Zelenak v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Benton, Coleman, Willis, Elder, Bray,
Fitzpatrick, Annunziata and Overton
Argued at Richmond, Virginia

KATINA LYNN ZELENAK
OPINION BY
v. Record No. 1816-94-3 JUDGE ROSEMARIE ANNUNZIATA
JULY 22, 1997
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Kenneth I. Devore, Judge

Frederick M. Kellerman, Jr. (Long & Long, on
brief), for appellant.

Daniel J. Munroe, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Leah A. Darron, Assistant Attorney General,
on brief), for appellee.

On September 24, 1996, a panel of this Court reversed the

convictions of Katina Lynn Zelenak for attempted robbery,

conspiracy to commit robbery and a related firearms charge on the

ground that the trial court erred in refusing to admit certain

testimony of Zelenak's expert witness. Zelenak v. Commonwealth,

23 Va. App. 259, 475 S.E.2d 853 (1996). The panel affirmed the

trial court with respect to Zelenak's further contentions that

the trial court erred in permitting the Commonwealth to use a

competency report to impeach her and in refusing to admit the

statement of an alleged co-conspirator. Upon rehearing en banc,

we affirm Zelenak's convictions.
 I.

At 2:00 a.m., a manager of a pizza restaurant was making a

night deposit at a bank when a man with a gun approached him.

After the gunman said, "Hold it," the manager jumped into his

vehicle and called the police using his cellular telephone. A

vehicle then entered the bank parking lot, continued to the back

of the bank where the gunman had run, and sped away. As the

manager followed the automobile, the police arrived and stopped

the automobile. The police arrested the driver, Katina Zelenak,

and the two men with her, William Smith, the gunman, and Paul

Morehead. Zelenak and the two men were indicted for attempted

robbery, use of a firearm during the attempted robbery, and

conspiracy to commit robbery.
II.

On motion of Zelenak's counsel prior to trial, the trial

court ordered Zelenak to undergo a psychological analysis to

determine her competency to stand trial. Zelenak also filed a

notice of intent to present an insanity defense. Later, after

Zelenak withdrew the notice of intent to present an insanity

defense, the Commonwealth moved in limine to prohibit the expert

testimony of Gwynn Polidoro, a licensed clinical social worker.

The Commonwealth argued that Polidoro's testimony would be

offered by Zelenak as proof of an ultimate issue of fact because

it addressed Zelenak's state of mind at the time of the offense.

Defense counsel responded that Polidoro would testify that

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Zelenak suffers from multiple personality disorder, a

dissociative disorder that resulted from traumatic stress, which

made her "susceptible to duress." The trial court deferred

ruling on the motion until trial.

Zelenak's defense at trial was that she participated in the

crimes out of fear that Morehead would kill her or a member of

her family. At trial, appellant proffered that Polidoro would

testify that
[Zelenak] was in such a fear of Mr. Morehead
at most times that at any given time she was
afraid that if she didn't go along with what
he was saying that she was going to be harmed
and that would carry through the time of the
offenses, as well as before that and after
that.

The court granted the Commonwealth's motion to exclude Polidoro's

testimony but allowed defense counsel to further proffer the

expert's testimony. In chambers, the defense proffered that

Polidoro would testify, inter alia, that
[i]n her most recent relationship with Paul,
she became very attached to him almost
immediately. She has revealed mixed,
revealed episodes of violent sexual
exploration, humiliation mixed with feelings
of specialness, specialness. She idolizes
him on one point and seems to be very afraid
of him on the other. In my opinion, she got
to the point where she believed escape from
him or disobedience would result in her death
or the death of a family member.

At the conclusion of the evidence, the jury convicted

Zelenak on all three charges. Zelenak contends that the trial

court erred in not allowing Polidoro's testimony. We disagree.

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 An expert witness may express an opinion relative to the

existence or nonexistence of facts not within common knowledge,

but "the admission of expert opinion upon an ultimate issue of

fact is impermissible because it invades the function of the fact

finder." Llamera v. Commonwealth, 243 Va. 262, 264, 414 S.E.2d

597, 598 (1992). In Llamera, the Supreme Court held that the

trial court erred in allowing an expert witness to state that

ninety-three grams of cocaine packaged in a number of separate

plastic "baggies" had been "packaged that way for distribution"

and that the quantity of cocaine found "would suggest that the

owner of the cocaine was a person who sold cocaine." Id. The

Court reversed Llamera's conviction for possession with intent to

distribute, reasoning that the expert expressed an opinion on one

of the ultimate issues, viz., intent to distribute. Id. at 265,

414 S.E.2d at 599. The Court rejected the Commonwealth's

contention that the expert's use of the word "suggest" was a

qualification, not a statement of fact. Id. at 264-65, 414

S.E.2d at 598-99. See also Bond v. Commonwealth, 226 Va. 534,

536-39, 311 S.E.2d 769, 770-72 (1984) (trial court in murder case

erred in admitting report of medical examiner which ruled out

possibility that victim's death resulting from a four-story fall

was caused by either accident or suicide); Ramsey v.

