dissenting.
I dissent because I conclude the trial court did not err in granting the motion in limine that excluded the proffered evidence of insanity. The trial court limited the exclusion to the guilt phase, and the defendant did present the evidence at the sentencing phase. The evidence that the defendant proffered did not establish a prima facie defense of insanity. Had the defendant pled not guilty and proceeded to trial on this evidence, he would not have been entitled to instructions on the insanity defense.
The defendant proffered the opinion of his expert, Dr. William D. Brock, that the defendant did not meet the criteria necessary for an insanity defense. The Commonwealth and the defense agreed that was his opinion. The defendant proffered testimony from a licensed clinical social worker, Joseph W. Skinner. The defendant conceded at trial and on *446appeal that Skinner was not an expert qualified to give an opinion about legal insanity in a criminal case. The defendant proffered other lay testimony about the defendant’s conduct before and after the killing. Skinner and the other lay witnesses testified the defendant said he heard God speaking to him.
In McCulloch v. Commonwealth, 29 Va.App. 769, 514 S.E.2d 797 (1999), the defendant’s expert evidence showed the defendant was sane. That evidence was not offered, but the defendant sought to prove insanity through lay testimony about observed behavior, demeanor, and actions. This Court upheld the trial court’s exclusion of the lay testimony because it was insufficient to establish a prima facie case for insanity. Id. at 775, 514 S.E.2d at 800. The facts of that case are similar to those in this case.
In this ease, the expert evidence concluded the defendant was sane. The lay testimony recited observed incidents of bizarre behavior and conduct. That testimony, on its own, was insufficient to present a prima facie case of insanity. As in McCulloch, it did not establish a mental disease or defect. The defendant did not change the result by offering the expert’s opinion in this case. Lay testimony might refute the factual basis of the expert’s opinion that the defendant was not insane, but that lay testimony still did not prove the existence of a mental disease or defect.
The evidence in this case failed to raise an issue of insanity. The only witness qualified to state an opinion concluded the defendant did not meet the criteria for criminal insanity. The other witnesses could only recite observed behavior. “While lay witnesses may testify to the attitude and demeanor of the defendant, ‘lay witnesses cannot express an opinion as to the existence of a particular mental disease or condition.’ Mullis v. Commonwealth, 3 Va.App. 564, 573, 351 S.E.2d 919, 925 (1987) (citing Phillips v. Stewart, 207 Va. 214, 220, 148 S.E.2d 784, 789 (1966)).” Herbin v. Commonwealth, 28 Va.App. 173, 183, 503 S.E.2d 226, 231 (1998).
*447While claiming to accept the fact that Skinner was not qualified to give an opinion, the defendant elevates his testimony to that of an expert. In his brief the defendant states, “Joseph Skinner, while not qualified to give a forensic opinion as to legal insanity in a criminal case, would have provided his opinion as to the rationale behind the Defendant’s actions due to his belief that he was acting on orders from God.” He argues that Skinner provides an opinion as to the rationale behind the defendant’s action. However, Skinner’s testimony was only admissible as a lay witness who could recite facts observed on issues in dispute.
The majority accepts the defendant’s approach and permits a witness, who concedes he is not qualified to give an opinion, to do just that. If the defense is to refute its own opinion evidence from a qualified expert, the majority must treat Skinner as having the qualifications of an expert. Unless Skinner’s testimony is treated as a qualified opinion, the defendant has no evidence that the defendant suffered from a mental disease. To overcome the insufficiency of the defendant’s proffered evidence, the majority raises the licensed clinical social worker to the new status of “quasi expert”; in fact, it elevates his statements to the degree that they overrule the opinion of the one witness qualified to state an opinion.
The defendant maintains he would have been entitled to instructions on the insanity defense based on the evidence proffered. No qualified witness testified that the defendant labored under a defect of reason from a disease of the mind so that he did not know the nature and consequences of his act, or if he did know, that his act was wrong. Price v. Commonwealth, 228 Va. 452, 458, 323 S.E.2d 106, 109 (1984). The only qualified testimony stated the opposite. To grant insanity instructions on the basis of the evidence proffered by the defendant would be to cast the jury onto a sea of speculation. The recital of this defendant’s behavior did not provide a basis for a jury to conclude the defendant was suffering from a mental disorder or disease that caused him to be unable to *448distinguish right from wrong. Accordingly, I would affirm the trial court.