COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
JAMES CARL McCULLOCH
OPINION BY
v. Record No. 0863-98-3 JUDGE RUDOLPH BUMGARDNER, III
MAY 25, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Clifford R. Weckstein, Judge
Roger Dalton, Senior Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
James C. McCulloch appeals his conviction of first degree
murder of his wife. He argues that the trial court erred (1) in
denying his request for a second expert to evaluate his sanity
at the time of the offense, and (2) in not permitting lay
witness testimony about his sanity at the time of the offense.
Concluding that the trial court did not err, we affirm.
The defendant’s wife entered a grocery store bleeding from
a stab wound. Just as she entered, two customers saw a man run
past the front of the store. They chased him and saw him
holding a knife. The two followed the man, who turned out to be
the defendant, to his home. When the police arrived, they found
a bloodstained knife in the kitchen sink, and the defendant
admitted to them that he stabbed his wife.
Pursuant to the defendant’s motion, the trial court
appointed Dr. Jerome S. Nichols, a licensed clinical
psychologist, to evaluate defendant's competency to stand trial
and mental state at the time of the offense. Dr. Nichols
reported that the defendant was competent to stand trial. Only
the defendant's attorney was given the evaluation on sanity at
the time of the offense. It would show that the defendant was
sane.
The defendant attempted suicide while in jail. Following
further evaluation, Dr. Nichols found the defendant no longer
competent to stand trial. The trial court continued the trial
and committed him to Central State Hospital. After treatment,
the hospital found the defendant competent and returned him for
trial. The trial court again continued the trial when Dr.
Nichols indicated the defendant needed additional treatment.
Though the doctor changed that opinion, the trial court still
continued the case to allow additional medical treatment.
The defendant filed an insanity defense notice on June 25
pursuant to Code § 19.2-168. The Commonwealth then moved for an
examination of the defendant by a qualified mental health expert
pursuant to Code § 19.2-168.1. The trial court granted the
motion and returned the defendant to Central State Hospital for
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the evaluation. That evaluation found him sane at the time of
the offense.
On the day before the trial, the defendant moved for
appointment of a psychiatrist to determine sanity at the time of
the offense. The trial court ruled that the initial appointment
of Dr. Nichols, a psychologist, had satisfied all legal
requirements and that the defendant was not entitled to another
court-appointed expert. The trial court found that the
defendant offered no more than a possibility that a second
opinion would reveal anything different. The trial court denied
the motion but emphasized that it would reconsider its ruling at
any time the defendant presented a factual basis indicating by
more than a mere possibility that a second opinion would assist
the defense.
At the pretrial hearing the day before trial, the trial
court ruled that unless the defendant presented expert testimony
that he suffered from a disease of the mind, he could not
present evidence that he was insane at the time of the offense.
Until the defendant proffered expert testimony that he was
insane under the law of Virginia, he could not offer during the
guilt phase testimony about his mental state at the time of the
offense.
The defendant also sought to prove insanity through the
testimony of lay witnesses who observed his behavior, demeanor,
and actions. The defendant proffered the testimony of several
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witnesses. The court ruled that the affirmative defense of
insanity required the defendant to introduce “into evidence []
someone’s opinion that the defendant is ‘insane’ . . ., [and]
all that a lay witness can do is to give observations about
facts.” Having no expert opinion that the defendant was insane,
the trial court precluded the defendant from introducing other
testimony about his mental condition at the time of the offense.
During the trial, the defendant proffered that one witness
would testify that after his arrest the defendant spoke to her
as if she were his wife. Another would testify that before the
murder he “didn’t seem right.” Still another would testify that
a month before the murder the defendant “was not acting like
himself.” The testimony of seven jail inmates would indicate
variously that the defendant “was crazy”; “acted very nervous
all the time like he didn’t have it all together”; “cried a
lot”; “would sit in his cell and bark like a dog”; “acts like he
is in another world and just kind of hangs to himself”; “acted
very depressed”; and “acted like he had a split personality.”
Two additional witnesses would testify that the defendant lost
forty pounds, thought his wife was alive, had blackouts and was
not sleeping and that the defendant lost sixty pounds and “hears
and sees things.”
The trial court excluded some lay testimony because it
concerned the defendant’s conduct and demeanor after the offense
was committed. It excluded other testimony because it was
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impermissible lay opinion. The trial court permitted one lay
witness to testify about the defendant’s habits before the
murder because it corroborated the defendant’s testimony. It
also permitted the defendant to testify about his state of mind
at the time of the offense.
Indigent defendants are entitled to the appointment of a
psychiatrist to assist in their defense, but this right is not
absolute. See Ake v. Oklahoma, 470 U.S. 68, 77 (1985). The
defendant must demonstrate “that his sanity at the time of the
offense is to be a significant factor at trial . . . .” Id. at
83. A request unaccompanied by a showing of reasonableness is
properly denied. See Caldwell v. Mississippi, 472 U.S. 320, 323
n.1 (1985). The trial court did appoint an expert, Dr. Nichols,
who determined that, in his opinion, the defendant was sane at
the time of the offense.
