Smallwood v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia

FREDERICK SMALLWOOD, S/K/A
FREDERICK B. SMALLWOOD
OPINION BY
v. Record No. 1970-00-1 JUDGE ROBERT P. FRANK
OCTOBER 9, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge

W. Todd Watson (David B. Hargett; Hargett &
Watson, on brief), for appellant.

Paul C. Galanides, Assistant Attorney General
(Mark L. Earley, Attorney General; Thomas M.
McKenna, Assistant Attorney General, on
brief), for appellee.

Frederick B. Smallwood (appellant) was convicted after a

jury trial of the murder of Debra Smallwood (Debra), in

violation of Code § 18.2-32, and use of a firearm during the

commission of that murder, in violation of Code § 18.2-53.1. He

contends on appeal that the trial court erred in 1) declaring a

Commonwealth's witness adverse and permitting the Commonwealth

to impeach that witness and 2) admitting into evidence the

decedent's change of beneficiary form. For the following

reasons, we reverse these convictions.
 I. BACKGROUND

This Court reversed and remanded appellant's initial

convictions of murder and use of a firearm. Smallwood v.

Commonwealth, No. 1616-96-1 (Va. Ct. App. Feb. 17, 1998). On

retrial, the evidence proved the following facts.

The police were called to the Smallwoods' home in the City

of Hampton on the afternoon of August 31, 1995. When they

arrived, appellant told Officer John Proctor that he was arguing

with a "friend" when she pulled out a gun, placed it against her

head, and pulled the trigger. The officer went into the house

and found Debra Smallwood dead on the floor of an upstairs

bedroom with a gun lying between her legs.

Another officer began talking to appellant, questioning him

about events that afternoon. Appellant said his wife had come

home from Kecoughtan High School where she taught, and they were

discussing some confusion over luncheon plans. The gun was

"sitting there," according to appellant, and his wife "just

grabbed it, and bang."

Later, appellant was taken to the police station for

further questioning. He made another statement, saying he and

Debra were arguing about his desire to find a ministry in

Florida, when she picked up the gun and shot herself.

Eventually, appellant was arrested. He then claimed that

the gun went off during a struggle with his wife.

- 2 -
 At trial, the Commonwealth introduced evidence that

appellant had continued his close friendships with at least two

women after he married Debra. During the Commonwealth's direct

examination of one of these women, Linda Norton (Norton), the

prosecutor asked, "[D]id you have any knowledge about the

marriage between the defendant and Debra Smallwood?" Norton

responded, "No, I did not. No, I did not."

The Commonwealth then asked the court "to declare that Ms.

Norton is an adverse witness of the Commonwealth, because of her

statement that she made regarding her knowledge of the marriage

of the defendant and the victim."

The trial court ruled the witness proved adverse and "they

[could] impeach their own witness." The trial court instructed

the jury at the end of the examination and again with the

general instructions that a witness' prior statements were not

evidence of facts but only evidence affecting the credibility of

the witness.

An employee of the Hampton City Schools' payroll and

finance office also testified, over appellant's objection. She

explained she had received a form from Debra a week prior to the

killing, requesting a change of beneficiary for her life

insurance policy. The form was signed by Debra but not

notarized, so the beneficiary was never changed to appellant as

the form requested.

- 3 -
 The form was introduced into evidence over appellant's

objection.

II. ANALYSIS

Appellant contends the trial court erred in allowing the

Commonwealth to impeach Norton and in admitting evidence of the

change of beneficiary form.

This Court reviews a trial court's evidentiary rulings for

abuse of discretion in admitting the evidence. Quinones v.

Commonwealth, 35 Va. App. 634, 639, 547 S.E.2d 524, 527 (2001).

A.

Generally, a party cannot call a witness simply to impeach

her. Maxey v. Commonwealth, 26 Va. App. 514, 521, 495 S.E.2d

536, 540 (1998). In such a case, no evidence relevant to the

proceeding would be introduced -- the jury simply would hear the

person was not a credible witness, without hearing any

substantive information on which they must decide the issue of

credibility.

Here, however, the Commonwealth had a legitimate reason for

calling Norton to the stand. The prosecutor asked her questions

regarding her relationship with appellant that were relevant to

motive. She testified they were "best friends" and that she

gave him money on several occasions. This relationship

continued after appellant married the decedent. Norton also

testified she contacted him, not at his home with Debra but at

the home of "Mrs. Knuckles." All of this testimony was relevant

- 4 -
to the relationship between appellant and his wife as well as a

possible motive for murder. The Commonwealth properly called

Norton during the case-in-chief as she provided information

relevant to the charges.

