COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
FREDERICK B. SMALLWOOD, S/K/A
FREDERICK B. SMALLWOOD, SR.
MEMORANDUM OPINION * BY
v. Record No. 1616-96-1 JUDGE RICHARD S. BRAY
FEBRUARY 17, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge
Robert Moody, IV (Segall & Moody, on brief),
for appellant.
Daniel J. Munroe, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
A jury convicted Frederick B. Smallwood (defendant) for
first degree murder and related use of a firearm. On appeal,
defendant complains that the trial court erroneously (1) allowed
the Commonwealth to impeach its own witness, thereby exposing the
1
jury to impermissible hearsay, and (2) refused to allow the
testimony of a defense witness relative to evidence introduced by
the Commonwealth during its case-in-chief. We agree and reverse
the convictions.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
We consider this issue together with defendant's contention
that the court erroneously denied his motion for a mistrial.
disposition of the appeal.
At approximately 1:50 p.m. on August 31, 1995, Hampton
Police Officer John B. Proctor was dispatched to defendant's
residence. Upon arrival, Proctor found defendant standing
outside the home, and his wife, Debra Smallwood (Debra), dead in
an upstairs room, the apparent victim of a gunshot wound to the
head. A gun was resting between the victim's feet, the "muzzle
point[ed] . . . outward . . . [and] handle pointed . . . away
from the body," with a single shell casing near her foot.
Defendant stated to Proctor that Debra shot herself with the
weapon following an argument between the two, later elaborating
that she "got [his] gun off the desk and put it to her head and
pulled the trigger." Still later, defendant told police that he
believed Debra had fired the gun accidentally, although she had
previously expressed suicidal thoughts. Following arrest,
defendant inquired of police, "What if we were in an argument and
we fought over the gun and the gun accidentally went off?," and
answered affirmatively when asked "if that's what happened."
The autopsy revealed little, if any, blood on Debra's right
hand and "minimal spatter" on her right arm. The forensic
testimony further established that the gun was fired with the
muzzle against her skin while Debra was seated, leaving only a
"slight leak on the upper part of the wound." Gunshot residue
samples (GSRs) taken from both defendant and Debra were negative.
Detective Kenneth Seals testified that shell casings ejected
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from the weapon "usually go out a good distance into the air" and
that the "casing [near Debra's foot] appeared . . . to be in an
improper position. The firearm appeared to be in an improper
position . . . [a]nd based on those matters, . . . we conducted
an investigation . . . as to whether or not this is an actual
suicide, or . . . a death by some other means." A firearms
expert testified for the Commonwealth that testing of the weapon
revealed that casings were "ejected over to the right and a
little bit rearward." This witness also testified that
"different weapons [eject casings] different distances."
However, the trial court would not allow the testimony of defense
witness, Peter A. Smerick, an expert "crime scene analyst," to
explain the "improper" location of the shell casing. The court
also precluded introduction of the factual results of Smerick's
test firings of the weapon to establish its precise ejection
pattern and characteristics.
Other Commonwealth evidence disclosed that defendant was
romantically involved with two women, Nancy Locke and Linda
Norton, and received money from each, both before and after his
marriage to Debra. Norton continued to provide defendant
approximately $400-$500 every two weeks until trial. Called as a
witness for the Commonwealth, she testified that her prior
statements to investigators relative to Debra's death were
"lies," coerced by police. However, over defendant's repeated
objections, the court permitted the Commonwealth to impeach
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Norton through excerpts from a transcript of her police
interview. The Commonwealth also introduced an audio tape of the
interview, portions of which were actually played to the jury,
including hearsay highly prejudicial to defendant.
The court later reconsidered its ruling and sustained
defendant's objection to the interview and tape evidence,
advising the jury:
I have since . . . made a decision to sustain
the defendant's objection to that tape, so
the tape will not be played for your hearing.
Now, there was a statement made in the tape
attributed to Ms. Norton's mother that you
heard. I'm going to instruct you to
disregard that statement. You're not to
consider that statement.
I. IMPROPER IMPEACHMENT
"Code § 8.01-403, 2 applicable in criminal as well as civil
cases, allows impeachment of a party's witness with prior
inconsistent statements after that witness has been found by the
2
Code § 8.01-403 provides, in pertinent part:
A party producing a witness shall not be
allowed to impeach his credit by general
evidence of bad character, but he may, in
case the witness shall in the opinion of the
court prove adverse, by leave of the court,
prove that he has made at other times a
statement inconsistent with his present
testimony; . . . . In every such case the
court, if requested by either party, shall
instruct the jury not to consider the
evidence of such inconsistent statements,
except for the purpose of contradicting the
witness.
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trial court to be adverse." 3 Ragland v. Commonwealth, 16 Va.
App. 913, 920, 434 S.E.2d 675, 680 (1993) (citing Brown v.
