PEEPLES v. COMMONWEALTH OF
SEPTEMBER 29, 1998
Record No. 1261-97-2
DAVID TORAN PEEPLES
COMMONWEALTH OF VIRGINIA
OPINION BY JUDGE JAMES W. BENTON, JR.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Present: Judges Benton, Elder and Bumgardner
Argued at Richmond, Virginia
Kieran T. Grennan (Grennan, Tondrowski, White and Wicker,
Affiliated Law Offices, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (Richard Cullen,
Attorney General, on brief), for appellee.
David Toran Peeples, a juvenile, was tried and convicted by a
jury of aggravated malicious wounding and use of a firearm in the
commission of aggravated malicious wounding in violation of Code
” 18.2-51.2 and 18.2-53.1, respectively. On appeal, Peeples
contends the trial judge erred in refusing to admit expert
testimony regarding Peeples’s mental state, which was offered to
negate malice and to aid in his claim of self-defense. For the
reasons that follow, we hold that the evidence was admissible
because it tended to aid his claim of self-defense. Therefore, we
reverse Peeples’s convictions and remand for a new trial.
At trial, Paul Hicks testified that on the evening of August 24,
1996, he and Richard Harvey were walking along a street when
Peeples drove by. Hicks called to Peeples, whom he had known for
many years. Peeples parked his car, exited the vehicle with Ross
Jefferson, and asked Hicks and Harvey if they wanted to purchase
a "blunt" — a hollowed out cigar stuffed with
marijuana — for two dollars. When Hicks and Harvey gave Peeples
two dollars, Peeples rolled the marijuana blunt. However, Peeples
refused to give the marijuana blunt to Hicks and Harvey because
Peeples wanted to smoke it with them. After Hicks and Peeples
argued, Hicks grabbed the marijuana blunt. Peeples walked away,
leaving Hicks, Harvey, and Jefferson.
Peeples returned a few minutes later and walked into an alley
with the three young men. Peeples continued to argue with Hicks,
who was then smoking the marijuana. During the argument, Peeples
withdrew a gun and shot Hicks twice, once in each leg. Harvey,
who was standing nearby, asked Peeples what he was doing. Peeples
replied, "Y’all want to fuck with me?," and chased
Harvey down the street. Peeples then returned and shot Hicks
three more times, twice in the abdomen and once in the head,
while Hicks was lying on the ground.
Harvey testified that all four of the teenagers had known each
other for many years. He testified that he and Hicks each gave
Peeples one dollar for the marijuana blunt. Harvey’s testimony of
events was consistent with Hicks’s testimony.
The surgeon who operated on Hicks testified that the shots to
Hicks’s legs had a "straight-through trajectory" and
the shots to the abdomen and head had a "downward
trajectory." He testified that the shot to the head appeared
to come from behind the ear and exit through the nose. Hicks lost
vision in his right eye as a result of the shooting.
Peeples, who was sixteen years of age and in the eighth grade,
testified in his own defense. He testified that the events began
when Hicks and Harvey asked him to change a twenty dollar bill.
When Peeples displayed his money in the alley, Hicks said,
"We’re taking this." Harvey said, "Yeah. That’s
right. We’re taking it," and began reaching to his waist as
if he had a gun. Peeples said he was scared, thought he was being
robbed, and believed he would have been shot because Hicks had a
reputation for violence and other people had been robbed in the
neighborhood. Peeples testified that he panicked, drew his gun,
and pulled the trigger without aiming.
Before trial, the Commonwealth made a motion in limine
to exclude the testimony of Dr. Michelle Nelson, a psychologist,
who would testify concerning Peeples’s mental condition at the
time of the offense. The trial judge reserved ruling on that
motion. At trial, Peeples’s counsel proffered that Dr. Nelson
would testify that Peeples was mildly mentally retarded.
