Brown v. Commonwealth

¶1dissenting.

¶2I respectfully dissent from the majority opinion and would affirm the conviction. In my judgment, the trial judge correctly ruled that Dr. Ryans’ testimony was inadmissible. The doctor’s testimony improperly expressed an opinion regarding a witness’ credibility.

The credibility of witnesses is a matter for the jury to decide, weighing such factors as the appearance and manner of the witnesses on the stand, their intelligence, their opportunity for knowing the truth and observing the things about which they testify, their interest in the outcome of the case, their, bias, and if any had been shown, their prior inconsistent statements and prior criminal convictions.

¶3Mullis v. Commonwealth, 3 Va.App. 564, 571, 351 S.E.2d 919, 923 (1987).

¶4*328The Virginia Supreme Court has ruled that an expert may not “express an opinion as to the veracity of any witness.” Fitzgerald v. Commonwealth, 223 Va. 615, 630, 292 S.E.2d 798, 806 (1982). While expert testimony may be admitted to establish the existence and characteristics of a mental or personality disorder which could affect a witness’ credibility, such evidence is inadmissible where the thrust and intent of the evidence is that a witness’ testimony “[can] not be believed” because of his personality disorder. Coppola v. Commonwealth, 220 Va. 243, 252-53, 257 S.E.2d 797, 804 (1979), cert. denied, 444 U.S. 1103, 100 S.Ct. 1069, 62 L.Ed.2d 788 (1980); see also Davison v. Commonwealth, 18 Va.App. 496, 503-04, 445 S.E.2d 683, 687-88 (1994) (expert evidence improperly admitted where designed to bolster a specific witness’ credibility).

¶5The majority only partially addresses the proffered testimony excluded by the trial court. The majority states that Dr. Ryans’ testimony was offered to establish “[1] that Sydow had not been truthful about his illness and [2] that one manifestation of Sydow’s illness was a lack of regard for the truth.” Had the inquiry been limited to these two issues, Dr. Ryans’ testimony would have been admissible, at least with respect to the latter issue.1 Whether Sydow had been diagnosed by Dr. Ryans as having an antisocial personality disorder and whether an antisocial personality disorder is characterized by, inter alia, the lack of regard for the truth, are matters upon which an expert may express an opinion under the holding in Coppola.

¶6However, the record shows that Dr. Ryans’ proffered testimony included his opinion concerning Sydow’s ability to tell *329the truth. Dr. Ryans’ proffered testimony, in answer to defense counsel’s questions, was as follows:

Q Did you make a diagnosis at the end of [Sydow’s] stay at Central State?

A Yes.

Q Did that diagnosis include ... that he exhibited symptoms of antisocial personality disorder?

A Yes.

Q Are there certain specific diagnostic criteria for that diagnosis?

A Yes.

Q One of the criteria that Sydow exhibited was that number six under criteria?

A Yeah, six.

Q Would that be has no regard for the truth as indicated.... Number six would be—would that be no regard for the truth as indicates [sic] by repeat [sic] lying, was that a criteria exhibited by Sydow?

A Yes.

Q Did he also exhibit criteria number 10?

A Yes.

Q And that would be lacks remorse, feels justified in having hurt, mistreated or stolen from others?

A Yes.

¶7The trial court correctly concluded that the thrust of Dr. Ryans’ proffered answer was not limited to describing the characteristics of the personality disorder suffered by Sydow; rather, the inquiry sought to elicit an opinion that Sydow had no regard for the truth and that he repeatedly lied. As such, the evidence was properly excluded under Coppolaand its progeny.2

¶8*330Even assuming Dr. Ryans’ testimony should have been admitted, the trial court’s error was harmless in light of the abundant evidence relating to Sydow’s credibility. See Townes v. Commonwealth, 234 Va. 307, 325 n. 6, 362 S.E.2d 650, 660 n. 6 (1987), cert. denied, 485 U.S. 971, 108 S.Ct. 1249, 99 L.Ed.2d 447 (1988). Sydow admitted to thirty prior felony convictions, to using numerous aliases, and to having lied in the past in order “to get out of trouble.” Furthermore, as set forth below, the evidence of appellant’s guilt established by the testimony of witnesses other than Sydow, including the testimony of the criminal investigators and that of appellant himself, is more than sufficient to sustain his conviction beyond a reasonable doubt.