Commonwealth, 200 Va. 245, 249-52, 105 S.E.2d 155, 158-60 (1958)

(trial court erred in allowing expert in arson case to conclude,

based upon set of hypothetical facts, that fire was of incendiary

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origin).

In the present case, appellant asserted the defense of

duress. "The common law defense of duress excuses acts which

would otherwise constitute a crime, where the defendant shows

that the acts were the product of threats inducing a reasonable

fear of immediate death or serious bodily injury." Pancoast v.

Commonwealth, 2 Va. App. 28, 33, 340 S.E.2d 833, 836 (1986).

Accordingly, whether appellant acted under duress was the

"precise and ultimate issue in the case," upon which expert

opinion could not be expressed. See Cartera v. Commonwealth, 219

Va. 516, 519, 248 S.E.2d 784, 786 (1978) (reversing rape

conviction where medical expert allowed to express opinion that

victims had been raped). To support a defense of duress,

appellant had to demonstrate that her criminal conduct was the

product of Morehead's unlawful threat that caused her reasonably

to believe that performing the criminal conduct was her only

reasonable opportunity to avoid imminent death or serious bodily

harm, either to herself or another. See Daung Sam v.

Commonwealth, 13 Va. App. 312, 324, 411 S.E.2d 832, 839 (1991).

Appellant proffered that her psychologist would testify,

inter alia, that appellant suffered from a disorder which made

her "susceptible to duress," that Zelenak so feared Morehead at

the time of the offense that she believed she would be harmed if

she did not comply with his demands, and that Zelenak reached a

point where she believed escape from Morehead or disobedience to

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him would result in her death or death of a family member. The

proffered testimony expresses an opinion on the precise and

ultimate issue in this case and was, therefore, properly excluded

by the trial court. 1

III.

Prior to Zelenak's testimony in her defense, her counsel

moved to prohibit the Commonwealth from cross-examining Zelenak

concerning statements made by her during the competency

evaluation. The defense claimed the questioning would establish

Zelenak's state of mind at the time of the offense, in violation

of Code § 19.2-169.7. The Commonwealth argued that the

evaluation would be used for impeachment purposes only. Because

the court reporter changed tapes when the trial court ruled, the

transcript does not contain the ruling on this issue.
After Zelenak testified in her own defense, the Commonwealth

called her as a rebuttal witness. When asked if there was, "Some

reason you don't like [your family] or wouldn't care whether

1
We find no support for the suggestion of the dissent, to
the extent it can be so read, to impose a duty on the trial court
to cull the "relevant and probative portions" of the proffer and
admit only that testimony. See, e.g., Donavant v. Hudspeth, 347
S.E.2d 797, 812-13 (N.C. 1986) ("when an offer of evidence is
made, some of which is admissible and some of which is
inadmissible, it is not the responsibility of the trial judge to
separate the admissible from the inadmissible evidence, and in
the absence of an appropriately-limited offer by the proponent of
the evidence, the trial judge's ruling excluding the evidence
will be upheld on appeal"); Dunn v. Wal-Mart Stores, Inc., 909
S.W.2d 728, 735 (Mo. Ct. App. 1995); Holman v. Papio-Missouri
River Natural Resources Dist., 523 N.W.2d 510, 510 (Neb. 1994);
Pennington v. Brock, 841 S.W.2d 127, 132 (Tex. Ct. App. 1992).

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anything happened to them," she responded, "No, I love my family

very much." Over defense counsel's objection, the Commonwealth

then inquired whether she had told psychologists that members of

her family had physically and sexually abused her. Zelenak

contends the trial court erred in allowing the Commonwealth to

impeach her testimony with statements she made during the

competency evaluation. We disagree.

