Pritchett v. Commonwealth

Present: Lacy, Hassell, Keenan, Koontz, Kinser, and Lemons,
JJ., and Whiting, S.J.

LIVINGSTON PRITCHETT, III OPINION BY
SENIOR JUSTICE HENRY H. WHITING
v. Record No. 010030 January 11, 2002

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this case we consider the admissibility of proffered

expert opinions concerning the mental retardation of the

defendant and the susceptibility of mentally retarded persons

to suggestive police interrogation in connection with the

defendant’s contention that his confession was unreliable.

Livingston Pritchett, III, was indicted in Montgomery

County for the capital murder and robbery of Estel Darnell

Singleton, Sr., and for the use of a firearm in the commission

of those two crimes. After a jury convicted him of first

degree murder and of the remaining offenses, it recommended

penitentiary sentences of life imprisonment for the murder

conviction and several terms aggregating 13 years for the

robbery and firearms convictions. Overruling various defense

motions, the trial court entered judgment on the verdicts.

Pritchett appealed from his convictions to the Court of

Appeals, contending that the trial court erred: (1) in

admitting his confession because it was not voluntarily given

and (2) in excluding expert testimony relating to his mental
retardation. The Court of Appeals affirmed the convictions in

an unpublished opinion. Pritchett v. Commonwealth, Record No.

1430-l99-3 (December 12, 2000). We awarded Pritchett this

appeal limited to the second issue.

At 8:00 a.m. on April 30, 1997, Singleton’s body was

found with a single gunshot wound to his head in the picnic

area of the Ironto Rest Stop on Interstate Highway 81 in

Montgomery County. Singleton's pockets had apparently been

emptied and his wallet and other articles were found scattered

near his body. Although no automatic teller machine (ATM)

card was found, there was an ATM receipt from a local bank in

the wallet.

Upon contacting the bank, a police investigator

ascertained that there had been an attempt to use the ATM card

two days after Singleton's body was found. The bank also

furnished the investigators with videotape from its ATM camera

which showed the man who had attempted to use the ATM card.

One of the investigators recognized the man as Pritchett.

Pritchett was known to some of the investigators because he

had been a witness in a prior murder case and occasionally he

had paid friendly visits to some of the officers at their

offices.

An investigator arranged to have Pritchett come to the

State Police Headquarters in Salem by telling him that the

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investigator needed additional information concerning the

prior case. The Commonwealth admits that this was a pretext;

when Pritchett arrived, the questions eventually turned to the

Singleton murder case.

Although the record does not reveal the contents of his

initial statement to the investigators, Pritchett testified at

trial that he had not been in the rest area where Singleton's

body was found and he denied killing Singleton. Pritchett

admitted, however, that he attempted to use Singleton's ATM

card and that he used one of the credit cards. Pritchett

claimed that he found these and other articles of personal

property on the ground near a supermarket located some

distance from the rest stop. Investigators had found personal

property belonging to Singleton in Pritchett’s motel room.

According to the testimony of Investigator Jerry

Humphreys, during the investigative interviews Pritchett

denied killing Singleton until Humphreys asked: "[W]hat went

so terribly wrong that day that you had to kill Mr. Singleton

at the Ironto Rest Area[?]" Describing Pritchett’s response,

Humphreys testified:

[H]e didn't say anything at first, and then he said with
anger in his voice, ["]he was [a] faggot, he came to the
bathroom, pulled a gun and call me a nigger. I ran, we
struggled, the gun went off["] and he maintained it was
an accident when Mr. Singleton got shot.

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 Pritchett later proffered the testimony of two witnesses,

both of whom qualified as experts in the field of psychology.

Dr. Bernice Marcopulos, a clinical neuropsychologist,

testified that tests she administered to Pritchett indicated

that his intelligence quotient (IQ) was 69, placing Pritchett

in the range of mildly retarded persons. Both she and Dr.

Stephen Herrick, a forensic psychologist, testified concerning

Pritchett's limited communication skills.

Dr. Herrick also testified that studies in his field of

expertise indicated two factors which characterize people who

"may be prone . . . to false confessions, and those are [1]

compliance, people [who] generally day to day go along with

[authority] figures, and [2] interrogative suggestibility

which is an aspect of where in the moment that somebody is

asking leading questions that they will go along with it."

Dr. Herrick opined that "both these factors correlate very

highly with people [who] have low I.Q.[s]."

Dr. Herrick further described a brief test he

administered to Pritchett by reading him a story which

Pritchett was asked to remember. The story was contained in a

paragraph of approximately 40 words. Dr. Herrick then asked a

series of 25 questions, 20 of which were leading. All the

questions purported to reflect what was contained in the

paragraph but the information in some of Dr. Herrick's leading

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questions was not contained in the story. Yet, Pritchett's

"yes" or "no" answers to those questions indicated that

Pritchett believed he knew that information. When Pritchett

was told that he had not answered a question correctly and

that he needed to try to answer as best he could, Dr. Herrick

testified that Pritchett "switched his answers thinking from

the negative feedback that I was not happy with him so

therefore . . . not only [is he] answering questions that

weren't really in the story, but now he's changing his answers

based on that slight negative feedback that I gave him."

