COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Annunziata
Argued at Richmond, Virginia
JOHN JOSEPH WARMOUTH
OPINION BY
v. Record No. 2863-97-2 JUDGE JERE M. H. WILLIS, JR.
APRIL 13, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Thomas V. Warren, Judge
Michael Morchower; Anthony G. Spencer
(Morchower, Luxton & Whaley, on briefs), for
appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from his convictions of aggravated malicious
wounding, in violation of Code § 18.2-51, and statutory burglary
while armed with a deadly weapon, in violation of Code § 18.2-90,
John Joseph Warmouth contends that the trial court erred: (1) in
admitting the Commonwealth’s expert testimony on palm print
identification, (2) in disallowing Warmouth’s expert testimony
opposing the Commonwealth’s palm print comparison testimony, (3)
in admitting testimony that Warmouth had cut a neighbor’s
telephone line soon after the incident, (4) in admitting evidence
that the victim’s jewelry and mementos had been damaged several
months earlier, (5) in admitting testimony from a telephone
company repairman that the victim’s telephone line had been cut by
someone who knew the exact line configuration, (6) in admitting
testimony that Warmouth had told friends where the spare key to
the house was kept, (7) in holding the evidence sufficient to
support Warmouth’s convictions, (8) in abusing its discretion by
denying defense counsel access to defense witnesses before they
testified, and (9) in failing to order a mistrial following
improper argument by the Commonwealth’s Attorney. For the reasons
set forth herein, we reverse and remand for a new trial, if the
Commonwealth be so advised.1
I. BACKGROUND
“On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences deducible therefrom.” Martin v. Commonwealth, 4 Va.
App. 438, 443, 358 S.E.2d 415, 418 (1987).
Mary Ann Worsham and John Joseph Warmouth were divorced in
1995. During their subsequent tumultuous relationship, Warmouth
slammed his hand through a glass door when Worsham informed him
she planned to date while they were separated, threatened
Worsham with a gun, and told her “if I don’t like what’s going
on . . . in the future, I’ll kill you and whoever you’re with.”
In January 1996, Worsham discovered some of her jewelry was
broken, some was missing, and a photograph of her and Warmouth
1
Because we reverse and remand for evidentiary reasons, we
do not address the sufficiency of the evidence.
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had been smashed. In April 1996, Worsham called the police to
force Warmouth to leave her house.
On July 23, 1996, Worsham put her children to bed, locked
the doors, and retired to sleep. Sometime later, she was
brutally beaten in her bed, rendering her comatose and causing
her permanent injury. She remembers nothing about the incident
or her attacker.
When investigating the crime scene, the police observed
that the telephone line serving an extension to Worsham’s
bedroom had been cut. This line had been installed by Warmouth.
A bloody handprint impression was found on Worsham’s bed sheet.
There was no evidence of forced entry. Warmouth retained a key
to the house, and he knew that a spare key was hidden in a “fake
rock” near the front door. No other physical evidence suggested
the identity of the attacker.
During questioning by police, Warmouth became agitated when
told that Worsham would soon be able to answer questions.
II. EVIDENTIARY ISSUES
A. Robert Hallett’s Testimony
The Commonwealth called as a witness Robert Hallett, a
forensic scientist, who testified as an expert in the field of
impression comparison. Over Warmouth’s objection, Hallett
testified that he had compared the bloody handprint found on
Worsham’s bed sheet with a known handprint taken from Warmouth
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and had found them similar. He described his comparison of the
prints, identifying numerous points of similarity. He testified
that the similarity between the prints did not identify Warmouth
as the person whose handprint was on the bed sheet, but merely
established that the print could have been made by Warmouth’s
hand. He testified that Ms. Worsham’s hand could not have left
the print.
Warmouth challenged Hallett’s qualifications and the
reliability of impression comparison. He argued that Hallett’s
conclusions were not sufficiently specific to have probative
value.
The trial court made a proper threshold determination of
Hallett’s qualifications in his discipline and as to the
reliability of impression comparison. The record supports its
determination that both were sufficient. See Spencer v.
Commonwealth, 238 Va. 295, 313, 384 S.E.2d 785, 796 (1989),
cert. denied, 110 S. Ct. 1171 (1990).