Norton was not called as an "adverse witness" under Code

§ 8.01-401, 1 despite her friendship with appellant. Whitehead v.

Commonwealth, 31 Va. App. 311, 316-17, 522 S.E.2d 904, 906-07

(2000). After Norton began testifying, however, the

Commonwealth asked the trial court "to declare Ms. Norton is an

adverse witness," pointing to "her statement that she made [on

direct examination] regarding her knowledge of the marriage of

the defendant and the victim. I have a good faith belief that

that statement is not true." The prosecutor also argued:

[H]er testimony and her statement that she
did not know about the marriage is injurious
to the Commonwealth's case, because of her
prior statements that were made which go to
definitively to the Commonwealth's idea of
motive in this case, the defendant trying to
get the victim's money.

* * * * * * *

Her prior statements were that she had
discussed with the defendant for three
months in advance of his marriage to Debra
in order to get Debra's money, that he would
then divorce Debra and marry her.

1
Code § 8.01-401(A) states: "A party called to testify for
another, having an adverse interest, may be examined by such
other party according to the rules applicable to
cross-examination."

- 5 -
 Clearly, although the Commonwealth used the term, "adverse

witness," the prosecutor actually asked the trial court to find

Norton had provided adverse testimony and to allow the

Commonwealth to impeach its own witness. The prosecutor never

asked for permission to use leading questions during her direct

examination of Norton.

The trial court ruled "the witness has proved adverse" and,

apparently referring to Code § 8.01-403, 2 which allows the

impeachment of a party's own witness under certain

circumstances, explained how further examination of the witness

would proceed. The Commonwealth then began to impeach Norton.

"Adverse witness" is not synonymous with "adverse

testimony." Whitehead, 31 Va. App. at 317, 522 S.E.2d at 907.

Norton could be asked leading questions if she was an adverse

2
Code § 8.01-403 states:

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; but before such last mentioned
proof can be given the circumstances of the
supposed statement, sufficient to designate
the particular occasion, must be mentioned
to the witness, and he must be asked whether
or not he has made such statement. 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.

- 6 -
witness, but she could be impeached by a prior inconsistent

statement only when her testimony "prove[d] adverse." Code

§ 8.01-403.

The Supreme Court has explained:

[O]ne is not permitted to impeach his own
witness merely because the latter does not
come up to his expectation. It is only when
the testimony of the witness is injurious or
damaging to the case of the party
introducing him that the witness can be said
to be adverse so as to justify his
impeachment. If the testimony is of a
negative character and has no probative
value, there is no need to discredit the
witness.

Virginia Electric and Power Co. v. Hall, 184 Va. 102, 105-06, 34

S.E.2d 382, 383 (1945).

For example, in Brown v. Commonwealth, this Court found the

trial court erred in allowing the Commonwealth to impeach its

witness when he changed his testimony, claiming on the stand

that he did not see the stabbing and did not know the parties.

6 Va. App. 82, 86, 366 S.E.2d 716, 719 (1988). This testimony,

although contradicting the witness' previous statement to the

police, "had no probative value [as it] could not have assisted

the trier of fact in determining Brown's guilt or innocence."

Id. The testimony given by the witness did not prove or

disprove Brown's guilt; instead, it added nothing to a

description of the events. See also Ragland v. Commonwealth, 16

Va. App. 913, 920-21, 434 S.E.2d 675, 680 (1993).

- 7 -
 Norton's testimony that she did not know about appellant's

marriage to Debra in no way damaged or injured the

Commonwealth's case, nor did it help the case. The appellant

and the decedent were married; no one disputed that fact.

Norton simply claimed she did not know they had married. This

testimony had no probative value for the issue of whether

appellant, who knew he was married, murdered his wife. The

Commonwealth's case was not damaged by this testimony, although

the prosecutor's expectation was disappointed. The trial court

erred when it allowed the Commonwealth to impeach Norton.

When a trial court errs in allowing the presentation of

evidence to the jury, this Court must decide whether that error

was harmless. As this issue involves non-constitutional error,

if appellant "had a fair trial on the merits and substantial

justice has been reached," his convictions will not be reversed.

Code § 8.01-678. The Commonwealth has the burden "to prove that

the error was non-prejudicial." Beverly v. Commonwealth, 12 Va.

App. 160, 163-64, 403 S.E.2d 175, 177 (1991).

Norton denied having "any knowledge about the marriage

between the defendant and Debra Smallwood." The trial court

then ruled her testimony had proved adverse and allowed the

Commonwealth to impeach her with a prior statement.

