*1 Richmond Henry Compton Watson v. Virginia Commonwealth January 1979. Record No. 780485. All Present: the Justices. *2 Slayton appellant. M. for Franklin Coleman, Attorney D. Bagwell,
Thomas Assistant General (Marshall General, Attorney brief), appellee. for HARRISON, J., delivered Court. Henry Compton
Watson was convicted jury murder of degree second and was sentenced court to confinement period the penitentiary for a years. victim was Hattie Ratliff, has appealed, C. defendant’s Defendant alleged fiancee. numerous errors. assigning
At years the time the homicide was 45 old and was as the employed Compliance Fieldman for the Agricultural Stabili- Pittsylvania County. zation and Service in Conservation The defen- Ratliff, been recently dant had divorced from wife. Mrs. woman, small tall approxi- five-feet-three-inches and weighing *3 mately pounds, by two her 135 had children divorced husband. testified Compton that and the victim planned had to be Ratliff, married in 1977. February, Mrs. a frequent visitor who kept clothing home, and other at personal Compton’s items mobile 28, spent night January with defendant his trailer.1 29, 1977, Saturday, Compton On January and Ratliff spent Mrs. day most of the her together. They hospital visited father in a the afternoon and to p.m. returned the mobile home about After calls, parties returning, telephone made including numerous Clark, one from Mrs. Ratliff her also to son. She called Robert Danville, Mayor of and she and defendant with discussed Mayor effect shortage occupants. of the oil the trailer on court Compton called Mr. Weatherford the fuel regarding shortage and separate telephone also had three with conservations his former wife, Nancy Compton, the status of their regarding divorce. her, Compton during that said first conversation Mrs. off”; phone Compton Ratliff “cut the that Mrs. returned the call reason; were again and some disconnected for unknown Compton call prompted by that this a third his former wife. He calls, said that these with Mrs. mistaken together Ratliff’s belief that Compton, Weatherford conversation with Mrs. in point upset Mrs. Ratliff she so censed to the became 1, 1976, jointly August which the located on lot on trailer was was leased victim, signed Compton”. defendant who her name to the lease as “Hattie C. I’ll anymore, back you “if bitch calls that she said irrational I’ll go again that bitch talking “if are her”, you kill and later attributed her, The defendant kill her”. shoot there and down earlier drinking been fact that she had to the victim’s behavior valium drugs, taking prescription as well as evening, combination He said the darvocet, condition. her arthritic for her unsteady on upset and her to become liquor caused drugs and feet. Ratliff would afraid that Mrs. that he was Defendant testified carried for that she sometimes handgun with a leave the trailer in its usual gun was not and found that He checked protection. was and gun her where the in a closet. He asked on a nail position thought said that he did not know. Mrs. Ratliff said she he was and that pocket, in her may gun have had she occasion, when the victim had previous on a apprehensive because to, in former wife had to the home of his upset, gone she become words, left”.3 good you “see what a bitch her gun Ratliff about her again that he asked Mrs. Defendant said where it was. said having knowing still denied it or and that she in the closet and shotgun sitting he noticed his time in the put I and check it and it back get gun “decided had better a .22 rifle owned gun [referring with the other back closet sat down at the table gun, He said that he took the Compton]”. my pulled knee and gun Mrs. Ratliff and “set the across from away to the corner of the kitchen pointing the slide back on it over Then, I “a shell came and saw from her”. it I I the shell out of ejected said: “When first
loaded”. He further down at the guard. looking went the safe for — getting The table she started happened at one time. everything me, or the *4 The table came towards up time the shell came out. the scraping I heard that wall behind me there. chair hit the was, my eye and I at her out of the corner of glanced she chair and up over and getting leaning the of the table up edge she was on I she exploded that saw her until gun the last time before the that’s 2 Virginia, Oxley, Deputy testified Examiner for Western W. the Chief Medical Dr. David autopsy He that a was alcohol. stated of Mrs. Ratliff showed her blood content that the .25% quite person percentage would be intoxicated. with this Compton no Nancy Ratliff did occur but that she created testified that the visit Mrs. disturbance at that time. away
was from the coming refrigerator.” Additionally, Compton said: was a always “She little stumblingly — up or slow with . . getting pushed her arthritis. She knocked she the table as I was around she came and down when looking and the gun table hit off my leg.” it went beside Continuing, — defendant I gun slipped my just stated: “The off leg grabbed at it — I was at looking safety4 and when I looking was down to get I safety it went off. grabbed gun exploded up is it. The at whatever it angle was.”