Peeples’s counsel also proffered that Dr. Nelson would testify
that because of "the particular way that [Peeples’s] mind is
affected, he has extreme difficulty correctly interpreting social
situations. He tends to miss the point exactly what is happening
and reacts inappropriately." Peeples’s counsel argued that
Dr. Nelson’s testimony regarding the way in which Peeples
mentally perceived social situations would be relevant to two
issues: (1) whether Peeples acted under heat of passion rather
than with malice when he shot Hicks and (2) whether the shooting
was an excusable act of self-defense. The trial judge granted the
Commonwealth’s motion to exclude the testimony.
The jury convicted Peeples of aggravated malicious wounding and
use of a firearm in the commission of this offense. At the
sentencing hearing, Dr. Nelson testified that Peeples has a
cognitive impairment and is mentally retarded with an IQ of 55.
She also testified that "Peeples is likely to interpret
social situations differently than most people. . . . [H]e has
problems with impulse control, he’s likely to jump to conclusions
that other people wouldn’t necessarily jump to." The trial
judge sentenced Peeples, a juvenile, to twenty-five years on the
aggravated malicious wounding charge and three years on the
firearm charge. See Code Sect.16.1-272.
"As a general rule, a litigant is entitled to introduce all
competent, material, and relevant evidence tending to prove or
disprove any material issue raised, unless the evidence violates
a specific rule of admissibility." Tarmac Mid-Atlantic,
Inc. v. Smiley Block Co., 250 Va. 161, 166, 458 S.E.2d 462,
465 (1995). "Evidence is admissible if it is both relevant
and material," and it is inadmissible if it fails to satisfy
either of these criteria. Evans-Smith v. Commonwealth, 5
Va. App. 188, 196, 198, 361 S.E.2d 436, 441, 442 (1987).
"Evidence is relevant if it has any logical tendency,
however slight, to establish a fact at issue in the case." Ragland
v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675, 678
(1993). "Evidence is material if it relates to a matter properly
at issue." Evans-Smith, 5 Va. App. at 196, 361 S.E.2d
at 441 (emphasis added).
Peeples contends that Dr. Nelson’s testimony was relevant to
prove self-defense. Peeples argues that his point of view, state
of mind, and the manner in which he perceives events were
material to the issue of whether he reasonably feared death or
serious bodily injury at the time of the shooting and that Dr.
Nelson’s testimony was relevant to proving his mental condition
and his perception of social situations. We agree.
Self-defense is a recognized defense to a criminal charge in
Virginia. See McGhee v. Commonwealth, 219 Va. 560,
562, 248 S.E.2d 808, 810 (1978).
"Homicide [or wounding] in self-defense may be either
justifiable or excusable. If it is either, it entitles the
prisoner to an acquittal." In either case, he is deemed to
be innocent and guiltless of any crime.
Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, 31
(1958) (citations omitted). Assessing whether a particular act
was committed in self-defense is distinct from determining
whether its commission was intentional. In making a plea of
self?defense, "a defendant implicitly admits the killing
[or wounding] was intentional." McGhee, 219 Va.
at 562, 248 S.E.2d at 810 (emphasis added). Instead, the issue in
a plea of self?defense is whether the accused’s admittedly
intentional act was either justifiable or excusable. See id.;
cf. Barrett v. Commonwealth, 231 Va. 102, 106, 341
S.E.2d 190, 192 (1986) (stating that "[a] plea of self
defense and a claim of provoked heat of passion do not conflict
with each other").
The "crucial issues" in a plea of self?defense are the
defendant’s "state of mind at the time of the
shooting and how the circumstances reasonably appeared to [the
defendant] at that time." Jones v. Commonwealth, 217
Va. 226, 229, 228 S.E.2d 124, 125 (1976) (emphasis added). The
test of self-defense is whether the defendant reasonably feared
"death or serious bodily harm to himself at the hands of his
victim." McGhee, 219 Va. at 562, 248 S.E.2d at 810.
