COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Overton
Argued at Chesapeake, Virginia
DERRICK EDWARD HELMICK
OPINION BY
v. Record No. 1430-01-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
AUGUST 6, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Patricia L. West, Judge
Richard C. Clark, Senior Assistant Public
Defender, for appellant.
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Derrick Edward Helmick (appellant) appeals his conviction
by a jury of first degree murder in violation of Code § 18.2-32.
On appeal, he contends the trial court erred in failing to (1)
declare a mistrial to allow his counsel to withdraw and testify
on his behalf, (2) exclude testimony from a witness of
appellant's harassment of that witness, (3) instruct the jury on
assault and battery, and (4) instruct the jury on accident as a
defense. Finding no error, we affirm.
I. BACKGROUND
Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth, the
prevailing party below, granting to it all reasonable inferences
fairly deducible therefrom. See Juares v. Commonwealth, 26
Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). However, "[w]hen
reviewing a trial court's refusal to give a proffered jury
instruction, we view the evidence in the light most favorable to
the proponent of the instruction." Commonwealth v. Vaughn, 263
Va. 31, 33, 557 S.E.2d 220, 221 (2002) (citing Blondel v. Hays,
241 Va. 467, 469, 403 S.E.2d 340, 341 (1991)).
So viewed, the evidence established that on May 30, 2000
appellant was caring for his nine-week-old child, Dawn Marie
(the child), at the home of Darrell and Lisa Ogden, his sister
and brother-in-law. While in appellant's care, the child
suffered serious injuries and died in the hospital two days
later.
Appellant gave several versions of the manner the child was
injured. He initially told Lisa Ogden that as he put the child
to bed, she "spit up." While he was holding her with one arm
and attempting to change her clothes, he dropped her. At the
hospital, appellant told a social worker that after the child
threw up, he cleaned her and noticed she was having difficulty
breathing and dropped her three and one-half feet onto the
floor. He also said that a bruise on the child's head was
"caused when he put her in the baby swing."
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Later, at the hospital, appellant told Detective J.R.
Pickell (Pickell) that the child had been in her crib when he
found her and that she had thrown up. He placed both hands
under her, but when he turned to put her on the bed behind him,
she moved and fell out of his hands onto the floor. When he put
the child on the bed, she went limp and stopped breathing. The
police found the floor of the house to be carpeted with a
padding underneath.
On the second day the child was in the hospital and still
on life support, appellant telephoned Vicki Brewer (Brewer), a
woman in Ohio he recently met on the internet. He told her that
he had "propped [the child] on the couch giving her a bottle,"
and she had rolled off the couch. When Brewer said, "nine week
old babies can't roll," he stated, "[w]ell, she did." Shortly
thereafter, appellant put a note in Darrell Ogden's bible
stating that he relinquished sole guardianship of the child to
his mother and left to meet Brewer. Appellant remained with
Brewer in Ohio for six days until she told him to leave. He
refused to leave and "showed up at [Brewer's] work to harass
[her]" and "wouldn't go away." Brewer called the police, and
appellant was arrested.
While incarcerated in Ohio, Pickell met with him again.
Appellant gave a different version of how the child sustained
her injuries. He stated he picked the child up, dropped her
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onto the floor and she stopped breathing. He panicked, and when
he picked her up to take her to the kitchen to throw water on
her face, she fell out of his arms. Pickell stated that he did
not believe appellant's story, and appellant admitted that when
the child had "spit up," he picked her up and shook her. While
he was shaking her, he let go and dropped her. Appellant also
admitted it was possible that the child hit her head on the side
of the crib.
In a later videotaped statement, appellant admitted shaking
the child out of frustration and dropping her. He stated, "I
grew up in an anger-filled family. And I guess it just
completely built up inside of me until it exploded."
The medical examiner, Dr. Elizabeth Kinnison (Kinnison),
found that the child had "brain damage enough to cause death."
The cause of death was blunt force injuries which required an
"extreme" amount of force. She opined that the amount of force
necessary to cause the child's injuries would not be consistent
with a fall from an adult level height. Kinnison also noted
that the nine-week-old child had suffered an earlier injury to
her head.
II. MOTION TO WITHDRAW
At trial, during the testimony of Darrell Ogden,
appellant's counsel moved for a mistrial because he thought it
necessary for him to withdraw as counsel and testify on
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appellant's behalf. The basis for his motion was that Lisa and
Darrell Ogden told him they wanted appellant to give them his
car and they were upset when he refused to do so. Thus, it was
necessary for him to withdraw and testify about their "bias."
Counsel later admitted in his proffer of proposed testimony that
he would only be able to show that Lisa Ogden was upset. Lisa
Ogden testified and during cross-examination stated that she
thought the car should be given to her mother because she gave
appellant the money to buy it. She did not deny that she was
upset, but did not remember making that statement to counsel.