Although Hallett’s determinations did not identify Warmouth
specifically as the person whose handprint was on the bed sheet,
by identifying similarity between that print and Warmouth’s, and
by excluding Ms. Worsham as a person who could have left the
print, Hallett’s conclusions addressed and shed light upon the
identification of the depositor of the print. His conclusions
fell into the same category as footprint, fiber, and substance
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analysis. Information that sheds light upon an issue at trial
is relevant. See Cash v. Commonwealth, 5 Va. App. 506, 510, 364
S.E.2d 769, 771 (1988). The trial court did not err in
admitting Hallett’s testimony into evidence.
B. Robert Hazen’s Testimony
Hazen identified himself as an expert in fingerprint
identification but not as an expert in impression comparison.
He did not refute Hallett’s findings that the handprint on the
bed sheet was similar to Warmouth’s handprint and that Worsham
could be excluded as the maker of the print, because he had not
himself analyzed the impressions. Warmouth sought to have Hazen
testify that impression comparison was scientifically unsound
and unreliable. The trial court rejected that testimony. We
find no error in that ruling. Hazen was not qualified as an
expert in the field of impression comparison and, thus, could
not render an expert opinion in that discipline. Furthermore,
the scientific reliability of impression comparison related to
the admissibility of Hallett’s testimony. The trial court had
already considered that question and had ruled on it. See
Spencer, 238 Va. at 313, 384 S.E.2d at 796.
C. Testimony of Wendy and Joseph Hodges
Over Warmouth’s objection, Wendy and Joseph Hodges
testified that on the night of August 5, 1996, about two weeks
after the attack on Ms. Worsham, Warmouth came to their home,
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saying that his vehicle had broken down and he needed
assistance. Mr. Hodges went to get dressed. When he returned
to the door, Warmouth was gone. Shortly thereafter, Mr. and
Mrs. Hodges found that their telephone line had been cut.
Warmouth contends that the Hodges’ testimony was irrelevant
and highly prejudicial. We agree. While the incident described
by the Hodges supported the inference that Warmouth had cut
their telephone line, the evidence established no connection
between this incident and the attack on Ms. Worsham. The trial
court erred in admitting the Hodges’ testimony.
D. Broken Picture Frame and Missing Jewelry
Over Warmouth’s objection, Ms. Worsham testified that, in
January 1996, she returned home to discover that a picture
frame, enclosing a picture of herself and Warmouth, had been
shattered, some of her jewelry was damaged, and several pieces
of jewelry that Warmouth had given her were missing. Not only
was this incident remote in time, but no evidence linked it to
Warmouth. Thus, this evidence was irrelevant and should not
have been admitted.
E. Gene Bradbury’s Testimony
Gene Bradbury, a telephone repairman employed by Bell
Atlantic, testified that only a person with prior knowledge of
Ms. Worsham’s house wiring could have known which wire to cut in
order to disable the telephone service to her bedroom. Warmouth
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had installed the extension. Bradbury’s testimony was probative
as to whether Warmouth cut the wire and, therefore, was properly
admitted.
F. Matthew Bennett’s Testimony
Gordon Batterson, testifying as a witness for Warmouth,
denied telling Matthew Bennett that Warmouth had told him where
the spare key to Ms. Worsham’s house was hidden. Bennett,
called as a rebuttal witness by the Commonwealth, testified that
the conversation occurred. This was purely rebuttal testimony,
responsive to an issue injected by Warmouth, and was properly
admitted. Warmouth sought no limiting instruction.
III. COUNSEL’S ACCESS TO WITNESSES
At the commencement of the trial, on Warmouth’s motion, the
trial court ordered the witnesses sequestered. The trial court
instructed the Commonwealth’s witnesses as follows:
I do not want you to discuss anything at all
with any of the three attorneys involved in
the case. From here on, you are off limits
to the attorneys.
The trial court instructed the defense witnesses as follows:
Do not discuss the case at all in any way
with the attorneys involved in the case.
Warmouth did not object to those instructions.
After the trial began, two defense witnesses, Robert Hazen
and Lawrence Farmer, arrived at the courthouse from out of town.
Citing its sequestration ruling, the trial court refused to
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allow defense counsel to talk with these witnesses. Warmouth
contends that this ruling violated his Sixth Amendment right to
assistance of counsel.