Code § 19.2-169.7 provides:
No statement or disclosure by the defendant
concerning the alleged offense made during a
competency evaluation ordered pursuant to
§ 19.2-169.1, a mental state at the time of
the offense evaluation ordered pursuant to
§ 19.2-169.5, or treatment ordered pursuant
to § 19.2-169.2 or § 19.2-169.6 may be used
against the defendant at trial as evidence or
as a basis for such evidence, except on the
issue of his mental condition at the time of
the offense after he raises the issue
pursuant to § 19.2-168.

Code § 19.2-169.7 explicitly refers to statements "concerning the

alleged offense." Zelenak admits that the questions at issue did

not directly relate to the offense but claims they are irrelevant

and highly prejudicial. In view of Zelenak's concession that the

questions did not directly relate to the offense and in the

absence of a record of the trial court's ruling, which is

presumed to be correct, Justis v. Young, 202 Va. 631, 632, 119

S.E.2d 255, 256-57 (1961), we affirm the trial court's decision.

IV.

At trial, Zelenak attempted to call James Bane to testify

about a statement concerning the offenses Morehead made while in

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jail. Defense counsel characterized the statement as an

admission against Morehead's interest and also contended that the

statement was made in furtherance of the conspiracy. The trial

court ruled that the conspiracy ended prior to the time the

statement was made and that the statement was inadmissible

hearsay.

The record on appeal, however, does not disclose the content

of the statement Morehead may have made to Bane. "It is well

settled that when a party's evidence has been ruled inadmissible,

the party must proffer or avouch the evidence for the record in

order to preserve the ruling for appeal; otherwise, the appellate

court has no basis to decide whether the evidence was

admissible." Smith v. Hylton, 14 Va. App. 354, 357-58, 416

S.E.2d 712, 715 (1992). Accordingly, the trial court's ruling is

affirmed.

For the foregoing reasons, Zelenak's convictions are

affirmed.
Affirmed.

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Benton, J., with whom Elder, J., joins, dissenting.

The rule is well settled that an expert witness in a

criminal trial "may not express an opinion as to the ultimate

issue to be determined by the trier of fact." Price v.

Commonwealth, 18 Va. App. 760, 764, 446 S.E.2d 642, 645 (1994);

see Bond v. Commonwealth, 226 Va. 534, 538, 311 S.E.2d 769,

771-72 (1984). Equally well settled is the rule that an expert

in a criminal case may "testify on the basis of [the expert's]

own personal observations or on the basis of evidence adduced at

trial." Buchanan v. Commonwealth, 238 Va. 389, 416, 384 S.E.2d

757, 773 (1989). Because the testimony of Gwynn Polidoro, a

licensed clinical social worker, did not express an opinion on

the ultimate issue, I would hold that the trial judge erred in

excluding her testimony.

"The common law defense of duress excuses acts which would

otherwise constitute a crime, where the defendant shows that the

acts were the product of threats inducing a reasonable fear of

immediate death or serious bodily injury." Pancoast v.

Commonwealth, 2 Va. App. 28, 33, 340 S.E.2d 833, 836 (1986).
To support a defense of duress, a
defendant must demonstrate that [her]
criminal conduct was the product of an
unlawful threat that caused [her] reasonably
to believe that performing the criminal
conduct was [her] only reasonable opportunity
to avoid imminent death or serious bodily
harm, either to [her]self or to another.

Daung Sam v. Commonwealth, 13 Va. App. 312, 324, 411 S.E.2d 832,

839 (1991).

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 To determine whether Zelenak acted under duress, the jury

had to decide if Zelenak "reasonably feared that [her] refusal to

participate in the [crimes] . . . would have resulted in imminent

death or serious injury to [herself or her] family." Id. at 324,

411 S.E.2d at 839 (emphasis omitted). The proffer by defense

counsel reveals that the expert would have provided information

concerning Zelenak's past experiences and overall mental

condition relevant to that inquiry. Defense counsel proffered

that the expert would testify as follows:
If [Ms. Polidoro] was to testify she would
observe that Mrs. Zelenak has revealed abuse
and exposure to violence from the time she
was a child unto her arrest. That she has a
series of intense, but unstable
relationships. That she has repeatedly
looked for a rescuer for someone who would
love her and has repeatedly failed to protect
herself as an adult . . . . She has a
reported sense of helplessness and lack of
initiative saying she has difficulty making
decisions. In her most recent relationship
with [Morehead], she became very attached to
him almost immediately. She has revealed
mixed, revealed episodes of violent sexual
exploration, humiliation mixed with feelings
of specialness . . . . She idolizes him on
one point and seems to be very afraid of him
on the other. In my opinion, she got to the
point where she believed escape from him or
disobedience would result in her death or the
death of a family member.

