Present: Lacy, Hassell, Keenan, Koontz, Kinser, and Lemons,
JJ., and Whiting, S.J.
LIVINGSTON PRITCHETT, III OPINION BY
SENIOR JUSTICE HENRY H. WHITING
v. Record No. 010030 January 11, 2002
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this case we consider the admissibility of proffered
expert opinions concerning the mental retardation of the
defendant and the susceptibility of mentally retarded persons
to suggestive police interrogation in connection with the
defendant’s contention that his confession was unreliable.
Livingston Pritchett, III, was indicted in Montgomery
County for the capital murder and robbery of Estel Darnell
Singleton, Sr., and for the use of a firearm in the commission
of those two crimes. After a jury convicted him of first
degree murder and of the remaining offenses, it recommended
penitentiary sentences of life imprisonment for the murder
conviction and several terms aggregating 13 years for the
robbery and firearms convictions. Overruling various defense
motions, the trial court entered judgment on the verdicts.
Pritchett appealed from his convictions to the Court of
Appeals, contending that the trial court erred: (1) in
admitting his confession because it was not voluntarily given
and (2) in excluding expert testimony relating to his mental
retardation. The Court of Appeals affirmed the convictions in
an unpublished opinion. Pritchett v. Commonwealth, Record No.
1430-l99-3 (December 12, 2000). We awarded Pritchett this
appeal limited to the second issue.
At 8:00 a.m. on April 30, 1997, Singleton’s body was
found with a single gunshot wound to his head in the picnic
area of the Ironto Rest Stop on Interstate Highway 81 in
Montgomery County. Singleton's pockets had apparently been
emptied and his wallet and other articles were found scattered
near his body. Although no automatic teller machine (ATM)
card was found, there was an ATM receipt from a local bank in
the wallet.
Upon contacting the bank, a police investigator
ascertained that there had been an attempt to use the ATM card
two days after Singleton's body was found. The bank also
furnished the investigators with videotape from its ATM camera
which showed the man who had attempted to use the ATM card.
One of the investigators recognized the man as Pritchett.
Pritchett was known to some of the investigators because he
had been a witness in a prior murder case and occasionally he
had paid friendly visits to some of the officers at their
offices.
An investigator arranged to have Pritchett come to the
State Police Headquarters in Salem by telling him that the
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investigator needed additional information concerning the
prior case. The Commonwealth admits that this was a pretext;
when Pritchett arrived, the questions eventually turned to the
Singleton murder case.
Although the record does not reveal the contents of his
initial statement to the investigators, Pritchett testified at
trial that he had not been in the rest area where Singleton's
body was found and he denied killing Singleton. Pritchett
admitted, however, that he attempted to use Singleton's ATM
card and that he used one of the credit cards. Pritchett
claimed that he found these and other articles of personal
property on the ground near a supermarket located some
distance from the rest stop. Investigators had found personal
property belonging to Singleton in Pritchett’s motel room.
According to the testimony of Investigator Jerry
Humphreys, during the investigative interviews Pritchett
denied killing Singleton until Humphreys asked: "[W]hat went
so terribly wrong that day that you had to kill Mr. Singleton
at the Ironto Rest Area[?]" Describing Pritchett’s response,
Humphreys testified:
[H]e didn't say anything at first, and then he said with
anger in his voice, ["]he was [a] faggot, he came to the
bathroom, pulled a gun and call me a nigger. I ran, we
struggled, the gun went off["] and he maintained it was
an accident when Mr. Singleton got shot.
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Pritchett later proffered the testimony of two witnesses,
both of whom qualified as experts in the field of psychology.
Dr. Bernice Marcopulos, a clinical neuropsychologist,
testified that tests she administered to Pritchett indicated
that his intelligence quotient (IQ) was 69, placing Pritchett
in the range of mildly retarded persons. Both she and Dr.
Stephen Herrick, a forensic psychologist, testified concerning
Pritchett's limited communication skills.
Dr. Herrick also testified that studies in his field of
expertise indicated two factors which characterize people who
"may be prone . . . to false confessions, and those are [1]
compliance, people [who] generally day to day go along with
[authority] figures, and [2] interrogative suggestibility
which is an aspect of where in the moment that somebody is
asking leading questions that they will go along with it."
Dr. Herrick opined that "both these factors correlate very
highly with people [who] have low I.Q.[s]."
Dr. Herrick further described a brief test he
administered to Pritchett by reading him a story which
Pritchett was asked to remember. The story was contained in a
paragraph of approximately 40 words. Dr. Herrick then asked a
series of 25 questions, 20 of which were leading. All the
questions purported to reflect what was contained in the
paragraph but the information in some of Dr. Herrick's leading
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questions was not contained in the story. Yet, Pritchett's
"yes" or "no" answers to those questions indicated that
Pritchett believed he knew that information. When Pritchett
was told that he had not answered a question correctly and
that he needed to try to answer as best he could, Dr. Herrick
testified that Pritchett "switched his answers thinking from
the negative feedback that I was not happy with him so
therefore . . . not only [is he] answering questions that
weren't really in the story, but now he's changing his answers
based on that slight negative feedback that I gave him."