The purpose of excluding the witnesses
from the courtroom is . . . to deprive a
later witness of the opportunity of shaping
his testimony to correspond to that of an
earlier one. Wigmore on Evidence, 3d Ed.,
Vol. VI, Sec. 1838, p. 352. While usually
all persons come within the rule of
exclusion, the authorities agree that the
court, in the exercise of its sound judicial
discretion, may make exceptions thereto. In
the absence of a showing that there has been
an abuse of such discretion, or that the
accused was prejudiced thereby, such ruling
will not be reversed on appeal.
Huddleston v. Commonwealth, 191 Va. 400, 405, 61 S.E.2d 276, 279
(1950).
Orders excluding witnesses during the
taking of testimony play an important part
in our system of justice and should be
enforced. However, if their enforcement is
to work justice and not injustice, care must
be taken by the trial courts and by counsel
to insure that those orders are plainly
announced and that their effect is made
clear to all [parties involved].
Jury v. Commonwealth, 10 Va. App. 718, 722, 395 S.E.2d 213, 216
(1990).
The trial court ordered the sequestration of witnesses on
Warmouth’s motion. While its admonition against communication
between counsel and the witnesses went beyond the safeguards
necessary to effect the sequestration rule, Warmouth did not
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object. Those admonitions were plainly stated. In seeking
permission to speak with the witnesses, Warmouth’s counsel
offered no explanation as to why he had not conferred with the
witnesses earlier, as to why he needed to confer with them
during trial, or as to what prejudice, if any, would be caused
Warmouth’s defense by denying him access to the witnesses. No
such explanation or showing of prejudice appears from the
record.
Witness preparation is a vital part of counsel’s assistance
to the defendant. “[A]n accused has the unqualified right to
‘call for evidence in his favor.’ This includes the right to
prepare for trial which, in turn, includes the right to
interview material witnesses and ascertain the truth.” Bobo v.
Commonwealth, 187 Va. 774, 779, 48 S.E.2d 213, 215 (1948)
(decided under Section 8, Article I of the Virginia
Constitution, which affords protections identical to the Sixth
Amendment of the United States Constitution).
The exercise of sound judicial discretion requires that an
accused be afforded a reasonable opportunity to prepare and
present his case. Upon a showing of proper cause, this
principle requires a trial court, with proper admonition, to
afford counsel access to witnesses who have not yet begun to
testify. However, in the absence of a showing of proper cause
or of prejudice that would result from a denial of access, we
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find no reversible error in the trial court’s denial of access
in this case.
Warmouth argues that the denial of access to the witnesses
impaired his counsel’s ability to represent him effectively and
was thus a denial of his Sixth Amendment right to counsel.
[In] determining whether counsel’s
legal assistance to his client was so
inadequate that it effectively deprived the
client of the protections guaranteed by the
Sixth Amendment . . . the “benchmark . . .
must be whether counsel’s conduct so
undermined the proper functioning of the
adversarial process that the trial cannot be
relied on as having produced a just result.”
More specifically, a defendant must show
“that counsel’s performance was deficient”
and that “the deficient performance
prejudiced the defense.”
Perry v. Leeke, 488 U.S. 272, 279 (1989) (citations omitted).
The record reflects no prejudice resulting to Warmouth’s defense
from the denial of his counsel’s access to the witnesses.
Warmouth’s ability to call the witnesses was not lost. He did,
in fact, present them. The record discloses no area of inquiry
that was foreclosed and contains no suggestion that defense
counsel was hindered in his ability to examine the witnesses
fully.
IV. CLOSING STATEMENTS MADE BY COMMONWEALTH’S ATTORNEY
In his closing argument, counsel for the Commonwealth
stated, in part:
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That’s what he is hired to [sic] for by the
defendant to do, to do a masterful job, and
he did. And the Commonwealth compliments
him. And the masterful job he is designed
to do and is hired to do is to try to throw
as many red herrings at you to confuse you,
to drag things out, to make thing appear
differently than they really are. He really
doesn’t want you to concentrate –
Warmouth contends that these remarks about defense counsel were
improper. However, his objection to these remarks was
sustained. He requested no further relief in the form of a
curative instruction or a mistrial. Thus, he has preserved no
issue for us to consider. Because the question may arise on
remand, we note that this argument was improper. It did not
address the issues of the case. On remand, counsel should
refrain from such remarks and should address only the elements
and issues of the case.
For the reasons stated, we reverse the convictions and
remand the case for a new trial consistent with this opinion, if
the Commonwealth be so advised.
The judgment of the trial court is reversed and remanded.
Reversed and remanded.
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