The defendant that the “gun exploded” testified after he looked up the ceiling but “it wasn’t no hole there. Hattie coming in from the refrigerator. falling towards She was She forward. sideways turned to me I know if couldn’t she was shot or whether had got up. she her feet . . And I tangled jumped up to her grab her keep falling from over I my the table. And when did hand — — went was my it left hand her missed chest and caught her where face that’s she was shot at. . .1 to grab tried I grabbed her. her with she slipped away both hands and still from me and on went the floor”.
After the shooting telephoned operator defendant asked for help; went to the bathroom to wash blood from his hands; phoned Compton. Mrs. He happened told her what had and asked she Compton come the trailer or call someone. making wife, testified that after call to his former he “walked to the door and stood and looked minute I couldn’t stand off, I I looking what was cut light guess”. at so Defendant locked his Station, trailer and then went the Airport Sunoco arriving there about p.m. Street, station,
Eugene operator Compton testified that wife, tried to get touch with his former he and that asked Street floor, to call the sheriff’s paced office. said the defendant was nervous and made the “he statement had blowed his girlfriend’s head off a shotgun” with but that “he said it was a accident, he said didn’t know the or anything”. loaded Street said doing he asked what he was with gun but the Street, defendant made no comment. According to the defendant there, said that he setting and Mrs. Ratliff “were and he injury high fingers The defendant suffered an which school resulted in loss of two right prevented handling safety hand. He him testified this from on a in a consequently, safety normal manner and hunted off. *5 drink, on table gun laying he he had the a said having realize was there, up, and that he didn’t it picked and he he it said off; loaded, it was a accident”. just it went just and he said that sheriff, saw the defendant at Talley, deputy Alvin M. a p.m. said that defendant Station about 8:50 Airport Sunoco shooting. talk about the not want to crying at the time and did However, “God said point Compton say, did Talley that at one said back”, that the defendant giveth can’t [djon’t you taketh what God, said, why it” and “Oh did it have why did I have to do also “Oh “It was Additionally Compton repeatedly me”.5 said happen not mean to kill her”. an accident and did D. A. investigated by Deputy Sheriff Collins homicide was The Pittsylvania County Collins testified and other officers. 29, 1977, and January found p.m. trailer about 9:30 on
entered the dining body a in the area lying partly beneath table the victim’s shotgun with its 16-gauge Remington found a the mobile home. He shotgun were found magazine 16-gauge Two shells open. spent a hole, to be at a which he estimated the trailer. Collins observed ceiling Near hole was angle, trailer.6 45° observed object. a Collins indenture made round apparently refrigerator large spot on blood brains at bottom throughout dining refrigerator. He saw blood and brains the body and kitchen area. Collins noticed that a chair closest to away” directly was “slid from the table and that the chair across away”. Two other were from the table was also “slid chairs closer pellets Four were found in the to the table. to six from refrigerator. waddings spent area near the Two from cabinet shotgun shells were also found. Collins noted blood on the back spots Two were found large one chair but none on the seat. of blood near the head of the victim. Collins said that underneath table books, (2) telephone placed under her there “was two [Mrs. lying Her In he head. head was on them”. the bathroom Ratliff’s] on On found on a towel as well as bloodstains the sink. bloodstains loaded, day following 16-gauge the homicide Collins found a red (which before) he partly shell had not noticed underneath shotgun refrigerator. Talley, “why happen it didn’t me”. testified at trial that had told Mr. only although seeing he remembered one shot admitted The defendant night shooting. ceiling in the before he ieft the trailer hole Mauer, through Commonwealth established Cleon C. *6 Scientist, Forensic that the used the in good defendant was condition and its operating safety that was functioning properly. Mauer spent testified that shotgun the two had shells contained one pellets number buck metal