COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Lemons
Argued at Norfolk, Virginia
ROSE MARIE OUTLAND JONES
OPINION BY
v. Record No. 2159-97-1 JUDGE JAMES W. BENTON, JR.
OCTOBER 27, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
Michael Rosenberg for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
A jury convicted Rose Marie Outland Jones of murder and use
of a firearm in the commission of murder. Jones contends the
convictions should be reversed because the trial judge denied her
the opportunity to present evidence in support of her insanity
defense when she refused to enter a plea of "not guilty by reason
of insanity." For the reasons that follow, we reverse the
convictions and remand for a new trial.
I.
Rose Marie Outland Jones was indicted for murder and use of
a firearm in the commission of murder. Prior to trial, she
timely notified the attorney for the Commonwealth that she would
put in issue her sanity at the time of the charged offenses and
would present psychiatric evidence in support of that defense.
When Jones was arraigned, she pled not guilty.
The Commonwealth's evidence at trial included Jones' taped
confession to police. In her confession, Jones said she and her
husband had been married two months and were having marital
problems. Jones said she purchased a gun a month before she
married her husband because she was afraid of him. She had
previously obtained warrants for his arrest for stalking and
assault but dropped both charges because she was afraid of him.
After trying to make the marital relationship work, she
decided it would not work. Her husband was "pressuring" her to
live a life-style she did not like. On the day of the shooting,
they argued because Jones wanted to separate from him. She told
him that she was having "problems" and needed to get away.
Jones' husband did not want her to leave him and did not "want to
go nowhere." She said her husband, who had been violent toward
her in the past, began to get "upset." In response to his
reaction, Jones went to the bedroom, retrieved her gun, loaded
it, and hid it in a laundry hamper beside her bed. When her
husband entered the bedroom and suggested they go for a ride,
Jones declined and told him she believed he intended to kill them
both. Because Jones thought her husband was going to get his
gun, she grabbed her gun and tried unsuccessfully to fire it at
him. She then pulled back the slide and shot him. Jones said
she followed her husband out the door and was going to shoot him
again because she wanted to kill him. When he fell to the
ground, Jones dialed 911 and reported the incident to the police.
She then called the emergency number she had been given to use
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when she needed to contact a counselor at the Community Help
Center.
Jones' neighbor testified that she went to her door after
she heard a gunshot. She saw Jones' husband stagger from his
front door and heard him say, "Girl, you shot me," or "Why did
you shoot me?" The neighbor saw Jones with a gun in her hand and
watched Jones' son wrestle the gun from her. When the police
arrived and handcuffed Jones' son, Jones told the police, "He
didn't have anything to do with it - I did."
At the close of the Commonwealth's case, the Commonwealth
objected to Jones defending both on the grounds of self-defense
and insanity. The trial judge required Jones' defense counsel to
elect whether to proceed on a plea of not guilty based on
self-defense or not guilty by reason of insanity. The trial
judge also ruled that he was "not going to allow the expert to
say [Jones was] insane if [Jones was] not pleading 'not guilty by
reason of insanity.'" Jones' counsel then notified the judge
that Jones would not proceed with an insanity defense because of
the judge's ruling. Jones proffered to the trial judge an oral
summary of the testimony of Dr. Alice Twining, a clinical
psychologist, and Dr. Twining's written report of her forensic
evaluation of Jones.
In Jones' defense, several witnesses related the
difficulties between Jones and her husband. The witnesses
testified that Jones' husband abused and harassed Jones and had
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threatened to kill her. A witness testified that in early 1996
she heard Jones' husband say that "before he let [Jones] go he
would kill her first." Jones' son testified that Jones' husband
threatened to kill Jones and often carried a gun. A police
officer testified that three months prior to Jones' husband's
death, Jones obtained a warrant for her husband's arrest for
stalking her.
The jury convicted Jones of murder and use of a firearm in
the commission of murder.
II.