Further, in describing Pritchett's limited communication

skills, his prior friendly relations with the police, and

other background information, Dr. Herrick also testified:

. . . I think he just went along with what they said,
and even at the point of asking to . . . contact his
mother, or whatever, and got refusals[; he] basically
was just told no. Well, he's not the type that's
going to break through the doorway when an officer
tells him no[;] he's going to sit and listen to him.

After hearing and considering the proffer of the

testimony of the two experts, the trial court ruled that "such

testimony would invade the province of the jury as to the

ultimate issue of intent [when the alleged crime was

committed]," and refused to permit any of it to be presented

to the jury. The Court of Appeals approved this ruling on the

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ground that there was no abuse of the trial court's discretion

in excluding this evidence.

On appeal, Pritchett contends that the evidence was

admissible to assist the jury in assessing the reliability of

his confession, which conflicted with his trial testimony.

The Commonwealth responds that the trial court did not abuse

its discretion in excluding the evidence because "the average

juror" understands the issues presented by the proffer; thus

expert opinion on the issues is inadmissable.

While the court has the duty to determine whether

Pritchett's confession was voluntary, it is the jury's duty to

consider its reliability. Crane v. Kentucky, 476 U.S. 683,

688 (1986); Williams v. Commonwealth, 234 Va. 168, 175, 360

S.E.2d 361, 365 (1987), cert. denied, 484 U.S. 1020 (1988).

"[T]he physical and psychological environment that yielded the

confession can . . . be of substantial relevance to the

ultimate factual issue of the defendant's guilt or innocence."

Crane, 476 U.S. at 689. Under Crane, the Commonwealth and

Pritchett were each entitled to introduce admissible evidence

to assist the jury in determining whether the confession was

reliable.

Expert testimony is admissible if the area of expertise

to which the expert will testify is not within the range of

the common experience of the jury. Coppola v. Commonwealth,

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220 Va. 243, 252, 257 S.E.2d 797, 803 (1979), cert. denied,

444 U.S. 1103 (1980). Given the trial court’s conclusion

"that mental retardation is not within the range of common

experience of most juries," expert testimony on certain

aspects of mental retardation should be admissible to assist

the jury in evaluating the reliability of his confession. But

the trial court rejected the expert's testimony on the ground

that it "would invade the province of the jury as to the

ultimate issue of intent." *

An expert witness may not express an opinion as to the

veracity of a witness because such testimony improperly

invades the province of the jury to determine the reliability

of a witness. Fitzgerald v. Commonwealth, 223 Va. 615, 630,

292 S.E.2d 798, 806 (1982), cert. denied, 459 U.S. 1288

(1983). Dr. Herrick's broad statement that Pritchett "just

went along with what they said" could be construed as an

evaluation of the unreliability of Pritchett's confession and

a comment on the truth of that part of Pritchett's trial

testimony which differed from his confession. So construed,

it was an inadmissible statement regarding Pritchett's

*
The trial court accepted the Commonwealth’s argument at
trial that the proffered testimony dealt with Pritchett’s
mental capacity at the time the alleged crimes occurred. On
appeal, the Commonwealth correctly perceived that the
testimony was directed to Pritchett’s mental capacity at the
time of his alleged confession.

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veracity which the trial court correctly excluded as an

invasion of the province of the jury. Coppola, 220 Va. at

252-53, 257 S.E.2d at 803-04.

But this Court has previously held that an expert may

testify to a witness's or defendant's mental disorder and the

hypothetical effect of that disorder on a person in the

witness's or defendant's situation, so long as the expert does

not opine on the truth of the statement at issue. Fitzgerald,

223 Va. at 629-30, 292 S.E.2d at 806; Coppola, 220 Va. at 252-

53, 257 S.E.2d at 803-04. In the present case, the balance of

the expert testimony did not characterize the truth of the

statement of any witness - it merely presented information on

subjects unfamiliar to the jury that would assist it in

determining the reliability of Pritchett's confession. For

that reason, this testimony should have been admitted.

Nevertheless, the Commonwealth argues that any such error

was harmless. We do not agree with the Commonwealth. If the

jury concluded that significant portions of the confession

were not reliable, it might not have been willing to convict

Pritchett solely on the circumstantial evidence presented by

the Commonwealth, which was in sharp conflict with his denial

of having killed Singleton. Given this conflict in the

evidence, we cannot say that the error was harmless beyond a

reasonable doubt.

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 Accordingly, we will affirm the case in part, reverse it

in part, and remand it to the Court of Appeals with

instructions to remand the case for a new trial.

Affirmed in part,
reversed in part,
and remanded.

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