Further, in describing Pritchett's limited communication
skills, his prior friendly relations with the police, and
other background information, Dr. Herrick also testified:
. . . I think he just went along with what they said,
and even at the point of asking to . . . contact his
mother, or whatever, and got refusals[; he] basically
was just told no. Well, he's not the type that's
going to break through the doorway when an officer
tells him no[;] he's going to sit and listen to him.
After hearing and considering the proffer of the
testimony of the two experts, the trial court ruled that "such
testimony would invade the province of the jury as to the
ultimate issue of intent [when the alleged crime was
committed]," and refused to permit any of it to be presented
to the jury. The Court of Appeals approved this ruling on the
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ground that there was no abuse of the trial court's discretion
in excluding this evidence.
On appeal, Pritchett contends that the evidence was
admissible to assist the jury in assessing the reliability of
his confession, which conflicted with his trial testimony.
The Commonwealth responds that the trial court did not abuse
its discretion in excluding the evidence because "the average
juror" understands the issues presented by the proffer; thus
expert opinion on the issues is inadmissable.
While the court has the duty to determine whether
Pritchett's confession was voluntary, it is the jury's duty to
consider its reliability. Crane v. Kentucky, 476 U.S. 683,
688 (1986); Williams v. Commonwealth, 234 Va. 168, 175, 360
S.E.2d 361, 365 (1987), cert. denied, 484 U.S. 1020 (1988).
"[T]he physical and psychological environment that yielded the
confession can . . . be of substantial relevance to the
ultimate factual issue of the defendant's guilt or innocence."
Crane, 476 U.S. at 689. Under Crane, the Commonwealth and
Pritchett were each entitled to introduce admissible evidence
to assist the jury in determining whether the confession was
reliable.
Expert testimony is admissible if the area of expertise
to which the expert will testify is not within the range of
the common experience of the jury. Coppola v. Commonwealth,
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220 Va. 243, 252, 257 S.E.2d 797, 803 (1979), cert. denied,
444 U.S. 1103 (1980). Given the trial court’s conclusion
"that mental retardation is not within the range of common
experience of most juries," expert testimony on certain
aspects of mental retardation should be admissible to assist
the jury in evaluating the reliability of his confession. But
the trial court rejected the expert's testimony on the ground
that it "would invade the province of the jury as to the
ultimate issue of intent." *
An expert witness may not express an opinion as to the
veracity of a witness because such testimony improperly
invades the province of the jury to determine the reliability
of a witness. Fitzgerald v. Commonwealth, 223 Va. 615, 630,
292 S.E.2d 798, 806 (1982), cert. denied, 459 U.S. 1288
(1983). Dr. Herrick's broad statement that Pritchett "just
went along with what they said" could be construed as an
evaluation of the unreliability of Pritchett's confession and
a comment on the truth of that part of Pritchett's trial
testimony which differed from his confession. So construed,
it was an inadmissible statement regarding Pritchett's
*
The trial court accepted the Commonwealth’s argument at
trial that the proffered testimony dealt with Pritchett’s
mental capacity at the time the alleged crimes occurred. On
appeal, the Commonwealth correctly perceived that the
testimony was directed to Pritchett’s mental capacity at the
time of his alleged confession.
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veracity which the trial court correctly excluded as an
invasion of the province of the jury. Coppola, 220 Va. at
252-53, 257 S.E.2d at 803-04.
But this Court has previously held that an expert may
testify to a witness's or defendant's mental disorder and the
hypothetical effect of that disorder on a person in the
witness's or defendant's situation, so long as the expert does
not opine on the truth of the statement at issue. Fitzgerald,
223 Va. at 629-30, 292 S.E.2d at 806; Coppola, 220 Va. at 252-
53, 257 S.E.2d at 803-04. In the present case, the balance of
the expert testimony did not characterize the truth of the
statement of any witness - it merely presented information on
subjects unfamiliar to the jury that would assist it in
determining the reliability of Pritchett's confession. For
that reason, this testimony should have been admitted.
Nevertheless, the Commonwealth argues that any such error
was harmless. We do not agree with the Commonwealth. If the
jury concluded that significant portions of the confession
were not reliable, it might not have been willing to convict
Pritchett solely on the circumstantial evidence presented by
the Commonwealth, which was in sharp conflict with his denial
of having killed Singleton. Given this conflict in the
evidence, we cannot say that the error was harmless beyond a
reasonable doubt.
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Accordingly, we will affirm the case in part, reverse it
in part, and remand it to the Court of Appeals with
instructions to remand the case for a new trial.
Affirmed in part,
reversed in part,
and remanded.
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