Code § 19.2-254 provides that "[a]n accused may plead not
guilty, guilty or nolo contendere." Neither that statute nor any
other statute authorizes or requires an accused to enter a plea
of "not guilty by reason of insanity." Indeed, Code § 19.2-168,
which contains the statutory requirement for preserving the
defense of insanity, does not require an accused to plead "not
guilty by reason of insanity." In pertinent part, Code
§ 19.2-168 provides as follows:
In any case in which a person charged with a
crime intends (i) to put in issue his sanity
at the time of the crime charged and (ii) to
present testimony of an expert to support his
claim on this issue at his trial, he, or his
counsel, shall give notice in writing to the
attorney for the Commonwealth, at least
twenty-one days prior to his trial, of his
intention to present such evidence.
Id.
The Attorney General candidly concedes that "[t]he
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Commonwealth knows of no legal requirement that a defendant enter
a formal plea of 'not guilty by reason of insanity' in order to
be permitted to present evidence of insanity." Furthermore, the
parties agree that Jones complied with the statutory notice
requirements. In view of the evidence in the record that Jones
complied with the requirements of Code §§ 19.2-254 and 19.2-168,
we hold that the trial judge erred when he ruled that the trial
could not proceed in an orderly fashion on Jones' insanity
defense unless Jones entered a formal plea of "not guilty by
reason of insanity."
Arguing that "Jones' evidence of insanity was weak at best"
and insignificant in comparison to Jones' confession, the
Commonwealth contends the exclusion of Dr. Twining's testimony
was harmless. We disagree. The record contains a proffer of Dr.
Twining's expected expert witness testimony and her written
report. This proffer indicates that Dr. Twining, who examined
Jones pursuant to a circuit judge's order, was prepared to
testify concerning Jones' mental state at the time of the
offense. Dr. Twining would have testified that Jones' illness
made her unable to understand the nature and consequences of her
acts and unable to understand right from wrong.
Dr. Twining's report detailed Jones' history of psychiatric
treatment, including treatment at Eastern State and Maryview
Psychiatric Hospitals. The report also disclosed that Jones had
suffered at least two "catatonic episodes." Dr. Twining reported
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that Jones "suffers from an Atypical Depression with Psychotic
Features, Post-Traumatic Stress Disorder, a Dissociative Disorder
and a Personality Disorder which renders her mentally incompetent
in times of extreme stress." The portion of the report styled
"Mental State at Time of Offense" and the proffer of Dr.
Twining's expected testimony clearly establish that Dr. Twining
could have provided an evidentiary basis upon which the jury
might have found that Jones was insane at the time of the
offense. 1 See Shifflett v. Commonwealth, 221 Va. 760, 769, 274
1
In deciding whether a person can be criminally insane yet
intend to commit a criminal act, the Supreme Court stated the
following:
On the surface, there appears to be a
blatant inconsistency in concluding, as we
do, that a person may be criminally insane
when shooting another, and thus avoid full
criminal sanctions, and yet that same
individual can be denied insurance coverage
because he "intended" to shoot his victim. A
more careful analysis, however, will reveal
there is no inconsistency at all.
In the law, there are many situations in
which a person may intentionally injure or
kill another and not be subject to criminal
punishment. For example, an individual may
kill in self-defense. The executioner may
kill with the sanction of the State. A
soldier may injure or kill under rules of
combat. This conduct is intentional, but it
is also excusable. Likewise, an individual
may be excused from penalty if he is insane
at the time he commits a criminal act. As
here, he may do the act with every intention
of consummating it, but when it is shown that
he was mentally ill, he is excused from the
imposition of the usual sanctions.
Johnson v. Insurance Co. of N. America, 232 Va. 340, 348, 350
S.E.2d 616, 620-21 (1986).
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S.E.2d 305, 310 (1981) (noting that '[i]n Virginia . . . insanity
is an affirmative defense that the defendant must establish to
the satisfaction of the fact finder"). Our Supreme Court has
"generally recognized that it is advisable to adduce expert
testimony to better resolve such a complex problem [as
insanity]." Id. Furthermore, the opinion of an expert witness
often "carries great weight with the jury and could very well
have been the decisive factor in their minds in determining the
defendant's guilt." Callahan v. Commonwealth, 8 Va. App. 135,
140, 379 S.E.2d 476, 479 (1989). We cannot say from this record
that "the error did not affect the verdict." Lavinder v.
Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)
(en banc).
Accordingly, we reverse the convictions and remand for a new
trial.
Reversed and remanded.
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