¶9Because I agree with the trial court’s ruling regarding Dr. Ryans’ testimony, I will address appellant’s remaining grounds for appeal. Appellant contends that he sought to impeach Sydow’s testimony that he was not a violent person by introducing Maines’ testimony of Sydow’s prior inconsistent conduct. As pointed out by the majority opinion, such testimony regarding Sydow’s prior inconsistent conduct was admissible as impeaching evidence and was improperly excluded. However, its exclusion was harmless error. Evidence of Sydow’s prior “violent” conduct was in fact admitted on cross-examination when appellant was permitted, without objection from the Commonwealth, to elicit the testimony that charges were pending against Sydow for “assault and bodily harm.” Appellant was precluded from eliciting from Maines, testimo*331ny that, in the case that resulted in the assault charge, Sydow threatened to kill the other litigant, used “obscene vulgar language,” gestured toward the judge, and got “in the judge’s face.” In light of the evidence that Sydow was charged with assault and bodily harm, the trial court’s exclusion of the details of Sydow’s conduct, if error, was harmless.3

¶10Finally, while I agree with the majority that the statements elicited from Pleasants and Waddy were hearsay and improperly admitted, their admission was harmless error. Schindel v. Commonwealth, 219 Va. 814, 817, 252 S.E.2d 302, 304 (1979) (“Even though testimony is objectionable as hearsay, its admission is harmless error when the content of the extrajudicial declaration is clearly established by other evidence”). The evidence established that Peyton was killed sometime between 8:30 a.m. and approximately noon. The evidence also established that the appellant and the decedent had argued four days before the murder over a drug debt Peyton owed the appellant. The cause of Peyton’s death was “acute head injuries.” According to the medical examiner, some of the head wounds were “patterned” or “repetitive” in their shape, indicating that the murder weapon had a “rounded” edge. The decedent’s cellular phone was missing from his house when his body was found.

¶11The decedent’s neighbor testified that on the day of the murder, he saw a small white pickup truck arrive at the decedent’s house between 11:30 a.m. and noon. He also stated that the decedent came out and greeted a man who exited from the truck and that both men then went inside Peyton’s house. The neighbor subsequently identified a photograph of *332appellant’s white pickup truck as similar to the truck he saw parked in front of decedent’s house on the day of the murder.

¶12When the decedent’s body was found on the floor of the utility room of his mother’s house, appellant’s wristwatch was found less than two feet from the body. Bloody tennis shoe prints were found on both the utility room floor and on the back steps immediately outside the utility room door. The tread patterns on the shoe prints were inconsistent with the victim’s shoes. When Richmond police officers first observed the appellant’s white pickup truck at an apartment complex where his mother lived, they saw a pair of high-top tennis shoes in the bed of the truck and folded jeans in the cab. Later, appellant admitted he was wearing jeans when he visited the decedent the morning of the murder.

¶13The overwhelming evidence of appellant’s guilt can be attributed in good part to the appellant himself. The testimony provided by the decedent’s neighbor was essentially admitted by appellant. While appellant did not admit he was at the decedent’s house after 9:30 a.m., he later expressed uncertainty about the time. The appellant also admitted to the police that he drove his white pickup truck to decedent’s house on the morning of the murder and that he and the decedent spent a few minutes talking at the track before both entered decedent’s house.

¶14Appellant also explained the presence of his watch at the scene of the murder by stating he had lost it there because the watch had a “bad band” on it. Furthermore, although the police did not tell appellant that Peyton’s cellular phone was missing from the house, appellant initiated an inquiry about whether the police had the property that was taken in the robbery of Peyton’s house.

¶15Finally, Sydow, appellant’s cellmate, testified that appellant admitted killing Peyton. In that admission, appellant gave Sydow the following detailed account of his involvement in the crime. Appellant told Sydow he went to the decedent’s house to collect money the decedent owed him for drugs, that the decedent refused to pay, that appellant returned to the house *333later that day, and that on the second visit he hit and killed the decedent with the cellular telephone.

¶16The improper hearsay admitted in this case tended to establish that the appellant was at the decedent’s house on the day of the murder not only around 9:30 a.m. as he testified, but later that morning and closer to the time when the murder apparently occurred. The erroneous admission of this hearsay evidence is of de minimis import in light of the overwhelming independent evidence of appellant’s guilt.

¶17For the foregoing reasons, I would affirm.