that Austin had been cited for public intoxication and driven home hours before the shootings; Ms. Austin testified he had been drinking and acting erratically that day. The Court also emphasized that diminished capacity in West Virginia requires expert testimony; Austin had undergone pretrial evaluations but had no expert opinion to support the defense. His “opening the door” theory failed because he did not argue the dash cam video was inadmissible (and did not object to it), and he did not seek to introduce otherwise inadmissible evidence on the same evidentiary fact, as the curative admissibility rule requires.

Detailed Analysis

Factual and Procedural Background

The shootings occurred late on June 28, 2019. Earlier that day, Austin had been cited for public intoxication and driven home by police. Family members had expressed concern about his behavior, including shouting about “kill[ing] the M-effers” while handling a knife. That evening, Ms. Austin heard what she later identified as the racking of a pistol. When she confronted Austin, he became aggressive. As she attempted to retreat and call police, Austin yelled, “This is a threat, bitch,” and fired; a bullet traveled through the living room wall into a kitchen cabinet. Ms. Austin escaped unharmed, hearing additional shots from inside the home. Mr. Henderson was later found deceased with multiple gunshot wounds.

Law enforcement recovered a 9mm pistol from Ms. Austin’s car, which Austin was driving when stopped in Virginia several hours later. Forensic testing linked the pistol to ballistics from the scene; Austin’s DNA was on the firearm; gunshot residue was on his hands; and the victim’s blood was on his shoe. During the traffic stop, Austin gave spontaneous inculpatory statements. A jury convicted him of first-degree murder and attempted first-degree murder. The circuit court sentenced him to life without the possibility of parole and a concurrent term of three to fifteen years on the attempt count. This appeal followed.

Precedents Cited and Their Influence

State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995):
Guthrie supplies the canonical sufficiency standard in West Virginia: the question is whether, viewing the evidence in the light most favorable to the prosecution, any rational juror could find the essential elements beyond a reasonable doubt. Guthrie is also cited for the curative admissibility rule (Syl. Pt. 10) requiring that the opponent’s evidence be inadmissible before the proponent can respond with otherwise inadmissible rebuttal on the same evidentiary fact. The Court applied both aspects: it used Guthrie’s lens to uphold the verdict and employed Guthrie’s curative admissibility framework to reject Austin’s “opening the door” argument about intoxication evidence after the dash cam video played.
State v. Juntilla, 227 W. Va. 492, 711 S.E.2d 562 (2011):
Cited for the de novo standard of review of the denial of a motion for judgment of acquittal, guiding the Court’s sufficiency analysis.
State v. Starkey, 161 W. Va. 517, 244 S.E.2d 219 (1978) and State v. Burd, 187 W. Va. 415, 419 S.E.2d 676 (1991):
These cases define attempt: a specific intent to commit the underlying crime plus a direct, overt act toward its commission that falls short of completion. The Court used these to find that Austin’s threatened statement coupled with the shot through the wall toward Ms. Austin constituted the requisite overt act and evidenced specific intent to kill.
State v. Sims, 162 W. Va. 212, 248 S.E.2d 834 (1978) and W. Va. Code § 61-2-1:
Sims and the statute define first-degree murder as a “wil[l]ful, deliberate and premeditated killing.” The Court inferred deliberation and premeditation from Austin’s earlier threats, retrieval of a buried firearm, multiple shots, and post-offense admissions.
State v. Keeton, 166 W. Va. 77, 272 S.E.2d 817 (1980):
Keeton explains that voluntary drunkenness is never a complete excuse but may reduce first-degree murder to second-degree when the defendant was too intoxicated to deliberate and premeditate, provided the specific intent did not predate the intoxication. The Court recognized Keeton but found Austin neither precluded from offering intoxication evidence nor positioned to meet Keeton’s demanding standard on this record.
State v. Joseph, 214 W. Va. 525, 590 S.E.2d 718 (2003):
Joseph holds that the diminished capacity defense in West Virginia requires expert testimony regarding a mental disease or defect that prevented formation of the requisite mental state at the time of the crime. Austin’s evaluations produced no expert opinion to support diminished capacity, foreclosing that theory.
State v. Rodoussakis, 204 W. Va. 58, 511 S.E.2d 469 (1998):
Provides the abuse-of-discretion standard for evidentiary rulings. The Court applied this to affirm the circuit court’s refusal to grant a new trial premised on alleged exclusion of intoxication evidence.