The trial court stated: "Mrs. Ogden did not deny that she
was upset about [appellant's] failure to sign the car over to
them. So you're not precluded from making that [bias] argument
to the jury . . . . Your testimony is not necessary and I am
not going to declare a mistrial in this matter." We agree with
this analysis.
"[A] decision to permit counsel to withdraw mid-trial rests
with the sound discretion of the trial court." Fisher v.
Commonwealth, 26 Va. App. 788, 794, 497 S.E.2d 162, 165 (1998).
In the instant case, the trial court did not abuse its
discretion by refusing to allow appellant's counsel to withdraw
to become a witness in the case. The testimony proffered by
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counsel did not concern a disputed issue, was not material, and
was not timely made. 1
It was undisputed that the Ogdens wished to have appellant
sign his ten-year-old Ford Taurus over to them and were unhappy
when he failed to do so. Appellant's counsel's proffer of his
testimony added nothing. Additionally, the proffered testimony
was collateral to any issue in the murder case.
A fact is wholly collateral to the main
issue if the fact cannot be used in evidence
for any purpose other than for
contradiction. Evidence of collateral
facts, from which no fair inferences can be
drawn tending to throw light upon the
particular fact under investigation, is
properly excluded for the reason that such
evidence tends to draw the minds of the jury
away from the point in issue, to excite
prejudice and mislead them.
Seilheimer v. Melville, 224 Va. 323, 327, 295 S.E.2d 896, 898
(1982) (emphasis removed) (internal citations omitted). Lisa
Ogden gave no direct testimony about the death of her niece.
1
Appellant contends Supreme Court Rule 3.7, Part 6 § 11,
mandates that the trial court allow his withdrawal. This
contention is without merit. This Court and the Supreme Court
of Virginia have questioned the propriety of equating the force
of a disciplinary rule with that of decisional or statutory law
in state court proceedings. See Fisher, 26 Va. App. at 794, 497
S.E.2d at 165; see also Shuttleworth, Ruloff, and Giordano, P.C.
v. Nutter, 254 Va. 494, 498, 493 S.E.2d 364, 366 (1997).
Notwithstanding this concern, however, a decision to permit
counsel to withdraw mid-trial rests within the sound discretion
of the trial court.
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Indeed, her factual recitation followed appellant's most
exculpatory version of the events.
Lastly, counsel was aware of the potential "bias" issue
before trial and delayed addressing it until mid-trial. The
trial court found as follows: "It was always a bias issue. If
you are truly saying that these folks have a reason to lie
against your client because he didn't sign over a car to them,
then this was always an issue, not because it was brought up
today." See Terrell v. Commonwealth, 12 Va. App. 285, 403
S.E.2d 387 (1991) (motion to withdraw filed two days before
trial deemed untimely). The trial court did not abuse its
discretion in refusing to allow counsel to withdraw.
III. VICKI BREWER'S TESTIMONY
Appellant next contends the trial court erred in allowing
Brewer to testify that appellant harassed her at her workplace
because this incident was probative of no issue in the murder
case and was prejudicial. We agree the trial court erred in
admitting this portion of Brewer's testimony, but find the error
to be harmless.
"[A] non-constitutional error is harmless 'when it plainly
appears from the record and the evidence given at the trial that
the parties have had a fair trial on the merits and substantial
justice has been reached.'" Lavinder v. Commonwealth, 12
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Va. App. 1003, 1005-06, 407 S.E.2d 910, 911 (1991) (en banc)
(quoting Code § 8.01-678) (emphasis removed).
Consequently . . . a criminal conviction
must be reversed unless "it plainly appears
from the record and the evidence given at
the trial that" the error did not affect the
verdict. An error does not affect a verdict
if a reviewing court can conclude . . .
that, had the error not occurred, the
verdict would have been the same.
Id. at 1006, 407 S.E.2d at 911; see Galbraith v. Commonwealth,
18 Va. App. 734, 743-44, 446 S.E.2d 633, 639 (1994).
Factors . . . important to the harmless
error inquiry are the importance of the
witness' testimony in the prosecution's
case, whether the testimony was cumulative,
the presence or absence of evidence
corroborating or contradicting the testimony
of a witness on material points, the extent
of cross-examination otherwise permitted
and . . . the overall strength of the
prosecution's case.
Maynard v. Commonwealth, 11 Va. App. 437, 448, 399 S.E.2d 635,
641-42 (1990) (en banc) (internal citations omitted). If it
"plainly appears" that the Commonwealth's case was no "less
persuasive" if the disputed evidence had been excluded, the
error is harmless. Galbraith, 18 Va. App. at 744, 446 S.E.2d at
639.