"It is not essential to the right of self-defense that the
danger should in fact exist." Id. However,
"[t]he bare fear that a man intends to commit murder [or
inflict serious bodily injury], however well grounded,
unaccompanied by any overt act indicative of such an intent, will
not warrant killing [or injuring] the party by way of
prevention." Harper v. Commonwealth, 196 Va. 723,
731, 85 S.E.2d 249, 254 (1955) (citation omitted).
Unlike other tests used to evaluate whether conduct was legally
"reasonable," the Supreme Court has emphasized that the
test of whether an accused’s fear was sufficiently reasonable to
justify acting in self?defense is based upon the accused’s subjective
point?of?view rather than the reaction of an ordinary person to
See McGhee, 219 Va. at 562, 248 S.E.2d at 810
(noting the "subjective nature of the defense" of
self-defense). "[W]hether the danger is reasonably apparent
is always to be determined from the viewpoint of the defendant at
the time he acted." Id. Although most jurisdictions
require that a defendant’s fear be both subjectively real and
objectively reasonable before a homicide or wounding will be
justified or excused on the ground of necessity, the Supreme
Court has expressly rejected any objective component in
The Supreme Court has ruled as follows:
"’What reasonably appeared to the accused at the time of the
shooting, as creating the necessity for his act, is the test and not
what reasonably appeared to him, provided it would so appear to
some other reasonable person under similar circumstances.’"
Id. at 562, 248 S.E.2d at 810 (quoting Harper, 196
Va. at 731, 85 S.E.2d at 254) (emphasis added); see Taylor
v. Commonwealth, 185 Va. 224, 227-28, 38 S.E.2d 440, 441
(1946) (holding trial judge erred in giving jury instruction on
self?defense which stated that the accused’s fear should be
evaluated from both the accused’s subjective point?of?view and
from the perspective of "a reasonable man placed under
unlike in the context of determining mens rea, the
accused’s mental state and manner of perception are material
issues to a plea of self?defense, regardless of whether an
insanity defense has been raised. See Craig v.
Commonwealth, 14 Va. App. 842, 844, 419 S.E.2d 429, 431
(1992) (holding that when a claim of self?defense is made
"the acts must be viewed through the eyes of the person
allegedly threatened"); cf. Jacobs v. Jacobs,
218 Va. 264, 267, 237 S.E.2d 124, 126 (1977) (in civil context,
question of duress "is to be determined on consideration of
the surrounding circumstances such as age, sex, capacity,
situation, and relation of the parties").
In light of the subjective test for determining the
reasonableness of a defendant’s fear in a plea of self-defense,
the trial judge erred when he concluded that Dr. Nelson’s
testimony had no tendency to prove a material issue. The record
indicates Dr. Nelson would have testified that Peeples had an IQ
of 55, was "likely to interpret social situations
differently than most people," had "problems with
impulse control," and was "likely to jump to
conclusions that other people wouldn’t necessarily jump to."
This evidence is probative of Peeples’s state of mind and manner
of perception at the time of the shooting.
In addition, Dr. Nelson’s testimony was relevant to the
credibility of Peeples’s testimony that he actually feared
serious bodily injury at the hands of Hicks and Harvey. Peeples
testified that he feared he was being robbed by Hicks and Harvey
and could possibly be shot. According to Peeples, Harvey reached
for what Peeples believed was a gun. Peeples testified he
responded by firing his gun in a panic. In assessing the
credibility of Peeples’s version of the facts, the jury had to
determine first, whether Peeples had an honest belief that he was
in danger, and second, whether, from Peeples’s perspective,
Harvey’s reaching motion, along with the comments of Harvey and
Hicks that they were taking Peeples’s money, were
"indicative of a present purpose to make the apprehended
attack." Stoneman v. Commonwealth, 66 Va. (25 Gratt.)
887, 900 (1874). Dr. Nelson’s expert opinion about Peeples’s
mental condition would have tended to prove whether Peeples’s
testimony represented a truthful account of his actual
interpretation of his encounter with Hicks and Harvey.