The defendant argues that his case required the appointment
of an additional expert because Dr. Nichols is not a
psychiatrist. The Supreme Court in Ake recognized the
obligation of the trial court to provide a defendant with “one
competent psychiatrist.” Ake, 470 U.S. at 79. However, that
Court “did not intend to restrict to psychiatrists those mental
health professionals who could perform evaluations of insanity
at the time of the offense.” Funk v. Commonwealth, 8 Va. App.
91, 96, 379 S.E.2d 371, 373 (1989).
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The only reason given to support the request for
appointment of a psychiatric expert was the suggestion that a
psychologist was not competent to evaluate any relevant effect
upon defendant resulting from a previous bullet wound to his
head. Dr. David Hartman, the psychiatrist who treated the
defendant for ten years after that shooting, stated that the
gunshot wound had not entered the brain and had caused no
organic brain damage. When Dr. Hartman was unable to offer an
opinion about the defendant’s mental state at the time of the
offense, the trial court excluded his testimony.
The trial court did not err in refusing to appoint a
psychiatrist as a second expert. The court found that the
defendant had not established a factual basis to support his
request. Determining whether the defendant has made an adequate
showing is a decision that lies within the trial court's
discretion. See Husske v. Commonwealth, 252 Va. 203, 211, 476
S.E.2d 920, 926 (1996).
The trial court did not abuse its discretion. There was no
indication that a further evaluation would turn out differently.
The basis for the request was supposition that was not supported
by the defendant’s own doctor. When denying the motion, the
trial court emphasized that it would reconsider the ruling if
the defendant presented anything to indicate there was more than
the mere possibility that a second expert would conclude
differently. The defendant presented nothing to suggest more
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than a mere possibility. All medical evaluations concluded that
the defendant was sane at the time of the offense. The first
appointment met the obligation to provide a mental health
expert, and the defendant never showed a particularized need for
an additional evaluation. See id. at 213, 476 S.E.2d at 926.
Next, the defendant argues that the trial court erred in
ruling that expert testimony was a necessary predicate to his
asserting an insanity defense and erred in excluding the
proffered lay witness testimony. The trial court held the
defendant had to present expert testimony before he could
introduce lay evidence to support his insanity defense. We
conclude that the holding was correct in this case. The
evidence did not support the defendant’s insanity defense,
though in an appropriate case factual testimony alone may be
sufficient to establish the defense.
The defendant must prove to the satisfaction of the jury
that he was insane at the time of the offense. See Christian v.
Commonwealth, 202 Va. 311, 316, 117 S.E.2d 72, 75-76 (1960). He
has the burden of affirmatively raising the issue of insanity
and proving his mental disease or defect by a preponderance of
the evidence. See Taylor v. Commonwealth, 208 Va. 316, 322, 157
S.E.2d 185, 189-90 (1967); Herbin v. Commonwealth, 28 Va. App.
173, 183, 503 S.E.2d 226, 231 (1998). Herbin stated that both
facets of the M'Naghten test require a showing of a disease of
the mind. “Although lay testimony may support a plea of
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insanity, ‘it is generally recognized that it is advisable to
adduce expert testimony to better resolve such a complex
problem.’” Herbin, 28 Va. App. at 183, 503 S.E.2d at 231
(quoting Shifflett v. Commonwealth, 221 Va. 760, 769, 274 S.E.2d
305, 311 (1981)).
“While lay witnesses may testify to the attitude and
demeanor of the defendant, ‘[l]ay witnesses cannot express an
opinion as to the existence of a particular mental disease or
condition.’” Id. (quoting Mullis v. Commonwealth, 3 Va. App.
564, 573, 351 S.E.2d 919, 925 (1987)). In Mullis, 3 Va. App. at
573, 351 S.E.2d at 925, a lay witness was not permitted to
explain the defendant's actions by testifying that he was
“paranoid” because this might suggest to the jury that the
defendant had been diagnosed “paranoid.” Here, no medical
evidence supporting an insanity defense was introduced, and the
lay testimony defendant proffered was insufficient to establish
a prima facie case for an insanity defense.
The trial court excluded lay witness testimony that
addressed the defendant’s state of mind when offered for the
purpose of establishing his sanity at the time of the offense.
The court reserved ruling on whether the same testimony could be
admissible for a different purpose. At trial, however, the
defendant never offered lay testimony for the purpose of
determining whether the defendant acted with malice. We hold
that the trial court did not err in excluding testimony for the
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purpose for which it was offered, and we will not consider an
argument presented by a party for the first time on appeal. See
Rule 5A:18.
Concluding that the trial court did not err, we affirm the
conviction.
Affirmed.
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