and that both were fired by shotgun. defendant’s powder observed that the burns around fired, the hole in the ceiling indicated that the gun, was approximately three to four feet the ceiling. distant from Mauer the angle estimated of the hole in the ceiling to have been approximately 25° and said that the hole with was consistent one made a shotgun blast. He that the in said other indentation was, in ceiling opinion, his aby shotgun made shell component. Harville, Linda in night question, living was in trailer located 10 occupied feet from the trailer by the defendant. She testified that when p.m. she arrived home about 7 on that evening she heard loud noises arguing trailer. She said this continued for around an hour until about 8 o’clock when Mrs. Ratliff’s voice agot little louder. Mrs. Harville said she then heard once”; “a noise bang that her child asked about the noise and she responded was; that she did not it up know what got she louder, “turned TV up a little I bit going my was bathroom, and I then heard another bang noise”. Mrs. Harville estimated that or elapsed about two three seconds between the first “bang”. and second She said that after two noises from the Compton trailer, quiet, say maybe (10) “it I’d got ten minutes. And Watson’s, then heard car crank up, Compton’s Mr. Mr. car. window, And I got and looked out the and I looked over towards trailer, off, lights and the was and that’s all”. Dr. Oxley David W. body testified the victim’s revealed “a head, shotgun massive wound of the of left side the frontal portion of forehead was missing down to the level of the ridge nose; eye missing. left The brain . had been . . was missing cavity. from the cranial The area of entrance was near midline, the root just eye. above of the nose between the . There . present no powder residue on the skin around the area of entry, any pellet nor were there individual shot skin wounds around entry”. shotgun the area of He said that blast “from front very to back” and its direction “horizontal slightly upward”. He that the powder absence of burns and individual pellet my place holes “would estimation the distance of the shot (3) (10) feet”, than feet less greater three but than ten measuring from the barrel of the to the victim. He said that brain was would have and that this cavity from the cranial blown completely . . [p]ro- . and tissue splattering blood “extensive resulted upward and backward”. bably Smith, the Danville Police A. called T. Commonwealth 1977, Smith, February On expert witness.
Department, as Pittsylvania of the representatives and other along Collins shooting, taking of the investigated the scene Department, Sheriff’s were able Smith said photographs and measurements. were there table in the trailer because the chairs and reposition table chairs legs on the floor where circles bloodless occurred. subsequent spatter blood shooting when the rested perfectly fit into the and table legs Smith said that chair chair, in front repositioned that a located He testified little circles. its small amount of blood on very showed refrigerator, *7 a He said that there was back and no blood on the seat. inside five-feet bloodspots refrigerator; number of on the tall tremendous bloodspots were at a down- going at the three-foot level the that were straight at the level angle; ward that four-foot-three-inch five- and at the away angle; no the four-foot-ten-inch levels, up drops the of blood were instead down. angling foot following question: the testimony After this Smith was asked giving here, experience plus the your your findings on “[B]ased in testimony earlier the trial to the effect the deceased was three; here, gunshot five feet wound occurred about rear; an shotgun, you opinion exited in the do have gauge sixteen as to where she was at time she was struck?” Over defendant, give Smith was to permitted of counsel for the objection of the blood on the findings answer: “Based on the following chair, the around the chair and refrigerator, relocating the blood seat, on the amount of blood on the back the lack blood the small had to of it victim at the time that she was shot would have and the in setting have been that chair.” pattern