Legal Reasoning

1) Sufficiency of the Evidence: First-Degree Murder

Applying Guthrie and Sims, the Court concluded a rational juror could find wilfulness, deliberation, and premeditation beyond a reasonable doubt. The evidence supporting deliberation and premeditation included:

Prior threats to “kill the M-effers” and unusual, aggressive conduct with a weapon earlier in the day.
Retrieval of a buried firearm and bringing it into the home—preparatory conduct reflecting planning.
Multiple shots fired at Mr. Henderson.
Forensic ties: Austin’s DNA on the firearm, gunshot residue on his hands, and Mr. Henderson’s blood on Austin’s shoe.
Spontaneous inculpatory statements at the traffic stop, e.g., “I killed him” and “I picked the right guy to f***ing kill.”

Although Austin floated the notion of an accidental shooting during a struggle, the jury was entitled to reject that theory in light of the strong, corroborated evidence of intentionality and planning. The Court viewed the evidence in the light most favorable to the State and deferred to the jury’s credibility determinations, as Guthrie requires.

2) Sufficiency of the Evidence: Attempted First-Degree Murder

Starkey and Burd require specific intent to kill and a direct, overt act toward that end. Austin’s statement—“This is a threat, bitch”—immediately followed by firing a shot through a wall into the kitchen as Ms. Austin fled, constituted both the mental state and the substantial act needed for attempt. The defense argument that the bullet went “nowhere near” Ms. Austin failed in light of testimony and physical evidence showing the shot’s path and the surrounding circumstances of the threat and pursuit.

3) Voluntary Intoxication and Diminished Capacity

The Court addressed two distinct concepts:

Voluntary intoxication (Keeton) can potentially reduce first-degree murder to second-degree if the defendant was too intoxicated to deliberate and premeditate and if the specific intent to kill did not predate the intoxication. Here, the Court found no reversible error because the defense was not actually precluded from introducing intoxication evidence. Cross-examination elicited that Austin had been publicly intoxicated earlier in the day and driven home, and Ms. Austin testified he had been drinking and behaving erratically. Austin did not proffer any additional intoxication evidence that was excluded.
Diminished capacity (Joseph) requires expert testimony establishing that a mental disease or defect negated an element of the charged offense. Austin had no expert opinion from his evaluations to support diminished capacity at the time of the crime. The absence of expert support defeated any diminished capacity claim.

In short, the Court reaffirmed that while a defendant may present lay evidence of intoxication, diminished capacity demands expert proof. And where a defendant neither identifies excluded intoxication evidence nor supplies the necessary expert foundation, an abuse-of-discretion finding is unwarranted.

4) “Opening the Door” and Curative Admissibility

Austin argued that the State “opened the door” to intoxication evidence by playing the dash cam video. But under Guthrie’s articulation of curative admissibility, a party can neutralize inadmissible evidence only with “similarly inadmissible evidence” on the “same evidentiary fact.” The Court rejected the argument for two reasons:

Austin did not argue that the dash cam video was inadmissible; at trial, he did not object to its admission, and he had told the court pretrial he was not challenging the voluntariness of the statements.
He did not proffer similarly inadmissible evidence aimed at the same evidentiary fact introduced by the State.

The doctrine is narrow and does not transform a failure to object into a license to admit unrelated or otherwise inadmissible material.