The holding in Stamper v. Commonwealth, 228 Va. 707, 324
S.E.2d 682 (1985), excluding proof of a defendant’s mental state
with psychiatric evidence, has no application to this aspect of
this case because, unlike in Stamper, the issue of
Peeples’s mental state was properly at issue. The applicability
of Stamper’s rule of exclusion is limited to those
criminal cases where the accused’s mental state is not a material
issue. Although the holding of Stamper is broadly worded
and might be read as prohibiting the admission of expert
psychiatric opinion regarding a defendant’s mental condition
during the guilt phase of a criminal case unless insanity is
raised as a defense,
the Supreme Court has sanctioned the use of such evidence for at
least one other purpose. In Greenfield v. Commonwealth,
214 Va. 710, 204 S.E.2d 414 (1974), the Supreme Court tacitly
approved the admissibility of a psychiatrist’s opinion regarding
the defendant’s mental state when the defense of
"unconsciousness" had been raised. See id.
at 713-14, 204 S.E.2d at 417-18 (noting that the defense of
unconsciousness may be raised by "persons of sound
mind"); see also LeVasseur v. Commonwealth,
225 Va. 564, 586, 304 S.E.2d 644, 656 (1983) (stating that
"[w]hen . . . no insanity defense is interposed, the
defendant’s mental condition is only relevant insofar as it might
be probative of a fact in issue").
The Supreme Court’s subsequent treatment of Stamper
further indicates that psychiatric opinion is inadmissible during
the guilt phase only when a defendant’s mental state is not
properly at issue. In Smith v. Commonwealth, 239 Va. 243,
389 S.E.2d 371 (1990), the Court restated the holding of Stamper
in more refined terms. It noted that "[i]n Stamper v.
Commonwealth, 228 Va. 707, 324 S.E.2d 682 (1985), we held
that "[u]nless an accused contends that he was beyond [the
borderline of insanity] when he acted, his mental state is
immaterial to the issue of specific intent." Smith,
239 Va. at 259, 389 S.E.2d at 879 (emphasis added). Smith,
like Stamper, was a case in which no insanity defense was
raised and psychiatric evidence regarding the defendant’s mental
condition was offered to prove whether he possessed the requisite
mens rea of the crime charged. Id. at
258?60, 389 S.E.2d at 879?80.
Thus, we conclude Stamper does not compel the exclusion of
Dr. Nelson’s testimony as it pertains to self-defense because the
issue of Peeples’s mental state was properly at issue once he
raised this defense. As the Supreme Court has noted, a
defendant’s state of mind is a "crucial issue" to
determining whether his or her fear of serious bodily harm was
subjectively reasonable under the circumstances. Jones,
217 Va. at 229, 228 S.E.2d at 125.
The Commonwealth contends that if the trial judge erred, the
error was harmless insofar as it related to the jury’s finding of
guilt. We disagree.
To be harmless "’it [must] plainly appear from the record
and the evidence . . . that’ the error did not affect the
verdict." Lavinder v. Commonwealth, 12 Va. App. 1003,
1005, 407 S.E.2d 910, 911 (1991) (en banc) (quoting
Code Sect.8.01?678). "An error does not affect a verdict
[only] if a reviewing court can conclude, without usurping the
jury’s fact finding function, that, had the error not occurred,
the verdict would have been the same." Id.
After reviewing the record in this case, we conclude that the
error in refusing to admit Dr. Nelson’s testimony on the issue of
self-defense was not harmless error as to the jury’s finding of
guilt. Peeples testified that he knew Hicks had a violent
reputation. Peeples saw Harvey reaching for what Peeples believed
was a gun. Peeples believed he was being robbed and feared he
might be shot. Peeples testified that he started shooting because
he "panicked." Although the record contains evidence
that clearly contradicts Peeples’s claim of self?defense,
"[o]ther evidence of a disputed fact standing alone, does
not establish that an error is harmless." Hooker v.