The Commonwealth asked Norton about her statement to the

police in which she said appellant planned to "marry Debra so

that he would have more money to live on, that after he married

- 8 -
Debra and after he had gotten a church, that he would then

divorce her and [Norton] could be married to him."

The following exchange then took place between the

prosecutor and Norton:

Q. So, ma'am, you told them that you
suggested [appellant] marry the victim for
her money?

A. Because that's what they wanted to hear.

Q. Ma'am, do you also recall telling the
detectives that you thought [appellant] was
going to divorce Debra?

A. No, I don't remember saying that.

Q. Do you remember telling them again that
you thought [appellant] was going to marry
her, referring to Debra, and get the money
from her.

A. I do not remember saying that.

Q. Do you remember saying that [appellant]
was going to get at least forty thousand
dollars from Debra?

A. No. How would I know what amount, if
any?

Q. Do you remember telling the detectives
forty thousand because that's what you owed
in your credit cards and your loans?

A. I have no idea what I owe on my credit
cards or loans.

Q. Do you recall telling the detectives
that you didn't believe that [appellant]
would actually marry Debra Smith, but in
your heart you knew he would, but you didn't
want to believe it, that that would have
been the only way he would have been able to
get enough money to pay you back, and that
hopefully you would get a church, that he

- 9 -
would divorce her, and then you would be
together?

A. I have no idea. I don't remember. All
I remember was being threatened by them.

Q. Do you remember telling the detectives
again, "So [appellant] was to marry Debra,
correct?" And your response was, "Correct"?

A. I don't remember.

Q. And do you remember the question, "And
marrying Debra because she had what?" And
you responded, "Money"?

A. No, I don't remember.

Q. Do you recall saying, "The money that
you needed to do what?" And your response
was, to clear up your debts and help him
survive financially?

A. No, but I do remember after making a
tape I called Detective Seals the next day –

* * * * * * *

Q. Do you recall telling Detective Seals
and Detective Meadows that, "Once Debra and
[appellant] were married that he would do
what?" And you told them that he would get
a church, and after the marriage occurred
and he got his church, and he was set up
financially, you were asked, What was he
going to do? And your response was, I
thought he was going to get a divorce. Do
you recall saying that?

A. No, I don't recall saying that.

Q. Do you recall telling the detectives
that you assumed that he was getting a
divorce so he could be with you?

A. No.

Q. Do you recall telling Detective Seals
and Detective Meadows that you had discussed

- 10 -
the entire situation with [appellant], that
he was going to get a divorce from Debra
Smallwood once married, and set up his
church, and that then you would marry him
and your debts would be paid off?

A. No. How would I know what he's going to
do?

Q. Do you recall telling Detective Seals
and Detective Meadows that you and
[appellant] had discussed over the telephone
three months prior that he was to be with
Ms. Smith and should marry Ms. Smith?

A. No, I don't remember that.

Q. Do you also recall telling the
detectives that you discussed over the phone
[appellant] was to marry Ms. Smith so that
he could get a church in Virginia; is that
right?

A. I know he was looking for a church in
Virginia, but I didn't know he was going to
marry Debra.

Q. Do you recall your response when the
detectives asked you, "She," referring to
Debra, "had the money that was needed by
[appellant] to repay your debts so that you
would be financially stable again, correct?"
And your response was, "Correct"?

A. I don't know if she had any money or
not.

* * * * * * *

Q. And do you recall telling the detectives
that the money part didn't bother you as
much, but that you were willing to let him
marry somebody else so that you could
eventually be together?

A. No, I don't remember.

- 11 -
 Finally, the Commonwealth asked, "Ma'am, you previously

testified just today that you had no knowledge about this

marriage between [appellant] and the victim in this case; is

that right?" Norton responded, "That's correct. I did not know

when they got married, or if in fact they had been married."

The Commonwealth never called the detectives to testify

about Norton's statements to them nor was a transcript of their

interview introduced into evidence.

None of the questions that the Commonwealth asked Norton

impeached her testimony that she did not know appellant and

Debra had married. Although the Commonwealth asked numerous

times about her prior statement to the police, nothing in that

statement suggested she knew they actually had married. In

addition, the Commonwealth never asked Norton what she and

appellant had discussed about the marriage; the prosecutor only

asked whether she had made particular statements to the police.

While the examination at issue did not impeach Norton, the

form of the questions exposed the jury to highly prejudicial,

hearsay statements allegedly made to the police. Although the

trial court told appellant, "I will instruct the jury as the

Code also requires that they are not to consider the evidence as

[sic] such inconsistent statements except for the purpose of

contradicting the witness," this instruction was not given until

the end of the Commonwealth's examination of Norton.