While Smith testified that from the of blood on sitting”, victim “had to have been he admitted that refrigerator possible process it victim was when in was shot forward, or, stumbling or if she down getting sitting either was chair, in a bit “leaning leaning a forward a little bit or back little However, . .”. that “She couldn’t have definitely . Smith insisted if up” up, been because she had been the center standing standing at or pattern refrigerator of blood on would have been top. over its Ratliff, theory
The is who the defense that Mrs. was seated table from when he handling across the was gun, against getting up stumbled the table as she was from her and, chair in doing, against so she knocked the table the gun, causing it to discharge. defendant contends that at Consequently, shot, nearly the instant Mrs. in a standing she Ratliff erect position, and he objected strongly testimony Smith’s which placed the sitting position decedent a or at the crouching time. Compton assigns permit as error the court’s decision to this argues expert Officer Smith. that this witness was permitted only state conclusional which was not based upon a shooting reconstructed scene but which touched on the ulimate We disagree. fact issue. fact in ultimate issue for determination jury shooting
whether of Hattie C. Ratliff was unlawful or an killing. accidental eyewitnesses. There were no The Common- sought wealth through Oxley establish Dr. and Officer Smith the approximate positions of the victim defendant and the at the time fired, the fatal shot was pellets and the direction of the after the gun discharged. These evidentiary were jury facts useful to the - deciding the ultimate fact issue whether the shooting was Oxley’s accidental. testimony revealed that the gun was dis- feet, charged within range of three to ten enough close so that the pellets group. entered victim’s head in a Oxley said that the same wound could have victim been inflicted whether she was standing, half-standing provided or sitting, muzzle of the weapon and the head kept victim’s were at the angle. same *8 Specifically, he said “if keep you relationship the the [between angle of the weapon constant, muzzle of the the target] you and can degree rotate a 360 change circle and not degree wound itself”.
Officer agreed Smith with Dr. Oxley that the was gun discharged within a range three to ten feet from the victim because otherwise, “Had shot we spreaded pattern out wouldn’t had the we had.” It clearly was established that although spots there were trailer, and blood brains kitchen throughout area of the pattern center of the of blood and brains was about of the midway refrigerator. testimony substance of Smith’s simply was victim five-foot-three-inch tall could not been standing have (which erect or nearly erect at the time of the fatal shot entered “That would have for upward angle) in a horizontal and her head top at the Almost up high. too pattern center of the moved the top.” or over the refrigerator, the [five-foot] February the scene on was made on investigation Smith’s investigation and the shooting of the Between the time 1977. under the control and Smith, had been mobile home Compton’s persons Those who County police. Pittsylvania surveillance defendant, trailer, did investigator for including entered the It was of officers. presence capacities in their official so the photographs that at the time Sheriff Collins by Deputy testified Smith, were premises were made measurements shooting of the night as on the condition substantially the same were introduced which photographs took numerous when Collins circles on the and clear Because of indentations into evidence. floor, reposition able to and Collins were Smith spattered blood when the officers places they were located and chairs at the table shooting. arrived after was standing that the victim was or argues
While the defendant erect, testimony is consistent with the nearly testimony gave crouching or expert sitting, that the victim must have been of the testimony in his did claim forward. Nowhere leaning Ratliff were wrestling was fired he and Mrs. gun at the time the him, away take it from that she trying that she was gun, over the him in a manner or that she was approaching threatening says that at that time were walking around the trailer. Ratliff was says table. He that he realized Mrs. sitting down at the table, there- explains happened what from the and he getting up repeatedly as follows: ways, consistently in various but after there”; time the getting up started shell sitting “She was over “She over”; “I her out”; up leaning could see getting “She was . . . came the table”. leaning over Ratliff, her because of is that Mrs. whole case