Commonwealth, 6 Va. App. 82, 85, 366 S.E.2d 716, 718 (1988)); see
also Beverly v. Commonwealth, 12 Va. App. 160, 163, 403 S.E.2d
175, 176 (1991); Roberts v. Commonwealth, 230 Va. 264, 269, 337
S.E.2d 255, 258 (1985). Whether a witness is "adverse" rests
with the trial court's sound discretion, see Virginia Electric &
Power Co. v. Hall, 184 Va. 102, 105, 34 S.E.2d 382, 383 (1945),
and the examining party must first obtain court permission to
question the witness by cross-examination. See Ragland, 16 Va.
App. at 920, 434 S.E.2d at 680.
On appeal, the Commonwealth correctly concedes that "the
portion of Norton's testimony in which she was impeached by her
prior statement to police was done improperly and was erroneously
introduced." Indeed, the record clearly establishes that the
Commonwealth failed to follow the provisions of Code § 8.01-403
and, further, that the court's limiting instruction was both
untimely and inadequate.
II. EXPERT TESTIMONY
"'It is well settled in Virginia that the opinion of an
expert witness is admissible 'where the jury, . . . is confronted
3
"A prior inconsistent statement is received in evidence
exclusively to attack the credibility of the witness . . . [and]
not evidence of the truth of the earlier account and the trial
court, upon request, must instruct the jury accordingly." Royal
v. Commonwealth, 234 Va. 403, 405, 362 S.E.2d 323, 324 (1987)
(citations omitted).
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with issues' that 'cannot be determined intelligently merely from
the deductions made and inferences drawn on the basis of ordinary
knowledge, common sense, and practical experience . . . ."'"
Hetmeyer v. Commonwealth, 19 Va. App. 103, 109, 448 S.E.2d 894,
898 (1994) (citations omitted). "The 'expert's testimony is
admissible not only when scientific knowledge is required, but
when experience and observation in a special calling give the
expert knowledge of a subject beyond . . . common intelligence
and ordinary experience.'" Id. (citations omitted). However,
"[w]e consistently have held that 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)
(citing Bond v. Commonwealth, 226 Va. 534, 538, 311 S.E.2d 769,
771-72 (1984)); Cartera v. Commonwealth, 219 Va. 516, 519, 248
S.E.2d 784, 786 (1978); Webb v. Commonwealth, 204 Va. 24, 33, 129
S.E.2d 22, 29 (1963); Ramsey v. Commonwealth, 200 Va. 245, 249,
105 S.E.2d 155, 158 (1958).
Here, evidence introduced by the Commonwealth focused on the
location of the shell casing, suggesting that it was inconsistent
with suicide. In response, the defense offered Mr. Smerick as an
expert to address such evidence with proper testimony beyond the
scope or knowledge of the average juror. Thus, in barring
Smerick's testimony, the court permitted the Commonwealth to
"open the door" to an issue with incriminating evidence but
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refused defendant an opportunity to respond with competent
evidence. Defendant's criminal culpability in Debra's death was
the ultimate issue before the court, and the position of the
ejected shell casing was a circumstance relevant to that
determination.
III. HARMLESS ERROR
While an error committed in the trial of a
criminal case does not automatically require
reversal of an ensuing conviction, Code
§ 8.01-678, once error is established it is
presumed to be prejudicial. The burden then
shifts to the Commonwealth to show that the
error was non-prejudicial. A criminal case
will be reversed if the Commonwealth fails to
overcome the presumption of prejudice and
fails to show that the error was harmless
beyond a reasonable doubt.
Pavlick v. Commonwealth, 25 Va. App. 538, 544, 489 S.E.2d 720,
724 (1997) (citations omitted). "To determine whether an error
is harmless, this Court 'must review the record and the evidence
and evaluate the effect the error may have had on how the finder
of fact resolved the contested issues.'" Charity v.
Commonwealth, 24 Va. App. 258, 265-66, 482 S.E.2d 59, 62 (1997)
(citation omitted). "Non-constitutional error is harmless
'[w]hen it plainly appears from the record and the evidence given
at the trial that,' 'had the error not occurred, the verdict
would have been the same.'" Id. (citations omitted).
The Commonwealth's instant case was entirely circumstantial.
Much of Norton's impermissible hearsay and related evidence was
not otherwise established in the record, and the jury obviously
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considered her testimony important, 4 notwithstanding the court's
inadequate limiting instruction. The gravity of this error was
compounded when the court disallowed defendant's proper evidence
with respect to the ejection and position of the shell casing,
leaving unrebutted an inference from the Commonwealth's evidence
that the location was inconsistent with suicide. Such rulings
clearly prejudiced the defendant, and we are unable to find that
the cumulative effect was harmless.
Accordingly, we reverse the convictions and remand the case
for such further proceedings as the Commonwealth deems
appropriate.
Reversed and remanded.
4
Of four inquiries submitted by the jury to the court during
deliberations, three related to Norton's testimony.
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