Commonwealth, 14 Va. App. 454, 458, 418 S.E.2d 343, 345
(1992). A harmless error analysis is not simply a sufficiency of
the evidence analysis. See id. Even if "the
other evidence amply supports the jury’s verdicts, [error is not
harmless when] the disputed testimony may well have affected the
jury’s decision." Cartera v. Commonwealth, 219 Va.
516, 519, 248 S.E.2d 784, 786 (1978).
We cannot say that if the jury believed Peeples’s version of the
events and had before it the erroneously excluded evidence, it
would have reached the same verdict. We also cannot say that the
only reasonable conclusion to be drawn from this evidence was
that when Peeples shot Hicks, Peeples did not act in
self?defense. Because this excluded evidence clearly tended to
support Peeples’s claim of self-defense, it does not
"plainly appear" that the proffered evidence would not
have affected the verdict.
For the foregoing reasons, we hold that the trial judge erred in
refusing to allow Peeples to introduce psychological testimony
regarding his mental condition for the purpose of establishing
whether he acted in self-defense. Accordingly, we reverse the
judgment and remand for a new trial.
Reversed and remanded.
Bumgardner, J., dissenting.
I respectfully dissent from the majority’s decision.
I believe Zelenak v. Commonwealth, 25 Va. App. 295, 487
S.E.2d 873 (1997) (en banc), controls this case. In
Zelenak, the defense was duress, and the issue was whether
the threat to the defendant "caused her reasonably to
believe that performing the criminal conduct was her only
reasonable opportunity to avoid imminent death or serious bodily
harm." Id. at 300, 487 S.E.2d at 875. This Court,
sitting en banc, held that the trial court properly
excluded expert psychological opinion because it was an opinion
on the ultimate issue.
In this case, the defense is self-defense, and the issue is
whether the defendant "reasonably feared death or serious
bodily injury at the time of the shooting." However, the
majority holds that the trial court improperly excluded expert
psychological opinion because it was not an opinion on the
ultimate issue. The majority dismisses Zelenak in a
footnote and adopts the reasoning of the dissent. I do not
believe that precedent can be dismissed so simply. In Zelenak
the defense was duress; in this case the defense was
self-defense. In both, the mental element necessary to establish
the defense was the subjectively reasonable fear of the
defendant. If psychological opinion was not permissible in one,
it cannot be permissible in the other.
The majority disregards the clear holding of Stamper v.
Commonwealth, 228 Va. 707, 324 S.E.2d 682 (1985). That case
held as follows: "we hold that evidence of a criminal
defendant’s mental state at the time of the offense is, in the
absence of an insanity defense, irrelevant to the issue of
guilt." Id. at 717, 324 S.E.2d at 688. The Court
refused to adopt a diminished capacity theory of criminal
responsibility. Further, the Court interpreted the evidence as an
attempt to introduce expert opinion on the ultimate fact. In its
conclusion, the Court stated the fundamental reason for such
The state of knowledge in the fields of medicine and psychiatry
is subject to constant advance and change. The classifications
and gradations applied to mental illnesses, disorders, and
defects are frequently revised. The courts cannot, and should
not, become dependent upon these subtle and shifting gradations
for the resolution of each specific case.
Stamper, 228 Va. at 716, 324 S.E.2d at 688.
Stamper is controlling precedent. It was neither limited
nor refined by Smith v. Commonwealth, 239 Va. 243, 259-60,
389 S.E.2d 871, 879-80, cert. denied, 498 U.S. 881
(1990), as the majority suggests. Rather, it was followed with
approval in all respects as it has been in later cases. See
Jenkins v. Commonwealth, 244 Va. 445, 456, 423 S.E.2d 360,
367-68 (1992), cert. denied, 507 U.S. 1036 (1993).