The defendant’s condition, the table against or fell stumbled or arthritic drunken chair, table knocking the thereby up from a trying get While it was Smith’s go it to off. causing against in a sitting Mrs. Ratliff discharged, that when the refrigerator, the defendant located between chair in the act shot while possible the decedent that it was testified event, it is clear In either forward. stumbling or getting of either shooting that the victim and the exhibits from *9 726 refrigerator and the positioned between the defendant irrespective sitting, of whether she was discharged,
leaning, crouching, half-standing standing. or hitting the table happening
For the defendant the crucial pushed or position of Mrs. Ratliff when she gun, not accepted Compton’s propelled gun. jury the table into the Had him explanation discharged, it could not have found why malice, express implied. or guilty killing of an unlawful Stockner, 900, 904-05, 380, Venable In v. 200 Va. 108 S.E.2d 383 (1959), Mr. Chief Justice said: Eggleston expert
“It is well settled that evidence con knowledge matters of common or cerning competent jury those as to which the is as opinion form an accurate as the witness is Or, principle state the another inadmissible. way, where the facts and circumstances shown ordinary in evidence are such that men of capable are intelligence comprehending them, opinion about forming intelligent them, own conclusions there drawing their from, upon expert of an founded such facts is inadmissible. Atlantic Coast Line Admx., 514, 519, R. Caple’s Co. v. 110 Va. 66 Lovvorn, 855; 688, Richardson v. S. E. 199 Va. 693, 511, 514; Ramsey Common 101 v. S.E.2d wealth, 245, 249, 250, 155, 200 Va. 105 S.E.2d Commonwealth, 158; Strawderman v. Va. 200 376, session; 108 S.E.2d decided at this Jur., Evidence, 781, pp. Am. 651-2.” § However, expert opinion it is as well settled that equally jury, trying are admissible where “the or court require jury, case without a is confronted with issues which specialized experience or order to be knowledge scientific or understood, properly and which cannot be determined intelli- from the deductions made and inferences drawn gently merely sense, practical the basis of common ordinary knowledge, experience ordinary affairs of life”. gained [Footnote 16, p. Evidence 31 Am. Jur.2d Expert Opinion omitted.] § Commonwealth, 245,105 (1967). Ramsey See also v. 200 Va. S.E.2d (1958). *10 important In for the Commonwealth to the instant case it was wound, the explain powder the absence of burns around victim, any pellets body of of the the face or of the absence ceiling, the hole presence powder of burns around spatter pattern, refrigerator the volume of blood on the front of the top or above the and the lesser amount of blood near beyond scope were all matters or know- refrigerator. These peculiar and were matters within the ledge average juror Dr. Officer knowledge, Oxley science and skill of Smith. Hence, case, particular under circumstances of this their A expert testimony proper was admissible.7 foundation was laid for testimony, physical the admission of Smith’s which concerned alleged conditions where the homicide occurred. The weight to be testimony accorded his by jury. was a matter for determination unnecessary We find it what Attorney address General i.e., view, argues contemporary is the favoring admission of expert testimony even though it relates to an involving fact, ultimate because we hold that neither Oxley Smith nor Dr. testified to the ultimate fact in issue. says
Defendant erred in permitting court Commonwealth alleged prior to introduce evidence of threats and Wilson, by Compton upon assaults Mrs. Ella Lucille a Ratliff. Mrs. November, trailer neighbor Compton’s, court testified that her, called, when visiting Compton Mrs. Ratliff was with Wilson, “Well, asked for Mrs. Ratliff and told Mrs. tell her [Mrs. home, get she’d better come on don’t I’m to come her going Ratliff] with a knife.” She said that Mrs. Ratliff did not home and soon go the defendant over her if she ready go. came and asked no, When Mrs. Ratliff told him Mrs. Wilson said the defendant up stood and reached pocket. point into his At this Mrs. Wilson’s husband he also stood and told the defendant didn’t want any trouble. Compton something Mrs. Wilson said then said about Ratliff’s her keys Mrs. car and “throwed car across the room setting where she was . . . and then he left”.