- 12 -
 Although a jury is presumed to follow the court's

instructions, in this situation, where the questioning was

continuous, lengthy, and highly prejudicial, instructing the

jury at the end of the examination and before deliberation does

not provide enough protection to appellant. LeVasseur v.

Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657 (1983). We

cannot say this error did not affect the jury's verdict,

especially as the questions did not actually impeach the

witness. See Lavinder v. Commonwealth, 12 Va. App. 1003, 1005,

407 S.E.2d 910, 911 (1991) (en banc).

B.

Appellant also argues the trial court erred in allowing the

Commonwealth to introduce irrelevant hearsay evidence of Debra's

intent to change her life insurance beneficiary. The

Commonwealth argues that the evidence was not hearsay. Assuming

without deciding that the evidence was not hearsay, we find the

trial court erred in admitting this document because its

relevance was not established.

In response to appellant's argument that knowledge of the

change of beneficiary was not "linked to this defendant," the

Commonwealth explained that the evidence was "absolutely

admissible because it goes to demonstrate motive." The trial

court found the evidence was offered to establish motive and was

admissible. The Commonwealth has never suggested the evidence

was relevant to any other issue in this case.

- 13 -
 The Supreme Court has explained when evidence of motive may

be introduced:

[W]here the motive of a party is a material
inquiry in a cause, whether civil or
criminal, any evidence which tends in any
degree to throw light upon that question is
admissible. But before a fact or
circumstance is admissible in evidence
against a party to show motive, such fact or
circumstance must be shown to have probably
been known to him; otherwise, it could not
have influenced him. For a man cannot be
influenced or moved to act by a fact or
circumstance of which he is ignorant.

Mullins v. Commonwealth, 113 Va. 787, 789-90, 75 S.E. 193, 195

(1912) (citations omitted).

The Commonwealth argues, because Debra and appellant were

married, knowledge of the policy can be imputed to appellant.

However, the case law does not support this presumption.

No Virginia cases directly address this issue. The

Commonwealth cites Mullis v. Commonwealth, 3 Va. App. 564, 351

S.E.2d 919 (1987), but this case is not relevant to the facts

here. Mullis testified and was asked whether she knew about the

decedent's life insurance policy naming her as beneficiary. Id.

at 574, 351 S.E.2d at 925. This question was relevant to

Mullis's bias and credibility as a witness, as well as to

whether she had a motive for murder. The jury could believe her

testimony or not.

Here, the record contains no evidence that appellant ever

confirmed or denied the existence of the policy. He never

- 14 -
mentioned an insurance policy in his statements to police, and

he did not testify at trial. He did not try to collect any

money from the insurance company, and no witness came forward to

suggest appellant knew Debra was making him the beneficiary.

Other states have held that prosecutors must establish a

defendant probably knew about a spouse's insurance policy prior

to presenting this type of evidence to the jury. See, e.g.,

People v. Coleman, 276 N.E.2d 721, 724 (Ill. 1971); State v.

Leuch, 88 P.2d 440, 442-43 (Wash. 1939). This rule conforms to

the general rule that to introduce evidence of motive, some

foundation must be laid to establish the defendant knew about

the circumstance.

While the Commonwealth did not need to prove beyond a

reasonable doubt that appellant knew he was the beneficiary,

some evidence of his knowledge needed to be offered to the trial

court before allowing the jury to hear about the change of

beneficiary. See Robinson v. Commonwealth, 228 Va. 554, 558,

322 S.E.2d 841, 843 (1984) (acknowledging the test established

in Mullins).

Here, no evidence suggested appellant knew about the

policy. The fact that he was her husband is not enough by

itself to establish relevance. The Commonwealth produced no

evidence, direct or circumstantial, to establish appellant knew

about the proposed change. Although Debra submitted the form

less than a week prior to the murder, that circumstance allows

- 15 -
only for idle speculation that appellant knew about the

submission.

While motive is a relevant issue, knowledge of the change

of beneficiary attempt by the decedent was not attributable to

appellant. A proper foundation for the introduction of the

evidence was not laid -- nothing indicates appellant had any

knowledge of the policy change prior to the killing.

We cannot say this error was harmless. The entire case

rested on appellant's alleged financial motive for killing his

wife. The only direct evidence that he would receive any money

from her death was the insurance policy. Clearly, allowing the

jury to hear about that policy was not harmless error.

For the reasons stated, we reverse the convictions and

remand for a new trial, if the Commonwealth be so inclined.

Reversed and remanded.

- 16 -