Brewer testified that appellant came to her home shortly
after the child was injured and stayed with her for several
days. She asked him to leave and in response to a
Commonwealth's question, stated: "Well, I thought everything
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would be alright [sic] until he - you know, he showed up at my
work to harass me." He came to see her twice on her work breaks
and when he would not leave, she called the police.
Although Brewer's testimony describing her encounter with
appellant at her workplace was irrelevant, the nature of the
testimony was limited and not inflammatory, and its effect on
the jury was minimal at best. Other evidence in the case
provided overwhelming proof of appellant's guilt. Appellant
confessed that he "exploded," shook and dropped his
nine-week-old child. He left his child in the hospital on life
support to visit Brewer in Ohio and showed no concern for the
child's welfare while there. The mere reference to an
unspecified incident of harassment was harmless under the facts
of this case.
IV. REFUSAL TO GIVE AN ASSAULT AND BATTERY INSTRUCTION
Appellant next contends the trial court erred by failing to
give an instruction on assault and battery. He argues that his
statement, that he only intended a slight bodily harm when he
shook the child, supports this theory. We disagree.
"When reviewing a trial court's refusal to give a proffered
jury instruction, we view the evidence in the light most
favorable to the proponent of the instruction." Vaughn, 263 Va.
at 33, 557 S.E.2d at 221 (citing Blondel, 241 Va. at 469, 403
S.E.2d at 341).
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"If the evidence is sufficient to support 'a conviction of
the crime charged, and there is no independent evidence
warranting a conviction [of the lesser-included offense], an
instruction on the lesser-included offense need not be given.'"
Id. at 36, 557 S.E.2d at 222-23 (quoting Guss v. Commonwealth,
217 Va. 13, 14, 225 S.E.2d 196, 197 (1976)).
"More than a scintilla of evidence is necessary to support
a lesser-included offense instruction requested by the
defendant." Leal v. Commonwealth, 37 Va. App. 525, 533, 559
S.E.2d 874, 878 (2002) (citing Commonwealth v. Donkor, 256 Va.
443, 445, 507 S.E.2d 75, 76 (1998)).
In the instant case, no credible evidence supports
appellant's assault and battery instruction request. He
admitted he shook the nine-week-old child while in a rage. Even
assuming he killed his child inadvertently, these actions would
properly be classified as manslaughter because a death resulted.
When the child died as the result of appellant's "assault
and battery," the death elevated the crime to at least
involuntary manslaughter. Thus, the trial court did not err in
failing to give an assault and battery instruction.
V. REFUSAL TO GIVE AN ACCIDENT INSTRUCTION
Lastly, appellant contends the trial court erred in
refusing to instruct the jury that the burden was on the
Commonwealth to prove the killing was not accidental.
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Appellant's contentions are without merit as the jury was
properly instructed on the Commonwealth's burden of proof.
"[J]ury instructions are only proper if supported by the
evidence, and . . . more than a scintilla of evidence is
necessary to support [an] . . . instruction requested by the
defendant." Donkor, 256 Va. at 445, 507 S.E.2d at 76.
"[The Supreme Court has] previously held that, although the
jury's ability to reject evidence will support an acquittal, the
ability to reject evidence does not supply the affirmative
evidence necessary to support a jury instruction." Vaughn, 263
Va. at 37, 557 S.E.2d at 223 (citing Donkor, 256 Va. at 445, 507
S.E.2d at 76).
"Where the evidence warrants, an accused is entitled to an
instruction presenting his theory of accidental killing as a
defense." Martin v. Commonwealth, 218 Va. 4, 6, 235 S.E.2d 304,
305 (1977) (citing Jones v. Commonwealth, 196 Va. 10, 15, 82
S.E.2d 482, 485 (1954)).
In the instant case, no credible evidence warranted an
instruction on accidental killing.
The trial court found
the evidence was presented to the jury, and
it was uncontradicted, that he repudiated
his original statements that this was an
accident totally; and his final statement
was that he shook the child and then dropped
the child. The killing may have been
accidental, and I think you've presented
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sufficient evidence to make that argument
that he didn't intend for the child to die;
but as far as the child rolling off the
couch and hitting its head and that's the
accident that caused this death, I don't
think that the evidence is in; and I don't
think the jury could credibly find that.
In addition to appellant's statements, Kinnison, the
medical examiner, testified that the child died from blunt force
injuries which would have required an "extreme" amount of force.
She stated that the amount of force necessary to cause the
injuries would not be consistent with a fall from an adult level
height. No evidence, including appellant's statements, his
actions while the child was in the hospital and the physical
findings of the medical examiner, supplies any basis for a
theory of accidental death. Accordingly, in the absence of any
credible evidence to support an instruction on accident, we
affirm the trial court's refusal of the instruction.
For the foregoing reasons, we affirm.
Affirmed.
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