Compton’s episode version of this was that Mrs. Ratliff had been He drinking, thought it best that she not drive her car. said objection Oxley. No was voiced counsel the defendant to the of Dr. R. G. for Holbrook, defense, private physical investigator a also testified as to the called Compton shooting, including conditions in the after that he did not find trailer the fact refrigerator”. “an excessive amount” of blood “above the went that Mrs. Ratliff left his trailer and toward the Wilson’s later he find out if He phoned trailer. said that she was there. any that he any denied made threat or that mention was made of a Compton knife. testified that Mrs. returned trailer Ratliff to his and, beer, after can slashed opening another her left wrist her, pen Compton knife. said that he pulled away knife from Mrs. He said grabbed but Ratliff blade end. he could not break grip her so hit her to make her release the blade and avoid this, cutting palm. her He further said that he did Mrs. rack, big Ratliff’s head hit a side causing towel bruise on the her face as well a little appear as blood to the corner of her mirror, mouth. When Mrs. Ratliff saw her face in the sister, hysterical telephoned became her Virginia she Carter. *11 Ratliff, He said Carter shortly that Mrs. arrived thereafter. Mrs. to car him keys, unable locate her told that if did not allegedly she get keys, her sister would shoot him. He said at that time Mrs. pocket Carter “went in her and partially started out with gun she had” and then “dropped her hand back in her and pocket walked back towards bathroom”. Defendant said that because picked Mrs. Carter had he in gun, up gun, a his which empty”. closet. He said he checked it “and it was He said that he gun held the in hands his and told Mrs. Ratliff her to check keys. he pocketbook point for the'car At that took Mrs. Carter his and in corner. keys set it Mrs. Ratliff then found the to car, leave, her which time testified he told them to for he know was gonna happen”. “didn’t what Mrs. Carter that she denied had a Her version was that gun. trailer, when she the Compton arrived at her and sister’s nose mouth were bloody and the left side her face was swollen complained Mrs. Carter said her bruised. sister had Watson fists, down, beaten her with had his knocked her had her stomped legs, had hit her in the back of the with a pick” head “water defendant, give would not her car keys. She also said that after said, “Yes, listening to Mrs. complaint, Ratliff’s am a son-of- sorry keys a-bitch.” Mrs. Carter testified that she asked for the car closet, put went to a out again, gun, defendant took “and he it my eyes, between said he would us a few to give get minutes there, me he my out and he told would blow head off She too”. said she was that the loaded when the certain because back, pulled in defendant the lever she could see the bullets it. table, Mrs. keys Carter said the defendant then threw some on the point at which the two women left. prior admissibility rule as to general to the
Exceptions
number of cases
recognized
large
have been
offenses
v.
Common-
Kirkpatrick
this Court
Virginia and summarized
(1970),
269, 272,
follows:
wealth,
as
S.E.2d
Va.
“However,
rule
general
to the
exceptions
Evidence of
well established.
equally
are
as
if it
is
shows
other offenses
admitted
toward his
feelings
accused
conduct
relations,
victim,
prior
or
if it establishes their
element of the
any
if it
relevant
prove
tends
permissible
is
Such evidence
charged.
offense
motive,
or knowledge
where the
intent
cases
involved,
evi-
or where the
of the accused is
leads
to the
is
with or
dence
connected
for
is on trial.”
offense
which the accused
referred to the
which he
During the trial
defendant
affection
other,
and the deceased had for each
their harmonious relation-
a home when
ship,
plans
marry
and their
to build
greeting
a sentimental
card
divorce became final. Love notes and
victim the
were introduced
him to show
from the
defendant
relationship
negate any
and to
reason or motive that the
prior
their
evidence was
had to kill the deceased. This
defendant would have
*12
upon the motive and intent of the
properly
bearing
admitted as
defendant,
theory
killing
in
his
was
support
for the
equally permissible
the same reason it was
accidental. For
parties
relationship
between the
Commonwealth to show
one,
aways
and calm
but that there were
was not
an affectionate
in
of the defendant
toward
episodes
which the conduct
turbulent
was
aggressive
threatening.
the deceased
a
of the ceiling
error that
section
assignment
Defendant’s
was
introduced into evidence
improperly
from defendant’s trailer
piece
ceiling
in
merit.
