Home / Uncategorized / MCCULLOCH v. COMMONWEALTH



MAY 25, 1999

Record No. 0863-98-3





Clifford R. Weckstein, Judge

Present: Judges Coleman, Bumgardner and Lemons

Argued at Salem, Virginia


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

The defendant filed an insanity defense notice
on June 25 pursuant to Code Sect. 19.2-168. The Commonwealth
then moved for an examination of the defendant by a qualified
mental health expert pursuant to Code Sect. 19.2-168.1. The
trial court granted the motion and returned the defendant to
Central State Hospital for 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 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

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 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

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

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 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.
, 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
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
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.