I believe the trial court correctly excluded this opinion
evidence based on the direct precedent of Zelenak and the
controlling rationale of Stamper. I would affirm the
 For examples of other legal
standards employing a standard of "objective"
reasonableness, see Gazette, Inc. v. Harris, 229
Va. 1, 22?23, 325 S.E.2d 713, 729 (1985) (holding that, in
determining whether an editor of a publication exercised ordinary
care in a suit for libel, "a trial judge must decide,
viewing the circumstances objectively, whether a reasonable and
prudent editor should have anticipated that the words used
carried an imputation necessarily harmful to reputation"); Griffin
v. Shively, 227 Va. 317, 321, 315 S.E.2d 210, 212?13 (1984)
(stating that, for the purpose of determining tort liability, a
defendant has committed ordinary negligence if he or she failed
"to use ‘that degree of care which an ordinarily prudent
person would exercise under the same or similar circumstances to
avoid injury to another’"); Gilpin v. Commonwealth,
26 Va. App. 105, 110?11, 493 S.E.2d 393, 396 (1997) (stating
that, in assessing the legality of an investigative stop made by
a police officer, the court must "view the facts objectively
through the eyes of a reasonable police officer" to
determine whether "the officer could have entertained an
articulable reasonable suspicion that the defendant was involved
in unlawful activity").
See Wayne R. LaFave and Austin W. Scott, Jr., Handbook on
Criminal Law Sect.53 (1972) (stating that "the case law
and statutory law on self?defense generally require that the
defendant’s belief in the necessity of using force to prevent
harm to himself be a reasonable one, so that one who honestly
though unreasonably believes in the necessity of using force in
self-protection loses the defense" but noting that
"[t]here is a little authority that an honest belief in the
necessity of self?defense will do; it need not in addition be a
reasonable belief"); 2 Charles E. Torcia, Wharton’s
Criminal Law Sect.127 (15th ed. 1993) (stating that, in order
to invoke the defense of self?defense, "[t]he test is
whether a reasonable man under similar circumstances would have
believed that he was in danger" but noting "[o]ther
courts regard it as immaterial whether an ordinarily courageous
man would or would not have believed that
it was necessary to take life"); see also 40 C.J.S. Homicide
Sect.132 (1991) (same); 40 Am.Jur.2d Homicide Sect.154
 In Taylor,
the Supreme Court apparently overruled its earlier decision to
incorporate an objective "reasonable person" component
into the test of self?defense. In McReynolds v. Commonwealth,
177 Va. 933, 15 S.E.2d 70 (1941), decided five years before Taylor,
the Court stated:
It is not enough for the accused to say that he was terrified.
There is no way by which we can gauge his state of mind.
Moreover, one whose nerves were unstrung might have been
frightened by facts which would not have troubled an ordinary man
at all. It is for a jury to say whether they were reasonably
sufficient to warrant an ordinary man in believing that he
stood in danger of serious bodily harm.
Id. at 943, 15 S.E.2d at 74 (emphasis added); see Taylor,
185 Va. at 229-32, 38 S.E.2d at 442-43 (Holt, J., dissenting).
Contrary to the Commonwealth’s argument, the record does not
indicate that Dr. Nelson’s testimony would have directly
addressed the "ultimate issue" of whether Peeples was
reasonably afraid of death or serious bodily harm at the time of
the shooting. Instead, Dr. Nelson’s testimony was limited to
testimony about Peeples’s general mental characteristics and was
merely probative of the ultimate issue of the subjective
reasonableness of Peeples’s fear. As such, this case is
distinguishable from Zelenak v. Commonwealth, 25 Va. App.
295, 300, 487 S.E.2d 873, 875 (1997).
Stamper, 228 Va. at 717, 324 S.E.2d at 688 ("we hold
that evidence of a criminal defendant’s mental state at the time
of the offense is, in the absence of an insanity defense,
irrelevant to the issue of guilt").
view of our holding on this issue, we need not address Peeples’s