It was shown that the
was
is without
in immediately
was
substantially
same condition at trial that it
necessary.
See Smith
That was all that
following
shooting.
Commonwealth,
455,
(1978).
Va.
730
A section of ceiling type is not the of evidence that itself lends readily to alteration.8 This was relevant evidence to show that defendant fired two in shotgun night question blasts from on the that the pellets penetrated from one blast at an ceiling angle estimated to been 25° to 45°. have between Neither fact was controversy. serious
An
by
instruction
trial
granted
court
that malice is
presumed from the use of
deadly weapon,
a
and which the
erroneously
defendant claims was
given,
approved
has been
Commonwealth,
cases. See Sanderson v.
Virginia
numerous
200
51, 103
(1958);
Lloyd Commonwealth,
674,
Va.
S.E.2d 800
v.
185 Va.
Commonwealth,
(1946);
1053,
Adams v.
The parties although engaged to be at times had a tempestuous The relationship. shooting by preceded episodes least two in which the anger defendant had displayed ill will toward killing the decedent. The argu- followed a heated ment between the victim and defendant that reached such pitch a it neighbor. was heard a Two shots were fired with no satisfactory explanation as to the interval of time in between. The actions and statements of the defendant immediately following the homicide were such that the jury could have found them inconsis- shooting. tent with accidental
Furthermore, defendant’s claim that the gun accidentally dis charged was inconsistent with that the gun was tested and found mechanical order good safety with its in proper Also, condition. defendant’s recourse to a firearm display to previous resolve a with Mrs. controversy Carter and the victim is which, because it was action to a significant degree, paralleled his only ceiling appears its alteration of before removal to have been done witness, Holbrook, pen dug cap G. said that he defendant’s R. who took knife out the shotgun impression from the smaller near shell the hole. Holbrook did not “have *13 by, any big trying what this hole caused but I doubts was was to determine what caused this impression”. smaller g.9 night action on the shootin of the and the necessity possession for the Finally, satisfactorily explained. were never Defendant manner of its use with a possess he was to himself loaded prompted claims that victim, suspected scene where the whom was shotgun armed, by prior drinking, had been had become incensed tele- former phone between the defendant and his wife conversations trial he “I threatening had kill his former wife. At and been to I if he that couldn’t control Hattie”. When asked would afraid night gun, Ratliff leave trailer that with a have let Mrs. “Well, stopped if I her I would have. If I responded, could have I stopped her I know would couldn’t have don’t what choice have had.” defendant, under Mrs. Ratliff shooting
Whether related, unlawful or killing circumstances was an an accidental province to peculiarly jury was a matter within the of a determine. had It heard jury. The trial of the defendant was before a it, witnesses as well as the trial judge, had observe the manner and demeanor of the opportunity to witnesses credibility the weight determine to be accorded their fairly fully The instructed. Its verdict has testimony. jury approval the trial We from the say court. cannot record evidence, contrary to before us that the verdict is the law and is it, wrong. or is It is support plainly without evidence therefore
Affirmed. J., part. COMPTON, dissenting during with defendant also admitted another confrontation Mrs. Ratliff which both occasion, display guns. parties resorted to a With reference testified: gone something night, “Hattie had to see her children or been down Riverside. It early get to see for some reason or in the afternoon she couldn’t the kids other standing in rifle and she in the trailer. She was the door with the other I had. was back my head as came the door. And backed back into the And I She fired it over into trailer. said, wrong you gone ‘well when I’m not asked what was her. She can’t be here’. her said, ‘well, drinking out and I
She some. And I took of the closet had been gun. gun away’. anybody still had in her hand still fire a Put She the rifle inside can gun up I walked out the door and shot in the air.” trailer and *14 question concerning position factual the victim’s exact at is, the shooting, time the that her location in the room and sitting, whether she was or crouching standing, aptly des- prosecutor “key the as heart of the by very cribed “the case” and a Smith, supervisor in the of the factor” case. The witness Danville Department’s Lab”,, permitted Police “Mobile Crime to give particular in a sitting his that when the shot deceased specific in theory chair at a location the room. This was based on days Smith’s examination of the crime scene after eight the In my opinion, the committed shooting. prejudicial trial court error in admitting objection. this over defendant’s
In place, the first the scene conditions at the as reconstructed by Smith were not to substantially similar the conditions existing at Commonwealth, time of See v. shooting. Richards 107 Va. 881, 893, (1908). S.E. In second under place, case, facts the jury competent and circumstances this was as to Hence, form opinion subject on that as witness. believe the permitted trial judge province this witness to invade the of the jury.