The proffer contained no expression of an opinion that, on

the day in question, Zelenak reasonably believed that committing

the crime was the only way to avoid serious bodily harm. Rather,

the proffer concerned Zelenak's overall mental condition and past

experiences relating to manipulation and intimidation. The

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expert's testimony would have explained circumstances and factors

from which a jury might have found a basis to believe Zelenak was

susceptible to intimidation and manipulation. Thus, the evidence

could have provided a basis for the jury to find that Zelenak

acted because of a fear of Morehead. Such a finding would have

tended to establish Zelenak's defense of duress.

The testimony also would have provided information tending

to show that Zelenak's fear was reasonable. See McGhee v.
Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978)

("'"What reasonably appeared to the accused at the time of the

[criminal act], as creating the necessity for [her] act, is the

test and not what reasonably appeared to [her], provided it would

so appear to some other reasonable person under similar

circumstances."'") (citation omitted). In ascertaining whether

Zelenak acted out of a subjectively reasonable fear, Zelenak's

past experiences and mental condition were relevant in

determining what compelled her to commit the offense. Indeed, in

the civil context, the Supreme Court has stated that the question

of duress "'is to be determined on consideration of the

surrounding circumstances such as age, sex, capacity, situation,

and relation of the parties.'" Jacobs v. Jacobs, 218 Va. 264,

267, 237 S.E.2d 124, 126 (1977) (citation omitted).

In this case, where the defense claimed Zelenak had been

abused previously, the jury, upon proper evidence, might have

found that Zelenak reasonably believed that a failure to commit

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the offenses would result in death or serious injury. Therefore,

I would hold that the trial judge erred in refusing to admit the

relevant and probative portions of Polidoro's testimony that

would have explained Zelenak's susceptibility to duress. 2 If
2
Nothing in the proffer states an opinion on the ultimate
issue. In its entirety, the proffer was as follows:

Ms. Polidoro by education has a bachelor's
degree from Wesleyan College and a master's
in social work from the University of
Georgia. She's licensed in the State of
Virginia as a Clinical Social Worker. She's
a board certified diplomate in clinical
social work. She's a member of the Academy
of Certified Social Workers. She's a member
of the International Society for the Study of
Multiple Personality and Dissociation and is
a former member of the Board of Directors of
the Women's Resource Center. She has quite
extensive background of continuing education
and serves as one of the local main resource
people on multiple personalities and
dissociative orders. If she was to testify
she would observe that Mrs. Zelenak has
revealed abuse and exposure to violence from
the time she was a child unto her arrest.
That she has a series of intense, but
unstable relationships. That she has
repeatedly looked for a rescuer for someone
who would love her and has repeatedly failed
to protect herself as an adult. That she
would, reports both inhibited sexuality and
compulsive sexuality. There is evidence of
self-blame, shame, guilt and a pattern of
attempting to protect family members and
partners. She has a reported sense of
helplessness and lack of initiative saying
she has difficulty making decisions. In her
most recent relationship with Paul, she
became very attached to him almost
immediately. She has revealed mixed,
revealed episodes of violent sexual
exploration, humiliation mixed with feelings
of specialness, specialness. She idolizes
him on one point and seems to be very afraid
of him on the other. In my opinion, she got

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this evidence had been admitted, the jury would still have had to

decide if Zelenak acted out of a reasonable fear of Morehead.

Accordingly, I would reverse the conviction and remand for a

new trial. I dissent.

to the point where she believed escape from
him or disobedience would result in her death
or the death of a family member. On one of
her, after one of her interviews with her she
reported and these are reports that were
provided to Dr. Cropper. It appears that she
was switching at the time Mrs. Crockett was
killed and would reveal more about the entire
event if she were an estate, if she were in
the state that she was at the time. By
switching, Ms. Polidoro would talk about the
switching from one personality to the other.
I would read from the Code of Virginia,
Section 54.1-3700, which would say a clinical
social worker means a social worker who, by
education and experience, is professionally
qualified at the autonomous practice level to
provide direct diagnostic, preventive and
treatment services where functioning is
threatened or affected by social and
psychological stress or health impairment.
To, and, also, in this section in order to
engage in the practice of social work it
shall be necessary to hold the license, which
Ms. Polidoro is, and I would respectfully
submit this proffer.

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