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No evidentiary error in capital murder case

Virginia Lawyers Weekly//July 7, 2022

No evidentiary error in capital murder case

Virginia Lawyers Weekly//July 7, 2022

Where appellant was convicted of the attempted capital murder of two law enforcement officers, malicious wounding and firearm offenses, the trial court correctly refused to allow a defense expert to testify about appellant’s state of mind when the incident occurred,


Appellant lived with Johnson, his ex-wife. Their 19-year-old daughter, A.J., called 911 and told the operator that appellant assaulted her. She also reported there were guns on the premises but did not know where the guns were kept.

Two minutes later, appellant called 911 and asked to have A.J. removed from the home. He denied assaulting her and claimed that she had pushed him.

Several sheriff’s deputies were dispatched. Appellant shot and wounded two of them after one of them deployed a TASER device while attempting to arrest him for domestic assault.

Defense expert excluded

“Before trial, appellant filed notice of intent to introduce evidence of his insanity at the time of the offenses. Appellant’s retained expert, Dr. Stephen Lally, evaluated his mental status at the time of the incident and produced a report detailing his findings and conclusions.”

The commonwealth responded with a motion in limine to exclude Lally’s report and testimony. At the motion hearing “appellant proffered that Dr. Lally had ‘diagnosed [appellant] with depression and PTSD’ and his report ‘constitute[d] a proffer of the substance of the proposed evidence with respect to an insanity defense.’

“Appellant argued that he had established ‘a prima facie case for … an insanity defense based upon irresistible impulse’ and precluding Dr. Lally’s testimony would effectively deprive him of his constitutional right to present a defense.

“The Commonwealth countered that Dr. Lally’s opinion failed to ‘comport with the irresistible impulse doctrine” and, instead, constituted inadmissible evidence of appellant’s ‘diminished capacity.’ …

“[T]he trial court concluded that Dr. Lally’s report ‘fail[ed] to set forth clinical findings and opinions consistent with Virginia law on the elements of an insanity defense’ and constituted ‘nothing more than a catalog of speculative opinions amounting to little more than a diminished capacity defense.’

“Accordingly, the court excluded Dr. Lally’s expert report and testimony from trial.”

No state of mind testimony

At trial, defense counsel proffered testimony from Johnson about an incident in which she was called to a hotel because appellant “had ‘a gun and was suicidal.’”

The commonwealth moved to exclude Johnson’s testimony. The commonwealth conceded that Johnson would be a fact witness about what occurred and appellant’s “demeanor” but “but asked the court to prohibit Johnson from testifying about appellant’s ‘mental state.’

“Additionally, the Commonwealth asserted that the proffered testimony constituted impermissible character evidence of appellant’s ‘propensity’ to contemplate suicide.

“Appellant responded that the testimony was probative of his specific intent at the time of the offenses: ‘They [are] saying homicide; we are saying suicide.’

“The trial court determined that appellant sought to elicit ‘a specific prior instance of conduct’ and ‘“extrapolate from that, essentially a mental health-based defense’ to negate mens rea. ‘Re-adopt[ing]’ its previous ruling on the Commonwealth’s motion in limine, the court concluded that ‘[t]here’s no sliding scale of insanity’ and evidence of ‘mental health issues’ are inadmissible ‘absent some defense of insanity.’

“Additionally, the trial court ruled that ‘prior specific instances are not admissible as a method of proving a character trait.’ Accordingly, the court sustained the Commonwealth’s objection and excluded the proffered testimony.”

A jury convicted appellant of “two counts of attempted capital murder of a law enforcement officer, two counts of malicious wounding, four counts of use of a firearm in the commission of a felony, and three counts of maliciously discharging a firearm in an occupied dwelling.”

The court followed the jury’s recommendation and imposed a 74-year sentence.


Appellant argues that the court abused its discretion by excluding Lally’s proffered testimony.

“[A]ppellant stipulated that Dr. Lally’s report ‘constitute[d] a proffer of the substance of the proposed evidence with respect to an insanity defense.’

“That report stated that appellant had previously ‘research[ed] how to successfully commit suicide,’ ‘purchased a firearm to shoot himself,’ and ‘planned where he would commit suicide.’ (Emphasis added).

“In addition, appellant admitted to Dr. Lally that he ‘always has a plan’ for suicide and, at the time of the offenses, ‘ran through his plan’ before entering the closet and retrieving the loaded handgun.

“Thus, appellant’s proffered evidence established that he acted in accordance with a premeditated plan – not an irresistible impulse – when he shot Deputies Fischer and Iversen. …

“Appellant’s proffered evidence precluded ‘as a matter of law’ any finding that he acted under an irresistible impulse. … Consequently, Dr. Lally’s testimony regarding appellant’s mental state at the time of the offenses was ‘irrelevant,’ and therefore inadmissible. …

Appellant argues that the court should have admitted Johnson’s proffered evidence of appellant’s suicidal behavior.

“He argues that the trial court wrongly concluded that the testimony constituted inadmissible “diminished capacity” evidence and was irrelevant.

“Appellant asserts that the ‘court’s ruling deprived [him] of important corroborative evidence in support of his defense’ that he specifically intended to kill himself, not the deputies, and their shooting was accidental.

“We do not address appellant’s arguments because any possible error in excluding the proffered testimony was harmless. …

“]T]he Commonwealth’s evidence overwhelmingly established that appellant specifically intended to shoot and kill Deputies Iversen and Fischer. … [T]he evidence established that appellant shot Deputy Iversen twice and Deputy Fischer once at close range without provocation. …

“Appellant also concealed multiple, loaded firearms in readily-accessible locations before the deputies arrived but falsely assured the 911 dispatcher that his firearms were not loaded and he would not touch them.

“From these circumstances, a jury reasonably could conclude that appellant premeditated shooting the deputies and deliberately attempted to create a false sense of security for them so that they would be unprepared to neutralize his violent intentions.”

Further, appellant’s theory that the shooting was accidental because of the “startle effect” from the Taser is belied by the amount of force necessary to fire appellant’s gun. Further, an expert testified that it was unlikely that appellant would have experienced multiple “startle effects” from a single Taser discharge.

“The rational inference from that testimony was that appellant did not accidentally fire three shots; instead he purposely and repeatedly fired his weapon with the intent to kill the deputies.

“Thus, the jury could judge appellant’s explanation that the shooting was accidental as false and evidence that he was lying to conceal his guilt. …In sum, the ‘combined force’ of the above circumstances established overwhelming evidence of appellant’s guilt.”


Johnson v. Commonwealth, Record No. 1279-20-4, May 17, 2022. CAV (Clements) from the Circuit Court of Loudoun County (Fisher). Edward J. Ungvarsky for appellant. Katherine Quinlan Adelfio for appellee. VLW 022-7-141, 22 pp. Unpublished opinion.

VLW 022-7-141

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