In
attempt
to
testimony,
its
discredit
defendant’s
the Com-
sought
patterns
monwealth
to relate certain
at
blood
found
various
refrigerator
position
levels on the
with the victim’s
and the angle
Thus,
of the
shooting.
moment of the
it became
in
important
dealing
prosecutor
these variables for the
by
show
evidence
position
the exact
of the
and a
in
table
chair
which
claimed the
sitting
he
deceased was
at the
Smith
time.
he
went
to the scene more than a week after the
repositioned
he
shooting
chair
the table
to locations where
he
on the
thought
day
question.
were
This was accom-
plished by placing
spots
in clear
furniture
the floor
in the
blood
appearing
midst of
stains. But an examination of one
close-up
floor,
set of
photographs showing
taken
a deputy
event,
sheriff within two
and of
hours
another set taken by
repositioned
Smith
after
chair fails to reveal an amount of
blood on the floor
the immediate area of the chair sufficient
make
definitive
says
marks that Smith
used
reset the
Moreover,
scene.
the photographs
immediately
taken
after the
removed,
body
shooting before the
had been
which apparently
reconstruction,
were
not used
Smith
show
chair
Furthermore,
different
from where
position
placed
Smith later
it.
failed to
Smith’s reconstruction
take into account
that the chair
been
may
during
period
have
moved
after the gun discharged
photographs
the scene. The
police first arrived at
and before the
the table with the
directly under
body
lying
of the victim
show
to one of the several chairs
corpse adjacent
portion
lower
therefore,
that the victim moved
entirely likely,
near the table. It is
the shot and before blood
falling
she was
after
the chair as
as
defendant moved
chair
on the floor or that the
accumulated
shotgun
victim after the
to administer
to the
attempting
he was
case,
immediately
taken
photographs
In either
even the
blast.
of all the
not disclose the exact
location
after the event would
which killed the victim.
furniture at the time of the shot
if
reconstruction of the scene
But even
it is assumed
Smith’s
*15
accurate,
relating
the inference to be drawn from all
facts
she was killed was
position
to the
of the victim at
moment
province
of the
One of the cases cited
solely
jury.
within
I
authority
position
question.
is direct
for the
take on this
majority
Stockner,
900,
(1959),
In Venable v.
Va.
Likewise this believe that foundation is expert properly testify witness could as to location scene, pattern furniture at the the usual formed when blood is blast, impelled by shotgun spattered the force of a the flow of refrigerator, blood or down the side of a and the time it takes coagulate. blood to But do not believe that these facts it is given proper expert give position allow on the of the victim when shot. The an inference not so subject of such is science, distinctly profession, occupa- related to some business or beyond perception average layman. tion as to be C. McCormick, 1972); see (2d Evidence Cleary Law E. ed. § Tanner, 723, 725-27,146 (1966). Grasty v. Va. S.E.2d 253-55 reasons, I
For these would reverse this and remand conviction the case for a new trial.
CANSON, J., joins C. in this dissent.