Impact and Practical Implications

Attempted homicide prosecutions: The decision underscores that a single shot fired in the direction of a victim, especially when paired with a contemporaneous threat, can meet the specific intent and overt act requirements for attempted first-degree murder. Prosecutors can rely on circumstantial and contextual evidence of directionality and intent; defendants should anticipate that “warning shots” or shots through barriers may still satisfy attempt.
Voluntary intoxication vs. diminished capacity: Defendants may present lay proof of intoxication, but reducing first-degree to second-degree on intoxication grounds remains difficult and fact-intensive. Diminished capacity remains unavailable absent expert testimony explicitly tying a mental disease or defect to the inability to form the requisite mens rea at the time of the offense.
Preservation and proffer: The case is a reminder that appellate claims premised on evidentiary preclusion require a clear record: objections, offers of proof, and identification of excluded evidence. Without a proffer, claims of “preclusion” falter.
Curative admissibility (“opening the door”): The ruling cabin’s the doctrine’s use. It does not allow parties to introduce otherwise inadmissible evidence merely because adverse evidence came in; the opponent’s evidence must itself be inadmissible, and the rebuttal must address the same evidentiary fact.
Strategic considerations for defense counsel: Early decisions about objecting to incriminating statements and securing expert evaluations are pivotal. Where a defendant has had competency or criminal responsibility evaluations, counsel should ensure that any expert theory supporting diminished capacity is clearly developed—or recognize that the defense will not be available.
Premeditation in the modern Guthrie era: The Court’s application adds to the body of cases showing that premeditation and deliberation can be inferred from a constellation of conduct—prior threats, weapon retrieval and preparation, multiple shots, and subsequent admissions—rather than requiring extended planning or a long temporal interval.

Complex Concepts Simplified

First-degree vs. second-degree murder: In West Virginia, first-degree murder requires a willful, deliberate, and premeditated killing. Second-degree involves malice but lacks deliberation and premeditation.
Premeditation and deliberation: Not a fixed time period; can be inferred from actions indicating reflection and decision to kill, even over a short span. Evidence like retrieving a weapon, threats, and multiple shots often supports these elements.
Attempt: Requires a specific intent to commit the target offense and a direct, overt, substantial step toward its commission. Words plus conduct—like firing at a fleeing victim—meet the standard.
Voluntary intoxication: Generally not a defense; it may reduce first-degree to second-degree only if intoxication rendered the defendant incapable of deliberation and premeditation and the intent to kill did not predate the intoxication.
Diminished capacity: A narrow doctrine allowing expert evidence that a mental disease or defect prevented formation of the necessary mental state. Without expert testimony, the defense is unavailable.
Curative admissibility (“opening the door”): A party that faces inadmissible evidence may introduce otherwise inadmissible evidence to counter the same point—but only if the initial evidence was inadmissible and the rebuttal is tailored to the same evidentiary fact.
Standards of review:
- De novo for denial of a motion for judgment of acquittal (legal sufficiency).
- Abuse of discretion for evidentiary rulings (new trial motions premised on evidentiary issues).
Competency to stand trial vs. mental state at the time of the offense: Competency concerns a defendant’s present ability to understand proceedings and assist counsel; it is distinct from whether the defendant could form the required mental state during the crime (intoxication or diminished capacity).

Conclusion

The Supreme Court of Appeals’ memorandum decision in State v. Austin reaffirms core criminal law principles while offering practical clarifications. The sufficiency rulings illustrate how threats, weapon preparation, multiple shots, forensic ties, and admissions can combine to prove first-degree murder and attempted first-degree murder. On defenses, the Court distinguishes between permissible lay proof of intoxication and the stricter expert-driven requirements for diminished capacity, making clear that defendants cannot claim error without identifying excluded evidence or supplying the necessary expert foundation. Finally, the decision narrows the common-law “opening the door” doctrine to its proper scope under Guthrie: it does not convert unobjected-to evidence into a pass for otherwise inadmissible rebuttal.

While not a precedential opinion with new syllabus points, Austin stands as a significant application of settled law to a familiar fact pattern, offering litigants and trial courts practical guidance on attempt liability, mens rea defenses, and evidentiary preservation in homicide prosecutions.

Citation: State of West Virginia v. Richard Austin, No. 23-490 (W. Va. Sept. 16, 2025) (memorandum decision), affirming Berkeley County Case No. CC-02-2020-F-21.